Child Support Agency guide

From Advocatespedia, ASSN: 27076
Jump to navigation Jump to search

ley Mr Michael Grove Ms Melanie Little Ms Sue Oliver Mr Markus Spazzapan NOTEWORTHY Conferences...................................................................................................................19 Noticeboard.................................................................................................................. 20 Court Library Notes.....................................................................................................26 NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine Collier SECRETARIAT Executive Officer Ms Maria Ceresa Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Lorelei Fong Lim • Complaints Investigation Officer (part time) Ms Josephine Stone Administrative Assistant TBA REGULARS The Muster Room........................................................................................................15 Readers Forum.............................................................................................................17 FEATURES Law Handbook launched........................................................................................... 4 FirstNT Information Commissioner.........................................................................13 Reconciling Victim Impact Statements with jury acquittals....................................15 COVER STORY Is Professional Indemnity Insurance a threat to the local legal profession?...........8 Balance is published 11 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should be forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. ]|L Page 2 — January 2003 president's column Absurdity of urgency I’m not sure that the most appropriate way to celebrate the New Year and return to work after almost a month of holidays is to sit down and write my first article for Balance for this calendar year. I would rather to write about the several golf courses that I was able to visit whilst I was on leave. One of them was Pelican Waters, which I played with the recent emigre to the Sunshine Coast, Jim Moore (otherwise known in my firm as the ‘Wookie’ because of his growling ability!) and discuss the virtues of my new (second-hand) set of Callaway X12 Big Bertha steelhead irons, or maybe the new set of titanium ‘earrings’ my wife got for Christmas (a 1 earring, a 3 earring and a 5 earring) and how well she can hit the ball now, however I suppose there are more important things to discuss. As predicted in my last article last year, the final two months of 2002 spiraled into an absurdity of urgency. I guess there were three primary causes for these unwanted developments. The first of those was that Maria’s replacement has to be found. Advertisements have now been placed in various national papers and I am pleased you tell you that there have been a number of responses to the advertisements so that I hope that the Council may be able to recommend a replacement to the profession within the next few weeks. The second was the pressing urgency to complete the Law Society’s submissions in relation to the proposed public liability legislation both in respect of the limitations of caps and thresholds on claims and the implementation of procedure restrictions. As to the latter I was more than ably assisted (or maybe led) by Michael Grant and Michael Grove to work there for me to handball overseeing the finalisation of the Public Liability Committee report to the government. The committee has adopted many of the suggestions made by the Law Society and I’m hopeful that the government will follow the direction set by the committee. As to the former, there are still discussions in relation to the manner in which any threshold might be set by the government and I understand that there will be further discussions between the Law Society and the government as January progresses. The third pressing matter was the placement of professional indemnity insurance in accordance with the compulsory scheme set by the Legal Practitioners Act. As most of you are aware, we arranged for an extension of insurance with Gerling and had extracted from them an indication that they would continue to insure the profession for the next calendar year. Unfortunately Gerling had a change of heart and chose to remove itself from selling insurance in Australia (they were taken over by QBE), and that meant that our brokers, Marsh, were forced to renegotiate insurance for this calendar year. Merran Short, Eilleen Terrill and Duncan McLean oversaw the placement ofthe insurance as the year expired in what could only be described as desperate circumstances for the profession. A full report of what transpired is enclosed later in this edition of Balance. On a brighter note there is an excellent opportunity for the profession to expand their knowledge and mix with others within the profession throughout the world during April this year. This year sees the holding of the biennial Commonwealth Law Conference in Melbourne in April. There is a fantastic program with speakers of the highest quality including Cherie Blair QC and Lord Woolfe. Although the expensive air travel tends to dampen our enthusiasm to attend events such as these, I’m tryingto organise a package including both airfare and Ian Morris, president accommodation and admission to the conference that we can present to NT lawyers to make it a little easier and a lot cheaper for members to travel from Darwin and Alice Springs. The Opening ofthe Legal Year this year will be on Monday 3 February in Darwin and will take place in the Supreme Court as it did on the last occasion. In Alice Springs, the service will take place at the Law Courts on Wednesday 5 February. Our guest speaker this year will be the Chief Justice of the Supreme Court of Queensland, His Honour Paul de Jersey AC. I invite you to read more about His Honour later in this edition. There will be a couple of new (or renewed) events during the year. We are reviving the previously traditional Law Society XI versus the Chief Justice’s XI. I expect that will occur in Law Week, and I expect it will reach the same heights of enjoyment as it did in the past. I particularly remember throwing down Michael Grant’s stumps on the last occasion, something I remember with more fondness than he does, I suspect. Having recently converted to golf, I am keen to have a Law Society Golf Challenge in the Dry, and I will cast around to see how much support I can get for the Catfish Trophy! ® Page 3 — January 2003 l Nominations for the 2003 Biennial Equal Opportunities Award LawG uindl The Equalising Opportunities in the Law Committee ofthe Law Council of Australia is seeking nominations for the 2003 Biennial Equal Opportunities Award. The Award recognises and promotes initiatives within the legal profession that advance the rights of legal practitioners to receive equal opportunities. Judging will be based on the promotion ofinitiatives that: ■ enhance employment or career development opportunities for legal practitioners from diverse backgrounds or with a disability; or ■ promote flexible work practices or other work/family initiatives that assist legal practitioners balance work and family/life responsibilities; or ■ promote greater harmony between individuals or groups of different race, gender sexuality, age or ethnic origin within Australia; or ■ raise and highlight issues of injustice, breaches of human rights and inequality in Australia to assist informed public debate and encourage resolution of those issues; or ■ advance the rights ofindigenous Australians. Any legal practice, community legal centre, professional association, court, tirubnal or individual is eligible for consideration for the Award. Nominations close at 5pm EST on Friday 28 February 2003. Applicaiton forms and rules governing the award are available at http://www.lawcouncil.asn.au, or by contacting: Gwen Fryer Administrator Law Council ofAustralia Tel: (02) 6246 3721 gwen.fryer@Iawcouncil.asn.au l Page 4 — January 2003 Know everything? After many months and considerable effort on the part of more than 100 Territory lawyers and other writers, the third edition of the NT Law Handbook went on sale in December 2002. Community agencies and government departments are responsible for the bulk of the increasing number of sales to date - not so the local legal profession. At last count only a handful of lawyers had bought a copy for their bookshelves. Here are some of the reasons why lawyers should rush out and buy an NT Law Handbook immediately: 1 the last edition is now more than five years old - our laws have changed dramatically, in some cases, since then. 2 the latest edition is more than 1000 pages long and includes entirely new material - on topics including copyright on the internet and superannuation 3 the handbook now has a comprehensive index to make finding the subject you’re after quicker and easier 4 a new feature included in the third edition is a specially compiled list of limitation periods within which legal action must be taken 5 there are sixteen pages of contact points as an easy reference guide to the government and community agencies that can help 6 the handbook is chokkersfull of information - legal citations, case references, illustrative examples and more. The handbook was produced by the NT Legal Aid Commission and Darwin Community Legal Service (DCLS) and partially funded by the Public Purposes Trust. Copies are available for $60 (plus postage). To order your copy telephone DCLS on 8982 1111.®


\

Common Law, Common Good, Common Wealth 13th Commonwealth Law Conference Melbourne, Sunday 13 - Thursday 17 April 2003 TOPICS INCLUDE: > Human rights and the rule of the law > International commerce > The legal profession and it’s future > Family law and child protection > Litigation in the new millennium > Criminal law and practice > Technology and the Law For more information: Email: comlawixpmcigroup. com or Website: www.mcigroup. com/commonwealthlaw2003. htm bal01£>202 J Above: Magistrate Jenny Blokiand and NTLAC’s Sam Willcox at the "soft” launch of the handbook.. ferae naturae NT farewell By now all of you will know that I have chosen not to renew my contract as Executive Officer of the Law Society and will finishing up after the Opening of the Legal Year. I will be leaving the Top End and moving with my family to Brisbane. When I firstjoined the Society in 1999 I was welcomed by my national counterparts as a “reptile" -1 hope in reference to my former profession as a journalist. It was therefore with a measure of pride that I extracted a bottle of French champagne from them as a farewell present when I attended my last Canberra meeting on behalf of the Society. The Council has been quick to act and the Chief Executive Officer position was advertised in the national and local press in December last year. A large number of inquiries ensued, followed by a number of applications. A four-member council team will be carrying out the interview process this month with a view to finding a replacement to head up the Secretariat and continue the valuable work of the Society. To say the position over the past four years has been challenging would be an understatement. The Society has undergone a major change since its first strategic planning meeting in 1999. It is now a cohesive, active organisation not only fulfilling its statutory obligations but also proactively pursuing policies to benefit legal practice in the NT community. But not only that, as the environment in which the Society used to exist has irrevocably altered. It is an old curse to live in “interesting times", but the times, as Morrie would quote “have been ‘a changing". My period of stewardship has seen challenges to the (then) Government’s interference in the sentencing process, confrontations between the Executive and the judiciary, challenges to the judiciary itself, the onset of the modernisation of the legal profession and then the beginnings of the end of a previously parochial legal system, the insurance crisis, the alteration of the rights of injured people and the assumption by the Society of more and more duties and obligations under the Legal Practitioners Act. Internally I have seen Balance grow and prosper and the Society gain its first complaints officer. The first external review of the Society has pointed the way to the future. The challenges continue to surface. Negotiating affordable Pll premiums for the profession, establishing a legal education program to meet the national competency standards for admission and assessing the impact on the Territory of any model laws for legal practice, are just a few that spring to mind. At the same time the environment for legal practice is becoming increasingly difficult and expensive. One of my last tasks will be to seek a full review ofthe Supreme Court Scale to more accurately reflect those rises. Maria Ceresa, Executive Officer LSNT The last assessment of the real costs of legal practice was completed in 1988. The Society is lucky to have many hardworking members. This alone ensures that it will always be well placed to face and overcome the challenges before it. I have been grateful forthe opportunity to work with some outstanding people within the Northern Territory legal profession. These individuals changed my view of the much touted poor reputation of lawyers. So much in fact I will be joining the Queensland Law Society as its General Manager Corporate Services. I will watch the progress of the NT Society with great interest and remember with fondness my time with this organisation.® Ciao Barry and thanks The South Australian Law Society lost a great worker and we lost a staunch ally when Barry Fitzgerald decided to retire as LSSA Executive Director. Barry has always looked out for the Territory and been a great help to us in areas such as CLE development and organisational change. Fie and wife Gayle now plan to convert a property they’ve bought in Bendigo, Victoria into a Bed and Breakfast. The Law Society Northern Territory wishes them both the very best in the future. We now look forward very much to working with the South Australian Law Society’s new Chief Executive Officer, Jan Martin. Above: SA CEO Barry Fitzgerald...to “retire” in Bendigo. Photo courtesy of the Law Society of South Australia. Page 5 — January 2003 nt women lawyers association Happy New Year for 2003! Hope you all had a Merry Christmas and a Happy New Year. I was fortunate enough to spend the New Year on a friend’s yacht in the harbor which was a wonderful, very calming start to the New Year, which gave me time to think about New Year’s resolutions. Normally I don’t make them, as I always have difficulty keeping them. The usual ones - get fitter, lose weight, work less, play more, spend more time with family - all seem to fly out the window when the working year starts. This year I did make a resolution to try and get a better balance between work and life. I am sure I will have a few hiccups along the way, but I am going to give this resolution my best shot. I’ll keep you informed as to my progress during the year. MEMBERSHIPS Memberships are due now, and we would appreciate your support. Cost is $35 and membership forms can be obtained from me, so give me a call on 8981 3133. We will be mailing out to our past members to remind them to renew their membership. DATES FOR YOUR DIARY Wine Tasting, presented by Vintage Cellars on Friday 21 February 2003. This is to be held at the offices of Hunt & Hunt, Cavenagh Street, Darwin. Members are free; cost to non members is $10. Vintage Cellars provide a range of wines for us to taste and they will also tell us a little bit about the wines we are drinking. It should be fun and interesting. RSVP Danielle Howard, 8981 3133 by Wednesday 19 February 2003. On Sunday 13 April 2003 a quiz afternoon will be held at Shenanigans, Mitchell Street, Darwin, 2pm. L Page 6 — January 2003 The cost is $10 per person. Get your tables together, as it promises to be a great afternoon, at a great venue. AUSTRALIAN WOMEN LAWYERS You will no doubt be aware that Justice Gaudron is to retire from the High Court, and that the Federal Government selected a male replacement. This has caused some friction amongst many ranks ofthe legal profession and several State Attorneys General who were of the opinion that a female should have been selected. The national body has been very vocal in their disappointment and they have written editorials and letters to Attorneys General and relevant ministers. It was resolved at our last meeting to start lobbying government now, to adopt a selection criterion that has been prepared by the Law Council of Australia, when they are assessing suitability for appointment ofjudges to the High Court. Australian Women Lawyers are also hosting a summer twilight reception at the Centennial Parklands Restaurant on Saturday 25 January 2003 from 6- 10pm. Tickets are $125 for members and $150 for non members. If anyone is in Sydney on that weekend, it would be a great opportunity. I have tickets available. Sam Miles is back in Darwin and is recovering. This is great news and we send Sam and her family our best wishes for 2003. FINALLY... NT Women Lawyers denies all knowledge of the theft of “information and pictures from the office of a well known twitcher in legal circles" concerning one article on the Argentinian Lake Duck. ______ _ - ____ ...Jk.... '&>..-*■ Sandra Robinson, president, NTWL Inquiries concerningthe importation of this duck for scientific purposes have met with refusal by the relevant authorities; they obviously want to keep the duck for themselves! Unfortunately the photograph in Balance did not do the duck justice. Anyone interested should contact “the twitcher’’.© De Silva Hebron The Partners of De Silva Hebron are pleased to announce that Michael Davis was appointed an Associate of De Silva Hebron on 1 January 2003 baloioios criminal lawyers association The trials of Bali Happy New Year to all. As a consequence of the 12 October 2002 bombings in Kuta, our Association had to cancel its 9th Biannual Criminal Law Conference in Bali this year. Following the bombing and after much agonising and heated debate, our Conference Organising Committee decided that the conference would now be held in Port Douglas, north Queensland. Although this decision was made with sadness and regret, we are nevertheless resolute that the conference will be a successful one. The specific details as regards this conference are that it will be held this year at the Portsea Hotel from Monday 30June to Friday 4 July. Port Douglas ain’t Bali but our organising committee is still confident the conference will be attended by many high profile legal and relevant figures with the usual impressive list of keynote speakers. I will keep readers posted regarding relevant details on the conference. As it happens the criminal legal consequences of the 12 October disaster poses an intriguing criminal legal scenario for Territory practitioners in particular. The subsequent international investigation into the crimes leading to the rapid arrest and detention and gathering of evidence by the authorities raises an interesting case exercise for criminal lawyers. The crimes have been investigated by the Indonesian police (as opposed to their Indonesian military) and specifically the OIC, or “Investigation Chief’, is the Senior Balinese Police Officer Made Mangku Pastiku. His investigative team has been joined by police officers from other countries whose nationals were killed in the bombing, specifically the Australian Federal Police, the English CIB and American FBI officers as well as officers from several other European nations. The investigation has been throughout one of a very public and transparent nature. The international media have been consistently updated as to its progress and developments. Arrests were swift and it would appear admissions from many of those arrested have been obtained. At present five men have been charged with relevant offences including murder and acts ofterrorism in relation to the bombings. One hiccup in the police investigation has been the arrest and detention of the religious leader Abu Bakar Bashir who was arrested as early as October last year. However, unlike the other “foot soldiers", he has denied any involvement in the Bali bombing. Of course, the 12 October bombings weren’t exactly out of the blue for Indonesians. In the preceding two years, their country has been subject to similarterrorists attacks: the Istiqlal Mosque in April 1999; the Phillipine Ambassadors house in 1999 and the bombings on Lombok on Christmas 2000 to name a few. Although the cleric has admitted involvement in those matters, he has consistently denied any involvement with the Bali bombings. Speed has been the watchword with the first trial planned for February. A major issue emerged early as to the venue for the trial. Without undermining the horror and tragedy which the bombing wreaked on Australia, ultimately the biggest loser in all of this was, and is, the Balinese people. They also lost lives and many were grossly injured (29 deaths). Not to mention the trauma for the locals who literally cleaned up the resultant carnage. Vast numbers of Balinese people are dependent directly and indirectly on the tourist industry. Based on that dependence, the Balinese people have managed to eke out a still impoverished existence. All of that is now badly damaged and quite possibly destroyed. The economic consequences on the Balinese have been and will continue to be devastating. John Lawrence, President, CLANT I’ve recently returned from our family holiday in Bali during Christmas and New Year. I was able to witness much of this loss first hand. From what I saw and heard from the Balinese, they are resolute that the culprits who committed these crimes should be brought to task in Bali. continued page 13 r INVESTIGATIONS N PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection "ZsDutback ^ BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au Member of Institute of Mercantile \__________ Agents Ltd_____________ y bal010602 ' Page 7 — January 2003 cover story Professional Indemnity Insurance: A threat to the legal profession? The rise in PII premiums has raised fears that the increased costs will see the local legal profession become “skeletal remains”. The Law Society NT attempts to answer your questions and fleshes out the bare bones of the dilemna. Why have premiums risen 59 per cent on the last insurance period and 120 per cent on the previous insurance year? It used to be the case that the NT lawyers went to the insurance market seeking the best competitive quote for insurance for a 12 month period in a market that was healthy and vibrant. Times have changed. Few companies are prepared to write professional indemnity insurance and even less are interested in a relatively small pool of 250 lawyers. The search for an insurer began in Australia and overseas in June 2002. When the insurance period expired in September 2002 there were two insurers prepared to take on the NT profession. The insurers offered inferior policies and at much higher premiums than the expiring policy. Our current insurer at the time, Gerling, had lower premiums, was considering taking the NT on but the company had run out of the capital allocation required under the new Australian Prudential Regulatory Authority regulations. Gerling offered to extend the cover under the existing policy for NT lawyers 100 per cent for a further three months. The Law Society took the offer expecting that the extension would allow for more time to seek competitive deals from other insurers, to source a 50 percent partner for Gerling and/or for Gerling to renew capital levels from January 2003. In late November 2002, Gerling ceased placing Australian business (was taken over by QBE) and the problem became finding an insurer prepared to cover the NT profession. Page 8 — January 2003 Insurance was due to expire on 31 December 2002. There were two possibilities but only one insurer - QBE - quoting terms. The main difficulty facing the NT profession is the very ordinary claims experience of the profession and the small number of legal practitioners requiring insurance. Insurers are commanding at least $2.1 million premium pool before considering terms, and many require more than this. This means that collectively the NT profession must collectively raise over $2.1 million in premiums or no insurance. It is an insurer’s market. What can be done to improve the situation? The downturn in the commercial insurance market has had a dramatic affect on practitioners of the Northern Territory. Up until September 2000 legal practitioners in the Northern Territory had experienced for many years some of the lowest insurance premiums in the country. The NT also had maintained aspects to their insurance policy that had been eroded in otherjurisdictions. For example the limit of liability offered by the society did not include the legal costs, meaning the cost of defending a claim came on top of the cover. This year, in line with the majority of other policies around Australia, the limit of liability was only offered as a “costs inclusive" limit. The situation has now reached crisis point and options that were rejected in the past as too expensive or restrictive now seem attractive. The hardening professional indemnity insurance market has affected most legal practitioners in the country. cover story Even practitioners in Victoria who benefit from Legal Practitioners Liability Committee by receiving subsidised premiums by virtue of a mutual style scheme established decades ago, are set to face an extremely difficult reinsurance market. The national response has been to lobby state and territory governments forthe introduction ofthe Professional Standards legislation designed to reduce claims. There is also a push by the Law Council of Australia to make premiums more affordable by campaigning for a limit on the liability of legal professionals. Other professions have already benefited from such moves. For example, the NSW Government has legislated for accountants providing proportionate liability and a regime of professional standards, including a safety ceiling on claims. A further option to be considered by the Standing Committee of AttorneyGenerals, that may provide a long-term solution, is the establishment of a national Professional Indemnity Scheme for lawyers. Ascertaining the viability and affordability of such a scheme will require extensive actuarial work. Read on for the options the Law Society is exploring for cover in the future. Is Professional Indemnity Insurance necessary? All Australian jurisdictions require legal practitioners to carry professional indemnity insurance. Insurance is required to cover all civil liability arising from a practitioner’s practice. This provides consumers with protection if an act of negligence occurs. It also ensures practitioners are not personally liable for a problem arising from practice. NT lawyers are required to hold Professional Indemnity Insurance pursuant to the Legal Practitioners Act NT. The Law Society currently negotiates the policy on behalf of the NT profession each year. There are benefits in the Society negotiating the policy. Not only does it save practitioners time in seeking quotes and negotiating their own cover, the policy is uniform, giving consumers security in the measure of cover purchased by all solicitors. By seeking insurance as a block of practitioners, there can be an assurance that all practitioners will receive cover forthe same price, which is collectively lower due to the pooling of practitioners, and that all practitioners can in fact buy cover, which could not be guaranteed in an open market situation. There are also specific benefits gained in seeking agreements not otherwise available. For example by making an agreement to ensure there is “run-off” cover. Claims of negligence typically have a long tail. This cover ensures that a practitioner remains covered for his or her actions if they are no longer in practice. Such run-off cover would not be available to persons insuring individually unless they continued to pay for a new cover each year after they have ceased practicing. Can legal practitioners withdraw from the Law Society Professional Indemnity Insurance scheme? As Balance goes to press the Council of the Law Society has received two applications for exemption from the Law Society scheme. The effect of this possible withdrawal on premiums is being assessed by the Society. Pursuant to the Legal Practitioners Act the Society may exempt a class of practitioners from the scheme. If the Society grants an exemption, the Attorney-General must review the decision within 60 days of being notified. The Attorney General may revoke or vary the decision if he considers it would be in the “public interest.” The Council will consider the two applications at a meeting on 28 January 2002. It is not only the big firms feeling the pinch. The dramatic increase in Pll has also caused difficulty for small operations with three sole legal practitioners deciding to no longer practice due to the cost of Pll. How can NT legal practitioners help lower premiums? The major factor in determining premiums is the level of risk the pool represents to insurers. The risk to the market in the past has been promoted as somewhat lower due to the size of the Territory in comparison with states and the nature of the work in the NT. Unfortunately claims experience ofthe scheme has deteriorated with a number of claims currently holding large reserves. Insurers are now commonly rating risks based on actuarial evaluation, but it is a simple calculation to see why the premiums have increased - claims for the last 10 years have cost more than the premium paid. Managing claims then is critical and good sense. Risk management practices are vital for each firm to assist in reducing the number of claims that arise. There are some claims that are preventable by the use of proper management systems, these include those termed “out of time” claims. Seeking basic advice on management risk systems is the first step to reducing claims. So what is the Law Society NT planning to do to secure the ^ future for Territory practitioners? A Page 9 — January 2003 \ cover story Are lawyers the only ones being affected by with escalating Pll premiums? No. In November last year the Institute of Chartered Accountants was claiming members were receiving increases of up to 1000 per cent and more than 30 per cent had ceased offering audit services in a bid to purchase affordable cover. Earlier in the year the Institute of Engineers Australia reported that some engineers experienced rises in premiums on the last insurance period of up to 400 per cent (the average increase recorded was 50 per cent and some specialists can simply not buy insurance). L Page 10 — January 2003 Medical practitioners have experienced increases every year for the last five years. The Australian Medication Association (NT) says the minimum increases have been around 50 percent but have been higher than 100 percent. That can mean insurance costs of $100,000 to $200,000 a year. The premiums vary widely depending on the type of work the practitioner is engaged. For example, a proceduralist gets hit harder than a nonproceduralist. The issue has impacted upon the medical profession to such an extent that last year the AMA reported 28.4 percent of the nation’s obstetricians moved away from the field with four percent giving it away altogether.. Independent midwives in Northern Territory have been unable to get insurance and have been relying on the government to assist with liability cover. What is the Law Society doing to secure the future? A meeting will be held with the Law Society’s brokers as Balance magazine goes to press. Options to be explored include the possibility of joining a larger pool of solicitors for negotiation, the staged establishment of a mutual style fund based on the West Australian model, possible establishment of a statutory insurer and perhaps seeking entrance to an existing mutual fund to subsidise the cost of premiums in a hard insurance market. The latter three options require the Society going to the funds with some capital. The Society is currently preparing a submission to the AttorneyGeneral in this regard. In addition to this we are looking at potentially changing rating structures to include discounts for no claims, fee based rating and introducing higher deductibles to try to make premium distribution more equitable and experience based.® Opening of the Legal Year On going to print, the Opening of the Legal Year 2003 in the Northern Territory was just about to happen. Guest speakerforthis year’s event in Darwin and Alice Springs is the Honourable Paul de Jersey AC, Chief Justice ofthe Supreme Court of Queensland. Chief Justice de Jersey served at the Queensland Bar for 14 years, taking silk in 1981. While at the Bar he had a broad general practice focussing on the commercial field. He also appeared in constitutional cases before the High Court of Australia. His Honour was appointed a judge in Queensland in 1985. He became Chief Justice on 17 February 1998. Balance will feature a special pictorial spread in next month’s edition as well as a report on His Honour’s address. advocacy Interlocutory applications

  • Never mistake motion for action”

Ernest Hemmingway The Supreme Court Rules are designed to limit the need for interlocutory applications to the court. The Rules now permit matters that once called for, or allowed for, the intervention of the court to proceed without reference to the court. The Rules positively discourage the making of unnecessary applications by providing that each party shall bear its own costs of an interlocutory application “unless the court otherwise orders” (r63.18). The application of this rule is considered in TTE Pty Ltd v Ken Day Pty Ltd (1992) 2 NTLR 143 and Vow v NT Gymnastic Association Inc (1991) 1 NTLR 180. Before launching an interlocutory application you should consider all available alternative approaches. Bear in mind that, once commenced, such proceedings have the potential to become significant legal battles in their own right. They have the potential to divert resources from, and to distract you from, the preparation of the substantive proceedings. Notwithstanding the effect of r63.18 there is also the prospect that debilitating costs orders may follow an unsuccessful or unnecessary application. In the event that you have concluded that such an application is necessary you will then turn to a consideration of how to proceed. The approach of the advocate to a defended interlocutory application will reflect the approach adopted for a substantive hearing. Preparation will be the key. It will be necessary to formulate a case strategy relevant to the interlocutory application and to be guided by that strategy throughout the presentation of the application. At an early time in the course of preparation you will clearly identify the source of the power that the court is being asked to exercise. This will usually be by reference to an identified rule within the relevant Rules of Court or by reference to the inherent power of the court. If you are to rely upon the inherent power of the court, the basis of that submission should be determined in advance. It is unlikely to be enough to merely assert that the court has inherent power. In many cases reference to authority will also be necessary and you should have the relevant authorities to hand. If evidence is to be produced in support of the application you will ensure that the appropriate affidavit material is available in admissible form. You should not permit yourself to be placed in a position where you have to seek to give evidence from the bar table to cover a deficiency in the material you present. The need for such an application reflects inadequate preparation on your part. If your opponent is not cooperative you may need an adjournment to enable the appropriate information to be provided to the court in admissible form. An adjournment is likely to have unnecessary and adverse cost consequences for your client. When evidence is to be produced on affidavit in relation to an interlocutory matter, careful consideration should be given to the identity ofthe deponent. This consideration will necessarily be in light of the proceedings as a whole and not just by reference to the application immediately to hand. It needs to be borne in mind that the deponent may be required to attend to be examined before the court on the interlocutory application (r40.04). Hon Justice Riley You will need to ensure that the chosen deponent is both willing and available to be cross-examined should it become necessary. Whether you want a particular witness exposed to cross-examination at an early stage in the proceedings may also be a matter for careful thought. If a witness is vague or is likely to present poorly for some reason you will not want to make that fact known to your opponent by presenting him or her for cross-examination on a preliminary matter. It may be preferable to avoid exposing that potential witness to attack so early in the proceedings. You may prefer to have someone else who is familiar with the relevant material swear the affidavit. In choosing your deponent you should consider the use of r43.03 which provides that, on an interlocutory application, an affidavit may contain a statement of fact based on information and belief if the grounds ofthat information or belief are set out. One option commonly adopted, often without apparent thought for the consequences, is for the legal adviser to become the deponent. Before you rush into making the affidavit yourself you should remember that you may thereby become the person who is required to attend for examination before the court. continued next page Page 11 — January 2003 L Process Servers and Field Call Agents M-a

Send your NSW process work direct to us for immediate attention INSTITUTE,OF______ and save days on MERCANTILE AGENTS LTD . Nationally representing the interests getting a response. of Process Servers Serving all areas of New South Wales ■ Efficient turnaround of all legal documents ■ Quality affidavits issued ■ Competitive and attractive pricing for bulk business When you have documents that need to be served ~ rest assured they will be served with results. All our agents are professionals with many years of experience ~ they are also members of the Institute of Mercantile Agents. Phone 02 9588 9643 Fax 02 9588 9550 Mobile 0412 245 631 DX 11112 KOGARAH Email info@platinummercantile.com.au Postal PO Box 507 Kogarah NSW 1485 Contact Peter McRae and Desiree Holcroft “FOR THOSE WHO APPRECIATE QUALITY SERVICE WITH RESULTS” Page 12 — January 2003 bal010302 Shoyer new Info officer Advocacy, from previous page It is obviously inappropriate for you to be both counsel and a witness in relation to the matter and you will need to fully consider the implications of becoming the source of evidence in relation to a particular part of the proceedings, even at an early stage. When you appear before the court to argue an interlocutory application you should present your argument in an ordered fashion. You will need to identify the evidence upon which you rely and be in a position to meet any objections to that evidence that may be made by your opponent. You should have available to you all of the materials upon which you rely in a readily accessible form so that you can deal with any questions that may arise in discussion with the court. If you have prepared a chronology it is often convenient to identify the source of the information contained in the chronology by reference to the affidavit material or to the pleadings. This will enable the court to quickly comprehend the factual basis upon which the argument is presented and will assist in the formulation of reasons for decision. As with all appearances before a court or tribunal you should endeavour to present the application in a persuasive, interesting and ordered manner ensuring that you deal with all necessary matters in an effective yet concise way. Your case strategy will at all times guide the presentation ofthe argument. CLANT, from page 7 I even heard that when the issue of the defendant’s trial venue was debated, some Balinese people organised to pay the Indonesian Government trillions of rupiah in order to “buy" the defendants back into the custody of the Balinese Police. There will be no few interested observers at the forthcoming trial. Presumably the governments ofthose nationals who were slain, including our government, as well as independent jurist associations, will keep an eye on the proceedings. Our association has a special interest in the proceedings: professionally and personally. In that regard, we shall endeavor to follow and report back as comprehensively as possible the trial proceedings and their outcomes. The maximum penalty for acts of terrorism is the death penalty. From what I saw and was told, anything less will be inadequate for the Balinese people. The penalty may well create a major issue. Much of Indonesia’s relatively fragile economic and political situation could A former top Queensland bureaucrat has become the Territory’s first Information Commissioner. Peter Shoyer will take up his role in March. He was the Assistant Information Commissioner in Queensland and has a background in law. Attorney-General Dr Peter Toyne says Mr Shoyer also played a key role in the development of informal resolution strategies for FOI disputes. The Information Act was introduced last year and commences in July. well be affected by the outcome of these trials. The “democratic" President Megawati is under enormous domestic pressure. The economic situation and the ubiquitous military hang over her like a cloud. As it happens, her grandmother is Balinese and she is very popular on the island of Bali. One can predict, even at this early stage, dissatisfaction and, perhaps, demonstrations by the Balinese if the offenders do not receive the maximum sentence available.® ✓----------------------------------------------------------------------------------------------------------------------------------------------------------------------- \ ! WANTED: Your nominated email address ! Bulletins to the profession - CLE Seminars - Events & Functions Messages from the Council of the Law Society Do you want to be informed by the Law Society via email? If so, please provide an all-purpose email address for yourfirm. Fill out this form and send it orfax it into the Law Society (contact details on back page) NAME OF FIRM:_______ '____________________________________________ EMAIL ADDRESS:__________________________________________________ SIGNATURE OF AUTHORISED PERSON: DATE: \________ Page 13 — January 2003 Expert Witness As the commercial gateway to the University of Queensland, UniQuest offers a convenient single point of contact in the provision ofEXPERT WITNESSES to assist in legal proceedings by: Providing Comment Reviewing Reports Conducting Chemical and Physical Analyses Conducting Investigations Expertise is regularly provided for: OH&S/Workplace Injuries Personal Injury Matters Slip Testing Medical Opinions Fire Investigation Litigation Loss Assessment Materials Performance Product Liability Premises Liability Motor Vehicle Accident Reports/Modelling For more information, telephone Sally Wilkin, UniQuestis Expert Witness Manager or check out our web site - http://www.expertwitness.uniquest.com.au UniQuest A.B.N. 19 010 529 898 UniQuest Pty Limited The University of Queensland ST LUCIA QLD 4072 Phone: (07) 3365 4037 Fax: (07 ) 3365 7115 Email: uniquest@uniquest.com.au Page 14 — January 2003 Smmmoooking! It was inevitable. The NT government’s new smoking law has forced those committed puffers to take “drastic” action. For some, the new law means a change of brekkie habits and Muster Room is reliably informed that there has been a “move” from other eateries to The Cavanagh forthe early morning feed. Those outdoor venues seem well placed to make a killing! Ouch That’s gotta hurt. Which well-known barrister came off his beloved motorbike before Christmas? He suffered a few nasty cuts and bruises and was seen sporting some heavy duty bandaging but otherwise he was fine. Still, not a nice way to start the festive season. Movers and Shakers Forgive us if these are a tad old but better late than never! Jacqueline Presbury has moved from Withnalls to Hunt & Hunt. Melissa Dunn has moved to Priestley Walsh. Donna Dreier is due to start at the Department of Justice. Chris Rowe has also moved from Cridlands to the Department ofJustice. Richard Crane has ceased practising. Sinclair Whitborne is leaving Ward Keller and Darwin to go to the ACT. Brett Davies is leaving Ward Keller to consult for Anindilyakwa Air. David Elix has left De Silva Hebron. Jim Moore has left Hunt & Hunt for the Sunshine Coast. His new contact details are ph: 07 54295624, email: amorejb@hotmail.com The Muster Room Sydney merger Cridlands Lawyers have recently merged with Sydney’s Dickson Fisher Macansh. Cridlands have had an office in Sydney fortwo years and the merger means the firm will be now known in the Emerald City as Cridlands, incorporating Dickson Fisher Macansh. An uneasy tension David Dalrymple draws upon a recent Northern Territory case to explore the difficult task of reconciling Victim Impact Statements with jury acquittals. On 26 June 2001 Isador Munar, a 19-year-old from Port Keats, was in the Millner/Jingili area of Darwin and came across a 43-year-old woman from Victoria who was in Darwin visiting her sister. The woman was jogging on a cycle track adjacent to Rapid Creek, about 200 metres from Kimmorley Bridge on McMillan’s Road. A savage and unprovoked attack ensued in which Munar struck his victim many times in an attempt to force her to submit to having sexual intercourse with him. The victim has identified herself in the media, but out of an abundance of caution I will refer to her only as “the victim”. The victim suffered injuries which included fractures, scratches, bruising, and a life-threatening pneumothorax. Munar was arrested the next day and charged with offences arising from the attack. The charges which were set out on indictment in the Supreme Court were: 1. unlawfully causing grievous harm (s.l81ofthe Criminal Code); 2. deprivation of liberty (s.196 of the Criminal Code); 3. having sexual intercourse (digital penetration) without consent (s.192 of the Criminal Code); 4. assault with intent to commit an offence, namely having sexual intercourse without consent (s.183 ofthe Criminal Code). Munar entered pleas of guilty to counts 1, 2, and 4 and pleaded not guilty to count 3. After a highly publicised trial ending on 17 September 2002, he was found not guilty of count 3, but guilty of the alternative charge available on the evidence of attempting to have sexual intercourse without consent. The trial judge (Justice Thomas) noted in her sentencing remarks that the jury must have been satisfied beyond reasonable doubt that Munar attempted digital penetration of the victim’s vagina. Sentencing proceedings in relation to this matter were spread over a number of dates, culminating on 17 December 2002 with the imposing of the actual sentence on Munar and the statement of reasons for the sentencing decision. sentenced Munar was sentenced to seven years for count 1, two years (the first of which was concurrent) for count 2, three years (the first of which was concurrent) forthe alternative charge to count 3 of which Munar was found guilty by the jury, and one year concurrent for count 4. The total sentence was 10 years with a non-parole period of seven years. Justice Thomas’ sentencing remarks are available from the Supreme Court website. After the trial and prior to the finalisation of the sentencing process, the victim let it be known through the media that she disagreed with the jury verdict. continued next page Page 15 — January 2003 An uneasy tension, from previous page In particularthere was an ABC Stateline program which was broadcast on the evening of 25 October 2002 and in which the reporter stated: (the victim's name) believes crucial evidence to back her claim was not allowed and that the Territory Supreme Court Judge directed the jury to deliver a not guilty verdict to the rape charge. As I understand it, the suggestion thatthere was an acquittal by direction was incorrect. There was apparently no attempt by the reporter to seek any comment from Munar’s legal representative as to the obviously contentious issues which were the subject of the victim's complaints. The victim gave an oral victim impact statement in court on 18 September 2002. Earlier that morning the prosecutor had faxed to Munar’s counsel a document which was described as a summary of the victim’s “intended statement". Subsection 106B(8) of the Sentencing Act requires that such a summary be provided in advance ifthe victim’s impact statement is to be presented orally. The summary itemised 20 matters under the heading “Physical injuries" and a further 23 matters under the heading “Shortterm and longterm consequences". The last two items under this second heading were: • Feel that the police, judicial and medical systems dealt with the matter inadequately • The trial listing caused significant inconvenience, anxiety and financial loss. The victim’s evidence on 18 September 2002 essentially followed the sequence of dot points set out in the summary document. When she reached the final two items she expanded considerably on what was summarised in a manner which clearly reflected her view that the jury verdict (i.e. the acquittal on count 3) was a miscarriage ofjustice. The last part of her testimony before Munar’s counsel felt compelled to object was as follows: When I took the witness stand, I took an oath on God's holy word to tell the truth and nothing but the truth. I had complete faith in the justice system. I had no understanding that I would be prevented from telling the truth, and that the witnesses and evidence that supported and corroborated my story would be deemed inadmissible in order that the accused be given a fairtrial. Thejury was unable to make a valid decision because they were not allowed to hear this evidence. The defence misrepresented the facts many, many times, and the jury was not always corrected. It is ironic that the defence is now requesting a... Prior to the introduction into the sentencing system of a statutory requirement for the presentation of victim impact statements, the presentation to criminal sentencing courts of detailed information regarding the injuries and other impacts of offences was already a feature of the sentencing Page 16 — January 2003 process in all Australian jurisdictions. However, the presentation of such information was required to be undertaken in a balanced and independent fashion. In the case of P, (1992) 64 A Crim R 381, the Full Court of the Federal Court made the following comments (at 386): In the absence of statutory provisions for victim impact statements in the Australian Capital Territory, we do not see any impropriety in the Director of Public Prosecutions, or the representatives of the Director, whether acting as counsel or as solicitor, ensuring that the court has before it sufficient material of a proper kind to enable it to proceed to sentence upon a realistic assessment of the injury to orloss suffered by a victim. It is essential however, that the material be presented in such a way that the prosecuting authority will not only not be seen to be promoting the interests of the victim at the expense ofthe interests ofjustice, but also the reality will be quite otherwise.Vengeance is not to be equated withjustice. And the understandable feeling ofa victim ora relative ofa victim must not be allowed to move the court beyond the way ofjustice. For that reason it may be appropriate for the material to be presented otherthan in the form ofdirect statements by the victim or persons closely connected with the victim. Similar comments were made by Justice Angel in the case of Eleyv Walter(Supreme Court proceedings No.94 of 1993, unreported Reasons For Decision delivered 20/8/93): Nevertheless it is appropriate that I say how inappropriate it was for the learned Magistrate to invite comment from Mr.Aloessi as to how the appellant should be dealt with and to speculate aloud as to whether Mr.Aloessi would considerthe learned Magistrate had done 4the right thing' or the 4wrong thing'. Sentencing courts seek neither to please nor displease. A transgressor, a victim, or a crowd may be pleased or displeased with a sentencing result but this is ofno concern to a court. Courts seek to do justice according to law, not sentiment. The adoption of statutory victim impact statements in the various Australian jurisdictions in the 1990s reflected similar reforms that were implemented in the United States in the 1980s, following what amounted to a political movement demanding that victims have the right to be heard. The position in the Territory after the enactment of our own victim impact statement regime is outlined in the case of Staats, (1998) 101A Crim R 461, in which the Chief Justice noted: Generally speaking, the VIS provisions serve the primary purpose ofgiving victims of crime, or their relatives in the case ofdeath, an opportunity to place before the courts their own statements either personally or through another as to the impact of the crime upon the victim ofthe crime. continued next page An uneasy tension, from previous page His Honour went on to express the opinion that while the VIS provisions were not primarily intended to fulfil the function of providing the information to which the court is to have regard the purposes of s5(2)(b) of the SentencingAct, a victim impact statement, or parts of it, may be admissible for that purpose. The problem that has been fairly and squarely raised in the case of Munar is how a sentencing court can moderate and if necessary restrict the right bestowed to a victim when the subject matter of his or her victim impact statement moves from the impact of offences of which which the person sitting in the dock has been found guilty to an attack on a verdict of acquittal in respect of the same person and a recitation ofthe impacts arising from the trial leading to that acquittal. Given the current overwhelming popular support forthe rights and entitlements of victims and the identified statutory intent of the victim impact statement provisions in section 106B of the SentencingAct of allowing a victim to have his or her own moment in court, any sentencing judge would presumably feel most reluctant to curtail or cut short an oral victim impact statement in full flow. I do not claim to have thought of a solution to the problem, but it is one which may in at least some cases involve both an unfairness to an acquitted person and an undermining (by means of the court’s own processes) of a particularjury verdict, and indeed jury verdicts in general. ® Child Support Agency guide The Child Support Agency (CSA) has amalgamated former legal and technical products into one product called The Guide. The Guide is an easy to use source of technical information for legal practitioners, clients and CSA staff. In contrast to the former legal and technical products, The Guide is organised into Parts, Chapters and Topics. The Parts, Chapters and Topics in The Guide make up a collapsible menu located on the left-hand side of each page. Users can locate information using the menu or the extensive A-Z index. Once in a topic other related topics can be reached by clicking on underlined text. You can view The Guide from CSA’s home page: www.csa.gov.au. It supersedes all former legal and technical products. It includes information that was not covered in earlier material such as a discussion of overseas child support, details of legislative history and CSA’s policy about enforcement of debts through court action. On the bottom of each page is a feedback link. CSA hopes that you will use The Guide to answer any questions about child support and welcomes your feedback. readers forum - book reviews Australian Real Property Law 3rd edition by Bradbrooks, MacCallum and Moore The Lawbook Company, RRP $115 From a general law point of view, this is a very comprehensive text and easily compared to my old favourite “Butt on Land Law". Apart from covering the usual areas such as: • history of tenure from the year dot, • various forms of ownership of property; and • current and future interests; the book covers more contemporary topics such as native title, management of property, trade practices, credit legislation and the legislative changes to perpetuities law. The section on perpetuities looks at the particular statutory position in each state and territory. The book also has a very comprehensive section on the contemporary relationship between landlord and tenant including, interestingly, a section on the legislation governing Retirement Village schemes and its various requirements across the States and Territories. Another addition to the landlord/ tenant bow is the section on recent changes to residential tenancies law and the advent of the retail tenancies legislation. Add to the above some broad text on the nature of property rights under strata schemes and again a good basic spiel on the nature of various security interests and how they operate and you have a text which could be a Bible for a junior property lawyer and a good point of first reference for someone more senior. The book is very readable despite covering a lot of quite distinct topics, the authors have obviously made an effort to keep the language relatively simple and split the topics into easy to find categories. A good comprehensive text covering the breadth of property law issues. - Karen Christopher, partner, Cridlands Lawyers Page 17 — January 2003 L readers forum - book reviews Unscathed - Escape from Sierra Leone by Major Phil Ashby Pan Macmillan, RRP $30 MfilOB PHIL ASHBY Major Phil Ashby was a Royal Marine Commando who, between January and June 2000, served as a United Nations Military Observer (UNMO) with the UN Mission in Sierra Leone (UNAMSIL), which sought to restore peace in thatWestAfrican country after 10 years of brutal civil war. His book details his personal experiences of supervising the ceasefire between Sierra Leone government forces and the rebel Revolutionary United Front (RUF), and being forced to evade capture under extremely adverse conditions when the RUF restarted the civil war. Ashby’s narrative traces in great detail all the phases of his involvement as a UN peacekeeper at the northern town of Makeni. Unscathed describes the full extent of the terrible consequences of the war, through the author’s interatction both with many RUF fighters who had committed atrocities, and their victims - the civilian population. Ashby's words embody his distaste for Forday Sankoh, the RUF leader, and his followers who were supposedly fightingthe corrupt government on the people’s behalf, yet perpetrated unimaginable abuses against them for the sake of controlling Sierra Leone’s rich diamond mines. Consequently, Unscathed provides a substantial understanding ofthe RUF’s intentions, and the full horror and insanity ofthis conflict. Unscathed's last few chapters detail fully Sierra Leone’s position at that time and also updates the current situation. As a result, one can see that, despite the setbacks suffered duringApril-May 2000, Sierra Leone’s situation has improved, transformed from neverending systematic human rights violations to tentative peace. I first saw footage of Ashby and his colleagues during May 2000 on ABC TV news, when they were shown immediately afterthey had successfully made their way to safety in Freetown. This book provides an invaluable personal insight into the actual events behind those camera scenes, and is extremely useful in understanding the nature of Sierra Leone’s atrocitystudded civil war. The previously unfamiliar reader will emerge with a significant appreciation of the gross sytematic violations of international humanitarian law (IHL) for which RUF was guilty. Unscathed also compels significant questions on the continued inefficiency and shortcomings of UN peacekeeping, together with the politics which continue to underlie this unsatisfactory situation. - Melvin Loh, Volunteer, Australian Red Cross (NT Division) Orthopaedics for Lawyers by Alan W Searle The Lawbook Company, RRP $138 As a lawyer whose practice requires reading countless medical reports, I’ve found Alan Searle’s book, “Orthopaedics for Lawyers" a welcome relief when I’ve been reading those orthopaedic reports where I understand very little of what is actually being said. I often get the feeling the report could be written in a foreign language and I’d understand just as little. This book, whilst only small in the context of other legal texts (it’s only 224 pages including the index), succeeds to provide lawyers with a crash course in orthopaedic medicine, nothing complex, merely the basics. L Page 18 — January 2003 The book is divided into 13 anatomical chapters, within which Searle deals with the issues important to lawyers, such as symptoms, causation, prognosis, investigations and treatment. Contrary opinions are also provided, where necessary, to assist the reader to obtain a more balanced view. The font size is large enough to provide for comfortable reading at any time of the day. The complex medical language has also been simplified immensely, allowing for a surprisingly enjoyable read. For those of us who are unskilled in creating pictures in our mind, Searle has also kindly included, where necessary, simple, but very effective, anatomy diagrams, highlighting to the reader where the more relevant structures lie. At the end of the book there are a number of appendices providing useful information, such as decipheringthose annoying medical shorthand that we all too often find in medical records. Whilst the list is very farfrom complete, it’s a start. There is also an appendix explaining, once again with diagrams, the many forms fractures can take. I must confess to now having this book handy whenever I’m reading an orthopaedic consultant’s report, and to also finding I now understand a lot more of the report than previously. This book should be compulsory reading for all lawyers when dealing with medical reports. If only there was this form of book for all the other specialties of medicine which pop up in the legal world... - Kylie Jamieson, lawyer, Cridlands Lawyers CONFERENCES February 2003 Superannuation in Family Law seminar series ThroughoutAustralia Tel: 02 62463788 Fax: 02 6248 0639 7 February 2003 Credibility, Composure and Confidence: seminar for working women Darwin, Australia Tel: 1800 145 231 Fax: 1800 145 244 enroll@skillpath.net 13-14 February 2003 6th IBA Internatiional Arbitration Day plus LCIA Symposium Sydney, Australia Tel: +44 020 7405 8008 Fax: +44 020 7405 8009 ib@lcia-arbitration.com 16-19 February 2003 Inter-Pacific Bar Association Annual Conference New Delhi, India Tel: +9111669 3059 Fax: +9111669 1260 info@ipbaindia2003.com 21 February 2003 2003 Constitutional Law Conference and Dinner Sydney, Australia Tel: 02 9385 2257 Fax: 02 9385 1175 gtcentre@unsw.edu.au 11 March 2003 The Indispensable Assistant Darwin, Australia Tel: 1800 145 231 Fax: 1800 145 244 enroll@skillpath.net 19-22 March 2003 Market Ideas into Money Commercialising Technology Adelaide, Australia Tel: +613 5942 7066 Fax: +61 5942 7033 farmington@bigpond.com 13 April 2003 CLA General Meeting Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 13 -17 April 2003 13th Commonwealth Law Conference Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 89812549 Fax: 08 8981 2596 wildlyn@hotmail.com June/July 2003 World Women Lawyers Conference London Tel: 44 (0) 20 7629 1206 Fax: 44 (0) 20 7409 0456 confs@int-bar.org 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 3831 4477 warmid@tpg.com.au 23-29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com Spectacular view, comfortable, well appointed Why not use the Law Society's boardroom for your next meeting? hire rate: $240 for a full day $125 for a half day (four hours) + $25 for every hour thereafter (all ex-GST) Book with the Law Society on 89815104 J Page 19 — January 2003 NOTICEBOARD From the Chief Magistrate of the NT, Hugh Bradley Contest Mentions in the Court of Summary Jurisdiction - Darwin - Memo to practitioners In my 2001 Memorandum to Practitioners regarding procedures in the Court ofSummary Jurisdiction (CSJ) I noted some initiatives that had been undertaken or intended to make the court process more efficient. I drew attention to the need to avoid multiple adjournments which load up the court lists and practitioners’ diaries. Practitioners were advised that, unless there is a good reason, there would normally be only one adjournment of charges without a plea being indicated. Whilst no statistical evidence is available and we have not achieved the objectives sought it would seem that the various initiatives and the court process have resulted in the reduction of a number of adjournments and a shortening of the time between first appearance and the indication of a plea. As indicated in the earlier memorandum there was a need also to address issues relating to hearings, given that approximately 60-70% of hearings did not proceed on the hearing day. This is due to a. wide variety of reasons known to most of us includingthe failure of parties or witnesses to appear and/or a change of plea. The court has attempted to address this longterm problem of effective use ofthe Courts’ time since at leastthe early 1990s. The last serious attempt was in 1998/9 when all the hearing matters were called over on the Monday a week before the trial date to ascertain the state of readiness. Whilst practitioners were expected to appear, defendants were not required. The effectiveness ofthe mention was thus depleted and no longterm benefit was gained. There has been ongoing discussion about such a system and the possible introduction of a contest mentions system since thattime during criminal court users meetings and elsewhere. Fortuitously, there appears this year to be a confluence of practitioners in DPP and legal aid services who strongly favour a system which gives a defendant the opportunity to assess the case against him / her and provides greater certainty to the trial dates so that all the parties, practitioners’ and witnesses’ time is not wasted. After consultations with police, DPP, legal aid practitioners and magistrates the court has to introduced our own version ofthe very successful contest mention system which has been in place in Victoria and some other states for some time. I would emphasise thatthe procedural systems implemented from December 2002 do not involve any change of law orthe negation of rights of victims, defendants or witnesses; the procedures described allow for greater communication and supply of information (including possible sentence indications)so that more informed decisions can be made about the need for hearings. It is hoped that with improved communications and the early supply of prosecution briefs a great majority of cases will be able to be resolved at an earlier date. Page 20 — January 2003 In summary, matters where a plea of not guilty is indicated or no plea entered after one ortwo adjournments the matter will be referred to a contest mention prior to the allocation of a hearingdate. Onlyin unusual cases where all parties (including the court) agree a trial cannot be avoided will matters be set down for hearing without a contest mention being first held. Upon a matter being set down for contest mention the prosecution will be expected to deliver at least seven days priorto the contest mention date all statements available and/ or requested by defence. In some jurisdictions there are statutory requirements for disclosure of statements and of defences and information concerning expert witnesses etc. In other jurisdictions the system is voluntary. A voluntary system with good communication and free exchange of views seems most likely to produce better and more consistent results than a regulated one. It is proposed that matters will be referred to contest mention from the bail/arrest/mention court when a not guilty plea is indicated or the court is not prepared to grant further adjournments. Once a matter is referred to contest mention the court expects the guideline annexed to this memorandum to apply. It is importantto restate thatthe procedures are not regarded as an attempt to remove from the defendant his/her right to have the charges heard on the merits. Guidelines for Contest Mentions The following guidelines forthe conduct of contest mentions are established for the purpose of more efficiently disposing ofthe business before the Court and are notto be regarded as an attemptto remove the defendant’s rightto have the charges heard on the merits. 1. REFERRAL TO CONTEST MENTION Matters will be initially mentioned in the bail/arrest mention court and if a not guilty plea indicated, referred to contest mention at the discretion ofthe court. Ideally the Court will try to do this by the second mention. 2. IMMEDIATE HEARINGS The court shall have discretion to refer matters directto hearing where there is no prospect of early resolution. This is expected to be in a small percentage of cases. 3. LISTING Matters referred to contest mentions will be listed for initally for Monday and Thursday afternoons commencing at 2pm and allocated 15 minutes each. It is expected thatthe contest mention date will be a reasonable time (six weeks) into the future, to allow the delivery of prosecution briefs to defence counsel at least seven days prior to contest mention. 4. PRIORITY MATTERS It is expected that the court will independently deal with priority listings as required by the exigency ofthe case such as where the defendant is in custody, or the matter is one which should be fast-tracked. In such cases much less time will be granted NOTICEBOARD between the first mention and the contest mention. Prosecutors should forward significant statements to defence representatives as they are received from police rather than wait for the whole brief before commencing the disclosure process. In turn defence representatives should obtain instructions on these statements as early as possible. 5. MULTIPLE CHARGES A defendant with multiple files or charges may be separately listed for contest mentions so that an appropriate time maybe allocated. 6. GENERALPROCEDURE The defendant will be required to appear. The unexplained absence of a defendant is likely to result in the issue of a warrant of apprehension. Every case will be dealt with on its merits however parties should expectto be ready to coverthe following issues: 6.1 The prosecutor provide and/or read a precis appropriate to the charges; 6.2 Defence to outline matters not in issue; 6.3 Parties will be asked to make such admissions as are appropriate to shorten the ultimate hearing if it is required; 6.4 Solicitors or counsel should be fully briefed and where appropriate be able to make decisions on the conduct of the case; 6.5 Prosecutor to have authority to amend or withdraw charge subjectto victims rights and reasonable process required by the particular prosecuting authority’s procedures. In cases where the prosecutor does not have such authority, arrangements should be made to contact the victim or the prosecutor’s office by phone from the court. The prosecutor appearing atthe contest mention should be able to give an indication to the court on their likely recommendation 6.6 Discussion of issues to establish witnesses required and any requirements for remote facilities. 6.7 Details of any rehabilitation undertaken by the defendant or reconciliation between the parties; 6.8 Enquiry as to relevant prior convictions if it appears that the likely matter is to proceed by way of plea; 6.9 The views ofthe victim will be obtained if in attendance or a Victim of Impact Statement or Report is provided. 6.10 A Magistrate may give a sentence indication if appropriate. 7. FURTHER LISTINGS Matters maybe adjourned forfurther contest mention where negotiations are being conducted but it will rarely extend beyond a single adjournment. Where possible the same magistrate will preside at the adjourned date. 8. BLOCK LISTINGS Will be offered to assist practitioners with long lists. 9. THE DISCOUNT The principles relatingto discounter remorse and early pleas as expounded by the Court of Criminal Appeal in Kelly v The Queen (2000) 113 A Crim R 263 apply to contest mentions. The applications ofthis principle will depend on the particular case, however as a general rule the defendant who pleads guilty at contest mention will be regarded as having entered his plea at an early opportunity. 10. DISQUALIFICATION The parties will be asked whetherthey will seek disqualification of the magistrate who conducts a contest mention from the further hearing. The notes (except as to witness arrangements or admitted facts) made by the magistrate at contest mentions will be removed from the file ifthe matter proceeds to hearing. From the Chief Justice of the Supreme Court of the NT, Brian Martin Supreme Court Costs Rules - Cost Variation I, BRIAN FRANK MARTIN, AO, MBE, the Chief Justice of the Supreme Court ofthe Northern Territory ofAustralia, pursuant to paragraph 4 of Part 1 ofthe Appendix to Order 63, and after consideringthe recommendation ofthe Master, directthatthe rate per unit applicable under paragraph 3 of that Part will, from 1 January 2003, be as follows: (a) for a solicitor $17 per unit; and (b) for a clerk $9 per unit From the Chief Justice of the Supreme Court of the NT, Brian Martin Practice Direction No 3 of 2002 RULE 48- EXTENSION OF PRACTICE DIRECTION 5/2000 Pursuant to Rule 48.28, practice direction No 5/2000 is renewed for a period of 12 months from 1 January 2003. From the Registrar of the Federal Court, Warwick Soden National Guide to Counsel Fees - 2003 The following guide may be applied by taxing officers of the Federal Court when making an estimate pursuantto Order 62 rule 46 of the Federal Court Rules or upon taxation of a party and party Bill of Costs. In many cases the range of fees in this guide will bear no relationship to the amounts that members ofthe Bar actually charge as a fee on an hourly rate. Where, for example, by reason ofthe number, difficulty and/or complexity of the questions of law or fact involved, the time required for preparation forthe hearing is substantiallyextended beyond what might be regarded as “average”, a taxing officer may determine that a fee at or above the upper end of the range may be appropriate. In particular cases, the standing and experience of the counsel concerned may also be a relevant matterfor consideration. Similarly, where the matter is not complexor difficult, a fee at ortowards the lower end of the range may be appropriate. The amounts listed are notto be regarded as limitingthe taxing officers’ discretion to allow higher or lower fees if it is considered appropriate. continued over Page 21 — January 2003 NOTICEBOARD NATIONAL GUIDE TO COUNSEL FEES - 2003 (from the Federal Court Registrar) Applications/Appeals Junior Counsel Senior Counsel Fee on Brief (including: preparation at discretion of taxing officer and appearance on the first day of a hearing) OR $900-$3600 $1500-$5500 Appearance at hearing (daily rate including conference) $650-$3000 $1500-$4500 Interlocutory Applications Motion/Interlocutory hearing short (up to two hours) $250-$1500 $300-$2250 long (two hours plus) $500-$3000 $600-$4500 Other Hourly rate for:

  • Directions hearing
  • Preparation time
  • Conferences (not occuring on day of

hearing)

  • Settling applications, statements of

$200-$350 $3004550 claim, affidavits, defence, other documents

  • Opinions, advice on evidence
  • Written submissions (where not

allowed above)

  • Attending to receive judgment

(where appropriate)

  • Not otherwise provided for

From the Senior Registrar of the High Court of Australia Amendments to Second Schedule EXPLANATORYSTATEMENT - STATUTORY RULES 2002 NO. 223 The Second Schedule to the High Court Rules specifies the amount which solicitors, who are entitled to practise in the High Court, may charge and be allowed on taxation of costs by the Taxing Officer ofthe Court in respect of proceedings in the Court. The amounts in the Schedule were last varied by Statutory Rule No. 243 of 2001 made on 4 September 2001 and which came into operation on 17 September 2001. The Federal Costs Advisory Committee, in its report to the Justices dated 12 June 2002, recommended an increase of 3.2% to the solicitors’ costs as set out in the Second Schedule. The Court has agreed to the recommendation of the Committee and the increase, which is to come into operation on Tuesday, 1 October 2002, will apply in respect of all work done and services performed by solicitors after Monday, 30 September 2002. AMENDMENTOFTHE HIGH COURT RULES 1. Commencement and application Page 22 — January 2003 1.1 These Rules shall come into operation on 1 October 2002. 1.2 Notwithstanding sub-rule (1), the Schedule omitted from the High Court Rules by rule 2 shall continue to apply in relation to all work done and services performed before 1 October 2002. 2. Amendment 2.1 The High Court Rules are amended by omittingthe Second Schedule and substituting the followingSchedule: SECOND SCHEDULE COSTS INSTRUCTIONS Item 1: To sue or defend, orto make or oppose an application for special leave to appeal, orto appeal, or oppose an appeal or to cross appeal, or for any other originating proceedings - 197.70 Item 2: To make or oppose any interlocutory application - 87.70 Item 3: For a special case, case stated or reservation ofquestion of law for the consideration of a Full Court, or for a statement of claim ora petition - 197.70 Item 4: For any pleading (other than a statement of claim) - 153.60 Item 5: To amend any pleading - 52.90 NOTICEBOARD Item 6: For a statement of facts or an agreed statement of facts in a matter -153.60 Item 7: For interrogatories, answers to interrogatories, special affidavits or an affidavit (not being a formal affidavit) -118.50 Item 8: For counsel to advise - 84.60 Item 9: For a document not otherwise provided for - 33.00 Item 10: Fora brief for counsel on a hearing or application in Court or in Chambers or brief notes for solicitor - 109.90 NOTE: Instructions are not to be allowed where the work intended to be included therein is charged for and allowed in detail. Instead ofthe above costs for instructions, such larger sum may be claimed as is reasonable in all the circumstances ofthe case, and is allowed on taxation at the discretion ofthe Taxing Officer. WRITS Item 11: Writ ofSummons forthe commencement of an action or other writ not specifically provided for - 91.40 Item 12: Concurrent Writ ofSummons - 32.80 Item 13: Write of Subpoena - 47.80 Item 14: If any of the above writs exceeds 3 folios, for each extra folio - 6.60 NOTE: These costs include all endorsements, and copies (for the officers sealing them) and attendances to issue or seal, but not the Court fees. SUMMONSES AND MOTIONS Item 15: Any Chamber Summons or motion, including preparation, copies and attendance to issue, including attendance to fix return date - 56.10 - if more than 3 folios, for each extra folio - 6.60 APPEARANCES AND NOTICES Item 16: Preparing and entering an appearance including duplicate memorandum and Notice ofAppearance for service -92.50 Item 17: Any necessary or proper notice or memorandum not otherwise provided for, or any demand - 30.90 - if more than 3 folios, for each extra folio - 6.60 NOTE: This provision shall not apply to short notices or memoranda endorsed on other documents but the words or folios therein may be allowed as part of the documents so endorsed. DRAWING Item 18: Drawing any pleading or affidavit not exceeding 5 folios-87.70 -or, per folio - 12.30 Item 19: Drawing any other document where no other provision is made per folio - 12.10 ENGROSSING Item 20: Marking each exhibit to an affidavit - 2.20 Item 21: Engrossing any document - per folio - 4.50 COPIES Item 22: Of any document including carbon, photographic or machine made copy per page - 2.20 Except that where the allowance for 10 or more pages is claimed, in respect of any document, the sum allowed for such copies shall be at the discretion ofthe Taxing Officer. PERUSALAND EXAMINATION Item 23: Perusal of any document including special letter, telegram, telex or similar document - 32.70 -or, per folio-4.50 Exceptthatwhere an allowance for30 or more folios is claimed, in respect of any document, the sum allowed for perusal shall be atthe discretion ofthe Taxing Officer. Item 24: Where it is not necessary to peruse a document, such as, checking a proof print of, or examining an application or appeal book per quarter hour: solicitor- 32.80; clerk -10.70 Item 25: Short letter including a formal acknowledgment, making appointments, forwarding documents...Without comment-15.60 Item 26: Ordinary letter (including letters between principal and agent)-26.50 Item 27: Circular letter (afterthe first) each - 8.80 Item 28: Special letter or letter containing opinion and including letters of substance between principal and agent or such sum as the Taxing Officerthinks reasonable in the circumstances - 43.80 Item 29: Telegram, facsimile copy, telex or other document by similartransmitting process including attendance to dispatch (where necessary) or such sum as the Taxing Officer thinks reasonable in the circumstances - 43.80 Item 30: Receiving and filing any incoming special letter, facsimile, telegram or telex-2.20 NOTE: Postage and transmission fees may be claimed as a disbursement properly incurred. SERVICE Item 31: Personal service of any process or proceeding where necessary or such sum may be allowed as is reasonable having regard to time occupied, distance travelled and other relevant circumstances - 54.50 Item 32: When, in consequence ofthe distance ofthe party to be served, it is properto effect service through an agent, instead ofthe allowance for service for: (a) Correspondence - 48.50 (b) Agent’s charges - 92.60 and such disbursements as may reasonably be incurred. Item 33: Service of any document at the office ofthe address for service either by delivery or by post - 18.70 ATTENDANCES Item 34: An attendance which requires the attendance of a solicitor (per quarter hour) - 52.40 Item 35: An attendance which is capable of being made by a clerk-32.70 -or, per quarter hour-8.60 Item 36: Making an appointment or similar attendance by telephone -15.60 Item 37: An attendance on counsel: - 33.30 -with brief or other papers -to appoint a conference or consultation -14.60 Item 38: A conference or consultation with counsel - 87.70 -or, per half hour-66.20 Item 39: On a summons or other application in Chambers - 49.40; or per half hour - 87.70 continued over Page 23 — January 2003 NOTICEBOARD Item 40: In Court or in Chambers instructing counsel on any hearing or application - If a solicitor attends, per hour - 210.90 or - If a clerk attends, per hour - 87.80 Item 41: On an application or appearance before a Registrar or a Taxing Officer -109.90 or -per hour-131.70 NOTE: Instead ofthe above costs for attendances, such larger sum may be claimed as is reasonable in all the circumstances ofthe case, and is allowed on taxation at the discretion ofthe Taxing Officer. Item 42: To hearjudgment - 57.50 Item 43: When in the opinion ofthe TaxingOfficer it is necessary fortwo solicitors, ora solicitor and a clerk to attend on a hearing, such additional allowance as the Taxing Officer thinks reasonable shall be made not exceeding per day - 440.80 Item 44: Where the Taxing Officer is satisfied that a solicitor’s principal place of practice in a place other than that in which the Court is sitting, and it is necessary forthe solicitorto leave that place to attend in Court or in Chambers at the hearing of an appeal, application, or cause, an allowance (in addition to reasonable travelling expenses) may be made for each day that the solicitor is necessarily absentfrom the principal place of practice of such amount that the Taxing Officer thinks reasonable having regard to such other charges as the solicitor may be entitled to make in the matter. - not exceeding per day - 984.70 Item 45: An attendance for which no other provision is made - 43.80 Item 46: Preparation ofappeal and application books including collating all necessary material, all necessary attendances and general oversight of their preparation in cases where the Registrar is satisfied it has been done efficiently. Per hour: -solicitor - 142.50 - clerk - 47.50 Item 47: Where appeal or application books are prepared in a solicitor’s office, the Taxing Officer may in his or her discretion allow such sum as the TaxingOfficerthinksjustand reasonable having regard to work and labour properly performed and charged for material used. In exercising his or her discretion the Taxing Officer shall have regard to commercial rates for copyingand bindingand is not obliged to applythe photographic or machine made copy costs otherwise allowable in this scale. GENERAL CARE AND CONDUCT Item 48: The Taxing Officer may, where the case or circumstances warrant it, allow an amountto be claimed under this item, in addition to any item which appears in this scale, for general care and conduct. In exercising his or her discretion the Taxing Officer may have regard to any matters which the Taxing Officer considers relevant including: (a) the complexity of the matter and the difficulty and novelty of the questions raised or any of them; (b) the importance of the matter to the party and the amount involved; (c) the skill, labour, specialised knowledge and responsibility Page 24 — January 2003 involved therein on the part ofthe solicitor; (d) the number and importance ofthe documents prepared or perused without regard to length; (e) the time expended by the solicitor; (f) research and consideration of questions of law and fact. WITNESSES EXPENSES Item 49: Witnesses called because of their professional, scientific or other special skill or knowledge. Per day-802.10 Item 50: Witnesses called, other than those covered in item 49. Per day-84.60 Item 51: Witnesses remunerated in their occupation by wages, salary orfees, the amount lost by attendance at Court. Item 52: Where the witness resides more than 50 kilometres from the Court, such sum as the TaxingOfficerthinks reasonable forthe actual cost of conveyance, together with a reasonable amount for sustenance or maintenance. Item 53: The Taxing Officer may also allow such amount as he or she thinks reasonable and properly incurred and paid to witnesses for qualifying to give skilled evidence. Item 54: Notwithstanding anything in the scale, the Taxing Officer may allow to an expert witness a special fee for attendance at Court not covered by the foregoing paragraphs ofthis item when the witness is acting as an expert in assisting counsel or a solicitorfor a period duringthe trial or hearing. The scale in this item does not affect the existing practice of a I lowing q ua I ifying fees to witnesses. DISBURSEMENTS Item 55: All Court fees, counsel’s fees and other fees and payments to, the extent to which they have been properly and reasonably incurred and paid, shall be allowed. Item 56: The remuneration allowed to a solicitor shall be governed by the foregoing scale but in special cases the Taxing Officer may in his or her discretion allow such additional charges or disbursements as the Taxing Officer considers reasonable. From the Deputy Registrar of the Federal Court Federal Court Amendment Rules 2002 (No 3) Please find enclosed an unofficial copy of the Federal Court Amendment Rules 2002 (No. 3) which will be published in the Commonwealth Government Gazette on 26 November 2002 as Statutory Rule No. 281 of 2002. The Amendment Rules commence on 26 November 2002. An official copy of the Amendment Rules will be available on the Internet from the ScalePlus site at http:// scaleplus.law.gov.au/home.htm The Amendment Rules: • amend Order 10 rule 8 so that a default judgment may include, if the Court considers it appropriate, costs and interest (see Schedule 1 item [1] ofthe Amendment Rules); • amend Order 15 rule 1 to make it clear that a party must have leave of the Court before filing and serving a notice for discovery (see Schedule 1 item [2]); • omit Order 52 subrule 1 4AA(4) on the basis that it is inappropriate in an appeal for a person seekingto intervene to be invited to suggest that witnesses be called (see Schedule litem [3]); NOTICEBOARD • amend Order 54B and forms 56 and 57, and insert a new form 56A, to provide for applications under the Judiciary Act 1903 forthe review of a privative clause decision under the Migration Act 1958 (see Schedule 1 items [4], [5] and [7]); and • increase the scale of costs in Schedule 2 by 3.2% in accordance with recommendation by the Federal Costs Advisory Committee in its 18th Report into Solicitors’ Costs (see Schedule 1 item [8]). • rename the First Schedule to the Rules so that it is now “Schedule 1", and make consequential amendments to replace each reference in the Rules to the “First Schedule” with a reference to “Schedule 1” (see Schedule 1 items [6] and [9]). From the Reporting Assessor, AUSTRAC Changes to AUSTRAC Reporting Requirements - AUSTRAC Policy Declaration The DirectorofAUSTRAC, Mr Neil Jensen, has recently approved changes to the way in which solicitors must reportSignificant Cash Transactions (SCTRs) to AUSTRAC. The approval is made under sections 15A(2) and 15A(3) ofthe Financial Transaction ReportsAct 1988(FTR Act). Solicitors whose reportingvolumes exceed 250 forms per year will now be required to report electronically ratherthan on paper (providingthe appropriate technology is available). The new reporting requirements are intended to minimise both the cost of processing paper for AUSTRAC and the cost and time of compliance with the FTR Act for solicitors. The system AUSTRAC has developed is EDDS Web, the Electronic Data Delivery System on the web. EDDS Web is a secure web site with 128 bit SSL encryption. To access this web site you need to register, allow cookies and have Internet Explorer v5.5 (1E5.5) or above (or the latest version of a similar browser). The required report information can then be data entered online. AUSTRAC requires all solicitors who meet the technical provisions described above to be reporting electronically by 31 December 2002. If you feel this is an unrealistic timeframe for your business, or if you wish to register, or discuss any aspects ofelectronic reporting, please contactthe AUSTRAC Help Desk. Help Desk Contact Details: Mail: P0Box55l6, West Chatswood NSW 1515 Ph: 1800 021037 or 02 9950 0827 Fax: 02 9950 0071 E-mail: help_desk@austrac.gov.au From the Commonwealth Lawyers Association Legal Writing Competition The Commonwealth Lawyers’ Association (CLA) announces the launch ofthetriennial Commonwealth Young Lawyers’ Legal Writing Competition. The title of the 2003 paper is: Judicial Accountability and the Legal Profession - does the legal profession have a role? Papers are welcome from young lawyers (those called to the bar or admitted to practise after 1 September 1998 and who are under the age of 35) qualified to practice in any Commonwealth jurisdiction and in Hong Kong. The winning author will receive full sponsorship to attend the 13th Commonwealth Law Conference in Australia in April 2003. The top five papers will be published in the CLA’s journal The Commonwealth Lawyer. The winning essay will be chosen from the entrants by a distinguished panel, each of whom has some interest in and experience ofthe issues associated withjudicial accountability from a practising, academic or campaigning perspective. Entries, which must be typed, of no more than 2000 words and unpublished, original work should reach the Commonwealth Lawyers’ Association by 15 February 2003 with a proof of eligibility. The judges’ decision is final and no correspondence will be entered into. Please mark your entry forthe attention of: Commonwealth Lawyers’Association C/0 The Law Society, 113 Chancery Lane, London WC2A1PL, United Kingdom Fax: +44 207 8310057 email: cla@lawsociety.org.uk From Royal & SunAlliance Financial Services Family Law Act Superannuation Your members will be aware of amendments to the Family Law Act which will become effective on 28 December 2002, granting certain rights in respect of superannuation entitlements ofthat person’s spouse upon divorce. These rights include access to certain information concerning superannuation entitlements. Royal & SunAlliance has developed certain standard form documentation for superannuation funds marketed under the Royal & SunAlliance, Tyndall and ConnellyTemple brands and that documentation is available for download on the following websites: www.royalsun.com.au, www.contemp.com.au From the Law Council of Australia Australian Lawyer ceases production Australian Lawyer will no longer be produced in its current format. The future of Australian Lawyer received careful consideration following a readership survey conducted in August 2002. In addition to evaluating the publication, the survey findings provided valuable insight to the information needs ofthe readership. After analysing the findings, a decision was taken by the Executive and reported to the Council to cease production with the December 2002 issue. While improved means of communicating with the profession are currently being considered, we will not be replacingAustralian Lawyer with another publication at this stage. Page 25 — January 2003 t COURT LIBRARY NOTES Court library staff wish you all the best for 2003. We look forward toseeingyou in the library duringthe year. NT LEGISLATION Legislative changes in November-December2002, notified in the NT Government Gazette New Acts Information Act 2002 - 62/2002 (N/C) Swimming Pool Fencing Act - 66/2002 (1.1.03) Swimming Pool Fencing (Consequential Amendments) Act - 67/2002 (1.1.03) Tobacco Control Act - 68/2002 (Ss.15-19,20-22,24-26 and 28 - 31.5.03, Rest - N/C) New Regulations 41 Katherine Town Council By-Laws (30.10.02) 47 Legal Practitioners (Professional Indemnity Insurance) Regulations (27.11.02) 48 Small Claims Regulations (4.12.02) 49 Small Claims Rules (4.12.02) 50 Local Court Rules (4.12.02) 51 Palmerston (Animal Management) By-Laws (25.11.02) 52 Palmerston (Public Places) By-Laws (25.11.02) 53 Palmerston (Signs, Hoardings and Advertising) By-Laws (25.11.02) 54 Darwin City Council By-Laws (25.11.02) Commencements 30 MiningAmendmentAct(12.12.02) 41 Consumer Affairs and FairTradingAmendmentAct (ss.34,35,36,59, 60,83 and 84 - N/C, Rest - 1.12.02) 46 Northern Territory Employment and TrainingAuthority Amendment Act (6.11.02) 47 Northern Territory Employment and TrainingAuthority (Consequential Amendments) Act (6.11.02) 58 Private Hospitals and Nursing Homes AmendmentAct (N/C) 59 Statute Law Revision Act (No.2) (7.11.02) 60 Education AmendmentAct (N/C) 61 Community Welfare AmendmentAct (9.12.02) 62 Information Act 2002 (N/C) 63 Ombudsman (Northern Territory) AmendmentAct (N/C) 64 Health and CommunityServices Complaints Act (N/C) 65 Northern TerritoryAboriginal Sacred Sites Amendment Act (15.8.89) 66 Swimming Pool FencingAct(1.1.03) 67 Swimming Pool Fencing (Consequential Amendments) Act (1.1.02) 68 Tobacco Control Act (Ss.15-19,20-22,24-26 and 28 - 31.5.03, Rest - 1.1.03) RECENT ARTICLES Aborigines, Aust Neal, Luke-Afterthree strikes-the continued discriminatory impactofthe sentencingsystem against indigenous Australians, Criminal Law Journal, Vol 26(5) 2002 pp: 279­ 292 Page 26 — January 2003 Asylum Bondar, Anoushka - Detention of asylum seekersinterpretingthe Migration Act, Alternative LawJournal, Vol 27(6) 2002 pp: 287-290 Commercial law Cull, Kim - Ethics and law as an influence on business, Law Society Journal, Vol 40(9) 2002 pp: 50-52 Commercial tenancy Main, Jim - Rent Reviews and GST, Law Society Journal, Vol 40(10) 2002 pp: 33 Lavelle, Keren - Title insurance - is it wanted here? Law Society Journal, Vol 40(10) 2002 pp: 46-51 Contempt Young, PW-Contempt- magistrates powers, Australian Law Journal, Vol 76(10) 2002 pp: 615-616 Contracts law Campbell, Mark - The legal consequences of promises and undertakings made by public bodies, Canterbury Law review, Vol 8 2002 pp: 237-280 Courts Siegel, Natalie - Bush courts of remote Australia, Australian Law Journal, Vol 76(10) 2002 pp: 640-651 Courts - Information technology Nicholson, Robert D-The paperless court? Technology and the courts in the region, Journal ofJudicial Administration, Vol 12(2) 2002 pp: 63-84 Criminal law Lanham, David - Witness credibility and cross-border convictions, Criminal Law Journal, Vol 26(5) 2002 pp: 272­ 278 Criminal trials Honess, TM - Empirical and legal perspectives on the impact of pre-trial publicity, Criminal Law Review, Vol Sept 2002 pp: 719-727 Drug addiction Taylor, Greg-Should addiction to drugs be a mitigatingfactor in sentencing? Criminal Law Journal, Vol 26(6) 2002 pp: 324-343 Drug offences Freiberg, Arie - Drug courts - sentencing responses to drug use and drug-related crime, Alternative LawJournal, Vol 27(6) 2002 pp: 282-286 Dust diseases Goldring, John - Dust diseases and product liability laws, Judicial Review, Vol 6 2002 pp: 73-94 Electronic courts Nicholson, Robert D-The paperless court? Technology and the courts in the region, Journal ofJudicial Administration, Vol 12(2) 2002 pp: 63-84 COURT LIBRARY NOTES Employment law Metcalfe, Jane - Personal relationships and the workplace: taking a gamble? Canterbury Law review, Vol 8 2002 pp: 315-344 Estoppel Campbell, Mark-The legal consequences of promises and undertakings made by public bodies, Canterbury Law review, Vol 8 2002 pp: 237-280 Family law Eades, John - Prospective inheritances in family law property proceedings, Law Society Journal, Vol 40(9) 2002 pp: 46-49 GST Main, Jim - Rent reviews and GST, Law Society Journal, Vol 40(10) 2002 pp: 33 Lavelle, Keren - Title insurance - is it wanted here? Law Society Journal, Vol 40(10) 2002 pp: 46-51 Human rights Cowdery, Nicholas - Rights of refugees, Plaintiff, Vol 53 2002 pp: 23-28 Insurance law McLure, CJ - Risk and responsibility-the interplay between insurance and tort law, Brief, Vol 29(9) 2002 pp: 7-14 Judges Nienaber, P M - Dialogue with the deaf, Queensland Bar News, 2002 Dec pp: 26-29 Sheller, CSC-Judicial independence, Judicial Review, Vol 6 2002 pp: 1-18 Legal ethics Shirvington, Virginia -Conflicting loyalties, Law Society Journal, Vol 40(9) 2002 pp: 38-39 Cull, Kim - Ethics and law as an influence on business, Law Society Journal, Vol 40(9) 2002 pp: 50-52 Magistrates Young, PW - Contempt - magistrates powers, Australian Law Journal, Vol 76(10) 2002 pp: 615-616 Siegel, Natalie - Bush courts of remote Australia, Australian Law Journal, Vol 76(10) 2002 pp: 640-651 Media law Honess, TM - Empirical and legal perspectives on the impact of pre-trial publicity, Criminal Law Review, Vol Sept 2002 pp: 719-727 Medical negligence Madden, Bill -Tort reform and medical liability, Plaintiff, Vol 54 2002 pp: 14-18 Migration Bondar, Anoushka - Detention ofasylum seekers - interpretingthe Migration Act, Alternative LawJournal, Vol 27(6) 2002 pp: 287-290 Native title Hayes, Paul - National Native title tribunal - effective mediator or bureaucratic albatross? A user’s perspective, Indigenous Law Bulletin, Vol 5(18) 2002 pp: 4-7 Young, Doug- Native title afterWard - a general overview of the implications forthe miningand petroleum industries, Australian Miningand Petroleum Law Journal, Vol 21(3) 2002 pp: 207-224 Jager, Ken-Minerals, mining leases and native title, Australian Miningand Petroleum LawJournal, Vol 21(3) 2002 pp: 236-243 Negligence Taylor, Peter-The future of publicauthority liability, Plaintiff, Vol 54 2002 pp: 6-12 Police Wakeling, Stewart- policing on American Indian reservations, Australian Indigenous Law Reporter, Vol 7(1) 2002 pp: 109­ 114 Product liability Goldring, John - Dust diseases and product liability laws, Judicial Review, Vol 6 2002 pp: 73-94 Public authorities Taylor, Peter- The future of public authority liability, Plaintiff, Vol 54 2002 pp: 6-12 Public law Campbell, Mark -The legal consequences of promises and undertakings made by public bodies, Canterbury Law review, Vol 8 2002 pp: 237-280 Public liability insurance Stephens, Hayden - Public liability claims against statutory bodies, Plaintiff, Vol 53 2002 pp: 31-36 Recreation law Charrington, Brett-Surf related litigation-keepingyour case between the flags, Plaintiff, Vol 53 2002 pp: 6-14 Refugee law Cowdery, Nicholas - Rights of refugees, Plaintiff, Vol 53 2002 pp: 23-28 Remedies Campbell, Mark-The legal consequences of promises and undertakings made by public bodies, Canterbury Law review, Vol 8 2002 pp: 237-280 Residential tenancy Cockburn, Tina - Duty of care of landlords in residential premises, University of Tasmania Law Review, Vol 20(2) 2001 pp: 205-240 Sentencing King, Michael S - Geraldton Alternative Sentencing Regime - applyingtherapeutic and holisticjurisprudence in the bush, Criminal Law Journal, Vol 26(5) 2002 pp: 260-271 Neal, Luke-Afterthree strikes-the continued discriminatory impact ofthe sentencingsystem against indigenous Australians, Criminal Law Journal, Vol 26(5) 2002 pp: 279­ 292 continued, back page Page 27 — January 2003 2003 CLE Program 22/1/03 Native Title RaeleneWebb 19/2/03 Bail Applications Hon Justice T Riley Mark Johnson, ODPP 26/2/03 Affidavits and Witness Statements for proceedings Hon Justice J Mansfield 19/3/03 Practice Management KrissWill Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. _ Footy tipping comp on again Last AFL season a very savvy Elizbeth Morris blitzed the field to take out the inaugural LSNT AFL footy tipping competition. This year organisers are considering expanding the competition to include the rugby league. "Sacrilege!” we hear you purists protest. In the end, it all depends on the membership and who wants to take part in the tipping comp. Ifthere is enough interest, we may well run TWO competitions - one for AFL, one for rugby league. If you haven’t already, let Lorelei know your thoughts on the issue. DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: lfonglim@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. Page 28 — January 2003 COURT LIBRARY NOTES (from previous page) Morgan, Neil - Going overboard? Debate and developments in mandatory sentencing, June 2000 to June 2002, Criminal Law Journal, Vol 26(5) 2002 pp: 293-311 Edwards, Ian - Place ofvictims’ preferences in the sentencing of ‘their’ offenders, Criminal Law Review, Vol Sept 2002 pp: 689-702 Freiberg, Arie - Drugcourts - sentencing responsesto drug use and drug-related crime, Alternative LawJournal, Vol 27(6) 2002 pp: 282-286 Cowdery, Nicholas - Whose sentences? Thejudges, the public’s or Alan Jones? Australian Journal of Forensic Sciences, Vol 34(2) 2002 pp: 49-56 Taylor, Greg-Should addiction to drugs be a mitigatingfactor in sentencing? Criminal Law Journal, Vol 26(6) 2002 pp: 324-343 Sexual offences Todd, Alison-Vicarious liabilityfor sexual abuse, Canterbury Law Review, Vol 8 2002 pp: 281-314 Sports law Hocking, Barbara Ann - It’sjust not cricket- Woods v MultiSport Holdings, Plaintiff, Vol 53 2002 pp: 41-42 Statutory authorities Stephens, Hayden - Public liability claims against statutory bodies, Plaintiff, Vol 53 2002 pp: 31-36 Torts law McLure, CJ - Risk and responsibility-the interplay between insurance and tort law, Brief, Vol 29(9) 2002 pp: 7-14 Madden, Bill -Tort reform and medical liability, Plaintiff, Vol 54 2002 pp: 14-18 Vicarious liability Todd, Alison -Vicarious liability for sexual abuse, Canterbury Law review, Vol 8 2002 pp: 281-314 Victims of crime Edwards, Ian - place of victims’ preferences in the sentencing of ‘their’ offenders, Criminal Law Review, Vol Sept 2002 pp: 689-702 Witnesses Lanham, David -Witness credibility and cross-border convictions, Criminal Law Journal, Vol 26(5) 2002 pp: 272­ 278 Work Health Musso, Philip G - Serious injury - a need to take it seriously, Plaintiff, Vol 53 2002 pp: 43-45


LAW SOCIETY NORTHERN TERRITORY Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill COUNCILLORS Mr Stuart Barr Mr Glen Dooley Mr Michael Grove Ms Melanie Little Ms Sue Oliver Mr Markus Spazzapan NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine Collier SECRETARIAT Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Lorelei Fong Lim Complaints Investigation Officer (part time) Ms Josephine Stone Administrative Assistant Ms Felicity Lawrence BALANCE February 2003 COLUMNS President’s Column........................................................................................................ 3 Ferae Naturae..................................................................................................................6 NTYoung Lawyers.......................................................................................................... 8 Lines in the Sand.............................................................................................................7 Advocacy.........................................................................................................................13 Jottings on the Bar..........................................................................................................15 NOTEWORTHY Cyberlex......................................................................................................................... 20 Conferences.................................................................................................................. 23 Noticeboard.................................................................................................................. 24 Court Library Notes.....................................................................................................26 REGULARS Other Passions................................................................................................................ 5 The Muster Room..........................................................................................................19 Readers Forum.............................................................................................................. 21 FEATURES NT superior courts “slow”........................................................................................... 16 Bye Maria, thanks Julie................................................................................................ 18 COVER STORY Balance is published 1 1 times a year by the Law Society Northern Territory. Unique contemporary challenges: a lawyer’s response - the OLY speech............. 9 Opening ofthe Legal Year photo album.................................................................... 11 All contributions, letters and enquiries should be forwarded to the Editor of Balance, Law Society Northern Territory', GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. 1 Page 2 — February 2003 president's column OLY! OLY! OLY! Although this is my second column for the year, it seems to be the first - no doubt a shadow from the Opening of the Legal Year (OLY), and perhaps because contributors to Balance can delay its publication (like me). I have to say the OLY was a great success across the Territory. The turn up to the ecumenical service and the lunch in both Darwin and Alice Springs was exceptional. Itjust goes to show it pays to book early (we had a wait list of 20 in Darwin). It was in Alice Springs that the legal profession received its first blessing from a Mullah, Imam Ahmad Hussain. Given the long traditions in the Red Centre with Afghani immigrants, culminating (to some extent) in the naming of the Alice to Adelaide train of The Ghan, it was a notable first. There was a downside in Alice that receives more detail in Tony Whitelum’s Lines in the Sand report. In Darwin, the procession started a little early. The Chief Justice commented in his ‘word’ after lunch that he now knows that the profession can get to court a little earlier than they sometimes do, although I might venture to say that in this case the attendance was for a higher authority than the court. However the media coverage we received for the procession was good, notwithstanding that some intending participants were a little more on time than we were. Chief Justice Paul de Jersey was a very good speaker at both lunches. The Chief Justice’s speeches were thought provoking and thoughtful (he took the trouble to change his Alice Springs address to suit the local profession there). See further on in this edition a report on the main thrust of his addresses. I hope also that this edition of Balance will reprint thejoke that he told in Alice. I must say, though, the beauty of Alice impressed His Honour, even to the extent that he wished to take a stroll along the Todd at sunset, a journey I was able to persuade him from (who knows he might have been attacked by catfish)! I should also set out a section of the letter we received from the Chief Justice: / looked forward to meeting interesting lawyers from a jurisdiction with a lot in common with mine - and especially for avoiding the pretence some seem to enjoy, and I wasn't disappointed! ...I was genuinely impressed by the vibrancy of the Society's efforts, and the profession. And finally: "...best wishes to you personally, to the Society and to the Territory profession". In return I would like to extend the thanks of all the profession to the Chief Justice for the time he spent with us and the importance of his speeches to the profession in both Darwin and Alice Springs. great importance In the course of my "reply” in both Darwin and the Alice Springs I mentioned something that was of great importance to the profession. As you are all aware, the insurance crisis has hit us fairly and squarely and we should take steps to determine what we can do to lessen the impact of the raging insurance market. To that end, the Society has commissioned our brokers, Marsh, to provide us with a report discussing the various steps that could be taken by the Society in the current market to either lower premiums in the near future or put into effect a scheme that will enable us to soften any further increases in the future. That discussion paper will be available to the profession shortly and will invite submissions from the profession. Ian Morris, president We have already experienced part-time practitioners electing not to practice and other practitioners who have attempted to obtain insurance tailored to their practice in an effort to reduce the premiums but who had discovered that the market is not interested in insuring them individually. There have been some suggestions to the Society that certain types of practice are less "risky” than others and that there ought to be some reduction in the premium for those areas of practice. The reports we had from Marsh have indicated there are no areas that are that devoid of risk they they would warrant a reduction in premium. That is certainly so when one looks at the figures over a ten-year period, which is what the insurers do. I certainly urge anyone who has any idea which might be useful in reducing the cost of premiums to respond to the invitation for submissions. Finally, there will be a period of change in the Society’s secretariat as we adopt the recommendations of the management consultant and adapt to the changes brought about by the departure of Maria and the arrival of Barbara Bradshaw. As they say in the classics, we apologise for any interruption in the normal service. See you when the mud dries! ® Page 3 — February 2003 l Meanwhile, from the World Jurist Association meeting in Germany Late last year the World Jurist Association convened in Stuttgart, Germany for its International Conference on Constitutions and Mobility Versus the Environment. The delegates deliberated on the role constitutions play as keystones to democracy on the global, regional and national level. They also considered the essential need to develop a legal and policy framework under which environment is enhanced and mobility assured. The delegates reaffirmed their commitment to world peace under the Rule of Law and urged all individuals and civil society to promote that goal. As part of their Stuttgart Declaration, the World Jurist Association called upon all nations to: • abide by principled restraints on the use of force; • strengthen the existing United Nations and regional machinery for the maintenance of international peace and security; • ratify and implement numerous treaties on Human Rights and the Environment; and • undertake effective national, regional and international measures to establish a sustainable future for all humankind. Page 4 — February 2003 Blessed by the lions Above: LSNT vice president Merran Short..no teeth on this lion, but plenty of good will and blessings for the new Chinese year. Above: A quick roam around the LSNT boardroom, past the presidents' wall...and then (right) on to LawAsia for their blessing. Who would stick their arm in a lion’s mouth? Well, it was a traditional Chinese blessing lion so it wasn’t that daunting for LSNT Vice President Merran Short. It was all part of the blessing ceremonies carried out at the LSNT secretariat offices and the LawAsia offices next door to mark the start of the Year of the Sheep. In return for blessing the premises, the “lion” was “fed” lettuces. Merran’stask was to feed the lion a traditional red packet (with donation) which she did without fear or favour. Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a voluneer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Coordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton & McMinn Sts SAT - 10am-11.45am, Casuarina Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 1111 or email darlene@dcls.org.au OTHER PASSIONS... Take a walk on the Ward side Alice Springs-based magistrate Michael Ward takes things in his stride. And with a career spanning two territories and a state, it’s just as well. Mr Ward has links with the NT dating back to 1969 when he was a lawyer in Darwin. The following year he was appointed stipendiary magistrate. Cyclone Tracy in 1974 swept away most, including Mr Ward’s home but he did return again in 1980 to practise as a barrister. Between 1983 and 1985 he was counsel assisting the then Aboriginal Land Commissioner, Sir William Kearney. After that, Mr Ward worked as a magistrate in the ACT for 13 years, then resigned and moved to Adelaide to practise as a barrister in criminal and civil law. In October 2000 he made it back to the Territory, this time to again serve as a magistrate in Alice Springs, where he remains today. Varied though his career has been, Mr Ward also gathered up two passions along the way - walking and cooking. “I’ve walked from the top of Kosciuszko through to Canberra, that’s about 240 kilometres,” he says. “I’ve done that in several goes though. “Kosciuszko to Canberra is one of the best walks I’ve ever done, without a doubt. It’s beautiful country - snow at the beginning in the high country and greenery and running rivers everywhere else. It’s terrific.” The enthusiastic walker has also “trailed” from Alice Springs to Standley Chasm, about 50 kilometres in trekking, and his most threatening encounter was coming foot-to-face with a deadly Brown Snake. “I’ve got the world back jump record,” he says laughing. “He didn’t bite me but he certainly flattened the head and went to strike. I was too quick though. It (the encounter) certainly made me a bit nervous about walking for a while.” His Worship is often seen stepping out around the Red Centre, he’s legendary for walkingto and from work most days. “Morning is the best time. It can get a bit hot during the day,” he says. “I prefer cooler weather to walk in - it’s too hot and uncomfortable during the Summer.” When he’s not walking to relax, Mr Ward heads to the kitchen and cooks up a storm of mainly Indian food. “I can’t always get the food I like so I cook it myself - I’ve got a big selection of Indian cook books,” he enthuses. “The ingredients are not always easy to get (in Alice Springs) but there’s an Indian grocery shop in Adelaide and when I go down there to visit I always buy the stuff that I’m likely to need for the next six months.” favorite dish His Worship’s favourite dish is Butter Chicken (Murgh Makani) and he admits he’s not really into the “really hot Indian food”. He’s also well versed in cooking Thai and Indonesian dishes but it’s the Indian cuisine in which he specialises. “I did an Indian banquet before Christmas and fed about 20 people - there wasn’t any left,” he says. “It went down really well.” Mr Ward says he’ll continue to wash it all down with a good bottle of red and walk off the calories he gains through his cooking passion. “I might even lookatopeningan Indian restaurant when I retire,” he says smiling.® Above: Alice Springs based magistrate Michael Ward...keen walker, keen cook. ' INVESTIGATIONS N PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection "^sDutbcick . BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au Member of Institute of Mercantile \__________ Agents Ltd __________ / bal010602 Page 5 — February 2003 , ferae naturae Interesting times to come As I get ready to start with the Law Society Northern Territory as its new Chief Executive Officer on 3 March, I am very much looking forward to the challenges involved. Forthose of you who don't know me, I would like to outline my background. I undertook law studies at the University of New South Wales, completed the College of Law Course and worked in country NSW legal practice for three years. Wanting to do something a bit different, I obtained a job with the then NT Department of Law in Darwin in 1982 and joined the Executive and Policy division. During the next 17 years (apart from a year when I was on maternity leave) I worked in a number of areas in the department and its successors. As well as doing a considerable amount of policy work in a number of areas, at various times I held the positions of Acting Registrar General, Acting Registrar of Land and Business Agents, Registrar of Companies, Commissioner for Corporate Affairs, Registrar of Associations and Registrar of Financial Institutions. I also spent a couple of months acting as Deputy Master of the Supreme Court. I believe my regulatory and policy background and knowledge of how government operates will assist me in my new position with the LSNT. I left government for “private industry" becoming General Manager of the Traditional Credit Union in 1999. This involved a lot of planning, strategic and otherwise, liaising with Government as well as occasional crisis management. It enhanced my knowledge of indigenous issues as well as the complexities involved in operating what is effectively a small business in a complex regulatory and operational environment. Barbara Bradshaw, Chief Executive Officer LSNT I thank Maria for the handover provided and other staff forthe support provided to date and I am looking forward to further working with Ian, and with other members of the Council. As to the main priorities in the position, one will be to assist the committees to advance the 13 Strategic Planning initiatives. As regard specific issues, these include: • Working through the complicated issues relating to Professional Indemnity Insurance and securing the best possible outcomes for the NT legal profession in what is a very complicated area. • The Tort Law reform area and problems with the proposed personal liability reforms. • Assisting the council in dealing with the Competition Policy recommendations in relation to the legal profession. • Submissions to the Chief Justice relating to costs. • Amendments to the Constitution and various rules. • The proposals for national competency on Admission. • Issues relating to the fidelity fund. I am very pleased to be back working with the legal profession again. A very interesting time is ahead.® Find that cheque The Australian Payments Clearing Association has implemented a register of contact points at each Financial institution for lost and stolen financial institution cheque inquiries. The APCA sets and controls the rules and procedures governing Australia's payments clearing system. The register is designed to help confirm valid issuance of cheques. It lists contact details of institutions belonging to APCA for those wanting to know about the status of a financial institution cheque. The register is available on APCA's website at www.apca.com.au The site also features explanatory material about financial institution cheques including that they are not the same as cash and that they do not necessarily represent guaranteed payment. The register can be found under payments information on the website. Page 6 — February 2003 lines in the sand OLY: the Alice experience What a performance! It all began Tuesday evening. The locals were to meet the dignitaries for a bite to eat at Casa Nostra, the famous Italian bring-your-own atthejunction of Sturt Terrace and the Wills Terrace Causeway, ie on the banks of the Todd. I had collected Morrie from his accommodation, engaged in a quick Law Society meeting in my office and still in his company, purchased a goodly quantity of quality wine (mostly red). Whilst waiting for the others, we decided to have a beer in the car park. A small ensemble gathered. We drank the six pack of Crownies and moved inside for the meal. It was a very pleasant evening. The food, as usual, was excellent and the accompanying libation just as good. Knowledge was exchanged between Queensland, Alice and Darwin. Eventually, Carmella (proprietor) adjourned the sitting, sending us on our way to our various destinations. The judiciary and the Law Society were transported by the LawSociety’s “Bob”. Having had vast experience (some practical too!) in the criminal law during the years, I decided to leave the Hiluxfora “sleepover”. My fellow-local did the right thingand got me home. The usual procedure for retrieval from a “sleepover” is of course collection on the way to work. Upon collection at 8.30am, I noticed various items from within my vehicle strewn over the car park. Closer inspection revealed that it had been broken into and various items removed including the proposed drycleaningforthatweek, the Best of Thin Lizzie CD (and others), tools and the water container that was used to transport the petrol siphoned from the tank! Galvanised into action I strode to the police station to make my report. I knew I had to be quick because we had the procession soon to start. In my haste, I had forgotten my two court appearances at 9.30am. I was also obliged to read the Canticle and so I couldn’t be late. Minor panic set in. I completed the crime report with the usual pleading of reserving my rights to amend the particulars contained therein as I had absolutely no idea (not admitted) what had been taken. Tony Whitelum, LSNT representative for Alice Springs Of course I missed the procession but was able to tail onto it as it marched into Supreme Court No 1. I could see a look of relief on the Alternative Representative’s face as it was apparent I could still read the Canticle. The clergy gave a very relevant and intelligent discourse on the similarities between the law and the cloth. Many thanks to Rev Faulkner and the other denominations that participated. There wasn’t much time between the close of the ceremony and the start of the lunch. Morrie approached looking for his computer left in my vehicle overnight. Oops! I hadn’t yet had the opportunity to tell him of the overnight activities. He seemed to take it pretty well though particularly when I informed him of the loss of the Best Of. (Morrie, the Promis No is ....) The lunch went exceptionally well with everyone behaving. The Chief Justice of Queensland the Hon Paul de Jersey AC, a genuinely nice person, was the keynote speaker. I quote: But your situation is unique in many ways other than the environmental. You share with Queensland especially, the enormous challenge ofdealing, with justice, with the interface between two cultures, one ancient, another much younger. continued over i Above: Queensland Chief Justice Paul de Jersey (left) with Tony Whitelum during His Honour's Alice Springs OLY visit. Page 7 — February 2003 nt young lawyers New year and a new NTYL committee The NT Young Lawyers Annual General Meeting was held 28 November 2002 and the following office bearers for 2003 were elected: President Christopher Booth Vice President Roman Micairan Treasurer Matthew Garraway Secretary Lisa Strachan Social Co-ordinator Ben Lee Lines in the Sand, from previous page We have some experience of this in Queensland, but this is more the ultimate Aboriginal heartland....With reconciliation shuffling rather than striding, one of the profession's contemporary challenges is to lead in the crafting of a criminal justice system of meaning to all Australians, including those imbued with the spirituality born of ancient time. I congratulate you on the persistence and sensitivity which undoubtably characterise your uniquely experienced approach to those particular issues - what unique problems subsist! The real issue, perhaps, is whether all cultures accept the legitimacy ofour approach: we struggle to ensure that occurs. This is a challenge that not only we here in the Red Centre need to accept, but the profession as a whole; the judiciary and the legislators. We finished up at 8pm thoroughly rinsed. On the domestic front it was the second day in a row ofthe allegation that I was “rabbiting- on". (Thank you to all the local legal eagles who attended the procession and lunch.) The following day I was able to take the Chief Justice, on a very brief tour of our city. He has promised to return. I continue to wear football shorts to work as I’m having difficulty with the insurance company concerning the dry-cleaning! The Opening this year will certainly remain a highlight for me . I just wonder what is going to happen next year... Page 8 — February 2003 NTYL president Christopher Booth On behalf of the NTYL 2003 office bearers, I’d like to convey our sincere gratitude to the those of the 2002 NTYL executive who have departed, and wish them well. This year the NTYL executive will focus on connecting young lawyers and addressing the issues pertainingto the membership. To this end, we will build on the initiatives addressed in 2003 with a specific emphasis on the Continuing Legal Education needs of the membership. Social activities are also an important facet of life as a young lawyer, and an opportunity to liaise with peers and meet with new practitioners. The NTYL will pursue a variety of meet and greets throughout the year, the pinnacle of which will no doubt be the Young Professionals Ball, which began as a brain child of a visionary few and snowballed into a very well organised and sold out event. Thanks should go out to our outgoing President for helping organise this event and for indicating a preparedness to undertake a similar YPB 2003 organisational role. Young Lawyers who wish to contribute to the ongoing success of NTYL are encouraged to contact the various 2003 office bearers. Some new ideas recently gleaned from the state and territory reports of the Law Council of Australia’s Committee ofYoung Lawyers are being considered by the executive, however when brainstorming there is no such thing as a stupid idea, so keep those recommendations flowing in. At the AG M of the NTYL it was resolved to un-incorporate Northern Territory Young Lawyers and become a new committee ofthe Law Society Northern Territory. Please direct all mail to the Law Society or emails can be sent directly to an office bearer of NTYL. Notices in Balance and via email will normally be used to inform members of upcoming events, we ask practitioners with less than five years post admission experience and article clerks please inform an office bearer of your contact details if you were not receiving notices via email in 2002. And finally, the rumor which swept legal circles around Australia that the Treasurer and Secretary, and our departing Public Officer have been given a ticket to actually practice law, is in fact true!! Well done and welcome to the profession. May it be a long and mutually rewarding association. All Young Lawyers please take note of the notice in this edition of Balance for the first CLE for 2003, presented by Justice Trevor Riley, Director of Public Prosecutions Rex Wild QC and barrister-at-law Lex Silvester. ® cover story Unique contemporary challenges: a lawyer's response How should the conscientious practitioner react to issues of international violence borne of hatred; commercial threats to traditional professionalism; and opportunistic condemnation of lawyers as the authors of a raft of society’s woes? Queensland Chief Justice Paul de Jersey addressed these issues as the Law Society NTs guest speaker for the Opening of the Legal Year. Balance publishes here an edited version of his Darwin speech and parts of his specially tailored Alice Springs address. We begin this law year in regrettably unique circumstance: we gaze upon a community transfixed by the spectre of war and other cataclysm: graphically here with your proximity to Bali. We lawyers assert in response the pivotal importance of that great stipulation, the rule of law. But how useful is that to countervail these modern menaces - terrorism borne of hatred and religious bigotry? Our public responsibility as professionals militates our making some helpful response to these onslaughts - historically unique. How are we to fashion a worthwhile response? At the beginning of 2003, our profession faces other major challenges, challenges of unparalleled intensity. Notably, there is bristling tension between our traditional professional approach on the one hand, and on the other, growing commercialism. One manifestation is the multi-disciplinary partnership. Is that to be seen as a mechanism to secure better public service, or primarily a vehicle to enhance financial returns? We have recently experienced HIHand Enron. Do those experiences encourage some retreat from the business path, with renewed focus on “conservative" professional values? Then there is the public attitude to our profession. Like the people of Ireland, we lawyers are used to friendly jibes. But last year the assaults apparently became less light-hearted. We were attacked by the insurance industry, medical practitioners, even governments. The legal profession including the judiciary found themselves carrying the blame for many things: high insurance premiums, insupportable damages awards, payouts which should never have been made. A lot of the criticism was regrettably opportunistic. As a convenient whipping boyfor so many of the problems which beset society, how do we lawyers rise through the pressure of unreasonable criticism? Of course if we are to serve the public effectively we must do so, not only with competence and wise judgement, but also with confidence and calm. Now I at once suggest that it is important that we acknowledge and respond to these challenges. However grudgingly conceded, society depends on the legal profession. Just as the judiciary constitutes a third arm of government, so the profession is one of its pillars. A legal profession healthily discharging its responsibilities is critical to a vibrant, progressive and secure community. Let me return now to the first and most critical of those challenges, responding to the bleak international landscape. And how bleak it is! The Kuta bombings of 12 October last year removed any basis for a view that Australia is protected from the devastation of these wicked intrusions. The flavour of an even abbreviated list of current flashpoints is desperate: Iraq and North Korea with their nuclear and biochemical warfare potential; turbulent Northern Ireland where the peace process is yet again in hiatus; the long-standing failure to reconcile self-determination for Jews and selfdetermination for Palestinians in what was British Mandated Palestine; the destruction of life in Zimbabwe, by famine and other criminal activity, where the rule of law has been replaced by authoritarian dictatorship; and now, the looming pervasive threat of terrorism of vastly destructive proportion. Above: Chief Justice de Jersey AC, addressing the Darwin lunch. The extent to which countries joined, post-September 11, in vocal condemnation of terrorism, and in devising strategies to counter terrorism, was to us ordinary people greatly reassuring. It was based on the view that these are shared problems. As put by the Australian Minister for Foreign Affairs, “protecting one’s home is easier in a safe neighbourhood". That safety is most effectively secured through cooperative action, as is now happening between Indonesian and Australian authorities in the wake of the bombings. One recalls the words of J B Priestley’s “Inspector": We don't live alone. We are members of one body. We are responsible for each other. And I tell you that the time will soon come when ifmen will not learn that lesson, they will be taught it in fire and blood and anguish. continued next page Page 9 — February 2003 i cover story CJ de Jersey, from previous page On the face of things, the enormous cultural divides would constitute barriers to effective cooperative action. But global poverty should and does bolster the international commitment of those nations well endowed. There are, we are told, 1.2 billion people who live on less than one US dollar per day. Yet that did not prevent a reasonably effective UN rescue of Afghanistan. The more dangerous wild card, I fear, is hatred borne of religious obsessionalism, what we believe inspired the September 11 attacks. Is it conceivable that resurgence ofthe rule of the law could forestall other unpredictable, evil manifestations of that sort of hatred? Edmund Burke said, Itis sufficient for the triumph of evil that good men should do nothingLawyers are not only good people: they are also highly talented in abstruse but significant fields. I have no doubt that Territory lawyers have worked valuably in restoring lives dishevelled by the Bali bombings. Australian lawyers have done a lot to establish a worthwhile new legal system in liberated East Timor. Lawyers, particularly from the USA, were instrumental in fashioning constitutions and legal codes for areas of the now fragmented former USSR. By such participation, lawyers can instil understandingand acceptance of the importance of the rule of law; likewise by interaction, within Australia, with foreign nationals from contrasting regimes. In a recently published article entitled The Bali Bombing, Colin McDonald QC points from a Territory perspective to what he calls “a new unexpected mutuality” in the joint action of Indonesia and Australia responding to the Bali tragedy. He expresses The sentiment that “information, understanding and reason are the enemies of ignorance, hatred and bigotry”. Lawyers are well-placed to promote acceptance of the rule of law for what it is - the lynchpin of civilized society, both through direct involvement with less sophisticated regimes and, as I have suggested, through interaction, at home, with those not familiar with the stipulation. Page 10 — February 2003 In all of this, it is mutual engagement which is fundamentally important. The author concludes his paper with reference to Dr Martin Luther King’s words spoken in 1968: Now let me suggest first that if we are to have peace on earth, our loyalties must become ecumenical ratherthan sectional. Ourloyalties must transcend our race, our tribe, our class, and our nation; and this means we must develop a world perspective. Now to the second of the challenges I present: how to maintain traditional professionalism against a seemingly overwhelming tide of commercialism? The anterior question, I suppose, is “why bother”. The answer is self-evident. Our profession facilitates and ensures the due administration of justice: maintaining the rule of law, upholding basic rights and freedoms, monitoring the exercise of executive power, implementing the system of criminal justice... A narrow self-absorption with material success is repugnant to the effective discharge of such significant responsibilities: the orientation must fundamentally embrace high ideals, integrity, self-restraint, diligence, profound ethical commitment. The established rapacity, venality of only even a few practitioners can erode public confidence in the professional generally, as the experience of recent times in Queensland and New South Wales would regrettably suggest. The last three decades since my admission into the practice of the law have witnessed an utter transformation in the scale of legal practice. Indeed, such transformation is perfectly exemplified by the evolution of the legal profession in the Northern Territory. In this jurisdiction membership of the Law Society has grown from a mere 25 upon inception in 1968 to over 500 today, while the Bar Association now counts over 25 practitioners as members. Such changes have spawned additional pressures: to meet high and relentless overheads; to attract and keep clients who are more inclined these days to move from firm to firm, with firms now often obliged to tender competitively for work, and being driven even to the length of retaining marketing staff; to operate in an increasingly regulated domain such that to protect and promote both the position of the firm and the rights of individual people, human resources staff need often to be employed; to command an increasingly complex bank of legislation and judge-made law; to master intricate legal concepts, the courts unfortunately sometimes not assisting with judicial definition marked by particular precision. These sorts of pressures, the product of the changes in practice which have characterized the whole of my professional life to date, mean that the modern practitioner is challenged to display true professionalism in the face of intense business pressure. The shameful, arrogant self-indulgence recently alleged through the public dissection of HIH and Enron in particular, should provide the catalyst for intense ethical review on the part of any professional tempted to stray from proper acknowledgement of the primacy of the core values to which I have referred. I was interested to read some observations made by Chief Rabbi Jonathon Sacks at the dawn ofthe new millennium (quoted bySpigelman CJ, 77 AU at 60-1): When everything that matters can be bought and sold, when commitments can be broken because they are no longer to our advantage, when shopping becomes salvation and advertisingslogans become our litany, when our work is measured by how much we earn andspend, then the market is destroying the very virtues on which, in the long run, it depends. That, not the return ofsocialism is the danger that advanced economies now face. And in these times, when markets seem to hold out the promise of uninterrupted growth in our satisfaction ofdesires, the voice ofourgreat religious traditions needs to be heard, warning us of the gods that devour their own children, and of the temples that stand today as relics ofcivilizations which once seemed invincible... continued page 17 cover story he 2003 Opening of the Legal Vear j hoto Altum Clockwise from above: Leading the procession were (right) Anglican Bishop Philip Freier and (left) Catholic Bishop Ted Collins. The Catholic church was the lead” church this year. Chief Justices de Jersey (left) and Martin (right) took the new procession route in their stride. Walking with LSNT president Ian Morris was NT Ombudsman Peter Boyce. Below left: Keeping Morrie company in the Alice Springs procession - Chief Magistrate Hugh Bradley (they’re behind Attorney General Peter Toyne, Alice Mayor Fran Kilgariff and the Opposition’s Jodeen Carney). Below right: DPP Rex Wild QC (extreme right) led his Alice Springs DPP “contingent:”. Left: The event in Darwin kicked off with the launch of the third edition of the Law Handbook, a joint project of the Darwin Community Legal Service and the NT Legal Aid Commission. Law Society president, Ian Morris did the honours and gave a copy each to the two Chief Justices - de Jersey (Qld) and Martin (NT). The handbook was a result of many thousands of hours of work by volunteers and is a valuable resource containing practical information - legal citations, case references, illustrative examples and more. It is a great one-stop reference guide to the law in the NT. continued over Page 11 — February 2003 cover story ~J~Tie 2005 Opening of the Legal Vear I hoto Album Above left and right: The ecumenical services in both Alice Springs and Darwin were well attended by dignatries, the legal profession and members of the public. Left: Attorney-General Peter Toyne (far left) joined (clockwise) NT Chief Justice Brian Martin, Qld Chief Justice Paul de Jersey, LSNT president Ian Morris, new LSNT CEO Barbara Bradshaw, LSNT Councillor Michael Grove, Chief Magistrate Hugh Bradley and advisor to the Attorney-General Laurene Hull at the Darwin lunch. Left: The DPP and his “gang” - (from left) Jack Karczewski QC, Ruth Brebner, Libby Armitage, Mark Johnson Rex Wild QC (DPP), Glen Dooley, Ron Noble and Anthony Elliott. Below left: Qantas’ Steve Farquer and Nicola Haynes enjoyed the lunch. Below: (from left) Kristina Karlsson, Cathy Spurr and Jodi Truman - all from Halfpennys caught up with Ingrid Meier (Cridlands), Josine Weynberg (Cridlands), Belinda Peacock (Clayton Utz) and Alice Garton (Clayton Utz). advocacy The urgent interlocutory injunction “I will prepare and someday my chance will come" Abraham Lincoln Last month I discussed preparation for, and the presentation of, interlocutory applications. I now wish to refer to a specific class of such applications. If the application you are instructed to make is for an urgent interlocutory injunction there are special considerations to bear in mind. The success or otherwise of such an application can, in many cases, mean success or failure in the whole action. As is noted in Injunctions: A Practical Handbook1: In some cases, the result of a final hearing will be purely academic afterthe interlocutory result; in others, the passage of time will cause parties to lose interest; but most importantly the determination of an application for interlocutory injunction will often give the parties to a dispute an insight into the approach of the court in determining matters in dispute. The granting of an interlocutory injunction calls for the exercise of a discretion by the court. Where there is a serious issue to be tried the court will be called upon to consider where the balance of convenience lies. That will usually involve a delicate act of balancing the competing interests of the parties. Often there will be no clearly correct, or even preferable, response to the problem that arises. In many cases one party or another will be substantially disadvantaged by whatever decision the court reaches. In those cases the slightest of matters may sway the court in one direction or another. In such circumstances the skill ofthe advocate in presenting a persuasive argument will be vital to the interests of the client. Any failure to present the case for the client in a clear, compelling and forceful way may have consequences for the client of an ongoing and significant kind. Such consequences are likely to reach far beyond the outcome of the application immediately before the court. Applications of this kind are often dealt with on short notice and in an emotionally charged atmosphere. There is little time for preparation of evidential materials to be placed before the court let alone for reviewing and refining issues of law. Given the nature of such applications it is prudent for the advocate to be aware, in advance, of the relevant law in relation to applications for interlocutory injunctive relief. In order to avoid delay and possible embarrassment when instructions are received preparation of a general kind for such applications should take place in anticipation that instructions may be received on some future occasion. In my view it is highly desirable for an advocate to have researched the topic so that he or she has a ready familiarity with the applicable law. It is prudent for the advocate to have created and maintained a precedent file in which the leading general authorities relevant to such an application are stored. It should be possible to address any aspect of the law relating to the granting of an injunction by reference to the materials in the file. Also included in that file should beany other information that experience suggests may be of use in presenting or opposing an urgent application. Resort to such a file can then be had on short notice saving precious Hon Justice Riley preparation time and avoiding the possibility that some failure on the part of the advocate will cause embarrassment in the course of the proceedings. When instructions to seek injunctive relief are received the advocate will be able to concentrate upon the issues raised by the factual circumstances of the matter without the need to research the law. This is not an appropriate place to review the law relevant to such applications however, to demonstrate the desirability of anticipatory preparation, I refer to two matters vital to such applications. Firstly, if the application is to be ex parte, in preparing the material for presentation to the court it must be remembered that there is an obligation on the applicant to bring to the attention of the court all facts material to the application. As is pointed out by Mr Burns: “the entire facts of the case must be fairly and candidly stated. If this is not done, the injunction will be dissolved.” The applicant must demonstrate the utmost good faith. Secondly, the need for clear instructions to provide the “usual undertaking as to damages” should not be overlooked. The form of the usual undertaking in the Northern Territory is to be found in Practice Direction 3 of 1992. continued page 16 Page 13 — February 2003 / Process Servers and Field Call Agents Institute of Send your NSW process work direct to us for immediate attention and save days on getting a response. Serving all areas of New South Wales m

  • *

Nationally representing the interests of Process Servers ■ Efficient turnaround of all legal documents ■ Quality affidavits issued ■ Competitive and attractive pricing for bulk business When you have documents that need to be served ~ rest assured they will be served with results. Ale our agents are professionals with many years of experience - they are also members of the Institute of Mercantile Agents. Phone 02 9588 9643 Fax 02 9588 9550 Mobile 0412 245 631 DX 11112 KOGARAH Email info@platinummercantile.com.au Postal PO Box 507 Kogarah NSW 1485 Contact Peter McRae and Desiree Holcroft ‘FOR THOSE WHO APPRECIATE QUALITY SERVICE WITH RESULTS” Page 14 — February 2003 bal010302 nt bar association ■ jottings on the bar More to the Heydon address than reported The address by Justice Heydon (then of the NSW Court of Appeal now of the High Court) to the Quadrant dinner in October 2002 caused some controversy during the December/January period, particularly following the announcement of Justice Heydon’s appointment to the High Court. Whilst on that subject, the NT Bar welcomes Justice Heydon’s appointment to the High Court. There can be no doubt that his Honour’s obvious legal, intellectual and personal credentials will be of great benefit to Australia’s highest court. personalities Returning to Justice Heydon’s Quadrant address, as is its bent, the media coverage of it dealt almost exclusively with the personalities involved ratherthan the central issues. Thus, the extract published in The Australian newspaper focused on the comments Justice Heydon made about the views and decisions of Sir Owen Dixon, Sir Anthony Mason and the late Mr Lionel Murphy while they were members of the High Court. As is often the case, this controversy distracted attention from the theme of the address which was: Judicial activism and the death of the rule of law. full text The full text (14 pages) of the address has now been published in the January/February issue of Quadrant magazine. It contains an interesting analysis of the differing functions of judges and politicians and of the relative capacities of the courts, the executive and the legislature to make or change the law. In relation to the experience and capacities of politicians and judges, Justice Heydon opines that: Australian politicians collectively have an immense experience of life and of the almost infinitely various points of view within the population. Their whole careers rest on understanding the desires and needs of individual citizens. Judges on the other hand, are lawyers with a relatively confined experience of life: it may have been intense, it may have involved exposure to many conflicts, it may have given insights into human suffering under acute stress, but it is quite narrow compared to the experience of the members of the legislature. This is a generalisation, so it will obviously both overstate and understate the experience of individual politicians and judges. However, as a generalisation, having personally had experience as both a politician and a lawyer, I believe it is a reasonably accurate assessment. Justice Heydon gives as examples of the High Court having made decisions that have variously had significant political, financial, economic or social consequences: Mabo No 2, Wik, Dietrich and Brodie. uncertainty He also points to the uncertainty created in the law of negligence by the endless dicta about the concept of proximity during the late 1980s and early 1990s - a concept that has now been put aside in recentjudgments. Whilst any summary of the address will obviously not do justice to it, the John Reeves QC, President of the NT Bar Association following extract from the conclusion provides a flavour: The more the courts freely change the law, the more the public will come to view their function as political; the more they would rightly be open to vigorous and direct public attack on politicalgrounds; and the greater will be the demand for public hearings into the politics of judicial candidates before appointment and greater control over judicial behaviour after appointment. So far as these demands were met, judicial independence would decline, and such attraction as judicial office presently has would be diminished. None ofthese outcomes would be desirable. All would multiply the threats to the rule of law whichjudicial activism created. Not everyone will agree with the views expressed by Justice Heydon, but I suggest that those who are interested in the debate should read the Quadrant article and not be distracted by the media treatment of it. ® Page 15 — February 2003 , National report: NT The Northern Territory has ranked last place for the percentage of non-appeal civil matters finalised within 12 months in the Supreme and Federal Courts. The national Report on Government Services 2003 is compiled for the Steering Committee for the Review of Commonwealth/State Service Provision by the Productivity Commission. It covers 2001-02. The report shows the NT finalised 46.3 percent of its non-appeal civil matters before the Supreme Court and Federal Court (Territory cases) compared with 94.3 percent in WA, 74.9 percent in NSW, 73.3 percent in Victoria, 69.1 percent in Qld, 94.3 percent in WA, 86.9 percent in SA, 59 percent in Tasmania and 48 percent in the ACT. The Territory fared better with it’s percentage of civil appeals finalised by the superior courts within 12 months at 94.5 percent (second rank). Also, the percentage of non-appeal criminal matters finalised within 12 months in the Supreme Court was 85.8 percent (fifth rank). The report also used “expenditure less income (excluding fines) per finalisation” as an efficiency indicator. Expenditure less income per criminal finalisation for magistrates’ courts only (excluding electronic and children’s courts) was $415 nationally. Across jurisdictions, it was highest in NSW ($647) and lowest in Tasmania ($128). The Territory’s figure was around $570-$580. complexity and distribution The Productivity Commission says the complexity and distribution of cases can vary between jurisdictions and when comparing the performance of different jurisdictions, it is important to note that unlike otherjurisdictions, Tasmania, the ACT and the NT do not have three tier court systems. The report also features Northern Territory Government comments which say, in part: During the 2001-02 reporting year; the former Office of Courts Administration merged with related government agencies in the Northern Territory to form the Department ofJustice. At the same time, the Northern Territory Government commenced significant financial reforms designed to increase efficiency and effectiveness in the delivery of government services, as well as a system of improved accountability and openness. Systems to implement accrual accounting, underpinned by Working for Outcomes objectives, were prepared by all agencies. The government says significant initiatives and improvements included: • A review of its existing information systems, with a particularfocus on the data reporting facilities and communication systems. The review looks at the enhancements needed to meet the future needs of the judiciary (includingthe magistracy) in areas such as caseload, activity, progress through the system including delays and case specific data. • Major enhancement of civil case-flow in the local court to result from the introduction of electronic document lodgements in 2003. • The improvement of video conferencingfacilities in the larger courthouses. • A number of “Courts and the Public” initiatives implemented by the Office of Courts Administration to enhance public confidence, improve access to and increase knowledge of the courts system. • The start of the Fines Recovery Unit operations on 1 January 2002. ® Page 16 — February 2003 superior courts "slow" Advocacy, continued from page 14 Your client must understand the nature of the undertaking and the possible consequences for him or her of providing it to the court. In a matter that is factually or legally complex, and where time permits, you should consider the use of a chronology and an outline of submissions for presentation to the court prior to or at the commencement of the hearing. The use of such aids has been discussed in earlier articles in this series. In an application ofthis kind, where the outcome is most likely to be directly affected by the quality of the submissions made by the advocate, you will call upon your early anticipatory preparation and the advocacy skills you have developed elsewhere to present the application in the most persuasive manner possible. 1 NR Bums, Injunctions: A Practical Handbook (LBC 1988) Robertson to speak at Law Conference Renowned human rights lawyer (and sometime host of the popular Hypotheticals), Geoffrey Robertson, will be a keynote speaker for the Commonwealth Law Conference in April. Mr Robertson was recently appointed President ofthe Special Court for Sierra Leone to prosecute war crimes and crimes against humanity in that country. Fie will speak at a conference plenary session about his work in Sierra Leone and also take part in a number of buisness sessions. He is the latest addition to the conference program, joining other luminaries including Cherie Blair QC, Dr Mary Robinson and Karpal Singh.® CJ de Jersey, from page 10 The market, in my view, has already gone too far: not indeed as an economic system, but as a cast of thought governing relationships and the image we have of ourselves...the idea that human happiness can be exhaustively accounted for in terms of things we can buy, exchange and replace is one of a great corrosive acids that eat away the foundations on which society rests; and by the time we have discovered this, it is already too late. The market does not survive by market forces alone. It depends on respect forinstitutions, which are themselves expressions of our reverence for the human individual as the image and likeness of God. I have spoken of the significance of our public orientation post-Bali, and the way we lawyers can rise to the challenge of crafting a more secure society. I have spoken ofthe individual qualities we as lawyers seek to nourish to ensure the professionalism on which the community in truth depends. But is this commitment to public service properly acknowledged by those we seek to serve? Probably not, and I think the alacrity with which we were criticized so trenchantly for the woes last year of the insurance industry and medical profession tends to confirm that. But such criticism, however curmudgeonly it may be, cannot distract us from the steady pursuit of this noble profession. The grandeur of ourjoint mission, the delivery ofjustice according to law, can best be appreciated, perhaps, by reference to the position of the individual. Through my 32 years experience of the law, what has essentially impressed me is our concern in the legal system for the individual person. We are not, in the courts in particular, concerned with legislative or executive generalities or abstractions! The individual person, before us, is the focus of all intellectual and emotional force. John F Kennedy said of the American scene half a century ago: The poor man charged with crime has no lobby”. Not so here! In our courts of law, each individual is undoubtedly our only concern. For the other arms of government he or she is but the representative of others. Those other arms of government, we accept, are deeply concerned with the betterment of the people. Ours is instrumental^ focused on the welfare of the individual. I think it is an enormous privilege that we are all participants in that process. Thank you again for affording me this opportunity to address you. It is said that when Karl Marx was asked for a final quote for posterity, he said,"Last words are for fools who haven't said enough already”. Well I certainly have said enough, I believe, and I hope, to the extent to which I have offered advice, I have not presumed. ® The Alice Springs address Chief Justice de Jersey had some special words for the Alice Springs practitioners. The following is a slice of what he said to them. I am greatly honoured to be here. I warmly thank the Society for giving me this wonderful opportunity. I will revert in more detail as to why it is wonderful, but may I first acknowledge the presence of the Administrator. His Honour’s being here signifies the greatly important public role of the legal profession. It also, of course, signifies a refusal to bend to metropolitan obsessionalism. The Northern Territory and Queensland share the feature of being geographically vast, with all centres tremendously important. One of the great advantages of being Chief Justice of Queensland is that I have the regular opportunity to visit many nonmetropolitan centres. As someone who grew up in the country, that especially appeals to me. Now I know about the “Berrimah line” -there once was a “Brisbane line”, although differently explained. Speaking within the jurisdiction of another Chief Justice one should be careful! But just as I moved from the country to Brisbane, so Chief Justice Martin always proudly recognizes his long-term residence in the Alice. I am sure I would please him, and undoubtedly the Attorney-General, in saying that the residents of a capital benefit from a regular substantial dose of regional common sense. We are, as I say, enthused that the Administrator joins us here today; his presence boosts us, and of course the Alice community. This is my first time in Alice Springs, and it was my seventh in Darwin. As to the Alice, I am charmed, unsurprisingly, by the landscape, charmed by the people. As to the physical beauty of the place, as Ian Morris said yesterday, “There’s a painting in every view”. Lexicographers may have devised the word “unique” by reference to Alice Springs. I hesitate to utter an overused word. Modern life seems to foster this crime: paradigm, new millennium...but your situation is, dare I say it, “uniquely unique”: true Australians sustaining the continental centre: Australians unperturbed by southern sophistication. You ladies and gentlemen epitomise the spirit which tradition says best ensures our heritage. You share with Queensland especially, the enormous challenge of dealing, with justice, with the interface between two cultures, one ancient, another much younger. We have some experience of this in Queensland, but this is the more ultimate Aboriginal heartland. Page 17 — February 2003 Tribute By Julie Davis Maria Ceresa’s appointment as LSNT Executive Officer on 1 March 1999 marked the beginning offour years of steady rise in the profile of the Society and the profession. Maria brought an important dimension to the Society that raised the interest and sometimes passions of the Council, LSNT members, independent legal associations, the media, the government and members of the public. In the Secretariat’s corridors whispers that Cyclone Maria had entered the atmosphere were heard and I assure you this was a reference to the energy and determination she maintained during her tenure - a pace we strove to match under her leadership. The many complimentary comments about Balance that the LSNT has received verbally and in writing in recent years are a tribute to the media savvy and direction provided by Maria in conjunction with Public Relations Officers Lorelei Fong Lim (current) and Samantha Willcox (former, now NTLAC). In addition, the dedicated and consistent contribution Maria made in achieving change, in addressingthe many issues raised within the Society and in engaging the interest and participation of members of the profession is to be commended. The Secretariat farewells Maria and wishes her well in her new position at the Queensland Law Society. Above: Maria was used as a "wig stand” at the OLY. The photo reprinted here courtesy of the NT News. Page 18 — February 2003 Farewell Maria, happy anniversary Julie It was a struggle for the Secretariat and LSNT Councillors but we managed to surprise both Maria Ceresa AND Julie Davis with a couple of presentations at the Opening of the Legal Year lunch in Darwin. As has been widely known, Maria has left afterfour years with the LSNT, for the Queensland Law Society. After the formal proceedings of the lunch, LSNT President Ian Morris presented Maria with a going away gift set of crocodile leather products and flowers. Administration and Finance Manager Julie was presented with a magnificent pearl necklace and flowers. Having served 10 years with the Law Society, Julie was honoured for her dedication and professionalism. The “struggle” was keeping it all a secret. Maria knew about Julie’s present and Julie knew about Maria’s. Those who knew about both had to be VERY careful not to inadvertently tip them off. Common Law, Common Good, Common Wealth 13th Commonwealth Law Conference Melbourne, Sunday 13 - Thursday 17 April 2003 TOPICS INCLUDE: > Human rights and the rule of the law y International commerce > The legal profession and it’s future > Family law and child protection y Litigation in the new millennium y Criminal law and practice y Technology and the Law For more information: Email: comlaw/cdmcizroup. com or Website: www.mcizroup.com/commonwealthlaw20Q3.htm baloiozo? Picture THIS He’s known for his larry shirts but Muster Room is grateful that even the Department of Justice’s sartorially elegant(?) Alastair Shields has his limits. The man for whom colour is no object and mixing pink with green and orange is nothing to be ashamed of volunteered recently to present a CLE for the LSNT about Trains and the Law. On discussing what the CLE would include Alastair said he “MIGHT be convinced to sing Locomotion” but “no way” would he don the gold hotpants! Bummer! The missing joke... A man went looking for a present for his wife’s birthday. He looked in shop after shop but was unable to find anything sufficiently special for his dear wife and finally found himself in a boutique pet shop. He walked into the pet shop, was greeted by the manager and told him he wanted buy a special gift for his wife. The manager took him to view three parrots on stands. The first parrot was a resplendent bird tall and elegant, iridescent green and shining gold. The manager said parrot could recite poetry. He said to the parrot: “come on Polly, give us a poem” and the parrot began reciting the words of Wordsworth, Shelley, Dante and Shakespeare. “That was magnificent!” the man said, “how much is this parrot?”. The manager said the parrot was worth $2000. The man grimaced and said: “Well, that is a lot of money, what about the second parrot?”. This parrot was an even more resplendent parrot with a longer tail, iridescent green, shining gold and deep blue plumage. The manager said:“well this parrot recites philosophy” and with that said to the parrot: “spin us a line, Polly!”, and the parrot began to recite Socrates, Plato, Nietschke and others. “How much is this parrot?” asked the man. The manager said: “this parrot is worth $4000”. The man was even less impressed with the price. He said: “what about this last parrot?”. Last parrot in the line was not at all resplendent. It was sort of dumpy, dull black in plummage with a short frazzled tail. The man said: “what does this parrot do?” The manager said: “well it does nothing at all, it just sits there”. “How much is this parrot?” asked the man. The manager said: “this parrot is worth $8000”. The man was absolutely flabbergasted. He said: “I can’t believe it! The first parrot, such a beautiful bird, a reciter of poetry is worth $2000, the second parrot even more beautiful and is a reciter of philosophy is worth $4000 and this small, dull black parrot with the beady eyes is worth $8000! How can that be?” “Well,” said the manager “I’m not that sure myself but it must be worth more than the other two because they defer to it and call it Chief Justice!” ...and another one CJ de Jersey certainly has a keen sense of humour. Not only did he unrelentingly tease the LSNT Alice rep Tony Whitelum and prez Ian Morris about wanting to take a stroll down the (then-dry) Todd River bed (“urn, not a good idea, Your Honour”), he had several jokes at his own expense. One unforgettable line of his was: “They say the Chief Justice holds the reins - they’re just not attached to anything.” Fore! Australia Day was THE day for El Presidente. Morrie, Mrs Morrie, Peggy Cheongand her hubby Casey Choy had entered a team called the Wattles in the Ambrose competition at the RAAF Golf Club. And at the 14th hole (a par three), Morrie did a Tiger and bagged a hole-in-one! According to witnesses the look on his face was “absolutely priceless”, going from amazement to disbelief, to elation within 30 seconds. He was momentarily speechless but soon recovered sufficiently to brag about his feat to at least two members ofthejudiciary. The Criminal WHAT Association? Muster Room has been guilty of many a typo and there are times such mistakes can get a publication into a LOT of trouble. The Muster Room But othertimes, it’s just worth having a laugh at what could be also labelled as a Freudian slip. Take the National Children’s and Youth Law Centre newsletter, article 13. In acknowledging organisations who made contributions to the recent NCYLC’s awards, the newsletter lists the Northern Territory Criminal Layer’s Assocation. There’s a line there but we’re not going anywhere near it! By the way, congrats to NAALAS’ Peter O’Brien, who picked up one of the NCYLC awards. Movers and Shakers Katrina Budrikis, formerly of Alice Springs, is now with the Dept of Justice, Aboriginal Land Division, in Darwin. Tom Anderson has left Clayton Utz for the Dept of Justice (from 17 March). Admitted in January were: Richard Terrick Cowen, Josine Marie Wynberg and Robin Edward Esdaile. Admitted in early February were: Patricia Brennan, Vasillia Frazis, Matthew Charles Garraway, Daniel Leigh Garton, Lisa-Gaye Strachan, Martin John Fisher. STOP THE PRESS! Muster Room is very pleased with the announcement that Melanie Little is to be the next magistrate in the Northern Territory. Warmest congratulations to Melanie (a solid contributor to Balance) and all the best for the future. Page 19 — February 2003 cyberlex with jqson schoolmeester When you're on a good thing... During the last few years there has been an explosion in online access to legal information. This is even more phenomenal when you consider that a substantial portion of this information is free. I think it is safe to say, that in the realm of free access, the Australasian Legal Information Institute (AustLII) is the leader in its field. AustLII’s own site states that there is over seven gigabytes of raw text materials and 1.5 million searchable documents. The ideals ofAustLII, free and improved access tojustice through better access to information, have not been confined to Australia. An epidemic has been, and continues to rampage across the globe. We have seen the establishment of the British and Irish Legal Information Institute (BAILII), the Canadian Legal Information Institute (CanLII), the Hong Kong Legal Information Institute (HKLII), the Legal Information Institute (Cornell) (Lll) and the Pacific Islands Legal Information Institute (PacLII). All of these organisations sharing the philosophy of the AustLII and usingthe knowledge and technology developed through AustLII. On 3 October 2002 at the 4th Law via the Internet Conference in Montreal, a number of organisations, including the ones listed above, adopted the “Montreal Declaration on Public Access to Law”. The Declaration states that: • •Public legal information from all countries and international institutions is part ofthe common heritage of humanity. Maximising access to this information promotes justice and the rule of law; • Public legal information is digital common property and should be accessible to all on a non-profit basis and, where possible, free of charge; • Independent non-profit bodies that create or control that information should provide access to it so that it can be published. Public legal information, as used in the declaration, is considered to be legal information produced by public bodies that have a duty to produce law and make it public. This includes primary sources such as legislation, case law and treaties and extends to secondary public sources such as law reform commission reports and reports from inquiries. The manifestation of these principles is WorldLII (www.worldlii.org). While World LI I has been around as a prototype for some time, it has now been formally released. WorldLII provides a single search facility for the databases located on the other Legal Information Institute sites as well as a considerable amount of material not found on other Llls. At the time of its release WorldLII consisted of 270 databases from 48 jurisdictions in 20 countries. In addition to the legal databases, WorldLII offers a catalog of law-related web sites in every country of the world (reportedly over 15,000 sites are cataloged). Many of these sites themselves are searchable from WorldLII itself. The growth of availability of legal information electronically is placing an increasing emphasis on electronic legal researching techniques. With the use of similar, if not identical, interfaces to that of the other Legal Information Institutes, WorldLII has avoided the traditional problems of having to learn how a new interface operates and all the idiosyncrasies that go along with it. For even the most novice user of AustLII, WorldLII is ready to use. 2003 Cricket World Cup If your interest in cricket is anything like mine, then the World Cup is must see television and you will be dreading the late nights (early mornings) for the next few weeks. For all your information needs you cannot go past www.cricinfo.com and www.baggygreen.com.au. Jason Schoolmeester is with the Department of Justice. Email: jason.schoolmeester@ntgov.au Spectacular view, comfortable, well appointed Why not use the Law Society’s boardroom for your next meeting? hire rate: $240 for a full day $125 for a half day (four hours) + $25 for every hour thereafter (all ex-GST) Book with the Law Society on 89815104 readers forum - book reviews Justices in Tribunals by JRS Forbes, Federation Press, RRP $99 (hardback) Given the increasing use of tribunals to determine rights, in a wide variety of situations, an effective and practical understanding of the issues that relate to their operation is an important part of many legal practitioners day to day practice. The book is comprehensive and detailed in its analysis of a variety of the issues that affect both the manner in which the Courts have historically approached tribunals and the importance of determining the type of tribunal that you are dealing with when considering appropriate action. The book is clearly aimed at practitioners and academics who have a reasonable understanding of many of the issues and cases that relate to the areas referred to, particularly in the chapters relating to private tribunals. This is reflected by the attention paid to the provision of detailed references to case law and relevantjournal articles and other source materials. The book is one which I would recommend to practitioners who want a detailed and considered perspective of justice in tribunals and to students who are seriously examining the area. However, it is not an easy access text and access to some of the source materials will be essential if it is to be properly understood and used. It is in that sense a classic legal text which contains many of the access related difficulties that can make the law an unnecessarily time consuming subject to study, if a proper understanding of issues is to be gained. One aspect of the book that I found frustrating, particularly when travelling without access to a legal dictionary, was the lack of a glossary of the law French/Latin terms contained in text, when they go beyond the ordinary. Very few of us have studied Latin to any great extent and many of us including the writer have very limited French language skills. - Steven Smith, Hunt & Hunt Contract Law in Australia (fourth edition) by Carter and Harland, Butterworths, RRP $124 This text is written by two professors of the University of Sydney and was, in its first edition in 1986, intended as a university text. However, the quality of the publication has been such that it has gained wide acceptance as a professional publication. Indeed it has been cited with approval by the High Court (see Astley v Austrust (1999) 197 CLR lat 56; Breen v Williams (1995) 186 CLR 71 at 102 et seq). The 4th edition was published in early 2002 and includes significant developments in contract law up to 2001. Thus it includes: • the legislative responses to the High Court’s decision in Astley concerning apportionment of liability for contributory conduct; • the emerging concept of good faith in contractual dealings (but not going quite so far as to cite Angel J’s article, Some Reflections on Privity, Consideration, Estoppel and Good Faith (1992) 66 AU 484); • the increasing impact of the Trade Practices Act 1974, including the High Court’s decision in Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 and the new unconscionable conduct provisions; • the latest High Court decisions on the role of equity (Garcia v National Australia Bank Ltd (1998) 194 CLR 395, Bridgewater v Leahy (1998) 194 CLR 457, Giumelli v Giumelli (1999) 198 CLR 180); and • the latest word on economic loss (Perre vApand Pty Ltd (1999) 198 CLR 180). Northern Territory legislation receives reasonably equitable coverage with otherjurisdictions (even if the authors do insist on defying Parliamentary Counsel and including the year after the Act name). The updating for this edition takes account of the Law of Property Act 2000. Northern Territory cases don’t get much of a look in except at High Court level (eg Gaye (No 1) Pty Ltd v Allan Rowlands Holdings Pty Ltd (1993) 114 ALR 341). Overall the text is easy to read and is well indexed, making it a fairly simple task to find the point of law that you need in a short time. One criticism is of the table of cases, which omits citations - this can be a real pain when you are in a rush (such as on your feet in court). This text sits somewhere between a university studenttext and a full-blown professional/academic treatise. It would be a useful part of any professional library for a firm or practitioner advising on contract issues. At a retail price on the Butterworths’ website of $124 in soft cover or $178 in hard cover, it is also relatively affordable. Alternatively, the 8th Australian edition of Cheshire and Fifoot's Law of Contract by Seddon & Ellinghaus was released late last year at the same price (also by Butterworths) for those who prefer something slightly more recent (although still no citations in the table of cases!). - Peter Ward, solicitor Page 21 — February 2003 readers forum - book reviews Understanding the Australian Legal System (fourth edition) by John Carvan, The Lawbook Company, RRP $31.20 I found the primer to be a good easy read aimed at students commencing tertiary studies in law, business or government. The book disclosed aspects of the law that I had not been aware of (despite practising for over 25 years) and clarified a disturbing number of other principles that I had simply utilised without subjecting them to scrutiny. To fit a broad discussion of the sources of law and law making process, the legal system, legal interpretation and concepts, as well as explaining the fundamentals of contracts, commercial dealings and torts, all in less than 200 pages is a very difficult task, made seemingly easy by Mr Carvan. I thought the author’s classification of laws was overly simplistic and failed to recognise the sweeping changes to the regulation of people’s behaviour to others, particularly in relation to gathering, storage and access to personal information; discrimination; and the development of commissions and tribunals to provide easier access for redress of grievances on professional conduct, quality of services and products, and other personal rights. Readers interested in criminal law will have to skip to small sections throughout the book to find the relatively few a pplications as the focus, broad though it is, does not devote much space to crime and the criminal justice system. On a parochial note I was also disappointed that chapter three on the jofvi H v >\ Asking the Law Question by Margaret Davies, The Lawbook Company, RRP $68.26 This book gave me much pleasure as one who enjoys philosophy and matters metaphysical. It also gives me the pleasure of one who had to suffer through 1985 jurisprudential theory that was accepted by the powers that be (my professors) but the woman knew it was wrong. That feeling has now been exonerated and endorsed by this booK. The theories of Hart for example are reviewed and seen in post-modern terms and are able to be seen as the: view of the liberal thinker who sees himself as a free agent relating to a world ofdiscernible analytical structures, and thinks that this is the condition of everyone. (pl4) Today we know that to be an artificial fairy story - our world knowledge is far more complex than that. Page 22 — February 2003 Asking the Law Question: the dissolution of Legal Theory by Margaret Davies is one of those blessed snapshots of the history of ideas that updates and informs the older lawyer who has not specifically reviewed how far one’s thoughts and knowledge have in fact progressed since student days nor appreciated the complexity of the crustacean that was originally the first lecture on positivism. For the law student, young graduated or interested “dipper" in other disciplines the author has summarised the progression of the critical thought that constitutes law thoroughly and effectively in one book. She does not limit herself to only theories that she likes or only suit the purposes of her argument. The book surveys and summarises the history of the theories of law and then takes the reader to the view of this history as seen by the current thinker or student. Post modernism and deconstruction constitutes the subject matter of Chapter Eight. It also is the lens through which the entire history of the philosophy of law is viewed throughout the book. That I must acknowledge the currency Law-Making Process made not mention of the Territories at all, despite selfgovernment for both the ACT and NT. While I understand that a beginner text must look to its largest audience, and Mr Carvan acknowledged that he based his text on the law of NSW, I found that focus, together with extensive material devoted to the English origins, somewhat distracting, as it reduced the space available for a broader look at what is happening throughout Australia. Please don’t be put off by my small criticisms, as the book is well written, very clear and concise and admirably succeeds in beinga plain English primer on law. The book also reinforced my personal view that if we don’t learn something new about the law everyday, we should change careers. - David Farquhar, partner, Cridlands Lawyers and power of post modernism as the crucial filter in the discipline also shows it to be the nexus between a 1980s educated lawyer and the young 1990s post technology, post knowledge explosion student. We all share a world of infinite complexity and inter-related ness with almost nothing able to be seen as an absolute. Objective facts that are able to be independently known are a thing of the past. All knowledge and belief is contextual. Professor Davies approaches the ideals ofjustice with an analysis matrix that is current, topical and rigorous. If you only read this book this year your metaphysical diet will contain the essentials for you to critically analyse the society in which you function; the institutions which constitute the major structures in that society and the role you purport to play as you and justice continue the eternal relationship which defines our individual humanity. I recommend this book to any reader and especially to the ones who would never voluntarily read a philosophical tome. - Alexis Fraser, Office of the DPP CONFERENCES 4 March 2003 Corporate Accountability: An impact on community expectations Sydney, Australia Tel: 1800 251 849 Fax: 02 9232 7174 melissa.king@CSAust.com 11 March 2003 The Indispensable Assistant Darwin, Australia Tel: 1800 145 231 Fax: 1800 145 244 enroll@skillpath.net 19-22 March 2003 Market Ideas into Money Commercialising Technology Adelaide, Australia Tel: +61 3 5942 7066 Fax: +61 5942 7033 farmington@bigpond.com 25-28 March 2003 NSW State Legal Conference Sydney, Australia Tel: 02 9550 6063 Fax: 02 9565 5714 www.nswstatelega I .com.a u 13 April 2003 CLA General Meeting Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 13-17 April 2003 13th Commonwealth Law Conference Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 29 - 30 May 2003 Worldclass Practice Management Sydney, Australia Tel: 1800 772 772 Fax: 02 9422 2338 www.lexisnexis.com.au 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 8981 2549 Fax: 08 8981 2596 wildlyn@hotmail.com 6-10 June 2003 8th Family Lawyers' Conference Fiji Tel: 02 9215 0305 Fax: 02 9211 3131 ian.gray@axisevents.com.au June/July 2003 World Women Lawyers Conference London Tel: 44 (0) 20 7629 1206 Fax: 44 (0) 20 7409 0456 confs@int-bar.org 21-23 July 2003 Negotiation/Commercial Mediation Training Darwin, Australia Fax: 08 8945 2560 info@franklindeionno.com.au 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 61 9 8946 9500 Fax: 61 8 8946 9505 lawasia@lawasia.asn.au 12-14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 3831 4466 Fax: 07 3831 4477 warmid@tpg.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com ✓----------------------------------------------------------------------------------------------------------------------- ------------------------\ WANTED: Your nominated email address Bulletins to the profession - CLE Seminars - Events & Functions Messages from the Council of the Law Society Do you want to be informed by the Law Society via email? If so, please provide an all-purpose email address for yourfirm. Fill out this form and send it orfax it into the Law Society (contact details on back page) NAME OF FIRM:____________________________________________________ EMAIL ADDRESS:___________________________________________________ SIGNATURE OF AUTHORISED PERSON: DATE: V__________ ✓ Page 23 — February 2003 L NOTICEBOARD High Court Notes February/March 2003 Prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Constitutional law - Judicial power - Privative clause - Whether privative clause may exclude judicial power from reviewing decision for jurisdictional error In PlaintiffS157/2002 v. C ofA ([2003] HCA 2; 4.02.2003) by s474 the Migration Act provided that a “privative clause decision” was final and was not subject to the remedies of prohibition, mandamus, injunction, declaration (found in Constitution s75(v)) or Certiorari. A “privative clause decision” was defined to mean a decision of an administrative character made, proposed or required to be made under the Act. By s486A the Act required any application to the High Court for relief under Constitution s75(v) be made within 35 days ofthe actual notification of the decision. The Plaintiff desired to institute proceedings in the High Court after the time limit in s486A had expired in respect ofthe refusal to grant him a visa. He brought an action in the original jurisdiction of the High Court claimingss474(l) and 486A were invalid. The High Court generally concluded thats474(l) of the Migration Act was not invalid because, on its proper construction, the term “privative clause decision” referred to decisions made absent jurisdictional error. On this basis the High Court concluded that it remained possible to seek the Constitutional Writs in respect of decisions made under the Migration Act where the relief was sought on the grounds ofjurisdictional error: Gleeson CJ [23], [37]; Gaudron, McHugh, Gummow, Kirby, Hayne JJ [76], [83]; sim Callinan J [160]. The Court rejected the contention thatthe privative clause provision was a “lead" provision which effected an implied amendmentto all the other provisions of the Migration Act and its complex regulations. The majority observed that the question of whether a decision involved jurisdictional error may involve reconcilingthe provisions under which the decision was made with the privative clause provision [77] - [78]. The Court concluded s486A of the Migration Act did notapplyto prevent the proceeding proposed by the Plaintiff because it oniy prevented decisions in respect of a “privative clause decision” and did not prevent review of decisions on the ground of jurisdictional error. Questions reserved answered accordingly. Constitutional law - Constitutional Writs - Jurisdictional error - Constructive failure to exercise jurisdiction - Failure to take into account relevant matter - Utility of relief - Failure of RRT to notice in application by wife and children for protection visa that their separated husband had been granted one in Australia In Re MIMIA; ex p Applicants 3134/2002 ([2003] HCA 1; 4.02.2003)the prosecutors (a wife and her five children), citizens ofAfghanistan, applied for protection visas in February 2001.A criterion for the visa was that the Applicant was a member of the same family unit as a person who had been granted a protection visa. The departmental file before the RRT revealed that the husband/father, from whom the Applicants had been separated in travel, had been granted a i Page 24 — February 2003 temporary protection visa in Australia in August 2000. The Applicants were unaware that the husband/father was in Australia. Shortly afterthe RRT decision the prosecutor learned other husband’s situation and requested the Minister exercise his personal power under s417 of the Migration Act to set aside the decision of RRT in favour of a decision to grant a visa. The Minister refused in April 2002. The prosecutors obtained an Order Nisi from the High Court in June 2002 for Constitutional Writs to set aside the decision of the RRT and require the Ministerto reconsiderthe personal power given by s417 of the Migration Act. The Respondent contended both decision were “privative clause decisions” within the Migration Act as amended from 2 October 2001. The High Court discharged the Order Nisi: Gleeson CJ, McHugh, Gummow, Hayne, Callinan JJ jointly. Gaudron, Kirby JJ differed by quashing the decision of the RRT. The majority concluded the RRT did not make a jurisdictional error by failingto address a claim not raised [33] forfailingto make findings offact [40]. The majority concluded the decision of the Minister under s417 was the exercise of a personal and essentially non-reviewable power [45], [48]. Gaudron and Kirby JJ concluded the decision ofthe RRT involved a jurisdictional error because it could not be said to be satisfied of criteria where it had overlooked that matter [87] - [88]. They agreed that because the power under s417 was personal and discretionary no order of the Court would have utility [100]. Orders that the time for commencing proceeding be extended an Order Nisi be discharged with costs. Negligence - Liability - Vicarious liability - Nondelegable duty - Liability of school authorities for sexual assaults by teachers In NSW v. Lepore; Samin v. Q; Rich v. Q ([2003] HCA 4; 6.02.2003) the High Court heard two matters. In NSWv. Lepore the Respondent was molested as a school student by a teacher who took an occasion of disciplining the student to commit sexual assaults for which the teacher was convicted. L sued the teacher (who did not appear) and NSW. The Primary Judge found there had been assault by the teacher and thattherefore NSW was liable. The Court ofAppeal concluded the State was liable for non-delegable duty (2001) 52 NSWLR 420. In the second matters (Samin v. Q; Rich v. Q) two girls were molested bythe single teacher at a country school. The Plaintiff’s alleged breach of a non-delegable duty in the pleadings rather than vicarious liability. The Court of appeal in Q concluded the State was not liable for non-delegable duty (2001) Aust. Torts R 81­ 626. The High Court considered the extentto which authorities could be liable in negligence where there was no allegation of fault by authorities and any damage was caused by servants or agents on a frolic oftheir own. The Court considered generally the allegations of liability on the basis of non-delegable duty of care failed but that the allegations which had, or could be, made alleging the carers liability may succeed depending on the evidence. Orders accordingly. Constitutional law - Legislative power of Commonwealth - Implied limitation - Viability of the States - Discriminatory taxation legislation In Austin v. Commonwealth ([2003] HCA 3; 5.02.2003) the High Court concluded that the provisions of Commonwealth NOTICEBOARD Income Tax Legislation which required Statejudicial officers to pay a Commonwealth Superannuation contributions surcharge by means of a lump sum on retirement were invalid. The Court generally reasoned that the Commonwealth was the subject in exercising its legislative powers to an implied limitation which required it to respect the continued viability ofthe States. The Court reasoned that this would prevent the Commonwealth enacting a discriminatory tax against State officer and the legislation which attempted achieve this indirectly was invalid. Trade practices - Markets In BoralBesserMasonryLtd v. ACCC([2003] HCA 5; 7.02.2003) the High Court considered when a trader had a substantial degree of market power and how use of that power for a prescribed purpose contrary to s46 ofthe Trade Practices Act 1974 (Cth) was to be proved. PRACTICE DIRECTIONS From the Chief Magistrate of the NT, Hugh Bradley I am writing to advise that in future months members of the profession may notice that magistrates are sitting in one another’s courts from time-to-time. I am writing to indicate to you that when this happens it is part of an ongoing program of judicial education being undertaken by the court for the improvement of its services to the profession and the public. From Judicial Registrars, Brenda Monaghan and Tanya Fong Lim Extensions of time on originating process It has come to our attention that practitioners have been applying by letterto the Local Court Civil Registry for extensions of time for service of Statements of Claim. This appears to have happened particularly in relation to small claims debt recovery. This practice will not continue. Direction Pursuanttothe Local Court and Small Claim Rules, applications to extend the time for service of any originating processes are made by way of interlocutory application (see Local Court Rules 5.07 and 7.06 and 5.06 and Small Claims Rule 7.05). Although some lenience will be given to small claims applications (see below), the following procedure for such extensions oftime is to be followed from this date. In the Local Court Jurisdiction a formal interlocutory application under Part 5 must be filed. The application will in most cases be ex parte (unless there are other parties involved who have already been served) and as such can be dealt with in chambers. The application should be accompanied by an affidavit in support includingsuch matters as attempts made to serve, explanations for any delay and any issues of prejudice. All inter partes applications will be dealt with in open court in the interlocutory list. All ex parte applications will initially be considered by a Judicial Registrar in chambers and an extension oftime may be granted on the papers. If the Judicial Registrar considers it necessary, then the ex parte application will be placed in the interlocutory list and the party notified ofthe hearing date on the returned application. In the Small Claims jurisdiction , formal compliance with rule 2.04 will be dispensed with for all ex parte applications for extensions oftime and a request in the form ofa letter will be acceptable . Note however, that the letter must be accompanied by an affidavit in support. All inter partes applications must be by way of a formal interlocutory application to be heard in open court. From Judicial Registrars, Brenda Monaghan and Tanya Fong Lim Attendance at Directions Conferences, Conciliation conferences and Prehearing conferences by phone The issue of attendance of parties at conferences by phone has become a source of delay and frustration amongst the registry staff and the clients. It should always be remembered that leave to attend the court by phone is an indulgence ofthe court and should not be taken for granted. The proper procedure is as follows: 1. An application can be made for an attendance by phone up to 24 hours before the allotted time forthe conference. If a late application is made in the 24 hours prior to the conference, leave will most likely be refused. 2. The application should be in writing and may be sent by facsimile to the Civil Registry. 3. The phone number ofthe person who is attending by phone should be provided in the letter applying for leave. This is required just in case another party may require leave to attend by phone -necessitating the organisation by the Registry of a three way (or more) teleconference. 4. If a three way teleconference is required it is the party’s responsibility to provide a landline number upon which they can attend and to which their part of the call can be charged. Attendance by mobile phone will not be generally accepted as the quality ofsuch connections has often been unsatisfactory. 5. When given leave to attend, the party will be given a number to call at the time of the conference. 6. Parties must immediately respond to requests by the Court staff fortheirtelephone numbers in circumstances where a 3-way link-up is required and no number has earlier been provided. Failure to respond in a timely fashion may result in the adjournment of the conference with possible cost implications on the delaying party. Practitioners are reminded of the above and are asked to adhere to the procedure at all times. NOTICE From the National Institute of Forensic Science (NIFS) The NIFS has for some years been buildinga Resource Register of forensic science related service providers. The Register is now at a pointwhere it contains information about individuals and organisations throughout Australi who provide a diverse range of services relevant to criminal and civil investigations. continued back page Page 25 — February 2003 i COURT LIBRARY NOTES Welcome to the 2003 Legal Year. The Courts Library staff look forward to seeing you all in the library. NT LEGISLATION Legislative changes in January 2003, notified in the NT Government Gazette. New Acts 69/2002 Agents Licensing Amendment Act (ss.9,22 and 29 -N/C, Rest-1.2.03) 70/2002 Associations Incorporations Amendment Act (15.1.03) 71/2002 Aerodromes Act Repeal Act (1.2.03) 72/2002 Crown Proceedings Amendment Act (11.12.02) 73/2002 Motor Accidents (Compensation) Amendment Act (s.5 - 1.7.79, Rest - 11.12.02) 74/2002 Pay-Roll Tax Amendment Act (No.3) (11.12.02) 75/2002 Petroleum (Submerged Lands) Amendment Act (N/C) 76/2002 Liquor Amendment Act (24.1.03) New Regulations 55/2002 Unit Titles Regulations (18.12.02) 56/2002 Registration Regulations (18.12.02) 57/2002 Consumer Affairs (Product Safety Standards) Regulations (18.12.02) 58/2002 Kava Management Regulations (18.12.02) 59/2002 Tobacco Control Regulations (regs.9,19-22 - 31.5.03, Rest - 1.1.03) 60/2002 Nitmiluk (Katherine Gorge) National Park (Aircraft) By-Laws (1.1.03) 61/2002 Supreme Court Rules (18.12.02) 62/2002 Swimming Pool Fencing Regulations (1.1.03) Repealed legislation 47/1992 Tobacco Act 1992 20/1993 Tobacco Amendment Act 1993 32/1993 Aerodromes Act 1993 3/1997 Aerodromes Amendment Act 6-1983 Jabiru Town Development (Private Swimming Pool) By-Laws 45- 1988 Alice Springs (Private Swimming Pool) By-Laws 46- 1990 Alice Springs (Private Swimming Pool) By-Laws Amendments 64-1992 Tobacco Regulations 14-1994 Part 2, Division 3 ofthe Darwin City Council ByLaws 21-1996 Palmerston (Private Swimming Pool) By-Laws 5-1999 Palmerston (Private Swimming Pools) By-laws Amendments RECENT ARTICLES Appellate system Moisidis, Cosmas-Achieving world’s best practice in the writing of appellatejudgments, Law Institute Journal, Vol 76(10) 2002 pp: 30-35 Kirby, Michael - Why has the High Court become more involved in criminal appeals? Australian Bar Review, Vol 23(1) 2002 pp: 4-21 Page 26 — February 2003 Attorney-General Williams, Daryl-The role ofthe Attorney-General, Public Law Review, Vol 13(4) 2002 pp: 252-262 Selway, Bradley-The different role of an Australian AttorneyGeneral, Public Law Review, Vol 13(4) 2002 pp: 261-272 Abbott, Tony - Reflections on the role ofthe Attorney-General, Public Law Review, Vol 13(4) 2002 pp: 273-282 Barnett, David - The roles and functions of the AttorneyGeneral ofthe Commonwealth. Australian Bar Review, Vol 23(1) 2002 pp: 61-74 Barristers Flynn, Michael - Recent changes to tax laws affecting barristers, Victorian Bar News, Vol 122 2002 pp: 22-24 Building and construction law Hellyer, Graeme - Effective determination of building contracts, Law Institute Journal, Vol 76(11) 2002 pp: 54-59 Company law Zwier, Leon - Ansett administration - court approved websites, Law Institute Journal, Vol 76(10) 2002 pp: 46-51 Constitutional law Nicholson, Graham - Observations on the new constitution of East Timor, Alternative Law Journal, Vol 27(5) 2002 pp: 203­ 206 Contracts law Hellyer, Graeme - Effective determination of building contracts, Law Institute Journal, Vol 76(11) 2002 pp: 54-59 Courts - Administration Martin, John A - Five reasons whyjudicial leaders should be involved with and support strategic planning in their courts, Judges’ Journal, Vol 40(2) 2002 pp: 4-8 Courts - Procedures Rymill, Thomas - A country practice - the pros and cons of teleconferences, Bulletin, Vol 24(11) 2002 pp: 31 Criminal law Kirby, Michael - Why has the High Court become more involved in criminal appeals? Australian Bar Review, Vol 23(1) 2002 pp: 4-21 Criminal negligence Harkess, Jason - ‘Danger’ sports and the spectre of criminal negligence, Law Institute Journal, Vol 76(11) 2002 pp: 48­ 53 Custody Watts, Garry-Can we go or must we stay? Being able to relocate with the children, Law Society Journal, Vol 40(10) 202 pp: 66-69 DNA Goode, Matthew - Some observations on evidence of DNA frequency, Adelaide Law Review, Vol 23(1) 2002 pp: 45-77 Briody, Michael - The effects of DNA evidence on sexual offence cases in court, Current Issues in Criminal Justice, Vol 14(2) 2002 pp: 159-181 Employment law COURT LIBRARY NOTES Dowling, Austin - What legal duties does an employer owe to a former employee? Law Society Journal, Vol 40(11) 2002 pp: 64-67 Equity Skapinker, Diane - Careful calculations - decidingthe rights and obligations of co-owners, Law Society Journal, Vol 40(11) 2002 pp: 56-59 Evidence Goode, Matthew - Some observations on evidence of DNA frequency, Adelaide Law Review, Vol 23(1) 2002 pp: 45-77 Briody, Michael - The effects of DNA evidence on sexual offence cases in court, Current Issues in Criminal Justice, Vol 14(2) 2002 pp: 159-181 Family court Molyneux, Clarinda-Accrued jurisdiction in the Family Court of Australia, Law Institute Journal, Vol 76(11) 2002 pp: 36­ 41 Family law Bourke, Stephen - The new super splitting laws, Law Society Journal, Vol 40(11) 2002 pp: 74-76 Watts, Garry - Can we go or must we stay? Being able to relocate with the children, Law Society Journal, Vol 40(10) 202 pp: 66-69 Federal court Allsop, James - Federal jurisdiction and thejurisdiction ofthe Federal Court ofAustralia, Australian Bar Review, Vol 23(1) 2002 pp: 29-60 High Court Kirby, Michael-Why has the High Court become more involved in criminal appeals?Australian Bar Review, Vol 23(1) 2002 pp: 4-21 Income tax Flynn, Michael - Recent changes to tax laws affecting barristers, Victorian Bar News, Vol 122 2002 pp: 22-24 Insurance law Drummond, Stanley - Misleading or deceptive conduct in insurance, Insurance Law Journal, Vol 14(1) 2002 pp: 1-16 Slingsby, Nicholas - The events of 11 September 2001 - implications for war risk exclusions in aviation insurance, Insurance Law Journal, Vol 14(1) 2002 pp: 40-55 Lavelle, Keren-Title insurance-is it wanted here? Law Society Journal, Vol 40(10) 2002 pp: 46-51 Judges Lynch, Andrew - Dissent-Towards a methodology for measuringjudicial disagreement in the High Court of Australia, Sydney Law Review, Vol 24(4) 2002 pp: 470-504 Judgments Lovegrove, Austin - Intuition, structure and sentencing- an evaluation of guidelinejudgments, Current Issues in Criminal Justice, Vol 14(2) 2002 pp: 182-204 Moisidis, Cosmas - Achieving world’s best practice in the writing of appellatejudgments, Law Institute Journal, Vol 76(10) 2002 pp: 30-35 Land law Skapinker, Diane - Careful calculations - decidingthe rights and obligations of co-owners, Law Society Journal, Vol 40(11) 2002 pp: 56-59 Legal ethics Collins, Ray-When may a solicitor face a reprimand? Law Society Journal, Vol 40(10) 2002 pp: 70-71 Legal profession King, Philip-The future ofthe legal profession, Bulletin, Vol 24(9) 2002 pp: 15-19 Rooney, Greg- Mediation and the rise of relationship contracting-a decade of change for lawyers, Law Institute Journal, Vol 76(10) 2002 pp: 40-45 Bisogni, Maria - What is the role of a legal representative before the Mental Health Review Tribunal? Law Society Journal, Vol 40(10) 2002 pp: 72-74 Legislative drafting Tanner, Edward - Legislatingto communicate - trends in drafting Commonwealth legislation, Sydney Law Review, Vol 24(4) 2002 pp: 529-557 Magistrates King, Michael - Magistrates as innovators, Brief, Vol 29(11) 2002 pp: 7-12 Mediation Rooney, Greg - Mediation and the rise of relationship contracting- a decade of change for lawyers, Law Institute Journal, Vol 76(10) 2002 pp: 40-45 Mental health Bisogni, Maria - What is the role of a legal representative before the Mental Health Review Tribunal? Law Society Journal, Vol 40(10) 2002 pp: 72-74 Motor sports Harkess, Jason - ‘Danger’ sports and the spectre of criminal negligence, Law Institute Journal, Vol 76(11) 2002 pp: 48­ 53 Native title Hebron, James - How deep does native title go? Native Title News, Vol 5(11) 2002 pp: 182-184 Hiley, Graham - Use of witness statements in native title proceedings, Native Title News, Vol 5(11) 2002 pp: 189­ 191 Keon-Cohen, Brian - Compensation and compulsory acquisition underthe Native Title Act 1993, Monash University Law Review, Vol 28(1) 2002 pp: 17-58 Older people McCallum, John - Older workers in an ageing society-the case for legal and policy reform, Reform, Vol 812002 pp: 5­ 10 Vines, Prue-Cultural conflict or enriching dialogue? Crosscultural issues in will drafting, Reform, Vol 812002 pp: 34­ 37 continued next page Page 27 — February 2003 2003 CLE Program 19 Mar Practice Management Kriss Will 16 Apr Juvenile Court Issues Chief Magistrate Hugh Bradley 21 May TBA 18 Jun “Bits and pieces” of legislation Ian Morris 30 Jul Administrative Appeals Hon Justice John Mansfield 30 Aug AustralAsia Railway Project-Challenges Overcome Alastair Shields 17 Sep TBC Jenny Blokland SM 22 Oct SentencingAct John Lowndes SM Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. They take place from 5.30pm to 6.30pm. NOTICEBOARD continued from page 25 NIFS will provide information (eg contact details) relative to particular service providers. The informaiton is provided free of charge. It should be noted that the information provided makes no comment on the quality of service provision and the NIFS accepts no responsibility in that regard. NIFS would be interested in receiving information about relevant service providers that have previously provided a satisfactory service to members ofthe legal profession. Ifthey do not appear on the current register, we would contact them to ascertain if they wish to be included forfuture reference. NIFS can be contacted at: ph: (03) 9459 4299, fax: (03) 9457 3622, email: info@nifs.com.au DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each monfh. Eifher fax your contributions to the Law Society: 08 8941 1623 or send them via email: lfonglim@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. Page 28 — February 2003 COURT LIBRARY NOTES from previous page Personal injuries Hunt, Peter - Liability of psychiatric injury extended, Law Society Journal, Vol 40(10) 2002 pp: 62-65 Professional liability - legal profession Goudkamp, James - Is there a future for advocates’ immunity? Tort Law Review, Vol 10(3) 2002 pp: 188-206 Llyod, David A - Solicitors must advise their clients about their own negligent acts or omissions, Law Society Journal, Vol 40(11) 2002 pp: 78-80 Property law Lavelle, Keren - Title insurance - is it wanted here? Law Society Journal, Vol 40(10) 2002 pp: 46-51 Sentencing Lovegrove, Austin - Intuition, structure and sentencing-an evaluation of guideline judgments, Current Issues in Criminal Justice, Vol 14(2) 2002 pp: 182-204 Sexual offences Briody, Michael - The effects of DNA evidence on sexual offence cases in court, Current Issues in Criminal Justice, Vol 14(2) 2002 pp: 159-181 Sports law Fridman, Saul - Sport and the law - The South Sydney appeal, Sydney Law Review, Vol 24(4) 2002 pp: 558-568 Harkess, Jason - ‘Danger’ sports and the spectre of criminal negligence, Law Institute Journal, Vol 76(11) 2002 pp: 48­ 53 Subpoenas Carson, Pat - Centrelink and subpoenas, Brief, Vol 24(11) 2002 pp: 20 Succession Cook, Richard-Testator’s family maintenance-the new reforms at work, Law Institute Journal, Vol 76(11) 2002 pp: 42-47 Superannuation Bourke, Stephen - The new super splitting laws, Law Society Journal, Vol 40(11) 2002 pp: 74-76 Terrorism Williams, George - One year on - Australia’s legal response to September 11, Alternative Law Journal, Vol 27(5) 2002 pp: 212-215 Torts law Lunney, Mark - Practical joking and its penalty - Wilkinson v Downton in context, Tort Law Review, Vol 10(3) 2002 pp: 168-187 Goudkamp, James - Is there a future for advocates’ immunity? Tort Law Review, Vol 10(3) 2002 pp: 188-206 Water law Gardner, Katherine-Worried about water? Law Society Journal, Vol 40(11) 2002 pp: 60-63

Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au B A 1 A March COLUMNS President’s Column.................................... EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill For the record.......... NT Women Lawyers. NTYoung Lawyers... Criminal Lawyers.... COUNCILLORS Mr Stuart Barr Mr Glen Dooley Mr Michael Grove Mr Christopher Booth Ms Sue Oliver Mr Markus Spazzapan Lines in the Sand... Advocacy................ Jottings on the Bar. NOTEWORTHY NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice' Springs Alternate Representative Ms Nardine ('oilier SECRETARIAT Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Lorelei Fong Lim Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Sonya Ingham Administrative Assistant/Receptionist Felicity Lawrence Case Notes......................................... Cyberlex............................................. Conferences....................................... Noticeboard....................................... Court Library Notes.......................... REGULARS Letters to the Editor.......................... The Muster Room............................. Readers Forum................................... FEATURES Lead prosecutors coming to Darwin A determination for the profession.. Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should he COVER STORY forwarded to the Editor of Balance, Law Society Northern Territory, C.PO Box 2388, DARWIN Whose liability is it anyway?, NT 0801 or via email to: Fiwsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are nor necessarily endorsed by the Society. 2003 ..3 ..5 ..6 ..6 ..7 ..8 .11 13 .20 .21 .23 .24 26 ..9 .19 22 15 17 10 Page 2 — March 2003 president's column Mandatory blues I have to admit I am penning this article by the shore of Lake Mulwala, at the twin border town of Yarrawonga/Mulwala. It’s sort of like the catfish returning home, and a feeling of relief from the rigours of practice and the law washes over me in muddy waves. Well, it did until I had to do this article or suffer the barbed and life threatening comments of the editor. One of the much repeated comments after the repeal of mandatory sentencing was the general feeling of relief that there was not another article about it in Balance. To those who spoke to me about this, please accept my apologies in advance. My mind has been mulling (no pun intended) about the recent introduction ofthe Civil LiabilityAct and the two ancillary Bills which will accompany it in April. In the past we had to deal with mandatory sentencing in the criminal jurisdiction, and now we have to deal with it again, this time in the civil jurisdiction. They and similar Bills were the subject of some discussion atthe Hunt & Hunt National Conference that has allowed me to continue this j-u-ftketr err, research trip. The abiding feeling of the insurance lawyers section of the conference was that the real reason there has been a slow down in public liability claims, and especially the “slip and trip” variety, was because of the decision of the High Court last year in Ghantos, rather than any of the introduced legislation. Stories of disaster (at least from the claimant’s point of view) of claims discontinued on the “no order as to costs” basis were told because of the adoption of the principles stated in that case. Looked at from a distance, there could not be a clearer example of the continued survival of a living breathing, but constantly changing, system of common law. It is sad that those currently at the helm of the administration of law across Australia are so attracted by the saccharine of so-called ‘immediate results’, that they cannot see this demonstration of the robust good health of the common law system - one that will not suffer the constant political tweaking of populist reaction. What will happen next week when there may exist adverse reaction to this legislation? Will the legislation change with each popularity poll? I guess it is like an inexperienced sailor (I can speak authoritatively about that) trying to steer a boat at low speed. Overcorrection causes the boat to wallow and pitch from direction to direction, seemingly getting no closer to the goal, whereas attention to a longer view will allow a slightly meandering journey achieve the shortest more directjourney. However, the civil liability legislation that has been introduced has produced apocryphal stories from plaintiff practitioners, and firms generally, having to make hard decisions as to their future as plaintiff lawyers. Some were said to have decided to stop practicing in the area, and others have decided to hang in there for the time being, relying on the anticipated departure of the other firms to increase the number of higher damages claims for them to run and thus allow them to continue to practice in the area. Others acting for insurers spoke of being as busy as they could be, with claims being accelerated by the ‘front end loading’ sections of the new Acts. Anecdotally those from Queensland spoke of numerous applications to the court to extend the various time limits imposed by their Act (the one we are supposed to follow). All were of the view that the changes were an ill wind, and not an improvement on the previous common law system. We are shortly to suffer the impost of those ‘improvements’. In this Balance there is an article from Michael Grove and Bill Priestley, which deals with that which has been already imposed and the unfair results which will follow. In concert with the Act which has already been passed are two other Bills that deal with costs and advertising. Ian Morris, president The LEGAL PRACTITIONERS AMENDMENT (COSTS AND ADVERTISING) BILL 2003 is designed to impose a new costs regime, including disclosure of costs estimates (make sure you have a piece of string in your interview room) and new rules as to conditional costs agreements. The same Bill makes it illegal for practitioners to actually encourage people to take action by ‘publishing’ a recommendation that could fairly be said to recommend the institution of legal proceedings. The latter is so broad that it actually fails, by a bare whisker, to make it an offence to advise a client to bring proceedings for damages for personal injury. On the brighter side the Bill does empower the Law Society to make rules as to advertising, and also to deal with disputes concerning conditional costs agreements. Presently, the Law Society does not have power to interfere with costs arrangements or disputes in respect of those arrangements unless the conduct complained of amounts to misconduct. Many disputes between solicitor and client relate to costs, and I would hope that intercession by the Law Society may bring these to a satisfactory conclusion. One step forward to balance the many steps back. continued next page Page 3 — March 2003 i from previous page The PERSONAL INJURIES (CIVIL CLAIMS) BILL 2003 deals with the new improved procedure. It is still, as is the LPB (C&A) referred to above, capable of change and is to be introduced to parliamen in its final form in April. This Bill follows that same tack as the LPB (C&A). This time the PIB (CC) effectively makes it almost economically impossible forthose who have claims in the lower range of damages to seek legal advice because they will not be able to claim costs against the defendant even if they are successful. By lower ranges my best guess is less than $30,000. There are three levels of costs: below the defendant’s final offer, above the claimant’s final offer and in between. Only if the claimant is more successful than they offered will they be able to collect the bounty of 25 percent oftheir legal fees. On my calculation that means that at best the claimant would be able to recover costs at 20 percent of the Supreme Court Scale, or $36 per hour. You can’t get a labourer for that amount! Above that limit and the successful claimant can get back 25 percent of their legal fees if they get more than the defendant’s final offer, or 50 percent if above the claimant’s final offer. I reckon that level will go up to $100,000, so the maximum the claimant can get is $72 per hour. Over that limit the 25 percent range changes to 50 percent and the 50 percent to 100 percent. Easy isn’t it? It still means that even in the Supreme Court a successful claimant may only recover $90 an hour, the current clerk’s rate. Some sort of similar provisions exist for claims settled before action, but we don’t know what that is as it will be all explained in Regulations that haven’t yet been drafted. The other major step is to require a claimant to give notice of a claim within 12 months of the event giving rise to a claim. This has been brought in for the medical profession mainly, as they get grumpy when claimants sue them many years after a negligent act by the medical practitioner. It seems doctors don’t even know when they screw up so they have to be protected, poor things. Well, all the stuff I have referred to above is a bit turgid. The ‘why’ is a bit Page 4 — March 2003 more interesting. This is all coming about because ofthe agreement by our Government, made at high “National Government” levels, to impose similar national steps. By ‘national’ read NSW! Many ofthe proposals are only relevant to the NSW situation, but our pollies have put them in just to...well I am not sure why. I would expect the Sydney Harbour Bill to be introduced by our Government soon, or perhaps the NT could be come a signatory to the Murray River agreement? It would make as much sense. I suppose it all comes back to why politicians do basically unfair and stupid things. They do it, I think, because someone who is pushing them to do something is more an immediate pressure than the people they will effect by those steps. Mandatory sentencing was a good example of this. The funny thing is the current government has not learnt from the previous one, and cannot realise this push in respect of civil law is an election ploy of the NSW Government (just as mandatory sentencing was an election ploy of the previous NT Government) and their current ‘borrowed’ policies will create a large segment of disaffected people who will eventually, after some years, if the current Government lasts that long, even up the scales where it counts the most. Imagine the following potential interview with an unnamed Minister: LSNT Hello Minister! Thank you for the chance to speak with you... Minister Hello yourself Law Society! LSNT ...I want to speak to you about civil law. Minister Civil law? I’ve never heard of it! LSNT Civil law, you know, sort of like criminal law, but about damages, notjail? Minister Criminal law! I know about that! I want you to know this party stands for the proper administration ofjustice... LSNT But Minister.... Minister Don’t interrupt, I am making a very important statement ....yes criminal law, you know, every person has a right to fair trial, to the application of... LSNT Minister! Minister I know, I know, the right to a fairtrial is very important, so is the right to have legal counsel and no one is who is charged should be treated as a job lot! LSNT Minister! Minister Yes, I know, you people had a real say in that and we respect you for it! But for you, the real issues of personal freedom and the right to justice and the rule of law would never have been raised to the heights it was! You said all those things and we believed it, especially when it became such a nice election issue! LSNT But Minister, I want to talk to you about civil law! Minister Oh, all right. I know my stuff about criminal law, though, don’t I? Once learned, never forgotten, that’s what I say! LSNT Yes Minister, you sure do know you political stuff about criminal law, but shouldn’t the same thing apply to civil law? Minister Should it? That’s interesting. Do you think it could be an election issue? Remind me, what is civil law again? LSNT You know, when people fall over in supermarkets and pavements and get paid damages for their injuries. Minister Outrageous! They get paid! I can’t believe it, I’ll put a stop to that immediately! LSNT But Minister, that has been the case for more than a hundred years! Minister Not in my life time! Anyway, I’ve been told by Sir Robert Askin that all these people are frauds! LSNT Sir Robert Askin retired from politics 30 years ago... Minister All right! Technical error! It wasn’t him, it was the bloke who has been in NSW for a while.... ummmm LSNT Carr? Minister Carr? No I don’t have a car, well not personally, anyway, and the one I have I always use for government business. I have never lent it to a friend, particularly the friend of a friend who might..... continued page 14 for the record SCAG, COLS and the rest It is an interesting time to be settling into the job and a busy time is ahead. As indicated in The Practitioner the Executive and staff will be following up options for Professional Indemnity Insurance as a matter of urgency, with a discussion paper due out for the profession in April 2003. (For the uninitiated, The Practitioner is a new weekly one-page email newsletter to all LSNT members. It’s designed to enhance communication between the Secretariat and the profession by keeping members in touch with various “housekeeping” issues.) The Standing Committee of AttorneysGeneral (SCAG) is due to meet in Melbourne on 11 April 2003. It will be considering the Professional Standards and Proportionate Liability issue. It is in the interests of all, including the clients of professionals that affordable liability insurance is available. There is some suggestion that the failure of the Commonwealth in particular to address these issues is causing alarm with international reinsurers. SCAG is also considering the related issue of National Model Laws for the Legal Profession project. Again, it is not possible at this stage to say when the process will be finalised, however we are monitoring developments. Following on from the LSNT’s strategic planning process plans are well underway to further advance the committee process. Some committees are meeting on a regular basis - for example, the Public Issues Committee looking at Tort Law Reform. It is proposed that most other LSNT committees meet during April 2003, with a view to reports being prepared by July 2003. The committees are dealing with a wide range of issues, ranging from the complaints by-laws to pre-admission trainingfor articled clerks, the Fidelity Fund and brochures. We are currently looking at membership of some committees. In particular we are looking to re-activate the Commercial Committee. The Northern Territory Government is putting forward a number of initiatives in this area, including the Associations Bill discussion draft and Retail Tenancies discussion bill which have previously been mentioned in The Practitioner. Property law professionals are also concerned about the new Swimming Pool Act and in particularthe RegistrarGeneral’s requirements on settlement. Meanwhile, I am looking forward to attending my first COLS (Council of Law Societies) Meeting in April 2003 and meeting my interstate colleagues. '\ mentions.com.au lists solicitors who will mention matters and act as agents in courts throughoutAustralia bal021403 Barbara Bradshaw, Chief Executive Officer, LSNT The Commonwealth Law Conference should also be interesting and hopefully not overshadowed by the war in Iraq.® r INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection '^r&ucback. ^ BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au Member of Institute of Mercantile \______________Agents Ltd______________ / bal010602 Page 5 — March 2003 nt women lawyers association Wine and Quiz Nights The New Year’s resolutions are going well, and I’m feeling very happy that I am now spending more time socialising and less time working. Not sure how the firm feels about that! The Cheese and Wine tasting was very successful. A big thank you to Vintage Cellars for their presentation and the wines and to all who attended. For future reference, all functions that are advertised in Balance are a general invite and blokes are more than welcome to attend. We have quite a few at the wine tasting and they enjoyed the evening. DATE FOR YOUR DIARY Quiz Night - Sunday 13 April 2003 at the Waratah’s Football Club, Gardens Oval, Mindil Beach from 4pm. (Venue and time change) Cost: $10 per person, tables of 10 people. The Club provides very reasonably priced meals, and there are children’s meals also available. This is our majorfundraiser forthe year and we really appreciate your support. A flyer will delivered to all firms soon and we really need our members to get tables together. MEMBERSHIPS Cost is $35 and membership forms can be obtained from me, so give me a call on 89813133. AUSTRALIAN WOMEN LAWYERS I will be attending my first face to face meeting with AWL in April 2003. This is something that NTWL have worked hard to achieve. Our contact to date has been by phone link and it will be good to meet other Board Members. The meeting coincides with the Commonwealth Law Conference and AWL is hosting a cocktail party on the nt young lawyers Calendar of events The NTYL executive has been busy organising a calendar of events for the rest of the legal year and we’d like input from young lawyers for ideas and to help organise. The NTYL is also changing the organisation structure from an incorporated association (now unincoporated) to a sub-committee of the Law Society. Some of your quesitons regarding these changes may be answered by referring to the note from Julie in the first edition of The Pracitioner (an email newsletter sent to LSNT members every Friday) Continuing Legal Education The NTYL Advocacy Workshop was held on 22 March and covered the basics of trial advocacy, in particular making a plea, examination-in-chief and cross examination. This CLE was very informative especially forjunior practitioners and has been something the young lawyers have been organising since 1994 (not a bad effort). On behalf of the NTYL sub-committee Page 6 — March 2003 and the workshop participants, I would like to thank Justice Trevor Riley, Rex Wild QC and Lex Silvester for taking the time to impart their experience and knowledge to the participants and for their continuing commitment to the legal education ofjunior practitioners. Other CLEs planned for 2003 are yet to be announced. Please let the LSNT or a NTYL office bearer know if there is any particular subject you’d like organised that complements the CLE program already organised by the LSNT. Senior pracitioners who may wish to offer their services as presenters are also more than welcome. Monthly refreshments The NTYL monthly drinks traditionally held on the second Friday of each month, will continue to be held at The Cavanagh in the outdoor area until further notice. The next one to be held is on 11 April from 5.30pm. Sandra Robinson, president, NTWL opening night ofthe Conference. There are some very interesting women speakers attending the conference, notably Cherie Blair. THOUGHT FOR THE MONTH Life is not measured by the number of breaths we take but by the moments that take our breath away.® Chris Booth, NTYL Practitioners are welcome to come and meet fellow colleagues. Contact social co-ordinator Ben Lee with any ideas on alternative venues or any other activity you’d like to see organised. Law Week The NTYL has been invited to organise a small claims workshop for Saturday 17 May. We have been doing this event for many years and are looking for new young lawyer volunteers to get involved. If this sounds like you, please call me to register your interest.® criminal lawyers association NT criminal law: the good, the bad and the stupid For various reasons, many of which are difficult to fathom, it now seems that state and territory governments and their respective oppositions have very little to argue about or differ from each other on, except the prize topic of law and order. Don’t get me wrong, its not that they are really opposed on that “problem”. In fact, in many respects they are in agreement on the fundamentals: “Hanging is too good for them and throw the keyawayl It is the differing ways in which their muscles are flexed and their toughness manifested that makes them apparently different. Make no mistake: there is no debate as to how crime and its apparent increase can be tackled. You don’t get any bums on seats by instigating that type of debate. Oh no, its "look how tough we are" versus “we are tougher than you, you wimp". It’s not a particularly edifying debate. The end result of this vulgar spectacle is invariably stupid or bad law. In some regards, the NT has a justifiably proud criminal jurisprudential record. There are other aspects of its criminal jurisprudential record however, which are far from impressive, both historically and recently. THE GOOD Well before the High Courts decision in Mabo, our Territory Supreme Court had accepted in appropriate cases relevant Aboriginal customary law and taken it into account in deciding the question of sentencing: In every case where I have been under a duty to pass sentence on a native, irrespective of the charge, I have heard such evidence as has been available throwing light on the background and upbringing of the native. Where tribal law or custom might possibly be relevant, I have in every case endeavoured to inform my mind on these topics either by hearing evidence in court or perusing any material available to me which seemed to be on the point. - Justice Kriewaldt in Queen v Anderson (1954) NTJ240-249 Likewise, our Supreme Court has also taken into account the relevance of the offender’s Aboriginality per se when considering sentence: It is not that I countenance one law for the white man and one law for the black man, but the white man’s law in dealing with the black man must take full cognizance ofhis difficulties, his beliefs and his conditions. - Justice Muirhead in R v Jungala SCC 97 of 1977 How about this priceless dicta from the same judge when dealing with the sentencing of a 14-year-old Aboriginal kid who was appealing a three month suspended jail sentence for stealing a car and other driving offences: ...in dealing with Aboriginal children one must not overlook the tremendous social problems they face. They are growing up in an environment of confusion. They see many of their people beset with the problems ofalcohol, they sense conflict and dilemma when they find the strict but community based cultural traditions oftheir people, their customs and philosophies set in competition with the more tempting short term inducements of our society. In short, the young Aboriginal is a child who requires tremendous care and attention, much thought, much consideration. Seldom is anything solved by putting him in prison. If he becomes an John Lawrence, President, CLANT offender, he requires much by way of support and perhaps much by way ofdiscipline to set him on the right track...We say this as experience shows that the offences of young Aboriginals tend to occur in repetitive waves, sometimes associated with petrol sniffing, as has recently been the case at Papunya, sometimes associated with other sociological causes, peculiar to a tribal geographical group. Prison sentences previously suspended may thus frequently be served and the sentence of imprisonment, which in the case ofthe average adult hangs like a sword of Damocles, may be nothing more than a challenge to many of these young people. - Justice Muirhead in Jabaltjari v Hammersley (1977, 15ALR94) All of this dicta was well before the Recommendations from the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). The way our Supreme Court developed that approach to the sentencing of Aboriginal offenders (only possible of course by havingjudicial discretion to so effect) is the jewel in the crown of the Northern Territory’s criminal jurisprudence. In 1990,1 presented a paper at a Criminal Lawyers Conference ran by the International Society for the Reform of Criminal Law. continued page 16 Page 7 — March 2003 y lines in the sand The departure of C H Deland DCM On 19 February 2003, C H Deland SM (Cathy), presided over her final sittings as a magistrate in Alice Springs. Cathy was admitted to practice as a barrister and solicitor in South Australia in 1979 after completing her Articles of Clerkship at the Crown Solicitor. Her employment as a prosecutor took her on country circuits around South Australia and in particular to Port Augusta where she appeared in both the Supreme Court and District Court. Of course, she also prosecuted in Adelaide. It was at Port Augusta in 1980 that I first met Cathy in my capacity as a defence counsel. Throughout the following six years we sparred, with the honours fairly and squarely in her favour. As a prosecutor, she was diligent and above all fair. She was highly regarded by peers from all facets of the law. By 1986 Cathy had become senior prosecuting counsel in the difficult area of child sexual abuse in Adelaide. This work occupied her until 1987 when she was appointed a magistrate. She sat in Adelaide, Elizabeth and as resident magistrate at Port Augusta in 1989 and 1990 before returning to Elizabeth in 1991. In 1991 Cathy was appointed as a magistrate in the Northern Territory and moved to Alice Springs along with her partner, Mark Heitmann. They have two children - Sidney and Campbell were both born in Alice Springs and are fond of their bush freedom. Cathy launched herself into community activities in Alice Springs more notably in her capacity as a member of the Northern Territory Women’s Advisory Council. Cathy also donated her time to sitting on the Mental Health Tribunal and other like community organisations. She promoted community consultation in the court process and Tony Whitelum, LSNT representative for Alice Springs she was an advocate for the use of Aboriginal interpreters, the lack of juvenile detention facilities in Central Australia and treatment programs for young substance abusers. Perhaps Cathy will be most remembered and admired for her compassion and empathy with the Aboriginal people of Central Australia. She was respected by the Central Australian community because of the manner in which she dealt with indigenous Australians in an open and fair-minded manner. Community Sausage Sizzle She will be remembered by the communities for founding the “Community Sausage Sizzle” when doing the bush circuits. One other area in which Cathy will be fondly remembered is for her work in the Family Matters Court. Again, she exhibited extreme patience, understanding and compassion when dealing with children, their families and extended families. The legal fraternity and wider community of Alice Springs were sad to see Cathy move on. We wish her well in her endeavours in the magistracy in South Australia. Best wishes Cathy! Above: Cathy Deland SM (left) listens as Tony Whitelum makes his speech at Cathy’s farewell function in Alice Springs. V Page 8 — March 2003 letters to the editor - gpo box 2388, dwn nt 0801 Northern Territory dreaming Former Deputy Chief Magistrate Cathy Deland sends the profession her thoughts and best wishes from South Australia As I sit in my new chambers at the Adelaide Magistrates Court in Victoria Square I have many people enter and comment on the lovely paintings which adorn the walls, two of which are Kata Tjuta and Uluru, by Christine Dickinson which were given to me when I left Alice Springs by the Law Society. I would like to thank the Society members for these beautiful gifts which will remind me forever of the 11- and-a-haIf years I was a magistrate in Alice Springs. I must be the first to admit I was not the most gracious recipient of a “farewell show” but despite my objections Emma Cornock (Registrar Alice Springs Court) and Tony Whitelum coralled most of the legal profession, police prosecutors, court staff and others. Many lies and some truths were told and I had a fantastic time. In addition to the paintings I was presented with a miniature sandstone map of the NT (at least my protestations regarding those wooden monstrosities was heeded) glorious vase and a decoupage box, hand decorated by my secretary with central Australian themes...... not a crocodile insight!!.... If nothing else I must hold some sort of record for beingthe only long serving Northern Territory magistrate never to have satin Darwin!!! It is difficult not to allow myself to constantly wonder what is happening in the centre and to daydream of those Aboriginal communities now so far away. But life moves on. To all those who appeared in front of me over the years... I hope it wasn’t too traumatic... To my ex-siblings....rememberto laugh every now and then.. To the court staff..... thought I’d better go so someone else can win the Cup sweep.... And to Michael Ward.... keep those shaslicks sizzling and the young blokes who think they can play cricket honest. - Cathy Deland, Adelaide And more best wishes From Emma Cornock, Registrar, Alice Springs After some 12 years on the Bench in Alice Springs Cathy Deland has left us to take up an appointment with the South Australian Law Courts. The Law Society, in conjunction with Courts Administration and the staff of the Law Courts, recently held a farewell for Ms Deland to wish her well in her new endeavour. Ms Deland was a popular Magistrate who was known for her compassion and interests in communityjustice. The founder of the “Hermannsburg Sausage Sizzle” she was well respected by elders in the communities surrounding Alice Springs. Her cultural awareness and understanding helped her to forge strong relationships, which relationships ensured the smooth running of the circuit courts. Likewise the local profession have a high regard for Ms Deland, many attending to make their farewells in person. It is with sadness and good wishes that Ms Deland isfarewelled. Speeches were made by His Worship Michael Ward and also by Tony Whitelum on behalf ofthe Law Society NT, both recognising the skills and attributes which Ms Deland brought to her appointment. Ms Deland outlined some of the highlights of her time in the Territory and thanked all for their support. Our letters/responses policy We welcome your views and responses to issues in Balance. Send a Letter to the Editor, to be considered for publication in our print and online editions. Letters must be short and may be edited by Balance. No letter will be published unless it includes a name and full contact details (for verification purposes). Balance may license third parties to reproduce such letters. Letters with pen names will generally not be considered for publication. Above: Magistrate Michael Ward SM (left) speaks at Cathy Deland SM’s (right) farewell in Alice recently. 1 Page 9 — March 2003 cover story Whose liability is it anyway? by Michael Grove and Bill Priestley Very soon, the way practitioners consider, commence, run and settle personal injuries actions in both the Supreme and Local Courts of the Northern Territory, will change. It used be a fault scheme, ie if X was negligent and Y suffered as a result, X would pay Y compensation. A simple and fair system was developed by the courts to determine the issue of fault and the compensation. It will still be a fault system, but now a person will be downright negligent themselves ifthey get injured - it will be their fault. For a number of years, insurers and advisors have convinced governments throughout the country that it’s fair to reduce constituents’ rights and make it, in some cases, not worth their while to pursue legal claims in courts with the assistance of lawyers. An example of the absurdity of all this change is to compare the recent public statement of Senator Helen Coonan, the Federal Assistant Treasurer, when she said premiums would be down in months, with that of Cridlands’ partner David Farquhar (who has been advising the NT Government of the changes) that it would take years before premiums would come down. Businesses, running or nascent, ought to be calling their insurers and demanding premiums come down. The truth is the changes have been introduced to improve the balance sheets of insurers, who have had poor premium collection (readers may have read a recent AFR column wherein an insurer representative body said businesses have had it too easy for too long!) and woeful investment returns during the last ten years. Instead of doing the hard yards, which would be to introduce and monitor appropriate claims management procedures, the insurers are getting a leg-up from governments. This means the outrageous self-indulgence of HIH could happen again, but the ordinary punter, the one who does not want to be injured, may still get kicked when they’re down. Senator Helen Coonan’s government and her state and territory counterparts Page 10 — March 2003 will not put caps on professional liability, so those cynics among us could believe the changes are designed to kick the lawyers as well. When you consider the Territory Government’s approach has been informed by statistical information from NSW, you have just got to wonder. A number of Bills have been introduced into the Territory Parliament in the November 2002 and February/March 2003 sittings to effect all this. They include the Personal Injuries (Liabilities and Damages) Act 2002 (“the Damages Act”) and the Consumer Affairs and Fair Trading AmendmentAct (No 2) 2002. The first Act is likely to commence operation sometime in April 2003. In addition there is the Personal Injuries (Civil Claims) Bill 2003 and the Legal Practitioners Amendment (Costs & Advertising) Bill 2003 introduced at the February/March 2003 Sittings. These Bills are likely to be debated in the Alice Springs April sittings and are the subject of Ian Morris’ article in this edition of Balance (p3). Practitioners should get hold of the acts and bills on the government’s website and become thoroughly conversant with their contents as they change the face of personal injuries litigation in the Territory. The Damages Act will cover all but a specified number of claims for damages for personal injury. It will generally only apply to incidents which gave rise to those personal injuries that occur after the Damages Act commences operation. Part 2 of the Damages Act excludes the right to sue volunteers and ‘good Samaritans’ (in emergency situations) for damages unless the act giving rise to the injury was reckless or done in bad faith. The community organisation that engages the volunteer incurs the liability in the volunteer’s place. That Part also excludes civil liability of homeowners to unlawful entrants. Part 3 of the Damages Act deals with changes to the law concerning contributory negligence. Part 4 limits pecuniary loss to three times average weekly earnings. It also has some mumbojumbo about future pecuniary loss. The discount rate for future pecuniary loss is five percent. That Part also limits Griffiths v Kerkemeyer i.e. gratuitous service type damages. Division 4 of that Part will bring the greatest change by abolishing common law for non-pecuniary loss and replacing it with an assessment of damages based on permanent impairment. It sets a cap on such claims to $350,000 and a sliding scale for injuries between five percent and 14 percent permanent impairment. As anyone who has worked with the American Medical Association Guides (the prescribed guides), the manifest unfairness ofthis approach is worrying. A couple of actual examples further on should suffice to show this legislation will impact on those least able to protect their rights. The Law Society has provided these to government previously, clearly to no avail. There are no exemplary or punitive damages for such injuries and no interest on damages awarded for nonpecuniary loss or gratuitous services. A new section 68A will be introduced to the Consumer and Fair Trading Act so those who provide recreational services may in certain circumstances contract out of certain warranties and liabilities. This may not get off the ground if a similar Bill introduced into the Federal Government to effect changes to the Trade Practices Act does not pass the Senate. continued page 20 advocacy Written submissions

  • The covers of this book are too far apart”

Ambrose Pierce In Australia the tradition of the Bar is an oral tradition. Historically there has been little emphasis placed on the need for the advocate to develop skills in the presentation of written argument. That position is changing. Over the years the cal! for, and the use of, written submissions has increased. It must be anticipated that this movement will continue. The ability to produce effective and persuasive written argument is a skill that the advocate must develop. Written submissions may be employed in many areas of advocacy. As with the presentation of oral argument the presentation of written argument must be tailored to suit the circumstances. The outline of argument that precedes an appeal will be a quite different document from the detailed written submissions that are produced at the completion of a lengthy civil trial. It is necessary for the advocate to be conscious of the needs of the occasion and of the audience being addressed. In the appellate setting the potential impact of the written submission should be understood and exploited. This is the first opportunity the advocate has to direct, or at least influence, the thinking of the court. Not only does the written argument have initial impact, if well structured it should have ongoing impact. When the hearing is at an end and the members of the court retire to write theirjudgments one of the sources to which they will turn is the written material. In 1984 Mason J of the High Court1 lamented that: Written submissions tend to be either too lengthy so that the arguments are lost in the forest of detail, or too scanty so that the points are listed seriatim like particulars of negligence without the supporting elaboration which gives flesh and blood to the bare bones of the proposition. In the process, persuasion which is the object of all presentation, seems to have been overlooked. In preparing your written submission it should be borne in mind that it is your opportunity to present your argument in a concise and direct manner. The argument can be presented and considered in its entirety by your intended audience without the interruptions or distractions that sometimes affect oral argument. In that sense it has both an immediate and an enduring impact. It sets the tone and directs the course for what is to follow. It may then be revisited when the judgment is being written. The written argument presented in advance of an appeal should be concise and to the point. In some courts the extent and form of presentation of the written material is governed by the rules or practice directions of the court. For example in the High Court on the hearing of an appeal the written submissions are to be no more than a specified number of pages in length except with the leave of the court. The practice directions of that court also address the requirements as to form and content. Whilst you must comply with the requirements of the courts it is necessary to present the argument in a powerful yet succinct way. Careful consideration must be given to what is to be included, what is to be omitted and the most effective order of presentation. Hon Justice Riley The structure and content of both opening and closing submissions require particular attention. The interest of the reader must be engaged and held throughout the document. As with oral argument the advocate should avoid the temptation to address all issues that may arise. It is necessary to be selective and deal only with the issues worthy of consideration in that forum. The issues that are dealt with should be addressed in a logical and persuasive way. The argument should be designed to capture and hold the attention of the court. It should stimulate the interest of the court. Generally speaking it is unnecessary and unwise to include substantial quotations or extracts from other written material in written submissions on appeal. Ashort summary of such material and a clear identification of the location of the source of the information will suffice. Where appropriate the source material can be presented to the court in an accompanying folder. The written submissions should be such that it is possible for the court to take the submission and use it as the basis for the judgment that is to follow. continued page 14 Page 11 — March 2003 i MERCANTILE MANAGEMENT PTY LTD Process Servers and Field Call Agents Institute of Send your NSW process work direct to us for immediate attention and save days on getting a response. Serving all areas of New South Wales i-M-i Nationally representing the interests of Process Servers ■ Efficient turnaround of all legal documents ■ Quality affidavits issued ■ Competitive and attractive pricing for bulk business When you have documents that need to be served ~ rest assured they will be served with results. All our agents are professionals with many years of experience ~ they are also members of the Institute of Mercantile Agents. Phone 02 9588 9643 Fax 02 9588 9550 Mobile 0412 245 631 DX 11112 KOGARAH Email info@platinummercantile.com.au Postal PO Box 507 Kogarah NSW 1485 Contact Peter McRae and Desiree Holcroft ‘FOR THOSE WHO APPRECIATE QUALITY SERVICE WITH RESULTS” Page 12 — March 2003 bai010302 n* bar association ■ jottings on the bar From pro bono work to court statistics DCLS acknowledges pro bono work I recently received a letter from the Darwin Community Legal Service acknowledging the pro bono work that members of the NTBA had undertaken for the DCLS. Particular mention was made ofthe hours of legal advice Colin McDonald QC provided to a group of East Timorese people over the December/January period. This letter is timely because the Bar Council decided at its 2003 planning meeting to encourage all barristers to do some pro bono work in 2003. Steve Southwood QC has agreed to coordinate that effort. NAALAS is one organisation we have already agreed to assist. Of course, as the DCLS letter shows, our members are already undertaking a wide range of pro bono work. For example, in the past few weeks we have been able to contribute to the efficiency of both of the Supreme Court and the Federal Court by providing barristers to assist self represented litigants - Sally Gearin and Tony Young helped out on those occasions. As well, many members of the criminal Bar have given generously oftheirtime in the past - Peter Elliott and Ian Rowbottam, to mention but two. Reforms to ensure the independence of the judiciary The NTBA recently made a detailed submission to the Attorney General in response to a proposal from the AG dealing with reforms to the Magistrates Act. Since the proposed reforms raised a large number of associated issues the submission was not limited to the Magistrates Act. In summary, the NTBA submission included the following reforms in the interests of ensuring a completely independentjudiciary in the NT: • The NT judiciary should be formally recognized as the third arm of government in the NT’s ‘constitution’: the Self Government (Northern Territory) Act - at present there is only a passing mention of the Supreme Court in the Self Government Act. • Magistrates should only be removable by the Administrator upon an address from the Legislative Assembly upon proven misconduct - this would replicate the similar provisions that currently apply to Supreme Courtjudges. • The remuneration, terms and conditions of all judges and magistrates should be fixed annually by the Legislative Assembly based upon the recommendations of independent tribunal e.g. the Remuneration Tribunal. At present, the terms and conditions of judges and magistrates are fixed from time to time by the Administrator on advice from the government of the day. • An acting judge or magistrate should only be appointed in exceptional circumstances and then only for a short non renewable term. Court performance statistics - a mixed result Each year the Productivity Commission publishes its Report on Government Services in which, among other things, it sets out a comparison of the performance levels of the superior courts in Australia in criminal and civil trials and appeals. A summary of the report for 2002 was published in the February 2003 edition of Balance. This year the Commission’s report included its usual warning that comparison of the results between jurisdictions is difficult because the complexity and distribution of cases can vary between jurisdictions. The Commission also noted that Tasmania, John Reeves QC, President of the NT Bar Association the ACT and the NT do not have a three tier court system. Accepting those qualifications, the figures indicates mixed result for the NT Supreme Court. It was ranked in the middle of the field on the percentage of criminal matters and criminal appeals finalised within 12 months - a good result. It came second on the percentage of civil appeals finalised within 12 months - a very good result. However, it came LAST of the nine jurisdictions in the percentage of civil non appeal matters finalised within 12 months (only 46.3 percent of matters finalised). By comparison the best performance was the Western Australia Supreme Court with 94.3 percent of matters finalised - slightly more than double the NT’s rate. Perhaps the most disturbing aspect to these figures was that this result was worse than last years, when the NT Supreme Court finalised 51.6 percent of civil non appeal matters within 12 months. Whilst comparisons between jurisdictions may not be valid, there would not seem to be any obvious reason why a comparison within a jurisdiction year on year is not valid. If so, these figures suggest the profession and the court need to make a special effort to reverse this trend.® Page 13 — March 2003 j Advocacy, from page 11 It is the sign of a well constructed written submission that the advocate sees it reflected in the judgment ultimately delivered. In preparing the document it will be necessary to consider the audience to whom it is addressed. If the matter is before a superior court it is unlikely to be necessary to remind the members of the court of basic principles of statutory interpretation or sentencing or whatever the topic being addressed may be. Insofar as it is possible the document should be attractively packaged. In longer documents the use of headings to identify what is being addressed at a particular location is of great assistance. The use of a clear font and print of reasonable size is obviously desirable. In preparing written submissions it is necessary to bear in mind that your subsequent oral submissions should match those earlier lodged in writing. In recent times the Court of Appeal in New South Wales has delivered warnings in this regard. It has reminded practitioners that the court may order that costs thrown away by an adjournment be paid by the legal practitioner where the oral submissions failed to match those lodged in writing and that, in an extreme case, the court may decline to hear oral argument outside the parameters of the written argument unless there has been some good explanation for the disparity: Lake Macquarie City Council v McKellar (2002) NSWCA 90. An interesting article dealing with written submissions in appellate matters is to be found at (2002) 22 Australian Bar Review 149. The importance of written submissions to the effective presentation of a case should not be underrated by the advocate. 1(1984) 58 AU 537 at 541 Page 14 — March 2003 mandatory blues, from page four LSNT Bob Carr? The Premier of NSW? Minister Ah yes. NSW, yes, yes, I remember them. They contributed to our election strategy. LSNT Well, what did he say? Minister Say? He said all these people were frauds! And they shouldn’t be paid damages coz it hurts the insurance companies. And I believe him, after all, I have never fallen down and hurt myself, and neither has anyone I know. LSNT But Minister, don’t these people deserve a fair trial? Minister No, No and No. Fairtrialsare for those people who have been charged with criminal offences! LSNT But these people have done no wrong.... Minister Done no wrong! Spare me! I went to Sydney on a fact finding tour and I was shown the very pavement they all fall over! All they do, all of them, is to fall over this pavement and claim money from insurance companies! No wrong...I can’t believe you said that! LSNT Well, they don’t all fall over the same piece of pavement... Minister Yes they do, Sir Robert showed it to me! LSNT But Sir Robert... Minister Yes I know, you say he isn’t there any more! Another technical pointforyou! But I know it is true. LSNT Even if they did, wouldn’t they deserve not to be treated as a job lot? I mean, if a lot of them got hurt and it wasn’ttheirfault, and they got angry because they didn’t get damages, wouldn’t they vote against you? Minister You mean this could be an election issue? LSNT Well, it could be... Minster Civil law? LSNT Yes, you know, the rights of the injured. Minister And you fellows would come out in favour of them? LSNT Well I guess so... Minister I see. I have found that the rights of the person to be paramount, and all who are hurt by others deserve a fair trial and shouldn’t be treated like a job lot! Ummm How does that sound? Is that the right sort of pitch? LSNT Yes Minister. ® Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a voluneer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Co-ordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton <& l\ActAim Sts SAT - 10am-11.45am, Cosuorim Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 1111 or email darlene@dcls.org.au Lead prosecutors heading to Darwin for discussions A major gathering of heads of prosecuting offices is to take place in Darwin in the Northern Territory of Australia from 6 to 10 May this year. The 7th Biennial Heads of Prosecuting Agencies Conference (Commonwealth), or HOPAC, will be hosted by the Northern Territory’s Attorney-General Dr Peter Toyne and the Director of Public Prosecutions, Rex Wild QC. The meeting will be attended by at least 25 to 30 Directors of Public Prosecutions, or their equivalents, from mainly former or current Commonwealth countries. The first meeting of HOPAC took place in Sydney in 1991. Attendance at this original conference was by invitation which stated: The aim of the conference is to give heads of prosecution agencies an opportunity to meet and to discuss matters of contemporary significance, general principle and issues of practical importance. The conference was therefore designed to bring together heads of prosecuting agencies of Commonwealth jurisdictions for the purpose of meeting and exchanging different points of view. It was the answer to specific operational needs. Subsequently, meetings have taken place in Ottawa (1993), London (1995), Wellington (1997), Sigatoka (1999) and Edinburgh (2001). The NTODPP was represented by the previous Director at the first three such conferences. Most other Australian jurisdictions are represented atthese meetings. Current Director Mr Wild attended the conferences in NZ, Fiji and Scotland. invaluable These conferences have proved invaluable in providing a forum for: • sharing knowledge and networking • international co-operation • an aid in movements towards consistency in legislation. Invitations have already been accepted by Directors, or their equivalents, from all Australian jurisdictions, New Zealand, England and Wales, Scotland, Northern Ireland, Ireland, Hong Kong, Canada, Singapore and Papua New Guinea. There will be formal functions at Parliament House (Tuesday 6 May) and Government House (Wednesday 7 May). The bench, magistrates and members of the law profession will be invited to one or more of these functions to meet the overseas and interstate visitors.® Above: NT DPP Rex Wild QC...co-hosting HOPAC with the Attorney-General. /---------------------------------------------------------------------------------------------------------------------------- \ WANTED: Your nominated email address Bulletins to the profession - CLE Seminars - Events & Functions Do you want to be informed by the Law Society via email? If so, please provide an all-purpose email address for yourfirm. Fill out this form NAME OF FIRM:____________________________________________________ EMAIL ADDRESS:___________________________________________________ SIGNATURE OF AUTHORISED PERSON: \__________________________________________________________ _________________________ / L Page 15 — March 2003 CLANT, from page 7 That paper “bragged" about how the Supreme Court of the Northern Territory, by the application of sentencing discretion had been able over the years to take on board and accommodate Aboriginal customary law and Aboriginality per se in the sentencing ofAboriginal offenders. At the same session on sentencing, a Texas Supreme Court Judge presented his paper on how they sentenced in Texas. It was with a slide rule. From memory it went like this: down one side the offence; robbery, rape, assault etc. Along the top: sex, race, age, priors and other subjective features. You then apply the slide rule and there is your sentence. He didn’t mention the other famous Texas non-discretionary sentence being execution of which there have been hundreds carried out in the last ten years. Anyway, at the end of the session, I felt the Territory came out streets ahead of Texas as far as sentencing offenders was concerned. THE BAD AND THE STUPID Historically the Territory has little to be “braggy” about. Welfare ordinances and the way they dealt with the Stolen Generation: direct discriminatory legislation against Aboriginal people and the law that allowed for and affected Aboriginal offenders to be hung at the scene of the murder are gruesome and relatively shameful aspects of Territory criminal law. In recent years the wheel seems to have been turning the full circle back to those days. Most of the legislative additions to our criminal law in the last ten years have been either bad and/or stupid. Of course we had the three year experience with mandatory sentencing for property offences. Grossly disproportionate sentences, manifest injustice and no effect on the crime rate served to expose that caper for what it was: a crude political exercise. It was a Territory legal development that was bad notjust stupid. The new NT Labor Government has proceeded to replace bad laws with daft laws in many respects. A good example of their legislative manifestation of getting tough is their new drug laws, and in particular the “Drug House" laws. What total baloney that is. Talking of baloney, remember one of its predecessors which was if anything more stupid: The Public OrderAnti-Social ConductAct.Thankfully thattripe was repealed but the Drug House laws are just as daft. Our Association said at the time of their introduction that they were cosmetic window dressing to show the public that the new Government was being tough and we maintain that just over six months after they have been on the statute book. The law falsely created a dragon so that the Government could then slay it. It gave the police some extra powers which they didn’t need as well as setting up further legal procedures which they probably didn’t want. The proof of the pudding is to look up at the score board which tells us there have been all of two houses declared Drug Houses and one woman charged with supplying cannabis from such a Drug House. Page 16 — March 2003 I understand she is pleading not guilty to the charge. So much for breaking the claimed link between drug offences and property offences. Mind you the laws have had a tough effect on her in that she has already been evicted from her Housing Commission flat: great stuff! The posturing by the politicians in selling and justifying this garbage is as facile as the laws themselves. One can’t help but fear for the future as regards criminal legislative developments if the level of the debate is anything to go by. Only in the last month or so we’ve heard suggestions from a Darwin City Council alderman to introduce some sort of “pass laws" to address the chronic problems caused by alcoholism and itineracy that constantly blight the streets of Darwin. Not only would such a scheme offend fundamental human rights it would clearly breach the provisions of the Racial Discrimination Act on the grounds of race. What’s more the practicalities of establishing and effecting such a system don’t bearthinkingabout. More importantly such a proposal, once again, fails to address the real causes of this very real blight in our community. The problem is deep rooted and needs to be addressed at that level. It’s not that politicians from all sides don’t know that. Again, none of this is new. We had, more than ten years ago, the comprehensive recommendations from RCIADIC which covered the field: social, economic and employment aspects within Aboriginal communities themselves, plus the secondary recommendations concerning alcohol rehab, sobering up shelters etc. Just to confirm how none of this is new, let’s quote once again Justice Muirhead from the mid 80s: As is usual in this depressingly frequent type of offence, the root cause was alcohol. For over 10 years sitting in this Territory, / have endeavoured to draw attention to the need for something to be done about the marketing, the regulation and supply of alcohol, particularly to ourAboriginal community, the need for detoxification units, modern treatment and rehabilitation centres. I have not been alone in this exercise but it's been entirely fruitless. The courts can achieve little, ifnothing. The Aboriginal councils appear to recognise the problem and it is the Aboriginal people who almost entirely suffer its consequences. One can only keep hoping that at national level there will be recognition of the seriousness and complexity ofthe problems coupled, I hope, with some action. -James Muirhead, R v Mungkuri and Nyaningu, 1985 12 Alb 11. As can be seen, most of the good is in the past while most of the bad and stupid is recent: watch this column! ® A determination to help the profession "generally" On 21 February 2003 in the Supreme Court of the NT, Justice Dean Mildren delivered his judgment in the matter of Stephen Michael Barr v The Queen, involving an application for leave to appeal against conviction. Although His Honour was not required to give reasons for refusing the application, he nevertheless did so “for the assistance of the applicant and of the profession generally”. After an approach by Deputy Director of Public Prosecutions Jack Karczewski QC, Balance agreed to publish His Honour’s Reasons for Judgment to bring his remarks to the attention of the profession. They are published in full here. [1] This is an application for leave to appeal against a finding of guilt given by a jury on 26 November 2002 at a trial presided over by Bailey J in Alice Springs. The application, which was filed on 7 January 2003, is supported by the affidavit of RusselLGoldflam, a solicitor employed by the Northern— Territory Legal Aid Commission, affirmed on 6 January 2003 and also filed in the Registry on 7 January. [2] Section 417(1) of the Criminal Code requires an application for leave to appeal against a finding of guilt to be filed within 28 days of such finding. In this case, the finding of guilt was made on 26 November 2002. Consequently, the present application should have been filed by no later than 24 December 2002 and is out of time. The applicant has submitted that the time does not begin to run until a conviction is recorded. Formerly s 417(1) provided that applications for leave to appeal were required to be filed within 28 days of conviction. Section 417(1) was amended by Act 17/96 to change “conviction" to read “finding of guilt". This was no doubt because a conviction does not automatically flow from a finding of guilt as it once did; the Sentencing Act, s 7, envisages a number of sentencing orders which may be made with or without the recording of a conviction. The contention of the applicant must be rejected. [3] Section 417(2) ofthe Criminal Code permits the Court to extend the time within which an application for leave to appeal may be brought. The power to extend is not limited to applications brought before time expires: the Court may extend the time “at any time".. An application to extend time is required to be brought in accordance with r 86.11 which requires an application to be made in accordance with Form 86L, accompanied by an affidavit stating the reasons for the delay. No application for an extension of time has been made so far. In any event, an application for an extension will be refused if leave is required and would not be granted. [4] The affidavit in support of the application for leave is deficient because it does not comply with r 86.10(2) which requires the affidavit to state the nature of the appeal, the questions involved and the reasons why leave should be given. Mr Goldflam does not state in his affidavit what the proposed grounds of appeal would be. The applicant only instructed him that he wanted to appeal on 23 December, the day before time expired under s 4 17(1). The following day Mr Goldflam attempted to instruct the applicant’s trial counsel but was unsuccessful. He unsuccessfully attempted to do so again on “31 January 2002" (sic). I expect 31 December 2002 is meant. There is no other information in the affidavit. Even if I were minded to treat Mr Goldflam’s affidavit as an application for an extension oftime and excuse non-compliance with r 86.11(1), it would not avail the applicant as no grounds are shown and no information is given in support of the reasons why leave should be given. In order to obtain leave, the applicant must show that he at least has an arguable case: see Rostron v The Queen (1991) 1 NTLR 191 at 196. [5] Following the filing of an affidavit by Mr Karczewski on behalf of the respondent pursuantto r 86.13, the matter was referred to me for consideration pursuant to r86.14E. As there was no affidavit of service of Mr Karczewski’s affidavit, I caused my Associate to enquire of the applicant’s solicitors whether or not they had received Mr Karczewski’s affidavit. This led to a further affidavit being filed on behalf of the applicant by a Mr John Kelly, another solicitor employed by the Northern Territory Legal Aid Commission. Mr Karczewski has indicated that he objects to my considering that affidavit because the time for the filing of an affidavit in reply under r 86.13(3) had already lapsed. [6] The material contained in Mr Kelly’s affidavit is not sufficient for me to determine whether or not the applicant has an arguable case. The matters therein agitated are dealt with too briefly for me to form any view one way orthe other. I note there is no suggestion that counsel’s opinion has been obtained, or even that he has been briefed. On the contrary, Mr Kelly refers to the fact that a copy of the summing up of the learned trial judge has not yet been obtained, although it has been ordered and that it is the intention of the applicant to brief counsel to settle the notice of appeal after it arrives. I am therefore not inclined to exercise the powers which I have vide rr 82.02, 2.01(1) and (2) to dispense with non-compliance. continued next page Page 17 — March 2003 i Mildren ruling, from previous page [7] The course which the applicant has so far adopted isjustified by Mr Kelly on the basis of the decision of Martin CJ in Spencer v The Queen [2001] NTCCA 7 (unreported). In that case the applicant for leave filed his application within time, but with a supporting affidavit which was deficient in not providing any reasons as to why leave should be given. The supporting affidavit indicated that particulars of the ground relied upon and further grounds would be provided once counsel’s opinion was obtained. Subsequently, that applicant filed a second application for leave properly supported by an affidavit in accordance with the Rules, as well as an application for an extension of time. His Honour in that case was prepared to extend the time for the filing of the second affidavit and indicated that the second application for leave was unnecessary. There are significant differences between that case and this in that the original application in this case is out of time, no application is made to extend time and there is still no affidavit upon which the application could succeed. [8] I draw the applicant’s attention to the observations of this Court in Fittock v The Queen (2001) 11 NTLR 52 at para [2] to [9]. Non-compliance with the Rules will not be excused unless there are proper grounds. I think the best course is, (1) to refuse an extension of time to file the affidavit of Mr Kelly and, (2) to refuse the application for leave. If and when the applicant is in a position to properly mount his application, he can begin again with further applications for leave and with an application for an extension of time. As there are no grounds before me, the applicant is not able to proceed via r 86.14B(2) and must start again. The respondent submitted that I should strike out the application, lam unable to see any power for me to do this in the Criminal Code orthe Rules and no authority was cited in favour of that proposition. However, in the circumstances of this case, the effect of refusing leave is the same as if the application had been struck out as incompetent. [9] Although not required to give reasons (see r 86.14(4)), I have decided to provide reasons in this case for the assistance of the applicant and of the profession generally. I offer the following guidance to practitioners who find themselves in the situation where a convicted person wishes to appeal but there is insufficient time to obtain counsel’s advice, or to prepare the necessary application for leave and supporting affidavit. The Court has power to extend time vide s 4 17(2) of the Criminal Code and this power can be exercised by a single Judge at any time vide s 417(2) and s 429(1) of the Criminal Code. (Order 86 is designed to ensure that in the first instance, such applications are dealt with by a single Judge, but preserve the right to apply to the Court constituted by three Judges in the event of refusal.) As I have said before, such applications require an explanation forthe delay, as well as establishing an arguable case. Leave is most unlikely to be refused where there is an arguable case, particularly where the applicant has sought legal assistance before the expiration of the relevant time limits. Rather than lodging applications like the present which serve no purpose, it would be wise for notice to be given to the Director of Public Prosecutions of the situation by letter as soon as possible. If and when an application is able to be properly mounted, it can be filed, accompanied by an application for leave to extend time. Appellant: NT Legal Aid Commission Respondent: Director of Public Prosecutions Judge: Mildren J


\

WE WANT YOU... to be part of the LSNT by helping out on committees. The LSNT is seeking expressions of interest from those interested in sitting on our Commercial Law Committee. The Society is also seeking expressions of interest from those interested in being the LSNT representative on the Law Reform Committee. Please send your expression of interest for either or both positions to: Ms B Bradshaw, CEO, LSNT, GPO Box 2388 Darwin NT 0801 or fax: 89411623 by COB 11 April. Oh to be Attorney-General The Alternative Law Journal is inviting contributors to indulge in some creative and forward thinking by taking up the challenge of the theme for its August edition - If I were AttorneyGeneral. The August edition of the bi-montly journal will be co-produced by committees in the NT and ACT. Page 18 — March 2003 The contributions can be between 1000 and 4000 words. They wil be refereed by one independent reviewer as well as the editor. Articles should be sent to the NT Committee no later than 31 July C/0 Samantha Willcox on email: samantha.willcox@ntlac.nt.gov.au or via fax: 89993099 Has Alasdair left the building? It was done quietly and efficiently. Having retired with great fanfare, Mr Alasdair McGregor has been asked to do an encore. Mr McGregor has returned to the Magistrates’ Court on an on-call basis. Muster Room understands it might have something to do with the decision to get rid of the Katherine resident magistrate position. Apparently, because Darwin based magistrates are now on a roster system to sit in Katherine, there is sometimes a “hole” in the Darwin courts schedule. Enter Mr McGregor, who gets called in to fill that “hole”. Things that make you go “hmmmm”. Have a gander at Conran! Those of you who have been in the Territory for a while, probably remember the former head of the (then) NT Department of Law, Peter Conran. Remember those nicknames? Conran the Barbarian, the Fat Controller, Rooster, or just plain “Conran”? Well, many would know the man who was also the Chief Minister’s Department CEO has recently become Cabinet Secretary and head of the cabinet policy unit for the Federal Government. BUT did any of you see the article about the chrome-domed one in the Australian Financial Review on 28 February? More to the point, did you see the photo which accompanied the article? Ring Lorelei at the LSNT if you’re interested - the photo is, well, it’s worth a look! You have to love him There’s nothing like a passionate advocate and in the recent case of Chung v Air Raid Arcade before Justice Trevor Riley, the appellant Kang Feng Chung made a good fist of his own case. It’s reliably reported to Muster Room that at one stage in the hearing Mr Chung handed up an exhibit to Justice Riley which wasa report of a plumbing expert. Justice Riley apparently asked Mr Chung to direct him to the relevant part of the report because he didn’t know what he was supposed to to do with it. To which Mr Chung replied (quite genuinely): “Oh, I’m sorry, I didn’t know you don’t know how to read”. After His Honour had delivered his ruling dismissing the appeal, he asked Mr Chung if he had anything to say regarding the order for costs against him. Among his comments, Mr Chung replied: “You did a good job, Your Honour. Don’t forget, you done it, Your Honour. You have to work within the law, no mistake to be made Your Honour. I entirely agree with you.” The “ghost” who (cannot) walks Peter Walker did not live up to his name at the RAAF base golf course late last month. He slipped down the tee of the 2nd hole. When his gammy right knee couldn’t bear his weight, his leg folded and he broke both histibula and fibula, about six inches above his ankle. Back at the RAAF bar, there was general applause after the patrons found out he had just broken his leg. They thought he had collapsed from a heart attack! There are rumours in the RAAF of alcohol being administered to him while he waited to go to hospital. How rude! LSNT Alice Councillor Tony Whitelum’s misfortune at the OLY (his car was broken into, see last month’s Balance) was the target of some repartee in the recent Council meeting. He was lamenting the loss of his water bottle that was used to siphon petrol out of the tank, when some wag remarked that Tony re-name his Balance column - to Stains in the Sand. Movers and Shakers Peter Tiffin is now working at NAALAS. Sarah Wilkie has leftTEWLS and is now at the Dept of Justice. Georgia McMaster is now based with the ODPP in Darwin while Ron Noble is now a Senior Crown Prosecutor in Alice Springs. Ted Sinoch has moved to Collier Deane from Povey Stirk. Megan Lennie has moved from David Winter to Morgan Buckley. David Story from Morgan Buckley is now in his own practice in Palmerston. Fred Davis has moved to Norfolk Island as parliamentary counsel. Andrew Schatz from Clayton Utz is now at the Australian Government Solicitor. The Muster Room David Woodroffe has moved from CAALAS in Alice to NAALAS in Darwin. Over at Cridlands - John Munn, has joined the firm’s commercial practice from Ward Keller, Tamlyn Hill has moved from Halfpennys to the firm, Allison Robertson has joined the firm’s litigation services and Duncan Maclean has been appointed to the NT executive of the AHA (Australian Information Industry Association). Admissions Admitted in late February were: Margaret Ellen McCabe (of Alice Springs) and Marko Cvjeticanin. Admitted in early March were: Gemma Siobhan Lake, Lucia Ku, Lisa Ann AhMat, Rhyanwen Ruth Bauman, Ben Wild, Jane Victoria Carrigan. Welcome back... To Leon Loganathan and family (wife Cynthia Chin and daughter Caitlin). They left Darwin for Sydney in 1997. And now, they’re back and Leon is senior solicitor/special tax counsel at Ward Keller. Leon said: “We always said we would come back to Darwin when we started a family”. Caitlin was born in November. Quote of the month “Professionals - lawyers especially - are an unforgiving bunch. It comes from the advisory nature of our work. In our professional life, few of us make decisions; rather, we present the facts, preferably along with our recommendations, to clients. It is they that make the decisions.” - Michael Simmons, Lawyers Weekly; from the article Shall we dump the managing partner? Page 19 — March 2003 case notes with mark hunter TIO v Kouimanis Enterprises Pty Ltd & Anor Supreme Court No. 68 of 2002 Judgment of Martin CJ delivered 20 December 2002 CIVIL PROCEDURE - SUBPOENAS - ORDER 42 On appeal from the Master of the Supreme Court of the Northern Territory. The respondent claimed damages for breach of contract. Pleadings had closed, discovery had been completed, and the matter was ready to be set down for trial. Four subpoenas were, at the request of the appellant, issued by the Registrar to non-parties pursuant to 0.42 of the Supreme Court Rules. Documents were lodged by these persons with the Court prior to the date when the subpoenas were returnable before the Master. On 29 August 2002 the Master set aside the subpoenas. He ruled that the appellant was attempting to use the subpoena process to effect non-party discovery. The Master determined that “at this stage of the proceeding” the appropriate procedure available to the appellant was to seek discovery from a non-party pursuantto 0.32. HELD 1. The issue of the subpoenas was appropriate. 2. The decision from the Master is set aside / leave to inspect documents granted. 3. Notwithstanding the terms of Rule 77.05, the right of appeal from an interlocutoryjudgment or order by the Master or a Registrar is not dependent upon leave being granted bva judge. 4. Costs be costs in the cause. Martin CJ observed that the unlimited right of appeal given by s 31 of the Supreme CourtAct is a substantive right which may not be limited by an inconsistent rule of court. The Chief Justice further observed that the terms of the subpoenas made clear that the appellant was aware of the nature and type of documents which were sought and which were apparently relevant to issues between the parties; this was not a “fishing expedition” by the appellant. Mark Hunter APPEARANCES Appellant - Reeves QC/ Ward Keller. Respondent - Tomlinson / De Silva Hebron. COMMENTARY A very similar appeal from an interlocutory decision of the Master was also allowed in Giblin v Beach (2001) NTSC 67 - Case Notes (Balance ed.10/2001). See also McConnel, D. Early Return of Subpoenas to Produce Documents (Balance ed. 11/2001). whose liability? from page 10 Balance will have more on Personal Injuries (Civil Claims) Bill 2003 and the Legal Practitioners Amendment (Costs & Advertising) Bill 2003 which impact on how matters are handled for those you would have thought deserve the especial protection of government - the young, the elderly, the infirm and the disabled. CASE 1 Three-year-old patient with facial haemangioma on upper lip. Prior to removal of the haemangioma, hospital decided to reduce blood flow to the lesion by an injection of ethanol. First (and last) time technique used atthis hospital. The ethanol extravasates from the lesion throughout the facial tissue causing severe necrosis of the skin over cheeks, lips and chin. Upper lip drops off. Multiple skin grafts required. Left with extremely severe facial scarring over 60 percent of the face. Will require future surgery as a teenager but otherwise requires no day-to-day care. Scarring has created a grossly disfigured mouth but other than an inability to lick ice-cream, the patient (who is now eight) has no functional impairment. As the injury requires no day-to-day care and does not impinge on function to any great degree would probably have a 0 percent impairment under the AMA Guides. CASE 2 Patient attends for cervical spinal discetomy at C4/5 level. In error C5/ 6 is removed. Patient continues in severe pain. Further investigations performed and error discovered after eight months of ongoing pain. Patient unable to work in job as mechanic in this time. Patient undergoes further surgery for removal of correct level. During second operation, infection is introduced into the wound. Infection persists for more than six months causing extreme pain and requiring constant packing and dressing. Patient then able to return to work. No permanent impairment. No entitlement to compensation under AMA Guides. (D L Page 20 — March 2003 cyberlex with jqson schoolmeester Let someone else do the work Electronic research is a "must have” skill for anyone required to find and retrieve information. For legal practitioners, electronic research is a part of daily life, but it is not just legal problems where this skill needs to be applied. For anyone wanting to be informed on current affairs, the internet is like a sponge, soaking up information from an incomprehensible number of sources. The trick is working out how to squeeze the sponge to get the information you want. As an example, type "iraq” in a search engine, any search engine. The number and type of pages that are returned is enormous. The results will provide links ranging from the United Nations to Joe Citizen’s individual home page. Now, you could narrow your search and reduce the number of hits, but generally speaking, you are going to have an overwhelming number of hits. Further, if you don’t really know what you are looking for, narrowing your search is problematic. There is another way. Many organisations prepare what are commonly referred to as "internet resource guides” and make them freely available. How do you find these guides? Well, the easiest way is to search using any internet search engine. Try "internet resource guide +iraq” you could just try "guide +iraq”. (Note my first search was "guide to information on iraq” and this worked fairly well.) Like any material on the internet it is important you assess the credibility of the information and this will apply to an internet research guide. The level to which you need to interrogate a website to determine its credibility will depend on the purpose of your research and the intended use of the results. As a general guide, the following are just a few questions you should be asking yourself: • Is the author clearly identified or is it anonymous? • Is the material poorly written (bad grammar, misspelled words etc)? • Is a date of creation/publication provided? • Is the information unbiased and objective? • Is the provider of the information a credible organisation? • What is the purpose in publishing the information? • Is contact information provided? I have found that libraries, particular university or government libraries, provide great internet resource guides. Internet resource guides are also available for many areas of law. So if you don’t know where to go or want to find something different, try finding an internet resource guide. The best part is, someone else has done a lot of the hard work already. As a starting point, one of my preferred internet resource guides is prepared by the Department ofthe Parliamentary Library. General and Subject Resource Guides - http://www.aph.gov.au/library/ i ntguide/resourceguides, htm Tantrix Tantrix, the strategy game from New Zealand, consists of hexagonal tiles with multiple painted lines. The idea is to match the titles creating lines and loops. Tantrix is utterly addictive as a serious two-player strategy game and can be played online. Launched in 1996, tantrix.com has become one of the most popular independent game servers on the internet. Players can create orjoin games with people around the world or simply practice on the Robot. Players receive rankings and can participate in tournaments. You can read up on strategy, solve the Tantrix puzzles or simply watch a game in progress. Jason Schoolmeester is with the Department of Justice. Email: jason.schoolmeester@nt.gov.au 1 Page 21 March 2003 readers forum - book reviews Australian Finance Law (fifth edition) by Mallesons, Stephen, Jacques The Lawbook Company, RRP $116.60 You have to be impressed with this book. I don’t know how I managed to miss the first four editions but havingthe opportunity to read this one must make up for it. This very comprehensive text deals with some of the most difficult commercial transactions that will ever cross a commercial lawyer’s desk, but due to the way the chapters have been laid out, a transaction that may contain a number of different legal aspects can be carved up and the various issues easily identified. You will get an extremely good kick start, if not the definitive answer from this book on any legal issue pertaining to financing transactions you could think of, all set out in easily understood language which is also surprisingly consistent, considering the number of different authors .who contributed to the book. If the range of topics covered is not exhaustive I certainly couldn’t identify what’s missing. The book begins with an examination of the major activities of the banks, a look at different financial institutions such as merchant banks, building societies, credit unions etc, and an overview of the regulatory framework governing the business of banking (Commonwealth, State/Territory and case law is covered). An historical account of why we are where we are at today in terms of regulation of the industry (the Wallis Report and beyond) puts it all in context. There is a thorough explanation of payment and clearing systems, complete with diagrams showing the flow of rights and obligations between the various parties. Similarly, the chapter on bank finance products outlines a number of common facilities, including loans, bills of exchange, supplier credit, factoring and other sales products and leasing of assets - again with thorough explanation accompanied by more of those great diagrams. I'iairai: Law Employment Law in Principle by Rohan Price The Lawbook Company, RRP $60.50 Employment Law in Principle is primarily designed for students studying employment law and is written by a lecturer of the University of New England School of Law in Armidale. This 291 page study companion is an easy read that quickly illuminates key employment law principles and concepts for the reader in a logical and concise manner. The interpretation and regulation of employment law is divided into four parts. The layout of the next divides each part into chapters and each chapter into segments. Page 22 — March 2003 This makes the text useful as a reference material to students and lawyers alike. It also has loads of diagrams, flow charts and commentary which breaks down complex concepts into various elements to help the reader quickly identify specific areas of interest. Each chapter of this book has some further readings identified on a subject followed by an aim with the encouraging words “By the end of this chapter you will know...”. Next the author states the principles to be covered in the chapter followed by the body of information. Atthe end of each chapterthe author summarises the key principles covered in the chapter and then gives you a guide to problem solving various tutorial questions and essay topics. Further readings are also identified at the end of each chapter. The very scary area of derivatives is dealt with in matter-of-fact language and leaves the reader with a good understanding of what the products are, how they work and how they are regulated. Also contained in the book, excellent sections on: • personal property securities (from an NT perspective, mostly securities requiring registration under the Instruments Act, and the Registration of Interests in Motor Vehicles and OtherGoods Act). Also deals with interests registerable under the Corporations Act and when registration is required; • the uniform Consumer Credit Code; • securities generally - liens, pledges, retention of title; the fixed and floating charge (including difference between fixed and floating, the crystallisation process, company powers to deal with assets secured by floating charge, registration process, consequences of nonregistration, receivership); • security interests in intellectual property; continued next page An interesting addition to this book is found at http:// www.lawbookco.com.au/academic in the additional resources section, featuring an eQuiz, amendments and additional materials. I would recommend this book to students studying employment law, masters of business administration, human resources or industrial relations. Any legal practitioners that need a point of employment law clarified may also find this text helpful. On final analysis this book is not an exhaustive treatise on employment law, but rather a guide to the basic principles every pracitioner should be aware of. - Christopher Booth, Ward Keller readers forum - book reviews book review, from previous page • pure tax - GST and stamp duty issues dealt with state by state (there is no stamp duty payable on securities in the NT, but the GST issues are relevant); • trade financing (export transactions), includingformsand sources of finance, risk and risk management, methods of payment; • guarantees; • insolvency - a great comparison of the various procedures (liquidation receivership administration); • responsibility for financial advice - banker/customer relationship. Transactions become more complex the more lenders that are involved, and the section on multi-lender financing takes some ofthe magic out ofthis by dealing with the concepts of syndicated loans, the legal issues involved in the establishment ofthem, the role ofthe various parties involved in the transaction, and the relationship between the syndicate members. The specific issues involved in the financing of aircraft and ships are the subject oftheir own chapters, which deal with modes of finance, registration of securities and enforcement of securities. The chapter on aircraft goes further and discusses the dual effects ofthe Ansett collapse and the September 11 2001 attack on the financing of aircraft and the enforcement of securities taken overthem. Perhaps not something a lawyer in the Northern Territory looks at every day but equally relevant to securities over other movables. The book also deals comprehensively with the relationship of creditors to each other (subordination/priorities and key commercial provisions) and raises issues arising at general law and the Corporations Act. Probably not general enough to be a great undergraduate text, but certainly a must for any commercial practitioner. - Karen Christopher Cridlands Lawyers readers forum - conferences 13 April 2003 CLA General Meeting Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 13 -17 April 2003 13th Commonwealth Law Conference Melbourne, Australia Tel: 03 9820 9115 Fax: 03 9820 3581 comlaw@mcigroup.com 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 89812549 Fax: 08 8981 2596 wildlyn@hotmail.com 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 3831 4477 warmid@tpg.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com Spectacular view, comfortable, well appointed Why not use the Law Society's boardroom for your next meeting? hire rate: $264 (incl GST) for a full day $137.50 for a half day (four hours) + $27.50 for every hour thereafter (all incl GST) Book with the Law Society on 89815104 J Page 23 — March 2003 i NOTICEBOARD High Court Notes April 2003 Prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Administrative law - Natural justice - Whether breach without consequence entitles relief In Re MIMA; exp Lam ([2003] HCA 6; 12.02.03)the prosecutor commenced a proceeding in the original jurisdiction of the High Court under Constitution s75(v) seeking to quash a decision to cancel his permanent visa on character grounds under s501(2) ofthe Migration Act 1958 (Cth). The prosecutor was a father. An officer of the respondent asked for details of the childrens’ carers indicating the respondent wished to contactthem. The prosecutor provided the details butthe carers were never contacted. The application to quash the consequent decision for breach of naturaljustice was refused. The members of the High Court concluded that the failure to contact the carers did not defeat any expectation of the prosecutor nor cause him to be denied procedural fairness, and the interests of the children were elsewhere addressed in detail: Gleeson CJ [35], [36]; McHugh, Gummow [105]; Hayne [122]; Callinan [149] JJ. The Court considered whether the concept of “legitimate expectation” may constitute an impermissible fetter on statutory power and English authority as to the distinction between legitimate expectation and unreasonableness [72]. The Court considered and qualified the operation of its earlier decision in MIEA v. Teoh (1995) 183 CLR 273. Application dismissed. High Court - Removal of proceeding - Whether claim for adult child maintenance arises under the Constitution - Whether High Court Justice who had practiced in one State biased in relation to applications in that State In Bienstein v. Bienstein ([2003] HCA 7; 13.2.2003) a Full Court ofthe High Court (McHugh, Kirby, Callinan JJ) concluded a High CourtJustice was not biased in relation to mattersarising in the State in which the Justice had practiced [33]. The Court concluded questions of entitlement to adult maintenance did not raise a question under the Constitution within s40(l) of the JudiciaryAct. Land tax - Valuation In Maurici v. Chief Commissioner of State Revenue (NSW) ([2003] HCA 8; 13.2.2003) a Full Court (McHugh, Gummow, Kirby, Hayne, Callinan JJ) considered whether in fixing the unimproved value of an improved parcel of land under the Land Tax Management Act 1956 (NSW) in accordance with s6A of the Valuation of Land Act 1916 (NSW) it is correct to consider exclusively sales of unimproved parcels of land in the same locality as the relevant land or whetherthe value may be discovered by calculating value after notionally removing the improvements. The High Court concluded the procedure adopted was unfair because it considered a very small number of sales of unimproved land in the eastern suburbs ofSydney where such land, and sales, were scarce [17]. Appeal allowed. Federal Court Notes April 2003 Prepared forthe Law Council ofAustralia and its Constituents Page 24 — March 2003 by Thomas Hurley, Barrister, Vic., NSW, ACT (Editor, Victorian Administrative Reports) Migration - Visas - Cancellation on character grounds - Reasons - Whether Full Court may order delivery of reasons In Ayan v. MIMIA ([2003] FCAFC 7; 14.2.2003) a Full Court concluded that a briefing paper signed by the Minister for Immigration in cancelling a visa on character grounds under s501(2) ofthe Migration Act was not a statement of reasons. The Full Court decided that notwithstandingthe point had not been taken below it would orderthe Minister give the Appellant a statement of reasons referred to in s501G(l)(e) of the Migration Act for the decision to cancel the visa. Trade Practices - Penalty - Relevance of size of corporation In SchneiderElectric (Australia) P/L v. ACCC ([2003] FCAFC 2; 14.2.2003) a Full Court considered the extent to which the size of a corporation, and its capacity to pay, may betaken into account in assessing penalties under the TP Act and the relevance ofthe resources ofthe parent company. Constitutional law - Jurisdiction of Courts - Claim raising acts of State In PetrotimorCompanhia de PetroleosS.A.R.L. v. CofA ([2003] FCAFC 3; 3.2.2003) a Full Court concluded that claims by the Appellant for a declaration that it was entitled to payment for loss caused by an agreement between Australia and Portugal concerning exploration for oil in the Timor Sea was not justiciable. Consideration of when a Court has jurisdiction to entertain a claim requiring consideration of validity of acts of foreign States. Migration - Refugees - Real chance of persecution In Shumilov v. MIMA ([2002] FCAFC 1; 5.2.2003) a Full Court concluded the RRT had not erred in rejectinga claim for refugee status where material before it suggested thatthe Uzbekistani police might subject the entire relevant population to attention. The Full Court concluded there was no basis to inferfrom this that the Appellants faced a real chance of persecution. Costs - Costs against non-party In Kebaro P/L v. Saunders ([2003]FCAFC5; 10.2.2003) a Full Court considered when the Court may make an orderfor costs against a non-party who stood to benefit from successful litigation conducted by persons of straw. Migration - Refugees - Failure of RRT to reject evidence in rejecting application In MIMA v. W64/01A ([2003] FCAFC 12; 19.2.2003) a Full Court allowed an appeal by the Minister against a conclusion of a trial judge that the RRT had erred in rejecting a claim for refugee status without making adverse findings on the credibility ofthe Respondent. Immigration - Release from detention pending appeal In Untan v. MIMIA ([2003] FCAFC 8; 19.2.2003) a Full Court discharged an earlier order it had made effectingthe release ofthe Appellant from detention pending hearing ofthe appeal afterthe Appellant made a threat againstthe life ofthe Minister. Income tax - Arrangements In C of T v. Mochkin ([2003] FCAFC 15; 21.2.2003) a Full NOTICEBOARD Court considered when arrangements made to cause a share broking business conducted by a person to be carried on by a company contravened Part IVA of ITAA notwithstanding that the scheme had objective benefits. Industrial law - Unfair dismissal - Reinstatement In Ramsey Butchering Services P/L v. Blackadder ([2003] FCAFC 20; 21.2.2003) a Full Court considered whether an employee ordered to be reinstated was required to be given merely a contract or actual work. The appeal arose in proceedings alleging breach of the reinstatement orders of theAlRC. Federal Court - Jurisdiction - Claim solely for damages for fraud In Wride v. IPAustralia ([2003] FCA 86; 3.2.2003) von Doussa J considered the Federal Court had nojurisdiction to determine a claim against the entity responsible for the Patent Office claiming damages forfraud where no claim was brought under a law ofthe Federal Parliamentgivingjurisdiction to the Federal Court. Trade practices - Consumer protection - Representative proceedings In Courtneyv. MedtelP/L ([2003]FCA 36; 5.2.2003)Sackville J determined applicants in a class of persons who received pacemakers were entitled to damages where the pacemakers were made of a solder which rendered them of unmerchantable quality. Practice - Security for costs - Whether Applicant ordinarily resident in Australia In Logue v. Hanson Technologies Ltd ([2003] FCA 81; 17.2.2003) Weinberg J considered when a person who had tenuous links with Australia could be said to be “ordinary resident outsideAustralia"for FCR 0.28 r3. Superannuation - Extent of review In MilitarySuperannuation & Benefits Board ofTrustees No. 1 v. Drake ([2003] FCA 78; 18.2.2003) Merkel J considered whether the Superannuation Complaints Tribunal had jurisdiction to make a decision in substitution for that of the trustees ifthe decision was not authorised by the rules of the Trust Fund. Statutes - Great Barrier Reef In Ashton v. C of A ([2003] FCA 92; 21.2.2003) Kiefel J concluded a regulation made under the Great Barrier Reef Marine Park Act 1975 (Cth) which prohibited trawling in the Mission Beach area was valid. Social security - Overpayment - Whether attributable solely to error of the Commonwealth In Secretary, DFCS v. Sekhon ([2003] FCA 76; 14.2.2003) Wilcox J considered whether monies paid to a person duringa preclusion period were paid solely due to an administrative error made by the Commonwealth within Social SecurityAct 1991 (Cth) Part 3.14. Corporations - Retrospective notice of registrable charge In Re ACE Funding Ltd ([2003] FCA 59; 6.2.2003) Conti J considered whether it was appropriate to give an extension of time to retrospectively lodge notice of a registerable charge within Corporations Act 2001 (Cth) ss263(l), 264(1). Migration - Natural justice In Tran v. MIMIA ([2003] FCA 44; 7.2.2003) Finklestein J set aside a decision of the MRT as being in breach of natural justice where the MRT rejected evidence of witnesses who were present in the hearing room without giving a warningthat the witnesses should leave the room. Migration - Cancellation of student visa In Singh v. MIMIA ([2003] FCA 52; 7.2.2003) Heerey J considered a visa of a student cancelled for failingto comply with satisfactory academic performance conditions had been cancelled lawfully. Native title - Practice - Non-legally qualified representative In Rubibi v. WA ([2003] FCA 63; 10.2.2003) Merkel J granted conditional leave under s85 ofthe Native TitleAct 1993 (Cth) to a non-lawyer to represent a group. Administrative law - Review of policy In Humane Society International Inc. v. Minister for the Environment & Heritage ([2003] FCA 64; 12.2.2003) Kiefel J concluded that a purported exemption in respect ofthe greyheaded flying-fox from protection under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) was unlawful. Consideration of when an exemption by a Commonwealth Minister to holders of State permits from requiringto apply under Commonwealth legislation constitutes a decision of an administrative character reviewable under theAD (JR) Act. Consideration of when a public duty remained unperformed under s39B ofthe JudiciaryAct, validity of policy and appropriateness of declaratory relief. Superannuation - Functions of Superannuation Complaints Tribunal In Cameron v. Board Trustees of the State Public Sector Superannuation Scheme ([2003] FCA 63; 14.2.2003) Spender J considered the nature and function of the Superannuation Complaints Tribunal and how it was to determine the disability of the Applicant and give adequate reasons. Federal Court - Appeal from Federal Magistrates Court In SGDB v. MIMIA ([2003] FCA 74; 14.2.2003) Mansfield J considered whether the Full Court of the Federal Court, constituted by a single judge to determine appeals from the Federal Magistrates Court, should remit a matter to the Magistrate on finding the Magistrate had incorrectly approached question ofjurisdictional error. Matter remitted. NOTICE From Chris Cox, Acting Director, Office of Courts Administration Transcripts offacts and submissions on Supreme Court guilty pleas wifi no longer automatically be prepared. Transcripts of facts and submissions will only be prepared upon request. continued back page Page 25 — March 2003 J COURT LIBRARY NOTES NT LEGISLATION Legislative changes in February 2003, notified in the NT Government Gazette New Regulations 1/2003 Legislative Assembly (Powers and Privileges) Regulations (12.2.03) 2/2003 Stock Diseases Regulations (12.2.03) 3/2003 HousingAssistance Schemes Regulations (12.2.03) 4/2003 HousingAssistance Schemes Regulations (12.2.03) 5/2003 Education (Board ofStudies) Regulations (12.2.03) Commencements 55/2002 Gaming Machine AmendmentAct (8.1.03) 56/2002 Gaming Control Amendment Act (8.1.03) 66/2002 Swimming Pool Fencing Act (1.1.03) 67/2002 Swimming Pool Fencing (Consequential Amendments) Act (1.1.03) 68/2002 Tobacco Control Act (Ss.15-19,20-22,24-26 and 28 - 31.5.03, Rest - 1.1.03) 69/2002 Agents LicensingAmendment Act(ss.9,22 and 29- N/C, Rest-1.2.03) 70/2002 Associations Incorporations AmendmentAct (15.1.03) 71/2002 Aerodromes Act Repeal Act (1.2.03) 76/2002 Liquor Amendment Act (24.1.03) 59/2002 Tobacco Control Regulations (regs.9,19-22 - 31.5.03, Rest - 1.1.03) 60/2002 Nitmiluk (Katherine Gorge) National Park (Aircraft) By-Laws (1.1.03) 62/2002 Swimming Pool Fencing Regulations (1.1.03) Repealed 47/1992 20/1993 32/1993 3/1997 6/1983 45/1988 46/1990 64/1992 14/1994 45/1994 21/1996 1/1997 5/1999 legislation Tobacco Act 1992 - Repealed by 68/2002 Tobacco Amendment Act 1993 - Repealed by 68/2002 Aerodromes Act 1993 - Repealed by 71/ 2002 Aerodromes Amendment Act - Repealed by 71/2002 Jabiru Town Development (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Alice Springs (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Alice Springs (Private Swimming Pool) By-Laws Amendments - Repealed by Act 66/2002 Tobacco Regulations - Repealed by Act 68/ 2002 Part 2, Division 3 ofthe Darwin City Council By-Laws - Repealed by Act 66/2002 Aerodromes Regulations - Repealed by Act 71/2002 Palmerston (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Aerodromes Regulations - Repealed by Act 71/2002 Palmerston (Private Swimming Pools) By-laws Amendments - Repealed by Act 66/2002 1 Page 26 — March 2003 RECENT ARTICLES Criminal law Bagaric, Mirko-Expanding criminal sanctions for corporate crimes - deprivation of right to work and cancellation of educational qualifications, Company and Securities Law Journal, Vol 21(1) 20037-25 7-25 Compensation Booth, Marie-Centrelink preclusion periods-interpreting the 50 per cent rule, Plaintiff, Vol 55 2003 pp: 42-44 Contracts law Seddon, Mark-Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Corporations law Anderson, Kylea - Demands on debtors to pay and creditors to comply, Law Institute Journal, Vol 77(1-2) 2003 pp: 34-37 Criminal law Douglas, Heather- The decriminalisation of domestic violence - examining the interaction between the criminal law and domestic violence, Criminal Law Journal, Vol 27(1) 203 pp: 32-43 Atchison, Bentley - DNA statistics can be misleading, Law Society Journal, Vol 41(1) 2003 pp: 68-70 Disabled persons Simpson, Jim - Guarded participation - alternative dispute resolution and people with disabilities, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 31-39 Domestic violence Douglas, Heather- The decriminalisation of domestic violence-examining the interaction between the criminal law and domestic violence, Criminal Law Journal, Vol 27(1) 203 pp: 32-43 Equity McConvill, James - The yoking of unjust enrichment and unconscionability in Australia, Deakin Law Review, Vol 7(2) 2002 pp: 225-260 Estoppel Seddon, Mark-Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Evidence Atchison, Bentley - DNA statistics can be misleading, Law Society Journal, Vol 41(1) 2003 pp: 68-70 Internet Wallace, Angela - Basic medical research on the Internetfor lawyers, Plaintiff, Vol 55 2003 pp: 24-27 Judgments Warner, Kate - The role of guidelinejudgments in the law and order debate in Australia, Criminal Law Journal, Vol 27(1) 203 pp: 8-22 Land law Park, MM-An Englishman looks at the Torrens system - another look 50 years on, Australian Law Journal, Vol 77(2) 2003 pp: 117-125 COURT LIBRARY NOTES Legal costs Spencer, David - Costs sanctions against recalcitrant parties who frustrate mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 5-9 Legal professional privilege Crosbie, Fiona - Clients privilege is protected, Law Society Journal, Vol 41(1) 2003 pp: 59-61 Wilson, Tony - High Court preserves legal professional privilege, Brief, Vol 30(1) 2003 pp: 6-8 O’Connor, Rob-Legal professional privilege-the Daniels case and the Taxation Administration Bill 2001 (WA), Brief, Vol 30(1) 2003 pp: 10-11 Limitation periods Hill, Graham - Professional negligence and the limitation period, Law Institute Journal, Vol 77(1-2) 2003 pp: 43-45 Mediation Spencer, David - Costs sanctions against recalcitrant parties who frustrate mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 5-9 Serventy, Natasha -NLP for mediators- linguistic and mental tools for improved communication, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 10-20 Simpson, Jim - Guarded participation - alternative dispute resolution and people with disabilities, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 31-39 Kayrooz, Carole-Barking dogs, noisy neighbours and broken fences-neighbourhood mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 71-80 Medical law Freckelton, Ian - Complementary medicine and challenges to Western medical practice, Journal of Law and Medicine, Vol 10(3) 2003 pp: 257-259 Mendelson, Danuta - Natural death in 2003 - are we slipping backwards? Journal of Law and Medicine, Vol 10(3) 2003 pp: 260-264 Brohy, Elizabeth - Does a doctor have a duty to provide information and advice about complementary and alternative medicine? Journal of Law and Medicine, Vol 10(3) 2003 pp: 271-284 Parker, Malcolm-Chinese dragons or toothless tiger? Regulating the professional competence of traditional Chinese medicine practitioners, Journal of Law and Medicine, Vol 10(3) 2003 pp: 285-296 Weir, Michael - Obligation to advise of options fortreatment - medical doctors and complementary and alternative medicine practitioners, Journal of Law and Medicine, Vol 10(3) 2003 pp: 296-307 Boston, TRO - A hospital’s non-delegable duty of care, Journal of Law and Medicine, Vol 10(3) 2003 pp: 364-374 Watson, Penelope-Consent to medical treatment, Plaintiff, Vol 55 2003 pp: 14-19 Wallace, Angela - Basic medical research on the Internet for lawyers, Plaintiff, Vol 55 2003 pp: 24-27 Negligence Agiannitopoulos, Dimitra - Duty of care-early hospital discharge and community health agencies, Plaintiff, Vol 55 2003 pp: 6-12 Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Heuzenroder, Henry-The High Court nervous shock-the classical and romantic, Bulletin, Vol 25(1) 2003 pp: 16-18 Parol evidence rule Seddon, Mark-Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Privacy Thomas, Steven - The national privacy principles celebrate their first anniversary, Bulletin, Vol 25(1) 2003 pp: 14-15 Professional negligence Hill, Graham - Professional negligence and the limitation period, Law Institute Journal, Vol 77(1-2) 2003 pp: 43-45 Public authorities Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Sentencing Warner, Kate - The role of guidelinejudgments in the law and order debate in Australia, Criminal Law Journal, Vol 27(1) 203 pp: 8-22 Lanham, David - Sentencing and prior cross-border convictions - admissibility and double criminality, Criminal Law Journal, Vol 27(1) 203 pp: 23-31 Statutory authorities Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Torts law Clark, Stuart-Tort reform take two, Law Society Journal, Vol 41(1) 2003 pp: 54-58 Victims of crime Victims of Crime Act 2001, Bulletin, Vol 25(1) 2003 pp: 20­ 21 Page 27 — March 2003 Noticeboard, from page 25 The following is the amended current transcription fees: CURRENT TRANSCRIPT FEES (GST is not payable) Magistrates Court proceedings - 7.00 per page (Note: Multiple order charges may apply to transcript of Coronial proceedings) • certification - $10.00 per transcript Supreme Court proceedings • running (daily) charge - $9.83 per page* • delayed charge - $9.36 per page* • multiple order charge (where ordered by two parties at commencement of proceedings) - $5.00 per page* • multiple order charge (where ordered by three parties at commencement - $10.00 per transcript • additional copy rate per page - $1.00 per page From the Family Law Section, Law Council of Australia, 5 March 2003 1. Information required where no splitting order sought The Family Court had intended to issue a Practice Direction confirmingthat no superannuation valuation was required fora Form 12A application for consent orders ifthe parties were not seeking splitting orders. This was consistent with the decision by Chisholm J in Jovanovic. FLS understands that a contrary decision has been made by another Family Court Judge and a Practice Direction is now unlikely. The conflicting interpretations of the legislation may shortly be considered by a Full Court. 2. New superannuation information form The Family Court has issued a new approved superannuation form to replace that which has been in use for the past two months. FLS understands that: a) The old form is likely to be suitable for use in almost all instances but practitioners should check thatthe information sought in the old form complies with the regulatory requirements in relation to the particular type of superannuation for which the form was issued. DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: lfonglim@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. Page 28 — March 2003 b) Although the form is “approved” by the Court the accompanying kit explains that it need not be used if the trustee prefers to provide the relevant information in another form. Some trustees have developed systems which produce the information required by the regulations but it will not be set out in the same manner as the Form 6. c) The new form cures a deficiency in the old form where the subject was a partially-vested accumulation fund. Practitioners seeking information on this type of fund using the old form should ensure that all the information required in the regulations is obtained. 3. Trustee information provided direct to solicitor FLS understands that some trustees have declined to send superannuation information to the solicitor for a spouse. The Attorney-General’s Department has prepared a legal opinion to the effect that, by operation of common law principles in relation to agency, a trustee of a superannuation fund can provide information, as required under Section 90MZB, to a legal practitioner actingforan “eligible person”. From Murray Hancock, NT Commissioner of Taxes Stamp Duty Lodgement Guide As you are probably aware various amendments to the Stamp DutyAct (SDA) have recently come into effect. As a result the Stamp Duty Lodgement Guide has been updated to reflect these changes. The Guide is a comprehensive reference point for all stamp duty related issues and provides information on Territory Revenue Management’s requirements forthe assessment of the various types of duties administered underthe SDA. A PDF version of The Guide is available for download from our website - www.revenue.nt.gov.au. Follow the links from the front page. 2003 CLE Program 16 Apr 21 May 18 Jun 30 Jul 20 Aug 12 Sep Juvenile Court Issues Chief Magistrate Family Law for First Years Stuart Barr Bits & Pieces of Legislation Administrative Appeals SentencingAct TBA Ian Morris Justice Mansfield John Lowndes SM Jenny Blokland SM 22 Oct AustraAsia Railway Project - Challenges Overcome Alastair Shields 19 Nov TBA Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Unless otherwise notified, the CLEs are presented in Darwin at Cridlands’ boardroom. I gts&Vs' ’ V : ’ ■* 'v .V;V. *‘*. 'v ^ "

  • * Vf*'

’-**--? "V"* , Law* revolution T?®** NM

W;i Edition: April 2003

W* l illllliilil .. ......iwl|| 1 » --» *M * gliMBMi

|i|^||l|i||i!l|l|(|iHlll rdM i Lrt PgA & fK Law Wnk 200i!m a full % program k»t*M. * LAW SOCIETY NORTHERN TERRITORY Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill April 2003 COLUMNS President’s Column. For the record.......... NT Women Lawyers. Advocacy................... Jottings on the bar.... ..3 ..5 ..6 11 13 COUNCILLORS Mr Stuart Barr Mr Glen Dooley Mr Michael Grove Mr Christopher Booth Ms Susan Oliver Mr Markus Spazzapan NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nard ine Collier SECRETARIAT Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Lorelei Fong Lim Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Sonya Ingham Administrative Assistant/Receptionist Felicity Lawrence Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should he forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. NOTEWORTHY Case motes..................................................................................................................... 18 Conferences.................................................................................................................. 21 Noticeboard..................................................................................................................22 Court Library Notes.....................................................................................................26 REGULARS Letters to the Editor........ The Muster Room........... Photo album.................... Readers Forum................ AFL tipping competition. 2003 CLE program......... 10 .17 19 20 28 28 FEATURES What’s it to you? Youth Week 2003.............................................................................7 Welcome to Sonya and Felicity................................................................................... 1 5 Celebrating Law Week 2003....................................................................................... 16 COVER STORY The software revolution................................................................................................ 8 Page 2 — April 2003 president's column Walking with computers When I think about computers and programs I mostly think about the story, said to be true, but perhaps an urban myth, concerning the helpline for a multinational computer company. Without repeating the entire lengthy story, it has a consumer calling the help line and advising that the screen was blank and the newly purchased computer did not work, and continues through the initially patient and then increasingly frustrated questions from the helper and more inane answers from the consumer, until the helper establishes that the consumer hasn’t plugged the computer into the power point. The helper then asks whether the consumer has kept the box the computer was delivered in. When the consumer says yes, the advice the helper then gave was for the computer to be packed into the box and returned to the store the consumer bought it at. The consumer asks what he should advise the staff there, and the helper says he should say he is bringing it back because he is too stupid to own a computer. The myth goes on to say the helper was sacked, but I would have liked to have represented the helper in an unfair dismissal action! I suppose that all of us have faced the problems brought about by the technological revolution. I suspect that some even faced the onslaught of the electric typewriter, then the word processor and then the computer. That, of course, is only half the problem, the other half being the software that goes with it. First there was DOS, well actually that’s wrong. First, or thereabouts, there was something called FORTRAN. I remember going on a field trip in third year high school to a room filled with a single computer at the South Australian Institute of Technology. At this stage we were using slide rules and logarithms in maths at school. Handheld calculators hadn’t made their appearance at this stage and had yet to go through their stage of illegality in maths exams. What we had to do was to fill in some empty boxes on the card, much like the way in which you fill in a TAB betting form, to tell the computer to perform a simple arithmetic calculation, like 2 x2 =4. With much trepidation, the card was handed to the maths teacher who in turn handed to the technician, who in turn fed into the machine. I can’t now remember what was actually printed out at the end but I think there was something on the form which resembled some sort of gobbledygook, largely because I had failed to fill form in properly. It was then I knew I qualified as suitable for law. The advent of computers seems to have developed from funny looking little machines fed by plastic records to rather larger ones that require their own room. In about 1985, when I was with (then) Mildren Silvester, there was much ado about the installation of a stand-alone computer to house the accounts package. It required the establishment of a separate room with its own airconditioning system that had to be at a temperature of about 21 degrees celsius. I had been planning to store my wine in the room: I considered that was its primary benefit, until I discovered the delights of the two games which were included on the computer system. I can’t claim finding them as that honour belongs to Bill Parish. Ian Morris, president One of the two games was a game called Zork, which told you: You are north ofa house. What you then had to do was to enter into the computerthe direction “South” in which case, sometimes, the computer then flashed up on the screen the words: You are near a gate that is north ofa house. All you could tell the computer was a direction such as a compass direction or up or down. There were no pictures, and certainly no video scenes. What the game would do, it seemed to me (but this may be because I didn’t play it all that well), was to leave you in a position where none of the normal commands worked and when, totally frustrated, you typed in “go back" the computer would say: He who walks with his hands on the plough and looks backwards is not fit to be in the Kingdom of winners. As soon as it did that, the computer would freeze and the whole system would crash. That could be embarrassing if you tried to play the game during business hours! continued next page Page 3 — April 2003 1 r walking with computers, from previous page The advent of computers also spelt the demise of the high priestesses of the office, the computer operator typists who until then were the only people who knew how to handle the word processing system. Since then the advent of Macintosh Apple and IBM Windows operating systems has been to mean that even troglodytes like myself are able to use computers. I’m not sure, though, that most of us are not operating computers in the same way that we would like to have operated typewriters. I guess that some others may have now sort of conquered Word for Windows and are able to do their own letters ——m from time to time but I think that that, together with the operation of e-mail is about as high as most of our competencies go. The development of competency in the management of computer systems has not matched the tremendous increases in the capability of the computer systems themselves. The legal profession now finds itself atthe beginning of a very steep (and no doubt expensive) climb that will require a degree of competency in the application of computer software technology that does not now exist generally in the profession. I would expect that shortly the courts will allow the electronic filing of documentation and that standard orders for discovery in the future will require that the documents described in the list of documents to be scanned onto a computer system and then “burnt” onto a CD. I know that this practice does occur in some of the more complex commercial cases that have been run on the eastern seaboard, and a couple of times in the NT, but I fully expect that the practice will become far more widespread and eventually obligatory. I suppose that the same technology will apply to appeal books and transcripts. Some firms have already embraced the technology required to run complex data systems that enable the easy storage of documentation and are a step on the pathway to the completely electronic office. The rest of us will have to follow. In our cover story this month about the “software revolution” Professor Michael Vitale states: “...there is no reason whatsoever for organisations to become good at writing administrative software, and there is no reason for them to tolerate badly written systems It’s wise advice. I suppose to prove that all of us can take to technology like a catfish to water, this article was (mostly) dictated directly onto the laptop. These programs are quite good now, but the trap is that they don’t make spelling mistakes, they just use the wrong word! Consequently some careful proof reading is required, which I suppose is no bad thing. My secretary says that she can type more accurately than I can talk and for once she might be write. ® Don n^r^Tirmi § n I IfteadPl to! L U S ► inter-Branch Conferencing ► Linkupto multiple sites ► RemoteWitness ► CommunityLegal Education P0 Box 1650 Darwin NT0801 Telephone:(08) 89418338 • . , Email:vc@piojectionplusxom.au 1 Page 4 — April 2003 for the record More on insurance As you may be aware Ian Morris, Merran Short and myself met with representatives of Marsh and QBE Insurance on 10 April 2003. Practitioners in other jurisdictions are currently going through the renewal process and like the NT confronting the reality of higher insurance premiums. We are still considering options for future insurance arrangements and monitoring regulatory developments. There are no easy options. In particular, any mutual established will require a major capital injection. This column will consider some of the immediate issues we need to address. Territory practitioners have a higher claims history than otherjurisdictions and this has not been truly reflected in higher premiums until this year. Reduced claims should see firms paying less in terms of deductibles, but could also mean if not reduced, but at least stable premiums. One question is this: if you were an insurance company or a mutual fund, would you want to insure Territory practitioners if they maintained their high claims history, particularly with APRA breathing down your neck or likely to be doing so in the short term? A reduced risk profile would therefore be of advantage to the Territory profession whetherthe current scheme of insurance was retained or we looked at another option. The profession must further address risk issues and continue to work on strategies to deal with them. Risk Assessment seminars are seen as one answer and it is proposed that these be conducted for practitioners again this year. These seminars would concentrate on the main, documented risk areas and look at strategies to deal with them. However a problem with seminars is people go back to their offices and while keen with the dramas of running a practice day to day, can put to one side the lessons learnt. It is felt a more extreme "hands on” approach is needed. This could involve the hiring of consultants skilled in the area to conduct a risk review of firms. These reviews would identify risk factors and provide suggestions for improvements. A follow up review would be conducted three months later to see if the recommendations had been put into practice. If a firm received a satisfactory report they would be issued with a certificate that could be produced to an insurance company, resulting perhaps in a lower level of premium or reduced deductible. While the Law Society might receive a summary of issues identified, it would not receive individual reports identifyingfirms. Some practitioners may say that their firm has a clear claims history and therefore such a review would not be required. An insurance consultant once told me the fact there were no incidents in one area may mean appropriate practices were being adopted, or mean that there could be an incident waiting to happen, and the complaisance of the insured saying there was no risk could help bring it about. The cost of such a review would be significant. We are looking at options for this, and in particular how Law Society funding could be provided. QBE may also be prepared to make a contribution to the cost of this project. Barbara Bradshaw, Chief Executive Officer, LSNT This issue would tie in with proposals for Professional Standards legislation, set for consideration by the Standing Committee of Attorneys General and already endorsed in principle by the Insurance Ministers Conference. The brochure, being prepared forthose starting legal firms, is also designed to encourage new firms to adopt best practice procedures. It appears whatever happens, pressure will be on firms to improve their risk profiles - the results of doingthis could be beneficial for the firms, the clients and the profession as a whole. It was also suggested by Marsh that future renewals take place in June, which is when otherjurisdictions renew their insurance. This would apparently assist the renewal process, as it is in line with actuarial and other processes. It is likely the insurance picture will change over the next few years and the Law Society will need to keep pace with these developments to secure the best outcome for the Territory profession. I would be happy to discuss this issue with any members and will be reporting further. ® Page 5 — April 2003 i n* women lawyers association Quiz Day fun at Waratahs It was a terrific afternoon for supporters of the NTWL on Sunday April 6 with the association’s annual Quiz Day providing challenging fun for all. The small but enthusiastic group of quiz goers pitted their smarts against each other while emcee for the afternoon, NTYL president Sandra Robinson put them through their paces. The venue was the well appointed Waratahs Football Club at Gardens Oval - a great casual place and just the spot for an afternoon of quizzing. Winners of the day were a team including Mark Hunter, Megan Lennie and Lyn Bennett and their secret weapon, Megan’s friend Bob who is an "expert in space technology”. Congratulations to all. ® Above: Is that an emcee we spy? NTWL president Sandra Robinson sets the Quiz Day pace. The winning team! Top (from left): Karen Stringer, Holly Bowmaker, Deb Hewitt and Mark Hunter...were joined by...Above (from left): Rob Taylor, Annette Gillanders, Megan Lennie and Lyn Bennett....to come out grinners...where's Bob? mentions.com.au lists solicitors who will mention matters and act as agents in courts throughoutAustralia 1 Page 6 — April 2003 What's it to you? Youth Week 2003 Youth Week activities in the Territory this year focused on the theme “What’s it to you?". In line with the theme, 14-year-old Joanne Van Den Berg wrote a poem exploring issues of being young in today’s world. The central message to her poem was that young people are not all bad, despite media and public perceptions that young people are ‘trouble makers’ and ‘juvenile criminals’. Joanne’s poem was performed by a group of five young women in malls in Darwin and Palmerston on Thursday 10 April. The women were supported by dancers and singers from the local dance group Kakadu Dreaming. Along with the performance were visual displays, including masks made by students at Palmerston High and Don Dale Detention Centre and a large banner with an anti-war message. The performance was supported byAnglicare, the Officer ofYouth Affairs and the NT Legal Aid Commission. NTLAC CLE Officer Ms Samantha Willcox told Balance that ‘‘the performance was an opportunity for the young women to challenge the negative stereotyping about young people that is unfortunately so prominent.” ‘‘Along the way the women learnt about their rights as people in our community. It was an exciting and rewarding experience for everyone involved.”® Above: Jessica, Joanne, Joan, Justeene and Briohny perform the poem “What's it to you?" in the Darwin Smith Street Mall for Youth Week 2003 Defending the rule of law: Law Council The Law Coundil of Australia has expressed its concern about Australia's response to terrorism. Law Council president Ron Heinrich told the recent Commonwealth Law Conference that Australia was at risk of undermining the rule of law. "Terrorism is a threat to Australians’ safety and governments have to deal with it,” he said. “Unfortunately there is a tendency to overreact with draconian measures which don’t support our enduring values”. He said the ongoing detention without charge of David Hicks and Mandouh Habib, and the present bill to give new powers to ASIO to question people in secret without a lawyer, are issues of great concern to the Law Council.® r INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection "Zf0utback ^ BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au — Member of Institute of Mercantile Agents Ltd______________ J bal010602 \ Page 7 — April 2003 cover story The software revolution By Michael Vitale* During the past decade, a revolution has occurred in the way large private-sector organisations acquire the software that underpins their long-term decisions. Rather than building such software themselves, or paying someone else to build it according to their specifications, many — and in some sectors, most — organisations have elected to purchase large Enterprise Resource Planning(ERP) systems. Well-known ERP vendors such as SAP, PeopleSoft, and Oracle have grown rapidly as a result: their annual revenue increased from US$11 billion in 1997 to exceed US$20 billion in 2000. Although their growth slowed temporarily afterthe world survived the Y2K crisis, these ERP companies are riding the crest of a wave driven by economic and technical factors that make their continued success likely. Some Australian organisations have purchased ERP systems, but other organisations continue to struggle with homegrown administrative software that is often more expensive, more risky and less functional that what is available on the market. There has been a lot of coverage in the media recently of the struggles of several academic institutions such as the University of NSW, Monash University and RMIT to install their purchased systems. However, I believe that most organisations would be much better off buying software, so long as they install the software thoughtfully.

  • Professor Michael Vitale is the

former Dean of the Australian Graduate School of Management He has held a senior IT management position at the Prudential Insurance Company of America and been an Associate Professor at Harvard Business School. daily operations and generates t There is little reason for organisations to dilute their resources, or to distract their managers’ attention, by focusing on software development rather than on their primary mission. Software development as an inherited disease More than fifty years after mankind began writing software, the statistics on software projects remain dismal. The typical software development project is delivered late, well over budget, and without all ofthe promised functionality. And that’s the good news — many projects deliver nothing at all, having been cancelled midstream when the lack of progress became too obvious and too expensive to ignore. Take, for example, the case of CASMAC (Core Australian Specification for Management and Administrative Computing), which was intended to devise a common set of management and administrative systems across the Australian university network. In 1991 some thirty Australian universities agreed to develop general administrative computing systems that individual universities could then tailor to meet local needs. In 1998 CASMAC was abandoned, having delivered none of the required software. Payments and in-kind contributions to the failed CASMAC project by just four of the universities involved were estimated by the Victorian Auditor-General to exceed A$9 million. One of the Australian universities involved in the CASMAC fiasco later spent $30 million on its ERP system, and another spent almost $5 million. This story is unusual only because it is better documented than most other software failures. > data they need to make better The lessons of the CASMAC experience are not just limited to the academic sector; all commercial organisations should understand that software development remains a difficult, expensive, and risky undertaking. The objections The primary objections to purchased software are that it is expensive and that it does not fit the unique operational processes of a given organisation. Many organisations operate undertight spend i ng constra i nts, a nd software ca n seem expensive. Naturally, the cost of any software must be compared with the benefits it will provide, as well as with the cost of other options, including custom-built software. It is important to bear in mind that, if properly chosen and implemented, purchased software can be considerably less risky than the homegrown variety. Most software vendors and consultants, if pressed, are willing to sign fixed-price contracts with penalty clauses. Most in-house software development organisations are neither able nor willing to enter into such agreements, which in any case would simply result in moving money around within an institution. Many organisations operate day to day on the basis of processes that are undocumented and more the result of historical accident than of deliberate design. Yet these same processes are sometimes clung to tenaciously by staff and then embedded into software code, often at significant costs, by software builders chanting the mantra of ‘meeting user needs’. Page 8 — April 2003 cover story Outside the front door of the Fat Ladies Arms, a pub in Wellington, is a sign titled ‘Cowboy Philosophy’. The sign reads: ‘About half our problems in life come from wanting our own way, and the other half from getting it.’1 This cowboy philosophy sums up precisely the difficulty of incorporating ‘user needs’ into software. In fact, users do not have ‘needs’ — for if they did, the typical software development process of prioritising those ‘needs’ and selecting the ones to be included in a new system would not make any sense. Users have ideas, desires, prejudices, habits, and so on — but rarely ‘needs’. And no administrative process, no matter how old or well known, should be allowed to drive software development unless it is truly central to an organisation’s strategy. Accounting, financial, human resource, and other administrative processes are highly unlikely to be in this category for most organisations. In the absence of hard evidence, it is equally unlikely that a given organisation’s processes represent best practice. Many organisations would be better off buying a package and changing their processes to match. This of course requires a high degree of top management involvement and support, without which no organisation should embark on a major software project in any case. The challenges Given the size of many software implementations, installing the software clearly creates a set of challenges that must be overcome in order to achieve success — or in some cases even to keep the organisation running. Take, for example, the highlypublicised struggles of RMJT University in Melbourne, which has run into considerable difficulties with the installation of the PeopleSoft ERP system. Above: Professor Michael Vitale The university says it has already spent more than $30 million buying, customising and installing the software, with at least another $15 million to go before the project is complete. Along the way the project angered students who were wrongly billed, corrupted the university’s databases, and brought about a review by the Victorian Auditor-General, the same office that investigated problems with CASMAC five years earlier. Clearly the RMIT experience has not been a happy one. RMITVice-Chancellor Ruth Duncan has attributed the problems to poor project management by the university and the high degree of modification of the purchased software. Project management is an issue for custom-built software as well as for purchased software; an organisation lackingstrongskills in this area should certainly be extremely cautious about undertaking in-house development. The question of modification comes back to the issue of ‘needs’, which is certainly no easier to manage when software is being developed than when purchased software is being modified. In short, while the experiences of RMIT and other organisations with large purchased systems have been less than ideal, there is little reason to believe that they would have been even as well off had they chosen to develop the software themselves. Their inability to successfully manage projects and make decisions about software features are likely to have caused at least as much trouble had they chosen to build software rather than buy it. Moving forward The importance of administrative computing to the smooth, economical operation of an organisation cannot be denied. Organisations will need to become very good at selecting and implementing such software, including managing the organisational and personnel changes required for implementation to succeed. But there is no reason whatsoever for organisations to become good at writing administrative software, and there is no reason for them to tolerate badly written systems. The software market is richly supplied with eager vendors of customisable packages who in the current market will compete vigorously for an organisation’s business. Taking advantage of this market can be a significant step toward overcoming an often-unexamined habit of in-house software development. The better option for most organisations is to find the pre-written software package that best fits their information technology architecture, their strategy, and their way of doing business. 1 A second sign outside the same door reads, 'This is the best bar in the world'. The author is considerably less certain of the validity of this second sign. Reprinted with permission from the Australian Law Management Journal, Law Council of Australia, Legal Practice Section, http://www.lawcouncil.asn.au/ Ips/publications.html. Page 9 — April 2003 letters to the editor - gpo box 2388, dwn n* 0801 A voice from the past Richard Keller, one of the founders of Ward Keller, writes to Balance about Dick Ward. Thank you for sending me a few past issues of Balance, the journal of the Northern Territory Law Society. That was very thoughtful of you. Reading through those journals demonstrates quite clearly to me that the Territory, through its legal profession at any rate, has matured and is — and no doubt has been for some time —holding its own with the rest of the country, with those “down south" and that the quality of your Society’s journals is as high as that of any like journal in any of the states. No doubt also (I suspect) Darwin now has a degree of sophistication - of “sheen" - which was lacking when my family and I were living there in the 60s. Perhaps, in the process, it has lost some of its romance, colour, excitement and freshness. With your indulgence, I would like to relate here a few things of an “historical" kind. I appreciate that there are still in Darwin and in the Territory persons who know this history - people like George Cridland for instance who (I assume) is still in Darwin and Brian Martin (your present Chief Justice). I want, in particularto write to you about Richard Charles Ward. He was what I believe used to be called a “Legacy" child. His father apparently died during the First World War and his mother had the assistance of “Legacy” in copingfinancially with the raising of her children. RCW was born, I believe, in 1917 in Victoria. His LL.B was, as I also believe, from Melbourne University. Before the Second World War he must have gone to Darwin because he became the partner there of Andrew Brough Newell — the firm was thence known as “Newell & Ward". RCW went to the war — Newell stayed behind — perhaps because of age or physical disability. After the war, in 1946, RCW established a legal practice in Alice Springs. Page 10 — April 2003 There was then no practice in that town. Eventually he took in a partner, Hardgrave, a scion of a well known Adelaide legal family and the firm then became known as Ward & Hardgrave. Dick Ward later left and became a partner in one of the prominent Adelaide firms for a few years. At some stage, Hardgrave took Ian Barker in as a partner — Hardgrave & Barker. In time, Hardgrave returned to his family's legal firm in Adelaide, and Barker, at one stage took in Brian Martin as his partner. When my family and I left Darwin at end 1968, they were still in partnership in Alice Springs. In 1956 or thereabouts RCW would have returned to Darwin and became again Newell’s partner. They practised again under the name of Newell and Ward until I became Ward’s partner on 1 November 1963 after which the firm became known as Ward & Keller. I have been in a number of partnerships over the years of my professional life, some have been reasonable, some, to my regret, disastrous. Dick Ward was and has been my best legal partner. Our partnership was to me the most memorable and unique of all my partnerships. Ward was in those days (the sixties) “known" to many people and was “known of" by many more. But I can say categorically that most people did not know Dick. He was an intensely “private" person, who was instinctively unwilling or unable to expose his inner nature to others. Only persons who had a natural affinity with him could sense the real person. Behind the enigmatic facade I will say straight out without any sense of embarrassment, shame or boasting that Dick and I had this affinity which I sensed at our first brief meeting in February 1961 and in particular on 22 June 1961 after my family and I had anived in Darwin to live (evening of 21 June 1961). It would be well-known by people who “knew" Dick in the sixties that he would spend a great deal of time at the socalled “hot and cold" air-conditioned Darwin Hotel and other “watering" places with various “old-timers", “characters", eccentrics etc; colourful people of whom Darwin abounded in those years. Mentally and in fundamental ways they were inferior to Dick and worlds apart, except that the deep romanticism of and about the Territory was shared by them with him. But those people were a perfect means for Ward to keep his real self hidden. RCW had a great talent for law and a passion for the Territory and its social and political advancement. The work he did and the efforts he expended in the old Legislative Council (where he was the elected Member for Port Darwin — one of six as against seven nominated Government Members) was one for which all Territorians, then, now and in the future should be grateful. As Dick’s then legal contemporaries well knew, he had a great capacity (which seemed effortless) for mastering facts and presenting a case to a court. Essentially he was a “natural" barrister. continued page 12 Our letters/responses policy We welcome your views and responses to issues in Balance. Send a Letter to the Editor, to be considered for publication in our print and online editions. Letters must be short and may be edited by Balance. No letter will be published unless it includes a name and full contact details (for verification purposes). Balance may license third parties to reproduce such letters. Letters with pen names will generally not be considered for publication. advocacy Written submissions after trial "The pen is the tongue of the mind” Cervantes The written submissions presented after a lengthy civil trial will be of a different order from those presented in advance of an appeal or in support of an application. The submissions in such circumstances will be an even more direct attempt to assist the court to write the judgment. Again the more you see of your written submissions reflected in the judgment the greater the compliment to the work that you have done. The matters to be addressed in written submissions of this kind will be wider in scope and more detailed in content than submissions on an appeal. Rather than being limited to those matters that are central, the submissions will also address topics that may be of interest to the court including those which may or may not be addressed in the judgment. The submissions will identify and address argument on all topics that may be considered by the court to be relevant to the judgment that is to be produced. The focus will not be as narrow as in the case of an appeal. The length and detail of the written submissions will reflect the nature of the case. In a simple and straightforward case the scope for the use of written submissions will be limited. The longer the case, the more diverse and complex the issues, the greater is the need for written submissions. At the conclusion of a lengthy civil trial the written submissions will be directed towa rds d rawing together the information that has been presented to the court over a period of time. The aim will be to present that information in a succinct and manageable form for the judge to take away and (hopefully) use as a platform for thejudgment or, at least, parts of the judgment. It follows that the submissions should be organised in such a way as to enable the judge at a time distant from the hearing to quickly determine where a particular topic is addressed and go straight to it. Where there are many issues to be addressed in a judgment the submissions should be structured to permit the court to focus on each individual topic rather than to have to trawl through the whole document to discover what is submitted in regard to a particular issue. Similarly, ifthe court has formed a view that a particular matter raised in the course of the hearing is irrelevant, or at least need not be addressed in the reasons for decision, it should be possible for the writing on that topic to be readily identified and put to one side. Generally speaking, in orderto achieve this, the written submissions should, so far as possible, be divided into discrete topics. Depending upon the volume of material to be covered it may be prudent to have an executive summary at the beginning of the submissions which can be quickly read and understood by the judge. If the judge wants more information in relation to a particular topic, or the opportunity to see how the argument is developed, then his or her attention can be directed to an argument presented in greater detail in an attached schedule or under a heading later in the material. However if the judge does not need to have greater elaboration of the argument then he or she can adopt or reject that which appears in the summary and move onto the next topic. Notwithstanding that submissions of this kind will be more expansive than in the case of appeals many of the same observations and warnings continue to apply. The volume of material presented to the court should Hon Justice Riley not be off-putting forthejudge. Prolixity and repetition should be avoided. The language adopted should continue to be direct and succinct rather than discursive. The argument should be presented in a logical and persuasive way. Where a conclusion is to be drawn from a body of evidence, or where a figure is to be calculated based upon materials introduced duringthe course of the hearing, the conclusion or figure should be identified in summary form either in the body of the submission or in an executive summary. The calculations or the logical argument that supports the conclusion should be detailed in an attached summary. In effect the advocate should do the work for the judge. The judge should not be left to flounder through voluminous material to ascertain information and then carry out calculations or extract conclusions. Obviously counsel should take great care in this process. An accurate presentation of any source material must be ensured. If the court cannot or does not feel it can rely upon counsel to accurately extract information or carry out calculations then the court will have to undertake the exercise itself. When written submissions are provided to the court it is not necessary to read them to the judge or tediously paraphrase them. continued next page Page 11 — April 2003 1 Letters to the editor\ from page 10 He left our firm to contest the then newly created Federal seat of the Northern Territory in the Federal Parliament. By then, the politicians and the political machines had taken over in the Territory also and the polarization Labor/LCP was in place. Dick was the Labor candidate. He was defeated by an LCP man who was more responsive to machine politics. Dick probably did not realise that the Territory was changing and that the only thing that mattered by then was to be elected. The passions, the visions that beat in Dick Ward’s heart were by then “passe”. I think the defeat was quite traumatic to RCW and he was clearly mentally and emotionally disoriented for some time thereafter. But, being who he was, he maintained a stoic silence about this. I offered to have him back into our firm but he declined — it was a matter of dignity and pride on his part. I understand that after my departure, he may have become a consultant to the firm and thereafter gone to the Separate Bar —which started up in the early 1970s(?). In that regard I believe Ian Barker was the first one at the Private Bar in the Territory. I also understand that, at one stage Dick was appointed a QC and subsequently to the bench of the NT Supreme Court, an appointment well deserved. His tenure, as all practitioners now in Darwin would know, was cut comparatively short by his premature death. Dick, as is also well-known by some still in Darwin, had been a man suffering one or more chronic illnesses for some years which were potentially life threatening and did ultimately take his life. Those illnesses were partly due to the environmental and climate hardships that had to be endured during those years (till at least 1965) and to his lifestyle. Darwin now has amenities and comforts which, during most of my time there, did not exist. For the first five years of our life there we endured non-air-conditioned working environments: try working on files and papers in a Turkish bath with overhead fans at the same time blowing your papers away! No doubt your members will regard this letter as a posthumous eulogy to RCW — of course, it will be your privilege as to what you do with it when you receive it. I do not apologize for this so-called eulogy. Unlike those given at the graveside, which are often peppered with platitudes and reek of insincerity, what I have set down here on paper is totally sincere and from the heart about one of the most memorable persons in my (by now) long life. There are many more things, stories and tales to tell about my years in the Territory but this letter has been quite long enough already. ® Advocacy, from previous page You may wish to summarise the material and develop arguments in certain areas, especially areas that are likely to be significant in resolving the case. Remember the written submissions are an aid to the presentation of the strongest case available to your client. They are to be used in conjunction with your oral submissions in order to persuade the tribunal to a particular point of view. The use of written submissions as a tool of advocacy is now well recognised. It is essential that the advocate develop the skills necessary to make effective use of this tool. “Can I study an LLM online?” The TC Beirne School of Law has developed a unique Online LLM. Study in your own time, wherever you are in the world. All you need is a computer and internet access. Enrol now for Semester 2, 2003: -East Asian Legal Studies - Electronic Commerce Law -Intellectual Property in Biotechnology -South Pacific Comparative Law -Comparative Corporate Law Globally relevant courses. Superior resources. Interact with your coordinator and peers through dynamic discussions. Visit www.law.uq.edu.au/online Or for another flexible study option, why not try our intensive courses within our regular LLM program. Offered internally at our St Lucia campus and CBD locations, many courses are run intensively over 4-5 days throughout the year. Online and internal courses can be combined for the regular LLM program. Visit www.law.uq.edu.au For further information contact Ms Allanah Bigg, TC Beirne School of Law, phone (07) 3346 9018 or email a.bigg@law.uq.edu.au YOU CAN. (ffil The University Lc# Of Queensland A U S T R A L I A Page 12 —April 2003 bal040303 nt bar association ■ jottings on the bar A very different profession It is not being elitist, arrogant or taking ourselves too seriously to observe that the legal profession is very different from all other professions. No other profession has a duty to an external institution that comes before the duty owed to its clients or patients - the duty to the court. No other profession has an integral role in the administration of an arm of government, i.e. the judicial arm. No other profession prescribes strict duties of loyalty and confidence for its clients. Finally, no other profession can lay claim to a very broad privilege that protects from disclosure matters conveyed in confidence i.e. legal professional privilege. There are, of course, some statutory privileges offered to patients and penitents in some jurisdictions for example, s 12 of the Evidence Act NT, but these are quite limited in their scope and by no means universal. MDPs are fraught with difficulties This brings me to the issue of multi disciplinary practices (“MDPs”) that is partnerships or profit sharing between lawyers and other professionals such as accountants, actuaries, engineers, town planners and the like. These stark differences between the legal profession and all others provide the reasons why MDPs are fraught with difficulties. It is not difficult to see why. The main arguments for MDPs appear to be: to offer clients “one point of sale” with a broader range of services and to share overheads and facilities. In my view, these are essentially marketing conveniences. If clients were to be asked to make a choice between these marketing conveniences on the one hand and the loyalty, confidentiality and privilege protection currently provided by traditional legal practice, on the other, I have no doubt which they would choose. Quite apart from client protection there must be immense practical difficulties operating MDPs when the differences between the legal profession and all others are so marked. Flow can a commercial partnership operate effectively where one group of partners owes unique duties to the administration of justice and to its clients and can provide the protection of legal professional privilege, while another group of partners in the same partnership does not owe such duties to the court or the client and cannot provide the same (or any) protection by way of privilege? MDPs not permitted in most other jurisdictions in Australia All of this probably explains why, despite the urgings of competition authorities and some commercial lawyers, MDPs are not permitted in mostjurisdictions in Australia. Even in New South Wales, where it is possible to practice in partnership with certain other professionals, MDPs do not seem to have blossomed: see s48G Legal Practice Act 1987. In the Northern Territory, MDPs are prohibited by sl36 of the Legal Practitioners Act which prevents profit sharing between legal practitioners and others. MDPs rejected in the USA Not surprisingly, Australia is not the only jurisdiction where MDPs have been considered and rejected. The debate about whether to permit MDPs has raged in the USA for many years. In 1998 the American Bar Association established a Special Commission to investigate the issue. In July 2000, after considering the report from that Commission, the ABA decided not to allow MDPs. Among the principles underlying the ABA’s decision were the need to maintain a lawyer’s undivided loyalty to his or her client and John Reeves QC, President of the NT Bar Association the need to preserve independent legal judgment. MDPs rejected in the EU Lastyearthe European Court of Justice (“ECJ”) was called upon to consider similar issues. In Wouters and others -v- Governing Council ofthe Barofthe Netherlands the ECJ was asked to rule whether a regulation that prevented a member of the Bar from becoming a member of a MDP was anti competitive and therefore in breach of a particular European Community law. Mr Wouters and his fellow appellants wished to become members of one or other of the “big five” accountancy firms. The Court ruled that the Bar regulation concerned was not in breach of the relevant EU competition laws. Mr Wouters may have been disappointed with the result at the time but the ruling had an unforeseen bonus for him because the firm he wished to join was Arthur Anderson! This decision is interesting because it demonstrates that the principles relating to independence, confidentiality and the duty owed to a client are also considered to be of great importance in civil law systems like the Netherlands. continued next page Page 13 — April 2003 Jottings, from previous page The following excerpt from the Court’s decision exemplifies this: The current approach of the Netherlands[government].. ..which entrusts the Bar of the Netherlands with responsibility for adopting regulations designed to ensure the proper practice of the profession, is that the essential rules adopted for that purpose are, in particular; the duty to act for clients in complete independence and in their sole interest, the duty .... to avoid all risk of conflict of interest and the duty to observe strict professional secrecy. Those obligations of professional conduct have not inconsiderable implications for the structure of the market in legal services, and more particularly for the possibilities for the practice of law jointly with other liberal professions which are active on that market. Thus, they require of members of the Bar that they should be in a situation of independence vis-a-vis the public authorities, other operators and third parties, by whom they must never be influenced. They must furnish, in that respect, guarantees that all steps taken in a case are taken in the sole interest of the client. By contrast, the profession of accountant is not subject, in general, and more particularly, in the Netherlands, to comparable requirements of professional conduct. MDPs should be rejected in Australia Given the endorsement of these important principles in these two major world economic systems, one would hope that Australia’s competition authorities do not succeed in making Australia the odd one out by forcing MDPs on the Australian legal profession. If they do, the duties of loyalty and confidentiality, the unique role of the legal profession and the protection of legal professional privilege are likely to gradually disappear. On the latter, it must be more than a coincidence that the ACCC has been at the forefront of legal challenges to the continuing existence of legal professional privilege.® Vale Barbara James The Northern Territory lost one of it’s most respected historians with the passing of Barbara James in late March this year. Variously described as much-loved, brave, kind, vastly intelligent and, simply, a friend, Barbara was paid tribute to by family and friends at a service in Darwin’s Anglican Church. It was “standing room only’’ atthe service which was attended by Labor party leaders, past and present - a testament to Barbara’s dedication to the party. For the Law Society NT, she was the author of an historical text about the Society titled: Twenty Years On, a history of the NT Law Society (1969­ 1988) and a glance at pre-Society legal life in the north. She was also a close friend of many LSNT members, past and present. Born in Nebraska, Barbara came to the Northern Territory in 1967. She worked as a journalist before becoming an historian and spent time as a political advisor to Bob Collins when he was the NT’s Labor Leader and later when he was a Senator for the Northern Territory. She was an author of publications including the acclaimed No Man's Land, a book lauded as the first to highlight the contribution of women to the Northern Territory. Herjoy at Labor’s historic NT election win in 2001 was captured by photographer David Hancock at the victory party. Holding her wig (a result of chemotherapy) aloft and moving to embrace a victorious Chief Ministerelect Clare Martin, Barbara celebrated the success for which she had worked so hard for for many years. The LSNT extends its sympathies to Barbara’s friends and families for the loss of this great lady. ® Above: An historic win...Barbara James (centre) with Clare Martin (left) and Rosemary Tipoloura (right)...Photo: David Hancock/Skyscans 1 Page 14 — April 2003 LSNT welcomes Sonya and Felicity The Law Society NT has two fresh faces - Sonya Ingham and Felicity Lawrence. We welcomed them in our weekly email newsletter The Practitioner but in case you missed the article, we’ve reprinted it here. supervision of information services provided to practitioners and the general public, supervision of CLE activities, functions and meetings and personal assistant services to Secretariat executives. We welcome Sonya to the Society and look forward to providing her with many challenges and opportunities. Welcome also to Felicity Lawrence, our new Receptionist/Administration Assistant. Felicity started in February. She began her association with the legal profession in 1996 and has worked in legal firms and a community law centre in New Zealand. Most recently Felicity undertook a short stint at DOJ with the Lands and Mining Tribunal and the Magistrates Court in Darwin. Felicity’s experience and professionalism will be a boon to the Secretariat. Her duties include: reception, mail management, maintenance of practitioner records, maintenance of database records, functions and administration support and special projects.® Crime time More than one in two (54 percent) defendants proven guilty in Australia’s higher criminal courts in 2001-02, received a custodial order to be served in a correctional facility or in the community. As well, 17 percent received a custodial order involving a full suspended sentence as their principal sentence type. These are figures from the Australian Bureau ofStatistics’ recent publication Criminal Courts, 2001-02. The ABS also says that of the defendants who received a noncustodial order as their principal sentence type, the most common was a community supervision or community work order. ® Page 15 — April 2003 Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a volunteer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Co-ordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton A McMinn Sts SAT - 10am-11.45am, Casuarina Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 1111 or email darlene@dcls.org.au LEGAL SERVICE The profession will be pleased to know that the new position of Front Office Manager/Personal Assistant, created as a result of the organisational review of the Secretariat, has been taken up by Sonya Ingham. Sonya has returned with her family to live in the Territory after having spent the last five years in Western Australia. Above: (left) Sonya Ingham and (right) She brings to the Society a wealth of experience, having served the past three-and-a-half years as Office Manager of the Bunbury Community Legal Centre. As Front Office Manager/Personal Assistant, Sonya’s responsibilities will include the management of reception services, systems and database, Felicity Lawrence...new to the LSNT. Celebrating Law Week 2003 In case you hadn’t heard yet, Law Week 2003 in the Northern Territory is looming large and the Law Society NT has planned a raft of functions and activities. Above: guest speaker, Fiona O’Loughlin Kicking off the week will be the Chief Justice’s XI vs the LSNT President’s XI cricket match at Dinah Beach Oval on Sunday 11 May. This classic clash has been revived as a Law Week event and promises to be a highly entertaining afternoon. As well, there will be a fundraising sausage sizzle to support NT School Sport representatives towards the end of the day. Everyone is welcome. Our official launch on Monday 12 May will also incorporate the launch of Justice Trevor Riley’s long-awaited publication The Little Red Book of Advocacy, a booklet of his well-read Balance Advocacy columns from 1999 to 2002. Another highlight for the profession during the week will be the traditional Law Week lunches. Our guest speaker this year is Territory funny woman, Fiona O’Loughlin. For ten years, Alice Springs-based Fiona has been honing her craft working as a corporate comedian, stand up comic and columnist. She has written and presented for ABC Radio, performed numerous television comedy spots including The Panel and successfully produced her own comedy festival shows in Australia, UK, USA and Canada. Bookings forthe lunches (in Darwin and Alice Springs on 14 and 16 May respectively) may be made through the Law Society NT on 89825104. The cost is $66 per head and includes a sumptuous meal as well as beer, wine and soft drinks. Some of the images from Law Week last year. Clockwise from top: the Law Week launch; judge “Grumblefrock” at the mock trial; guest speaker Peter Nicholson i Page 16 —April 2003 Program of Events Sunil May 1.30pm-530pm CJ’s XI vs LSNT President's XI at Dinah Beach Oval, Stuart Park Mon 12 May 9am Launch (including Advocacy booklet launch) by AttorneyGeneral Dr Peter Toyne lOam-noon Law Handbook Live (A/S) 10.20am-l 1.20am Victim Support Unit talk to students (Darwin High) llam-lpm Information display at Casuarina noon-1pm Crime Tour: Fannie Bay gaol Tues 13 May 9.30am-4.30pm Law Handbook Live (A/S) 10am-11am VSU talk to students (Kormilda College) 11.30am-12.30pm VSU talk to students (Casuarina Senior College) 11 am-1.30pm Information display at Casuarina 5.15pm-6.45pm Crime Tour: bus tour Wed 14 May 10.30am-11.30am Information display at Yeperenye noon-3pm Law Week lunch with Fiona O’Loughlin (A/S) 5.15pm-6.45pm Crime Tour: bus tour 7pm-9pm Law Handbook Live (A/S) Thu 15 May ll.lOam-noon VSU talk to students (Sanderson High) lpm-4pm Law Handbook Live (A/S) 7.30pm Red Cross movie - Kandahar Fri 16 May noon-3pm Law Week lunch with Fiona O’Loughlin (Dwn) Sat 17 May 9.30am-12.30pm Law Handbook Live (A/S) 10am-2pm Supreme Court Open Day in Darwin Unless otherwise stated, activity/function is based in Darwin. Those activities in bold typeface are aimed at the profession. Bookings for the movie Kandahar can be made on 89243931 or 0407180876 Marsh An MMC Company uw SOCIETY THE AUSTRALIAN AIRLINE And then there was one... John Lawrence left James Muirhead Chambers late last year, now two others are moving on. Muster Room has heard Steve Southwood QC and Jon Tippett QC are moving back to William Forster Chambers once that chambers moves into a (we understand) refurbished Customs House (diagnolly opposite the Darwin City Council). That will leave John Waters QC on his own at James Muirhead Chambers and reconfirm William Forster Chambers as the largest in the NT with about 15 barristers at last count. Wow, what a team! The Chief Justice’s XI for the Law Week cricket match (see story previous page) is a pretty strong lineup. Captained by Mildren J (a keen and reportedly talented cricketer), the team also includes: Master Coulehan, Riley J, Roberta McMurtrie (associate to Riley J), Trigg SM, Rex Wild QC, Wallace SM, Luppino SM, Daniel Garton, Chris Rowe, Jessica Bates, Duncan Maclean, Ben Wild and Jennifer Laurence. No word from the LSNT President’s camp yet on theirteam members but MR understands Morrie also has some “talent” in the ranks. Should be a good game! Looking for Melanie Little? As everyone knows, her Worship is now based in Alice Springs and she has given MR some contact details in case anyone needs to contact her about her former practice. You can reach her at email: melanie.little@nt.gov.au, ph: 89515700, fax: 89515702 or address GPO Box 1394, Alice Springs NT 0871. Movers and Shakers Karen Christopher has moved from Cridlands to the Dept of Justice. Liz Leahy has opened her own practice, operating from 13 Bayview St, Fannie Bay. Tamlyn Hill (formerly of Halfpennys) has returned to Darwin after working in WA and is now at Cridlands. Pip Lazaris has left Cridlands and Darwin for the cooler climes of Tasmania. Stewart Boland has left Ward Keller to join the corporate world as one of the inhouse lawyers atTIO. Admissions Admitted in late March/early April were: Penny Lee (NLC), Joe Patterson (Clayton Utz), Kieran Reynolds (Solicitorfor the NT) and Benjamin Lee (Clayton Utz). Welcome back To John Munn who left Ward Keller in 1990 and has spent the past 12 years practising in Adelaide. Now back in Darwin, he has joined Cridlands. The Muster Room Above: The things we do! NTLAC’s Sam Willcox “was" a sandwich board at a recent performance by a group ofyoung women for Youth Week 2003. See page seven. / ------------------------- —------------------------------ -------------------------------------------------——\ WANTED: Your nominated email address | Bulletins to the profession - CLE Seminars - Events & Functions I Messages from the Council of the Law Society [ Do you want to be informed by the Law Society via email? | If so, please provide an all-purpose email address for yourfirm. Fill out this form | and send it orfax it into the Law Society (contact details on back page) | NAME OF FIRM:__________________________________________________ ! j EMAIL ADDRESS:_______________________________________________________________ I SIGNATURE OF AUTHORISED PERSON:__________________________________________ j DATE:__________________________ \_____________________________________________________________________________________✓ Page 17 —April 2003 1 case notes with mark hunter Regina v Shane Slack Court of Criminal Appeal (NSW) No. 93/2003 Judgment of Sheller JAf Wood CJ at CL and Smart AJ delivered 7 April 2003 CROSS-EXAMINATION - COLLATERAL MATTERS - CREDIT The appellant (S) exercised fortnightly weekend access in 2000 to his two daughters, who were then aged fourteen and eleven. On 1 September 2000 they were accompanied at his residence by the 11 year old complainant for an overnight stay. S was convicted at trial on two charges of aggravated sexual assault (digital penetration), committed that night, and was sentenced to serve two years periodic detention. The alleged assault was first complained of in September 2001 and S’s estranged wife refused to allow Police to interview her daughters. The trial was therefore one of “oath against oath". Issues which loomed large at trial included whether S had on the night in question: • chosen or allowed the three girls to watch a video classified M (15+, sexual references);and • suggested to the complainant playing a “game" involving hypnosis. S stated that the four of them had only once played this game, during a previous overnight stay. He claimed that his daughters had chosen the video, and had told him that their mother had previously allowed them to watch it. No objection was taken to the Crown Prosecutor extensively crossexamining S as to: • his reasons for studying hypnotherapy; • the power of hypnosis to lower a subject’s inhibitions; and • the appropriateness of attempting hypnosis on the earlier occasion, or showing the movie, without both parents’ express permission. The propriety ofthis line of questioning was also not challenged on appeal, S’s counsel only arguing that the verdicts were unreasonable. HELD (Sheller JA, Wood CJ at CL and Smart AJ agreeing) 1. Appeal allowed / convictions quashed / verdicts of acquittal entered. 2. The cross-examination was designed to prejudice the jury against the appellant and went beyond the bounds of legitimate cross-examination on credit. 3. A substantial miscarriage ofjustice was created by the risk that thej u ry may have been diverted by this cross-examination from an objective consideration of the evidence. The Court determined that the above cross-examination did not tend rationally and logically to weaken Mark Hunter confidence in S’s veracity (n1) as a witness of truth. His Honour the trial judge was criticised by the Court for not preventing the miscarriage of justice. Their Honours observed that objection by defence counsel may have suggested to members of the jury a lack of confidence in the accused’s ability to deal with the cross-examination. APPEARANCES Appellant - O’Donnell / John Taylor Respondent - Lamprati/ DPP COMMENTARY n1 This phrase was used by the NSW Court of Appeal in Wentworth v Rogers (No. 10) (1987) 8 NSWLR 398 at 408. Section 15 of the Evidence Act (NT) specifies the conditions for the admissibility of questions which are alleged to be relevant to the credibility of a witness. This section was considered by Mildren J in the context of a civil trial in Hart v Wrenn (NTSC, unrep. 2/10/95). r Why not use the Law Society’s boardroom for your next meeting? hire rate: $264 (incl GST) for a full day $137.50 for a half day (four hours) + $27.50 for every hour thereafter (all incl GST) Book with the Law Society on 89815104 1 Page 18 —April 2003 photo album A little drink on Melanie (SM) The Territory's newest magistrate Melanie Little hosted a small soiree before her departure for the Red Centre. Top Left (from. Left)justice Pean Mildren and ntlac's Suzan Cox caught up with Melanie (right) at the shindig. Above: Marguerite Powen from, cec Plack Family Lawyers (left) andShirley fawe from NAALAS (right) had a drink and chat with the hostess with the mostest. Left (from left):Amanda Nobbs (Summary Prosecutions), Sharon Noske (PeptofInfrastructure, Planning and Environment) and Pill Lemon (Formilda College) were also there to say farewell to Melanie. John Toohey chambers party It was a good excuse for a party. Killing two birds with one stone, the John Toohey chambers mob invited the profession to see their upgraded offices. They also made it an official welcome to John Lawrence. Left: The office ofthe PPP's Markjohnson and jlen Pooley Fight (from, right): Pill Piper Carmel Lawrence, fan winch andJohn Lawrence. Lateron, the Toohey mob posed with the lsntmob (the Society used to occupy the same offices) (Left, clockwise from bottom): John Lawrence,Julie Pavis (lsnt), Parbara Pradshaw (lsnt), Pat Mc/ntrye (Toohey), Michael oPonnell (Toohey), tan Morris (LSNT President). Also at the gig were (Fight) Federal Magistrate stewart Prown (right) and POJ head Fichard Coates. Page 19 —April 2003 i readers forum - book reviews Professional Liability in Australia V'^Sr-^tey Professional Liability in Australia by Walmsley, Abadee and Zipster The Lawbook Company, RRP $214.50 The publication is the first Australian specialist text on a subject that has been a growth area for many years. It is designed for the practitioner rather than the student and is more than a torts book. All the law of professional liability both in contract, tort, trade practices and breach of professional conduct rules is examined. Despite the complexity of the subject matter the authors have managed to entertain as well as inform. Chapter one examines the terms of the contract between the professional and the client as well as the theoretical basis of tort liability and the competing judicial pronouncements on the limits tothedutry of care. Separate chapters examine the law as it relates to each of the professions. The second chapter devotes itself to the medical profession. For most practitioners this will be of most utility. The medical duty to warn is examined in detail, as is causation in failure to warn cases. There is a practical discussion of the two High Court decisions since Rogers v Whitaker, namely the 1998 case of Chappel v Hart and the 2001 decision of Rosenberg v Percival. Judge Walmsley discusses the evidential hurdles facing the plaintiff in a practical way and at page 202 points out many of the pitfalls for practitioners running plaintiffs actions on the basis of negligent failure to warn. The author has very helpfully examined typical problem areas and noted what could be done by both plaintiffs’ and 1- Page 20 — April 2003 defendants’ lawyers to improve chances of success. Chapter four examines the barrister’s possible liability to a full range of actions. The erosion of the barrister’s immunity to a negligence claim is considered. There is a useful discussion of plaintiff’s actions against barristers underthe head of misleading and deceptive conduct within the fair trading legislation. Chapterfive reviews and examines the law as it affects auditors and accountants. This area of the book would be of particular interest to practitioners with a commercial practice. Following the Enron and WorldCom collapses in the US and the HIH insolvency here in Australia, proposed legislative initiatives are mentioned. In addition to auditors’ common law duties the co-existent action for breach of contract and possible action for breach of statutory duty is explored. The recent Henville v Walker 206 CLR 459 decision is discussed in the context of damages. The point being made that there are “damages” advantages to the plaintiff who is able to sustain an action against a professional person upon misleading and deceptive conduct and thereby avoid any reduction in damages for contributory negligences. This is first and foremost a practitioner’s book as it contains a mine of tactical informaiton on case preparation and presentation. It is a significant work for those who wish to know the law and speak with authority. - Martin Edmund Carter, barrister, Barton Chambers Fundamental Tax Legislation 2002 by R.L Deutsch, RRP $81.20 Australian Tax Handbook 2002 by Deutsch, Friezer, Fullerton, Gibson, Plummer, Hanley and Snape, RRP $113.30 Successful Tax Study 2002 by Obst, Smith and Hanegbi, RRP $30 Tax Questions and Answers 2002 by Emmerton and Fisher, RRP $71.50 All from The Lawbook Company When I offered to review these tax tomes for our esteemed journal editor, I knew that practise of the law had finally driven me to insanity. One thingfor certain - texts on taxation give you plenty of pages for the dollar, this little bundle having sufficient bulk to raise my height by a foot or so. Needless to say, the volume containing the legislation is not conducive to bedside reading, despite its sleepinducing content. It appears to contain all of the legislation anyone interested in the dreaded three letter word might require, namely: both versions of the Income Tax Assessment Act (1997, readers forum - book reviews which appears to be in English, and 1936, which contains some English) and the requisite conversion tables to enable one to move with ease between the old and the new law, and other treasures such as the Fringe Benefits Tax Assessment Act and the Act with the silly name which deals with what we all know and love as GST. The fascinating thing about this text is that it comes already underlined, thus enabling us all to save on highlighters. The accompanying handbook, boasting in excess of 2000 pages, is similarly unsuited to bedside reading, but contains extensive discussion and analysis of the legislation, inherently boring though it is. I delved briefly into the Fringe Benefits Tax section, to see whetherthere was anything interesting I should seek from my revered employer, and found the chapter refreshingly easy to understand, even for a virtual tax-illiterate such as myself. The volume entitled “Successful Tax Study” is a student’s guide to tax research, study and exam techniques. As such, it is of little or no practical benefit to those who can hardly recall having attended university. To me it seemed even too basic forthe average law student, in that it set out steps such as “read the case” and “make a summary”, and went so far as to comment that “one or more Judges may describe the facts” and that these facts are usually found at the beginning of each judgement (how elucidating!) - but perhaps I am just out of touch with modern learning techniques. The final volume in the set, the “Tax Questions and Answers”, contains an interesting selection of questions of varying length and complexity dealing with such practical problems as whether leaving a full carton of beer forthe garbo at Christmas would result in the latter having to declare its value as assessable income (after one page of discussion, the answer is, probably yes); whether a life saver accepting a watch from a grateful parent of a nearly drowned little Johnny would have to declare its value as income (if he were a volunteer, no, although if he were not, probably yes); whether a punter whose TAB turnover reaches millions of dollars a year should pay tax on the profits (if he is carrying on a business, yes, if merely pursuing a hobby, no); and whether the cost of dog food and veterinary expenses for guard dogs at a scrap metal dealer is a deductible expense (yes - but we all knew that one, didn’t we?). Although challenging on an intellectual level, the exercises will be of limited assistance to the average lawyer whose actual client scenarios are more likely to require a dedicated trawl through the dreaded legislation and handbook, unless of course one is fortunate enough to have a garbo actually turn up in one’s office to query the necessity of declaring as assessable income the receipt of his carton of beer. For those of us who are dedicated tax aficionados, the books will be of great benefit. For those of us who are not, they will at the very least enable us to appear to understand some of the utterings of our clients’ accountants, or enable us to reach the top shelves in the library! - Lyn Bennett, solicitor, Hunt & Hunt readers forum - conferences 21-24 May 2003 Leadr Mediation Workshops Darwin, NT Tel: 02 9233 2255 Fax: 02 9232 3024 leadr@leadr.com.au 14-15 May 2003 Managing Business Travel Sydney, NSW Tel: 07 5538 6392 info@bttbonline.com 21-23 May 2003 AuSAE Conference 2003 Brisbane, Qld Tel: 02 6285 3000 Fax: 02 6285 3001 ausae2003@con-sol.com 30 May 2003 Coaching and Teambuilding Skills for Managers and Supervisors Darwin, NT Tel: 1800 145 231 Fax: 1800 145 224 enroll@skillpath.net 20-21 June 2003 Children and the Law - Issues in the Asia Pacific Region Brisbane, Qld Tel: 08 8946 9500 Fax: 08 8946 9505 lawasia@lawasia.asn.au 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 89812549 Fax: 08 8981 2596 wildlyn@hotmail.com 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 3831 4477 warmid@tpg.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com Page 21 —April 2003 NOTICEBOARD High Court Notes May 2003 Prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Testators Family Maintenance - Available Estate - Agreement between deceased and spouse to make wills directing property to one child - Whether intention to avoid legislation contrary public policy - Conflicting decisions of Privy Council In Barns v. Barns ([2003] HCA 9; 7.3.2003) a grazier (the deceased) and his wife (the second respondent) entered on advice into a deed in May 1996 agreeingto make mutual wills whereby the first to die would leave their estate to the other who would leave it to their son (the first respondent) to the exclusion oftheir adopted child (the appellant). On the death of the deceased in August 1998 probate of his will made in accordance with the deed was granted to his executor (the first respondent/son). The appellant made a claim for testator’s family maintenance under the Inheritance (Family Provision) Act 1972 (SA,). The appellant claimed in these proceedings thatthe deed was void as an attemptto avoid the operation ofthe Act. The primary Judge answered preliminary questions to the effect that the deed was void. The Full Court of the Supreme Court SA allowed an appeal. It held the deed had the effect of avoidingthe Act by removing assets from the estate but that this was not prevented, or contrary to, the Act and any gap in the law was a matter for Parliament. The proceeding returned to the primary Judge who dismissed it. The appellant appealed against both the decisions ofthe Full Court and the primary Judge. Her appeals were allowed by the High Court. The majority concluded that the deed and wills made in consequence of it did not have the effect of removing the property from the estate which would have been the effect of a disposition in the life of the deceased: Gleeson CJ [30], [35]; Gummow with Hayne JJ [68]. In dissent Kirby J held that in the absence of statutory revision to introduce “notional estate" the agreement in the deed and consequent specific bequest in favour of the second respondent should be given effect [159]. Appeals allowed. Administrative law - Power of Court on review - Power to order matter be remitted to same decision-maker to preserve findings of fact In MIMA v. Wang ([2003] HCA 11; 12.302003) 481(l)(d) of the Migration Act 1958 (Cth) authorised the Federal Court in reviewing a decision to order the matter be referred to the person who made the decision for further consideration and by s481(l)(d) authorised the Court to make an order directing any person to do, or refrain, from doing anything necessary to do justice between the parties. In December 1999 the RRT (composed of Ms. B) dismissed a claim by W for a finding that he was a refugee entitled to protection visa. The RRT made certain findings in favour of W. His application to the Federal Court for review was dismissed by the Primary Judge but in November 2002 a Full Court of the Federal Court allowed an appeal. Members ofthe Full Court expressed concern that W should retain the benefit ofthefavorable findings and indicated their preference for the matter to return to Ms. B. The Full Court only ordered the matter be remitted to the RRT. The Page 22 —April 2003 Courtgranted liberty to apply. The Principal Member ofthe RRT proposed that the rehearingoccurinfrontofa member other than Ms. B and W sought, pursuantto liberty to apply, an order that Ms. B hear the matter. In April 2002 the Full Court made this order. An appeal by the Ministerto High Court was allowed by majority: Gleeson CJ, McHugh J, Gummow with Hayne JJ; contra Kirby J. The majority observed that while the order appeared to be within power in the absence of a finding that justice required the order it ought notto have been made. The Court observed that question forthe RRT was whether W was a refugee at the date ofthe final decision and earlierfavorable finding were not determinative of this. In dissent Kirby J observed the order was made in the unchallengeable exercise of discretion. Appeal allowed. Criminal law - Jurisdiction - Whether State procedure applies to determination of interlocutory matters in Federal prosecutions In Q v. Gee ([2003] HCA 12; 13.3.2003) on the trial of G in the District CourtofSA for defraudingthe Commonwealth the Trial Judge made ruling on admissibility of prosecution evidence, in accordance with State law and practice, after G pleaded not guilty but before ajury was empanelled. The prosecution sought to challenge the ruling by means of a case stated under s350 ofthe Criminal Law Consolidation Act 1935 (SA). The Full Court ofSA concluded s68(2) ofthe JudiciaryAct 1903 (Cth) did not conferjurisdiction on it to hearthe case stated. An appeal by the prosecution to the High Court was allowed: Gleeson CJ; McHugh, Gummow JJ; Kirby J; Callinan J. The Court generally observed that s68(2) of the JudiciaryAct expressed a policy that Commonwealth offences were to be treated uniformly in each State with State offences and not uniformly between the States. The Court also held the DDP (Cth) had power to bring the case stated. Appeal allowed. Criminal law - Procedure - Tender of evidence by prosecution in rebuttal - Whether prosecution permitted to spilt its case - Prior inconsistent statements of accused In 0 v. Soma ([2003] HCA 13; 13.3.2003) the High Court considered when the prosecution should be allowed to introduce evidence in rebuttal of sworn evidence by an accused given after the prosecution case had closed. The Court considered when the prosecution could lead evidence which it had not led as part of its case. Appeal by prosecution against orders ofthe Court ofAppeal in Q setting aside the conviction dismissed. Contract - Damages - Proof - Duty of good faith In Placer(GrannySmith) Pty Ltd v. Thiess Contractors Ry Ltd ([2003] HCA 10; 11.3.2003) from 1989 the appellant and respondent operated an open cut mine in WA on a schedule of rates contract. From 1991 the appellant proposed a “partnering" agreement whereby it would pay the respondent its costs plus a margin for profits. In 1995 the respondent terminated the agreement and sued the appellantwho counterclaimed alleging the respondent deceived it as to its costs causing the appellant to make overpayments. The Primary Judge found the appellant had overstated its costs but was unable to calculate the loss so caused and ordered nominal damages to the appellant only. This decision was affirmed by NOTICEBOARD the Court of Appeal WA. The appellant’s appeal to the High Court was allowed by all members on the ground that an admission in the pleading by the respondent of a breach and an amount of loss had not been drawn to the attention of the Courts below. Consideration ofwhen parties to a contract owe each other a duty of good faith. Appeal allowed. Federal Court Notes May 2003 Prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Natural justice - Bias - Comments by member of AIRC In Heap; Re Application for Constitutional Writs againstAIRC ([2003] FCAFC 36; 7.3.2003) the Senior Deputy President of the AIRC hearing proceedings for unfair dismissal by a bank officer invited the representative ofthe bank to confer privately after the submissions of parties were received. The SDP told the representative the bank had “more problems than a man with a wooden leg in a bushfire”. The bank subsequently requested the SDP disqualify herself and she refused. A Full Bench quashed the decision ofthe SDP and ordered she was disqualified. A Full Court of the Federal Court dismissed the application by the bank officer for prerogative writs to quash the decision of the Full Bench. The Full Court concluded the Full Bench was in the position of an expert body and that jurisdictional error had not been established. Judges - Bias - Whether findings on liability preclude Judge form assessing damages In Versace v. Monte ([2003] FCA126; 3.3.2003) Tamberlin J concluded the circumstance that he had determined liability did not mean he should disqualify himself on the ground of apprehended bias from assessing consequential damages. Employment - Estoppel - Whether proceedings in AIRC establish issue estoppel In Kowalski v. Trustee, Mitsubishi Motors Australia Ltd Staff Superannuation Ry Ltd ([2003] FCAFC 18; 28.2.2003) a Full Court concluded [12] that it would not acceptthat a finding on an issue in an unjust dismissal proceeding established an issue estoppel for Court proceedings. Patents - Invention - Sufficiency of description In LockwoodSecurityProducts P/L v. Doric Products P/L ([2003] FCAFC 29; 7.3.2003) a Full Court considered whether a claimed invention for which a patent was sought was sufficiently described and whether the claims in the specification were fairly based on the matter described in the specification. Discrimination - Unwell tertiary student In Sluggett v. Flinders University of South Australia ([2003] FCAFC27; 7.3.2003) a Full Court dismissed an appeal against orders of a Primary Judge who found HREOC had not erred in its consideration of the claim of the appellant that the first respondent had discriminated against her in marking her academic work because of consequences of childhood polio. Bankruptcy - Transaction void against Trustee - Transfer of interest in matrimonial home pursuant o consent orders of Family Court In Official Trustee in Bankruptcy v. Mateo ([2003] FCAFC 26; 28.2.2003) a Full Court considered whether sl21 of the BankruptcyAct applied to a transfer by a bankrupt ofan interest in a matrimonial home made pursuantto an order ofthe Family Court. The Full Court also considered the difficulty in relating non-financial matrimonial contributions to the market value of a property, and the relationship between applications under the BankruptcyAct and applications to set aside orders ofthe Family Court under s79A of the Family LawAct. Appeal - Setting aside findings of fact In CFMEU v. Hamberger([2003] FCAFC38; 10.3.2003) a Full Court considered when findings offact after an oral hearing by a Primary Judge could be set aside. The Full Court concluded the Primary Judge erred in finding an industrial association had acted in deliberate disregard and defiance of provisions of the Workplace Relations Act 1996 (Cth) because it did not lead evidence to the contrary. Migration - Tribunals - Open hearing In Uranekv. MIMIA ([2003]FCAFC37; 11.3.2003)a Full Court concluded thatthe removal of an applicant’s children from the hearing room did not violate the requirement in s365 of the Migration Act that the MRT take its evidence in public; the failure to provide an interpret did not contravene s366C; and the failure of the MRT to inform the applicant of certain documentary evidence did not breach the requirements of s359A. Migration - Whether prohibited immigrant in 1984 entitled to absorbed person Visa In Sit v. MIMIA ([2003] FCAFC 40; 11.3.2003) a Full Court reaffirmed that a person who was a prohibited immigrant on 2 April 1984 could not have ceased to be an immigrant within s34(2)(b) of the Migration Act. Federal Court - Appeal against “judgment” - Direction by a Judge to the Registrar In Bizuneh v. MIMIA ([2003] FCAFC 42; 13.3.2003) a Full Court concluded that a direction by a Judge to a Registrar pursuant to FCR 046 r7A that the Registrar refuse to accept an application because it was an abuse of process was not a judgment from which an appeal lay. A similar conclusion was reached in Crokerv. Philips Electronics Australia Ltd ([2003] FCAFC 43; 13.3.2003). Bankruptcy - Whether defect in bankruptcy notice substantial In Marshall V. General Motors Acceptance Corp. ([2003] FCAFC 45; 18.3.2003) a Full Court concluded, by majority, that incorrect calculation of interest in a bankruptcy notice invalidated it. Migration - Privative clause decision - Decision of AAT In Vaitiaki v. MIMIA ([2003] FCA 114; 28.2.2003) Hely J concluded that if a decision of the AAT was affected by jurisdictional error it would not be made “under" the Migration Act and thus not be a privative clause decision within s474(2) of that Act. Migration - Jurisdictional error In SDAO v. MIMIA ([2003] FCA 132; 4.3.2003) von Doussa J concluded that two decisions of the RRT did not involve jurisdictional error for failure to take into account relevant Page 23 — April 2003 / NOTICEBOARD matters. He concluded that the elements or integers of the two claims were considered. He concluded thatjurisdictional error could have been established ifthe RRTfailed to ask itself the correct question or failed to take into account relevant considerations being claims justifying a well founded fear of persecution [18]. Appeals from Federal Magistrates’ Court dismissed. Migration - Jurisdictional error - Natural justice - Failure to adjourn hearing for illness In Applicant NAHF of 2002 v. MIMIA ([2003] FCA 140; 5.3.2003) Hely J concluded a decision ofthe RRT to adjourn a hearing on the ground of illness to a date when the illness still operated, and then conduct the hearing, constituted a breach of the rules of natural justice in relation to the applicant. Migration - Privative clause decision - Whether applicant mislead In NADZ v. MIMIA ([2003] FCA 118; 28.2.2003) Hely J concluded an applicant before the RRT was not mislead by correspondence from the RRT as was established in Muin v. RRT (2002) 76AUR 966. Migration Act - Visa cancellation - Misdescription of visa - Whether jurisdictional error In Schwart v. MIMIA ([2003] FCA 169; 7.3.2003) Selway J concluded a decision to cancel a visa constituted a jurisdictional error when the material placed before the Minister informed him he was cancelling a visa of a class otherthan that held by the applicant. Trade practices - Misleading and deceptive conduct - Similar product packaging In Cat Media P/L v. Opti-Helathcare P/L ([2003] FCA 133; 4.3.2003) Branson J considered whether two products were so similarly packaged that misleading and deceptive conduct had occurred. Trade practices - Defective goods - Injury - Pleading In Morris v. Alcon Laboratories (Aust.) P/L ([2003] FCA 151; 6.3.2003) RD Nicholson J considered what particulars were sufficient to plead injury consequent on defective goods within ss75AC, 75AD of Trade Practices Act. Veteran’s affairs - Entitlement - Civilian interned in Japan in WWII In Parnell-Schoneveld v. Repatriation Commission ([2003] FCA 153; 6.3.2003) Jacobson J considered the AAT did not err in rejecting a claim for compensation under the Compensation (Japanese Internment) Act 2001 on finding the internee was not domiciled in Australia immediately before the commencement of the interment. Courts - Contempt In ACCC v. World Netsafe P/L ([2003] FCA 159; 6.3.2003) Spender J considered whether Ord 37 r2 ofthe FCR was invalid and what was required to be proved to find a debtor was in contempt of Court orders to pay money. He further considered whether a Director was liable as an accessary to conduct of a company. Income tax - Assessment - Gambling income In Liu v. CofT([2003]FCA 124; 28.2.2003) Allsop J concluded the AAT had not erred in affirming assessments of income L Page 24 —April 2003 generated by the respondent in respect ofthe tax payer after his affairs were investigated by the NCA. Bankruptcy - Whether bankrupt may appeal making of sequestration order In Kellowv. Dudzinski ([2003] FCA 143; 3.3.2003) Spender J concluded a bankrupt was able to appeal against an order of the Federal Court making him a bankrupt. NOTICE From Philip Kellow, Deputy Registrar, Federal Court of Australia A precis of the Federal CourtAmendment Rules 2003 (No. 1) published in the Commonwealth Government Gazette on 24 March 2003 as Statutory Rule No 35 of 2003. The Amendment Rules commence on 24 March 2003. An official copy of the Amendment Rules is available on the internet from the ScalePlus site at http://scaleplus.law.gov.au/ home.htm. The Amendment Rules: • amend Orders 2 and 3 by omitting the rules in relation to the ‘fixed vacation’ and inserting a new Order 3 subrule 2(4A) which provides, inter alia, that in calculatingthe time fixed by these Rules or by an order fixing, extending or abridging time, the period from 24 Decemberto 14 January next following is excluded, unless the Court otherwise orders. • amend Order 7 rule 11 to allow the registry to serve a document by filing in situations where the document is sent by the Courtto a party’s proper address but is returned on the basis that the party is no longer residing or working at, or otherwise associated with, that address. Proper address for a person is the address for service ofthe person in the proceeding, or, if the person has no address for service when the document is left or posted, the person’s last know place of business or abode. • amend Order 11 rule IB to allow the legal representative’s certificate to be incorporated in the pleading being certified, and form 1 SB so that it identifies the pleading being certified; • amend Order 15 rule 2 to make it clearthat the factors set out in subrule 2 (5) may be taken into account by a party when making a reasonable search for the purposes of subrule 2 (3). • amend Order 28 rule 3 to make it clear that the factors in subrule 3(1) are not intended to circumscribe the broad discretionary power of the Court to make an order for security of costs under section 56 of the Act; • amend Order 37 by inserting a rule to allow the Court or a Judge to delegate to a registrar the power to issue writs of execution; • omit Order 55 as it is no longer necessary in light of amendments to the National Health Act 1955 • amend Orders 62 and 63 in relation to the requirement for payment into a Litigants’ Fund of an amount as security for NOTICEBOARD the costs of any taxation of a bill of costs, and the power of the registrarto direct the release ofthat money. As a result of the amendment to Orders 2 and 3, the Chief Justice has issued a revised version of Practice Note No 7. PRACTICE NOTE From Philip Kellow, Deputy Registrar, Federal Court of Australia Please find enclosed a copy of a revised version of Practice Note No 7 made by the Chief Justice on 24 March 2003. The new Practice Note reflects the changes made to Orders 2 and 3 of the Federal Court Rules by the Federal Court Amendment Rules 2003 (No. 1). Practice Note No 7 - THE LAW TERM Practice Note No 7 issued on 8 April 1994 is revoked and the following Practice Note No 7 is substituted. 1. The Law Term is the period beginning on the first Monday in February and ending on the last Friday before 23 December. 2. A matter will not be set down for hearing outside the Law Term, unless the Court otherwise orders. 3. To obtain a hearing outside the Law Term, a party must lodge with the Registry: (a) an affidavit, in addition to any other documentation thatthe Rules require to be filed, setting outthe reasons why a hearing is sought outside the Law Term; and (b) a d raft ofthe order sought for a hearing outside the Law Term. Mej Black, Chief Justice, Federal Court of Australia CORRESPONDENCE TO LSNT PRESIDENT From Theo Tsikouris, Acting Commissioner for Public Employment on 21 March 2003 Re: Inability and Disciplinary Appeal Board chairpersons As you are aware from time to time it is necessary for the Commissioner for Public Employment to convene an Inability or Disciplinary Appeal Board where an employee who is aggrieved by a Chief Executive Officer’s decision to take action underthe inability or disciplinary provisions ofthe PublicSector Employment and Management Act (the Act), has the right to appeal that decision. In accordance with Section 57(4) ofthe Act these Boards must be chaired by a person enrolled as a legal practitioner of the Supreme Court ofthe Northern Territory for a period of not less than 5 years. It has been brought to my attention that some ofthe people on the current list of potential Chairpersons are no longer available. I would appreciate it if you could canvas your members to identify any private legal practitioners who may be interested in being placed on the list of potential Chairpersons.lt is considered that persons serving as a Chairperson of these Boards are performing a community service and such duty is not forthe purpose offinancial gain. The Chairperson is paid a rate of $98 in respect of each hour spent on Board business. I have enclosed for your information the relevant sections of the Act and a booklet provided to Board members. PUBLICSECTOR EMPLOYMENT AND MANAGEMENTACT (a) summon a person whose evidence appears to be material to the appeal; (b) take evidence on oath and, forthat purpose, may administer an oath; and (c) require a person to produce documents or records in the person’s possession or under the person’s control which appear to be material to the appeal. (13) A person who, without reasonable excuse (and to whom, where the person is not an employee, payment or tender of reasonable expenses has been made), neglects or fails to attend in obedience to a summons under subsection (12) or to be sworn or make an affirmation, to answer relevant questions orto produce relevant documents when required to do so underthat subsection, is guilty of an offence. Penalty: $5,000. (14) Nothing in this section shall be construed as compelling a person to answer a question or produce a document that may tend to incriminate the person. (15) An Appeal Board mustfa) give its decisions and the reasons for its decisions in writing; and (b) cause copies ofthose decisions and reasons to be served on each of the parties. PART-TIME MEMBER OF THE AUSTRALIAN LAW REFORM COMMISSION From Daryl Williams, Federal AttorneyGeneral (7 April 2003) I am pleased to announce the appointment ofthe Honourable Justice Susan Kiefel as a part-time member ofthe Australian Law Reform Commission. Justice Kiefel has been a judge of the Federal Court of Australia since 1994 and, prior to that, a judge ofthe Supreme Court of Queensland. Justice Kiefel practised from 1975 as a barrister and was appointed as Queensland’s first female Queen’s Counsel in 1987. During her career, Justice Kiefel has also been a part-time hearing commissioner of the Human Rights and Equal Opportunity Commission and is currently a deputy president of the Federal Police Disciplinary Tribunal. I am delighted that Justice Kiefel has agreed to be appointed as a part-time ALRC Commissioner. Her appointment will ensure that the Commission benefits from her exceptional legal talents and breadth of experience. Justice Kiefel has been appointed for a term of three years. Page 25 —April 2003 COURT LIBRARY NOTES NT LEGISLATION Legislative changes in February 2003, notified in the NT Government Gazette New Regulations 1/2003 Legislative Assembly (Powers and Privileges) Regulations (12.2.03) 2/2003 Stock Diseases Regulations (12.2.03) 3/2003 Housing Assistance Schemes Regulations (12.2.03) 4/2003 Housing Assistance Schemes Regulations (12.2.03) 5/2003 Education (Board ofStudies) Regulations (12.2.03) Commencements 55/2002 Gaming Machine AmendmentAct (8.1.03) 56/2002 Gaming Control AmendmentAct (8.1.03) 66/2002 Swimming Pool Fencing Act (1.1.03) 67/2002 Swimming Pool Fencing (Consequential Amendments) Act (1.1.03) 68/2002 Tobacco Control Act (Ss.15-19,20-22,24-26 and 28 - 31.5.03, Rest - 1.1.03) 69/2002 Agents LicensingAmendment Act (ss.9,22 and 29-N/C, Rest-1.2.03) 70/2002 Associations Incorporations Amendment Act (15.1.03) 71/2002 Aerodromes Act Repeal Act (1.2.03) 76/2002 Liquor AmendmentAct (24.1.03) 59/2002 Tobacco Control Regulations (regs.9,19-22 - 31.5.03, Rest - 1.1.03) 60/2002 Nitmiluk (Katherine Gorge) National Park (Aircraft) By-Laws (1.1.03) 62/2002 Swimming Pool Fencing Regulations (1.1.03) Repealed 47/1992 20/1993 32/1993 3/1997 6/1983 45/1988 46/1990 64/1992 14/1994 45/1994 21/1996 1/1997 5/1999 legislation Tobacco Act 1992 - Repealed by 68/2002 Tobacco Amendment Act 1993 - Repealed by 68/2002 Aerodromes Act 1993 - Repealed by 71/ 2002 Aerodromes Amendment Act - Repealed by 71/2002 Jabiru Town Development (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Alice Springs (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Alice Springs (Private Swimming Pool) By-Laws Amendments - Repealed by Act 66/2002 Tobacco Regulations - Repealed by Act 68/ 2002 Part 2, Division 3 of the Darwin City Council By-Laws - Repealed by Act 66/2002 Aerodromes Regulations - Repealed by Act 71/2002 Palmerston (Private Swimming Pool) By-Laws - Repealed by Act 66/2002 Aerodromes Regulations - Repealed by Act 71/2002 Palmerston (Private Swimming Pools) By-laws Amendments - Repealed by Act 66/2002 l Page 26 — April 2003 RECENT ARTICLES Criminal law Bagaric, Mirko-Expanding criminal sanctions for corporate crimes-deprivation of right to work and cancellation of educational qualifications, Company and Securities Law Journal, Vol 21(1) 20037-25 7-25 Compensation Booth, Marie - Centrelink preclusion periods - interpreting the 50 per cent rule, Plaintiff, Vol 55 2003 pp: 42-44 Contracts law Seddon, Mark - Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Corporations law Anderson, Kylea - Demands on debtors to pay and creditors to comply, Law Institute Journal, Vol 77(1-2) 2003 pp: 34-37 Criminal law Douglas, Heather-Thedecriminalisation of domestic violence-examining the interaction between the criminal law and domestic violence, Criminal Law Journal, Vol 27(1) 203 pp: 32-43 Atchison, Bentley - DNA statistics can be misleading, Law Society Journal, Vol 41(1) 2003 pp: 68-70 Disabled persons Simpson, Jim - Guarded participation - alternative dispute resolution and people with disabilities, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 31-39 Domestic violence Douglas, Heather - The decriminalisation of domestic violence - examining the interaction between the criminal law and domestic violence, Criminal Law Journal, Vol 27(1) 203 pp: 32-43 Equity McConvill, James-The yoking of unjust enrichment and unconscionability in Australia, Deakin Law Review, Vol 7(2) 2002 pp: 225-260 Estoppel Seddon, Mark - Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Evidence Atchison, Bentley - DNA statistics can be misleading, Law Society Journal, Vol 41(1) 2003 pp: 68-70 Internet Wallace, Angela - Basic medical research on the Internetfor lawyers, Plaintiff, Vol 55 2003 pp: 24-27 Judgments Warner, Kate - The role of guidelinejudgments in the law and order debate in Australia, Criminal Law Journal, Vol 27(1) 203 pp: 8-22 Land law Park, MM-An Englishman looks at the Torrens systemanother look 50 years on, Australian Law Journal, Vol 77(2) 2003 pp: 117-125 COURT LIBRARY NOTES Legal costs Spencer, David - Costs sanctions against recalcitrant parties who frustrate mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 5-9 Legal professional privilege Crosbie, Fiona - Clients privilege is protected, Law Society Journal, Vol 41(1) 2003 pp: 59-61 Wilson, Tony- High Court preserves legal professional privilege, Brief, Vol 30(1) 2003 pp: 6-8 O’Connor, Rob - Legal professional privilege-the Daniels case and the Taxation Administration Bill 2001 (WA), Brief, Vol 30(1) 2003 pp: 10-11 Limitation periods Hill, Graham - Professional negligence and the limitation period, Law Institute Journal, Vol 77(1-2) 2003 pp: 43-45 Mediation Spencer, David - Costs sanctions against recalcitrant parties who frustrate mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 5-9 Serventy, Natasha -NLPfor mediators-linguistic and mental tools for improved communication, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 10-20 Simpson, Jim - Guarded participation - alternative dispute resolution and people with disabilities, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 31-39 Kayrooz, Carole-Barking dogs, noisy neighbours and broken fences-neighbourhood mediation, Australasian Dispute Resolution Journal, Vol 14(1) 2003 pp: 71-80 Medical law Freckelton, Ian - Complementary medicine and challenges to Western medical practice, Journal of Law and Medicine, Vol 10(3) 2003 pp: 257-259 Mendelson, Danuta - Natural death in 2003 - are we slipping backwards? Journal of Law and Medicine, Vol 10(3) 2003 pp: 260-264 Brohy, Elizabeth - Does a doctor have a duty to provide information and advice about complementary and alternative medicine? Journal of Law and Medicine, Vol 10(3) 2003 pp: 271-284 Parker, Malcolm - Chinese dragons ortoothless tiger? Regulating the professional competence oftraditional Chinese medicine practitioners, Journal of Law and Medicine, Vol 10(3) 2003 pp: 285-296 Weir, Michael - Obligation to advise of options fortreatmentmedical doctors and complementary and alternative medicine practitioners, Journal of Law and Medicine, Vol 10(3) 2003 pp: 296-307 Boston, TRO -A hospital’s non-delegable duty of care, Journal of Law and Medicine, Vol 10(3) 2003 pp: 364-374 Watson, Penelope-Consentto medical treatment, Plaintiff, Vol 55 2003 pp: 14-19 Wallace, Angela - Basic medical research on the Internet for lawyers, Plaintiff, Vol 55 2003 pp: 24-27 Negligence Agiannitopoulos, Dimitra - Duty of care-early hospital discharge and community health agencies, Plaintiff, Vol 55 2003 pp: 6-12 Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Heuzenroder, Henry-The High Court nervous shock-the classical and romantic, Bulletin, Vol 25(1) 2003 pp: 16-18 Parol evidence rule Seddon, Mark-Can contract trump estoppel? Australian Law Journal, Vol 77(2) 2003 pp: 126-136 Privacy Thomas, Steven - The national privacy principles celebrate their first anniversary, Bulletin, Vol 25(1) 2003 pp: 14-15 Professional negligence Hill, Graham - Professional negligence and the limitation period, Law Institute Journal, Vol 77(1-2) 2003 pp: 43-45 Public authorities Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Sentencing Warner, Kate - The role of guidelinejudgments in the law and order debate in Australia, Criminal Law Journal, Vol 27(1) 203 pp: 8-22 Lanham, David - Sentencing and prior cross-border convictions - admissibility and double criminality, Criminal Law Journal, Vol 27(1) 203 pp: 23-31 Statutory authorities Vogler, Ellen-Pedestrian liability-no duty to correct the obvious, Plaintiff, Vol 55 2003 pp: 45-47 Torts law Clark, Stuart - Tort reform take two, Law Society Journal, Vol 41(1) 2003 pp: 54-58 Victims of crime Victims of Crime Act 2001, Bulletin, Vol 25(1) 2003 pp: 20­ 21 Page 27 —April 2003 Getting a kick out of the AFL The 2003 LSNT AFL tipping competition has grown this season with 35 hopefuls signing up for the second year of the comp. Changes to the rules providing for a fairer scoring system (those who don’t tip now get awarded the lowest score tipped) and better promotion of the competition, encouraged a better "turn out" for the competition. And after round four of the season, last year’s winning tipster, Elizabeth Morris (Coroner’s Office), was sharing the lead in the competition with "newcomer" Graham Chandler (Dept of Chief Minister). Both were on 53 points. Elizabeth and Sarah Wilkie (Dept of Justice) both scored a classy 18 points in round one after they both tipped perfect fixtures (as in, they tipped all the winners!). The only other "perfect" round tipped so far in the competition has been by Sean Bowden (Sean Bowden and Associates) for round four. After round four Sean was one of four tipsters in second place. The others were Christopher Booth (Ward Keller), Katrina Budrikis (Dept of Justice) and Sally Sievers (Cridlands). They were all on 49 points. And in third place were Glenn Miller (NAALAS), Pipina Papazoglou (De Silva Hebron) and Daynor Trigg SM (all on 47 points). So it’s a close competition and at this stage up for grabs from anyone DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: lfonglim@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. 2003 CLE Program 21 May 18 Jun 30 Jul 20 Aug 12 Sep Family Law for First Years Bits & Pieces of Legislation Administrative Appeals Sentencing Act TBA Stuart Barr Ian Morris Justice Mansfield John Lowndes SM Jenny Blokland SM 22 Oct AustraAsia Railway Project -Challenges Overcome Alastair Shields 19 Nov TBA Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Unless otherwise notified, the CLE seminars are presented in Darwin at Cridlands’ boardroom, Smith Street (opposite the TIO). The Katherine venue is the Katherine Regional Tourist Association, cnrStuary Highway and Lindsay Street, the Alice venue is the Central Australian Division Primary Health Care on 54 Hartley Street. Bookings are essential.. CLE presentations are available on video (up until August 2002) or on CD (Sept 2002, Jan 2003, Feb 2003, Mar 2003) . Information handouts from the CLEs can be obtained from the Law Society Northern Territory. Ring Sonya on 89815104 for more information. /--------------------------------------------------------------------------------\ NORTHERN TERRITORY COUNCIL OF LAW REPORTING INC Assistant Editor-in-Chief EXPRESSIONS OF INTEREST The Northern Territory Council of Law Reporting Inc. publishes the NorthernTerritory Law Reports, through its Editor-in Chief. A new position has been created to assist the Editorin-Chief in the preparation of the reports. The Council is seeking expressions of interest for the position of Assistant Editor-in-Chief to provide assistance and support to the Editor-in-Chief. The position will provide the successful applicant with experience in all aspects of law reporting. Modest remuneration will be provided. Contact Jillian Eriksen at PLC Lawyers for more information. Tel: 8981 7273 Email: jillian.eriksen@plclawyers.com.au Submissions of expresssions of interest are requested on or by 30 May 2003. ________________________________________/ Page 28 — April 2003 o o LAW SOCIETY NORTHERN TERRITORY Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au May 2003 COLUMNS President’s Column................................................................... EXECUTIVE President: Mr Ian Morris Vice-President. Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill For the record.......... Advocacy.................. NT Women Lawyers, Jottings on the Bar.... COUNCILLORS Mr Stuart Barr Mr Glen Dooley Mr Michael Grove Mr Christopher Booth Ms Sue Oliver Mr Markus Spazzapan NOTEWORTHY Conferences............. Noticeboard............ Court Library Notes. NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whifelum Alice Springs Alternate Representative Ms Nardine ('oilier SECRETARIAT Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Sonya Ingham Administrative Assistant/Receptionist Felicity Lawrence Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should he forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. REGULARS Letters to the Editor....................................... The Muster Room.......................................... Readers Forum............................................... booty Tipping competition results................ CLE Calendar................................................ FEATURES David Hicks: response from the Federal A-G. Encouraging more pro bono work............... COVER STORY Law Week 2003: all the photos, all the fun.... ..3 ..6 ..7 ..8 13 .21 .22 26 .15 .19 .20 28 28 17 18 .9 Page 2 — May 2003 president's column Pllr2= Next year's premiums At the Opening of the Legal Year lunch I said that our brokers, Marsh, would be able to circulate a discussion paper by the end of April and we would circulate the paper in the profession and seek comments and suggestions. Events have taken all of that over (I will explain this below) and this article is intended to raise the issues that would have formed the discussion paper. Comments and suggestions will still be appreciated, and perhaps we might have a special page in Balance in the next edition to publish those of some interest. Since OLY we have been able to speak at length with Cheryl Richardson from Marsh and Adrian Gamble from QBE. Marsh have commissioned an actuarial report based on our claims experience that I have struggled to comprehend. The only bright spot is I have learnt a new word: stochastic, which I understand to mean “educated guess”. (It comes after “stoat” in my dictionary. This reminds me of the difference between a weasel and a stoat: one is weaselly.distinguished and the other is stoatally different: this is about as funny as this article gets!) We have also received some information on national developments and were able to use time in Melbourne when attending the Commonwealth Law Conference to speak to the Legal Practitioners Liability Committee (Vic) and Legal Practitioners Board (Vic) concerning their scheme. The alternatives that have been discussed to date and my comments in respect of them are: • Establish a mutual scheme. This means a scheme that partly relies on the contributions of members and partly on reinsurance. In effect the mutual represents an “excess” in which the profession meets a proportion of its own claims from its own funds and when an agreed amount per claim is exceeded, the re-insurance kicks in and meets the balance of the loss. Some of these schemes also have a further insurance that amounts to protection in case there are large numbers of claims that exhaust the funds of the mutual. This arrangement is called Stop Loss Insurance. The resort to this method is largely driven by the success of the LPLC scheme in handlingthe insurance crisis, but we should rememberthat this scheme has been in place for some years and has cost practitioners in Victoria a higher premium than we have had to pay over that time. In addition its survival has depended on aggressive and effective claims management, and they have a significantly higher number of practitioners from which contributions can be obtained. I understand the reduction in premium by virtue of this seed/ excess may not be as much as the cost of the seed in the first year, and whether it ever did would depend on the amount of the claims that were made. As each year needs to be self funding, the professions’ annual contribution to the seed would need to continue for some years, but with improved claims results a surplus of these funds may be allocated for future years resulting in reduced or waiving of contributions. A further cost for this scheme would be the cost of handling claims, and that would depend on the amount of claims. All in all, this will be an expensive procedure and success would depend largely on the number of claims made against it. I believe that the cost of premiums under this scheme will increase until the Ian Morris, president mutual shows itself capable of surviving without significant seed funding from the profession. There are also hidden costs in this procedure, not the least of which is the cost of bring the professions’ claim rate down. That will be the job of the Law Society and that means increases in the cost of practicing certificates. Having said that, I think this “hidden cost” will have to be borne anyway, and I deal with that aspect later. In order to establish such a scheme we would have to rely on their being “seed” money of some sort: either from a grant, possibly from moneys in the Fidelity Fund or from a levy on the profession. This would probably require legislative amendment. The sort of “seed” that we would need to make sure that we could pay all losses would probably be in the vicinity of $1.5m. If the “seed” had to be supplied from the profession there would have to be a levy of $ 1.5m ^ 250 (the number of practitioners) = $6000. That is the fund that would meet claims at first instance, and when the agreed excess ($50,000) was achieved, the reinsurance (say $50,000 each claim) was exhausted, the insurance would cut in. continued next paqe Page 3 — May 2003 i from previous page That means on top of the seed we would have to get insurance to allow for losses above the $50,000 excess on each claim. The best estimate that we have for the cost of the re-insurance would be around $6000. We would also have to get claim and Stop Loss Insurance for the fund so that it did not become exhausted by claims. Again, based on the actuarial report, and making some assumptions, the best estimate that we have for the cost of this insurance is around $2000, leaving a total of about $14,000 at present is around $6000 per practitioner. This leaves a total of $10,000 for the mutual and insurance plus, we think, an allowance of around $2000 for the administration of the mutual fund and cost of claims administration. In addition there would be stamp duty and GST which would add a further 20 percent to the total. The grand total per practitioner could be, and again I emphasise that this is an estimation only, $19,000 per practitioner per annum. I am unable to estimate how long a period practitioners would be required to contribute such a large amount to the “seed" fund and that would depend upon the amount of claims made and their effect upon the “seed" fund, but eventually one would hope that there would be a growing residual in the “seed" fund that would either act to reduce the level of contribution or obviate the necessity of contributions for some years and could be applied to the reduction in premiums. It is that expectation which has been experienced in fact in the insurance fund in Victoria. Finally, I understand that to date APRA has not chosen to regulate mutual funds. However those who watch the demise of the Medical Defence Union (UMP) (which was a mutual fund) and the criticisms that have arisen in the investigation of that demise would have noted that many commentators consider that Page 4 — May 2003 APRA ought to have been in control. Anecdotal evidence has suggested that mutual funds are in the sights of APRA and sooner or later will be regulated by it. Whatthat means is that minimum levels of capital will be required and that the capital that is retained by the mutual fund will have to be proportionate to the potential losses. That means that the surplus collections would not be so available for the reduction of premiums, and it is that reduction which makes mutual funds more attractive. APRA may also be reluctant to see a new (as opposed to an existing) “unregulated" Mutual Fund set up. • Statutory Fund. This is a slight variation on the Mutual Fund. The difference is that this scheme is entirely regulated by statute, as the name suggests, but the problems in funding the scheme are much the same. Such a scheme will require the same sort of seed but in this version it would be the Government that would provide and guarantee the “seed". This would require legislation, and it would also be unlikely that Government would fund such a scheme. However if that was to occur, it would have an impact on premiums and one would expect premiums to decrease. For instance, using figures that I have discussed above, the potential is that premiums would be about the same as they are this year. I would also expect that the grantor of the seed would expect to see improvements in the claims rate, and there may well be a requirement for the profession to contribute to the initial cost of the seed, but I would suppose that cost would be amortised over a period of time. Inherent in any mutual fund suggestion, of course, is a requirementthatthe residue of the unused “seed"fund is to be used to reduce premiums and part of that fund is the interest that would be earned on it whilst it is unused. If the funds are given to us then there might be some reticence in the grantor also giving the interest that they earned from funds whilst they are committed to be “seed" fund. Private arrangements. What this means is that the profession would be able to arrange its own insurance with whichever company it could find. There would be a minimum level of compulsory terms set out in either the LPA or the Regulations, and proof of the achievement of those terms would be required with the application for a practicing certificate. We already have some anecdotal evidence of Individual practitioners being unable to obtain insurance, some having tried to avoid the current high premiums. The short answer to “no policy" will be “no practicing certificate". That is a frightening thought for those who have no bargaining power in the insurance market, particularly the smaller firms. Join another scheme. This is an attractive option, and one that we have tried to achieve. Such a move would obviate the need to go through the difficulties in the first option of establishing our own mutual fund. Other schemes, of course, are provided for by legislation in their state of origin. This will necessitate reciprocal legislation to be passed with the scheme we “join” and that will take some time to achieve. It means that we will be able to preserve the pool that is needed to trade in the insurance market now, but it may not mean that there will be a reduction in premiums in the initial periods. Where those schemes rely on mutuals of one sort or anotherthere will be a buying in period of some sort, and probably differential premiums until there is a similarity in claims records. However the effectiveness of this step has been affected by the matters that I discuss below. • Maintain Current Arrangements. Whilst the premiums have certainly increased substantially this year, we must not forget that we have had the cheapest premiums in Australia for many years, and that it is the current market, and our own claims experience that has driven the premium upward. In our meeting with Marsh and the insurer, we accept that the only way to reduce premiums, no matter what option we take, is to reduce claims. With the support of the insurer, we are currently working with Marsh on development of an in house practice management programme whereby a firm’s procedures and practices are reviewed and evaluated and recommendations provided as to improvements that may result in attacking the underlying sources of many claims. It is expected that with the implementation of these measures that claims will start to reduce and the premium savings can flow back. Whilst direct insurance does leave us open to the market forces and increases we are seeing now, we are not isolated in this and most other states are experiencing similar increases even though they may already have mutual structures in place. We need to be careful that we don’t over react to a few years poor premiums and set ourselves up at great cost in a scheme that may not provide the longer term benefit we desire. What has happened since OLY? As I have pointed out above we have had the opportunity of meeting with our brokers, our current insurers and with the LPLC. In addition we have been provided with some further information from SCAG. The Attorneys General have been considering the introduction of a national scheme of insurance. It looks as if what will happen will be the introduction of a standard set of minimum terms for professional indemnity insurance and legislation enforcingthat standard will be copied in each of the States and Territories, in a manner similar to the old uniform Companies Acts. We are told that one of the minimum requirements will be one that permits the automatic exemption of a practitioner from a local scheme if that practitioner can provide evidence of insurance with one of the other state schemes. This means that the integrity of the pool in the Northern Territory cannot be protected. Firms in the Northern Territory that have offices in other States will be able to insure in those other States and will be able to therefore “premium” shop. Those firms in the smaller States that are unable to shop around in that fashion will be left with whatever premium is available in their home state. By way of example, we were told it has been suggested that regardless of the number of practitioners who would be capable of joining a local scheme, the minimum premium pool is likely to be $1 million and that cost would have to be shared by whatever number of practitioners remained in the local pool. For this year is easy to see that if a third of the practitioners in our pool that represent firms with offices in other states were to leave the pool then premiums would be a third more expensive than they are already. We understand that the manner in which this problem can be dealt with is to have Governments and insurers for the States and Territories to agree to a programme of re-insurance that would have the insurer in the State or Territory in which the firm chose to insure re-insuring the risk back to the state of residence of the practitioners and, in effect, collecting the same premium that those practitioners would have paid had they remained in their local scheme. Such a procedure would protect local schemes in smaller states and territories from the ravages I have discussed in the previous paragraph. Flowever this sort of re-insurance also means the joining of our scheme with the scheme of another State will become less practical. There are a number of difficulties with reciprocal legislation and differential premiums that I have averted to above that would make this option hard to achieve even without the prospect of the reinsurance scheme. Conclusions Although I have called this section “conclusions” I only intended that to mean the conclusions that I have come to rather than any concluded view of the Law Society. The purpose of this article is to circulate the various options available and comment upon them as a precursor to receiving comments from the profession so that the Law Society is able to come to a final view based upon all the information and views that it can gather together. I suppose I could have called the section “summary” but I think I would have had to announce the same caveat as I have earlier in this article. 1.1 The establishment of a mutual fund that is contributed to in full by local practitioners will be more expensive by about 40 percent of current premium for a period of some years. 1.2 The establishment of a mutual fund that is contributed to by sources other than local practitioners may reduce premiums depending upon the ability of the fund to use the residue of the fund from year to year and interest collected on the fund from year-to-year, but any such reduction would take some years to have effect. 1.3 The esta bI ishment of a statutory fund contributed to by sources other than local practitioners will have similar effect to 1.2 above, provided the residue of the statutory fund and interest earned upon the statutory fund can be applied to the benefit of practitioners in reducing premiums. 1.4 Although the prospect ofjoining another scheme is attractive, such a joiner will require policy agreement by Governments and substantial legislative change in both our own jurisdiction and the jurisdiction joined. continued next page Page 5 — May 2003 for the record From cricket to THE booklet Law Week 2003 had a number of highlights. The first was the cricket match on Sunday 11 May. It is clear to see why some people are legal practitioners (or maybe Ministers) rather than professional cricketers. Michael Grove also tried too hard to bowl a bouncer and ended up on crutches. Congratulations to the Chief Justices’ XI captained by his Honour Justice Dean Mildren and in particular the Most Valued Player Dick Wallace SM. A very pleasant social afternoon was enjoyed but the Chief Justice’s team needs to watch out - the LSNT President’s team is seeking revenge. It has been suggested a cricket match be held in Alice Springs later in the year. Law Week was launched in conjunction with his Honour Justice Riley’s Little Red Book Of Advocacy. I would commend this book to members. I only wish it had been available when I commenced my (mercifully short) court career. The Society has started a marketing campaign that should ensure its distribution Australia-wide. This is an important publication for the Society - our first foray into serious book publishing - and I believe it will be a popular, in much demand booklet. Included with this edition of Balance is a copy of the order form forthe booklet. Crime Tours were held at the Fannie Bay Gaol and around the Darwin area. As in the past, these proved to be a very popular event with the public and we thank Dr Bill Wilson for his time and effort in pulling the tours together and ably hosting them. Law Week lunches were held in Darwin and Alice Springs. Both were very successful and members greatly enjoyed the performances by Territorybased comedian Fiona O’Loughlin which were about her experiences in the Yorke Peninsula and as a mother of five in Alice Springs. And congratulations to Jenny Devlin and Jonathan Kneebone on their community awards. The Law Society NT’s Award for Community Service to lawyers or law firms recognises volunteer legal work for community groups. Both Jenny and Jonathan put a power of work into helping East Timorese families to stay in the Territory. They were nominated by the Portuguese and Timorese Social Club. The final chapter was the Supreme Court Open Day on Saturday 17 May. The mock trial went well though with some members of the public enjoying proceedings so much that it was felt they might fall over the edge of the Barbara Bradshaw, Chief Executive Officer, LSNT public gallery. Perhaps the witnesses could join Fiona on the comedy circuit if they ever got sick of life at the bar. We have already started analysing the events of Law Week with a view to providing an improved version for next year. Any comments orthoughts on new events would be appreciated. Our thanks go to the NT Bar Association for the Mock Trial at the Supreme Court Open Day and to the NT Young Lawyers Committee who provided the Small Claims workshop on the Day as well. I would also like to thank Nanette Hunter, Sam Wilcox, Wendy Morton, Ian Tranthem, Supreme Court staff, Parliament House staff and all Law Society staff who put in such an effort to make Law Week a success. See our “cover story” section for some of the more interesting pictures from the week.® PI1, from previous page The prospect of changes nationally can make this option difficult to achieve. 1.5 Because ofjurisdiction requirements in each of the schemes currently operating in the States and Territories is unlikely that a local practitioner will be able to obtain insurance in another State or Territory without having established an office in that State or Territory. 1.6 As a result of the matters discussed in 1.5 (above) if insurance in the Northern Territory becomes unaffordable because of the size of the pool the only recourse of local practitioners will be to go to the insurance market at large and in those circumstances it is doubtful that some of the practitioners will be able to obtain insurance at all. I hope that those that have managed to struggle through this rather doleful article will think about the problems and potential solutions to the insurance crisis and will send their suggestions in to assist the Council of the Law Society in their deliberations. Comments should be sent to the Secretariat. Page 6 — May 2003 advocacy The appeal "Appeal: in law, to put the dice in the box for another throw.” Ambrose Bierce Appellate advocacy is different from first instance advocacy. The most obvious difference is that this is not the first time the matter has been considered by a court. You do not start with a clean slate. Your appearance will be designed to persuade the appellate court that anothertribunal has erred in a way that needs to be corrected. Alternatively, if you appearforthe respondent, you will be seeking to persuade the appellate court that intervention is unnecessary. Commonly the appeal will focus upon the considered reasons of the another court recorded in a written judgment or the transcript of proceedings. The slate has been written upon, the water has been muddied, the course of the proceedings will be dictated by what has occurred below. As always, thorough preparation will be the key to successful advocacy in the appellate jurisdiction. It will be necessary for you to achieve a detailed familiarity with the facts of the case both as revealed in the judgment and as appears from the evidence presented to the tribunal at first instance. If you come to the proceedings for the first time at the appellate level an effective way of mastering the facts may be by the use of a chronology. The chronology should record all of the relevant facts and identify the location at which the supporting evidence can be found. Of course you will also need to have a familiarity with and understanding of the applicable law. Once you are familiar with the facts and the law it is prudent to revisit the grounds of appeal which, in many cases, will have been drawn in haste by another. The grounds of appeal are the first opportunity that you have to influence the course of the appeal and to commence to persuade the court. All too often the grounds of appeal which appear in the Appeal Book and have been the basis of all pre-hearing consideration of the matter by the members of the appellate court, will not be the grounds to be argued. At the commencement of the appeal counsel will indicate to the court that certain identified grounds are not to be pursued and certain other grounds are to be added. The effect of such an announcement is to tell the court that whatever preparation has been undertaken based upon the abandoned grounds has been a waste of time. It is therefore prudent to ensure at an early time that the grounds of appeal reflect the argument to be presented. It is desirable that the grounds of appeal are set out in a logical order and, where there are numerous grounds dealing with the one topic, those grounds are grouped in a convenient way. It is unnecessary and unproductive to state the same ground of appeal in numerous different ways. Similarly it is unwise to include every possible ground of appeal no matter how weak. Be selective. Only pursue the grounds that have real merit. A ground of appeal when pleaded should make clear the cause of the complaint. The reader should be aware of the precise nature of the problem. Your next opportunity to persuade will be in the written argument or outline of argument presented in accordance with the rules of the court. I have previously discussed this issue and will not repeat what I there said except to emphasise the importance of recognising and taking full advantage of the opportunity to persuade that arises. Hon Justice Riley Included in the written material to be placed before the court will be your list of authorities. That list should be limited to the leading authorities. There need only be reference to other cases if there is some compelling reason for so doing. So far as is possible references should be to the authorised reports and should include the page or paragraph numbers to which attention is to be drawn. It is of little help to refer simply to the Tasmanian Dams case or, indeed, any substantial case without directing attention to the relevant part of that case. Save for exceptional circumstances it is likely that you will limit your list of authorities to those of Australian Courts. This will be especially so where the appeal is to be heard in the intermediate courts. Whilst a novel point may call for a consideration of the position beyond Australia this will not be common in the intermediate courts. In the High Court there is clearly greater scope for reference to what is happening in otherjurisdictions and in particular in England, the United States, Canada and New Zealand. In preparingfor an appeal you maywish to commence with what one of Australia’s leading appellate advocates, Mr D F Jackson QC, calls the “basic approach”. continued next page Page 7 — May 2003 i it women lawyers association A great time to join the Women Lawyers Advocacy, from previous page He described this as follows: There is no special mystery about appeals. As in any litigation the secret ofsuccess is to know what you are doing, and why. In appeals that manifests itself in three broad issues. They are: (a) What aspect of the judgment below is being attacked? (b) Why is it said to be wrong? (c) What is the consequence if it is wrong?1 Again you will develop a case strategy and the presentation of the argument will at all times be informed by reference to that strategy. As part of the strategy you will consider what is and is not to be argued, the order in which it is to be presented and the most persuasive method of presentation. In addressing these issues in preparing for your oral presentation in court you should bear in mind that the court will have received and considered your written submissions. There is no point in rereading those to the court. There is no point in presentingthe same argument in exactly the same way as appears in the written material. To do so is to waste an opportunity. Afresh approach consistent with your written submission is called for. As part of your preparation you should anticipate the questions that are likely to come from the Bench. Such questions are likely to flag significant concerns held by the questioner and, if persuasively answered, can be decisive of the outcome of the appeal. You should therefore anticipate such questions and, when the question is asked, if possible, address it immediately. If you can not do so without laying some ground work then let the court know that you will answer the question and the method by which you propose to do so. Providing an answer to the question should be a priority. 1 Appellate Advocacy D F Jackson QC (1991-1992) Vol 8 Aust Bar Rev 245 The Dry season has arrived and Darwin is the most pleasant place to be whilst our southern counterparts are freezing. It’s also one of the busiest times of the year, and most of us have many social occasions to attend. I understand that we are all busy and have many facets to our lives, but we need your support. The Quiz Night was successful, though it was a shame to see such little support from legal firms in Darwin, most of the attendees are friends and family, and I thankthem all very much for attending. The prizes were great. A big thank you to the Fannie Bay Shopping Centre for the wonderful basket of goodies, Centrebet for a voucher. A big thank you to friends who helped with the questions. Our thanks also to all those who attended the Patrons Drinks on the Supreme Court Balcony. It was a great chance to mingle and look out at the wonderful view of Darwin from the balcony. Judge Thomas very kindly sponsors this event herself, and we thank her for patronage. MEMBERSHIPS EXPIRE ON 30 JUNE 2003. IT IS ONLY $35.00 MEMBERSHIP FORMS WILL BE ON HAND AT THE PATRONS DRINKS. THEY CAN ALSO BE OBTAINED FROM ME OR FRIEDA EVANS, SUPREME COURT LIBRARY. AUSTRALIAN WOMEN LAWYERS I attended the Australian Women Lawyers Board Meeting (AWL) on Sunday 13 April 2003. Sandra Robinson, president, NTWL It was a marathon event, starting at 9am and finishing at 4.30pm. I will publish the budget and the minutes of this meeting when they are finalized. It was great to catch up with these women who are really committed to raising awareness of women’s issues in the law. INDIGENOUS READERS COURSE AWL is sponsoring an Indigenous Readers Course for the Bar. This is in conjunction with the University of New South Wales. All of the graduates currently involved in this program are men. We would really like to see a woman enter the course. If there are any indigenous lawyers out there who are interested in going to the Bar and would like to find out more about the Course, please contact me on 8981 3133. THOUGHT FOR THE MONTH MUST BECOME MEMBER OF NT WOMEN LAWYERS! MUST RENEW MEMBERSHIP OF NT WOMEN LAWYERS! Page 8 — May 2003 cover story Law Week 2003: Launch and AdvocacyBooklet Justice Trevor Riley's Little Red Book of Advocacy launch was the key event for the overall launch of Law Week 2003. The booklet has been a labour of love for the judge and is a compilation of his Advocacy articles from Balance. It takes in the years 1999 to 2002 and is a valuable tool for any legal practitioner, both experienced orjust starting out. LSNT President Ian Morris quipped: “You’d be mad NOT to have the booklet on your table when appearing before his Honour". Also a feature of the booklet - some special (and at times quite cutting) cartoons by local graphic artist Chips Mackinolty. The booklet is available through the Law Society NT (see order form with this edition of Balance) but interested buyers are warned - the “red book" has been given a limited print run so you need to get your order in NOW! Photos (clockwise from above): Northern Territory Attorney-General Peter Toyne launches the booklet and Law Week 2003. His Honour Justice Riley (seated right) and Chips Mackinolty sign copies at the launch. LSNT President Ian Morris speaking at the launch, which was held at the Supreme Court of the Northern Territory. Justice Riley and his unashamed fan club - wife Jan (right) and daughter Jennifer (left). Page 9 — May 2003 cover story LawWeek 2003: Chief Justice’s XI vs LSNT President’s XI The legal profession proved its mettle with the willow at the inaugural Law Week cricket match between the Chief Justice’s XI and the Law Society NT President’s XL There were some starring moments (Magistrate Dick Wallace was awarded Most Valuable Player, taking 4/8 off two overs and scoring 1/12 with the bat) and there were some bloody awful moments (see Muster Room, page 19). But all-in-all it was a super match and a great day. The match has, of course, been played in the past but this was the first time in many years it had featured and the Society is determined to make it a permanent fixture in the Law Week calendar. The Chief Justice’s XI won the No Appeals trophy. They were captained by Justice Dean Mildrenand included: Daniel Garton, Rex Wild QC, Ben Wild, Justice Trevor Riley, Master Terry Coulehan, Jessica Bates, Roberta McMurtrie, Duncan Maclean, Chris Rowe, Jennifer Laurence and magistrates Daynor Trigg, Vince Luppino and Dick Wallace. The President’s XI were captained by LSNT president Ian Morris and included: Bill Piper, Michael Davis, Glen Dooley, Bill Priestley, Tanya Fong Lim, Cathy Spurr, Attorney-General Peter Toyne, Sandra Robinson, Megan Lennie, Michael Grant, Alan Woodcock, John Munn and Michael Grove. Umpires were non-legal-types (for good reason!) led by NT Cricket Association director Neville Jones with David Boyd and Chips Mackinolty. Scorer was the Palmerston Cricket Club president Neil Dibbs. Photos (clockwise from above right): Everyone’s a winner! Both teams put their rivalries aside for a group photo. Tensions in the Morris camp as they watch their batspeople fall. Victory forthe Chief Justice’s XI. The Chief Justice Brian Martin (left) presenting the trophy to..-welllll_his team captain, Justice Dean Mildren! cover story LawWeek 2003: Lunches It may sound cliched but Alice Springs funny lady Fiona O’Loughlin DID have ‘em rolling in the aisles at both Law Week lunches for the profession. The Alice Springs lunch was an “intimate” affair with a small but keen crowd getting into the celebration mood while the Darwin lunch was booked out with the Parliament House venue quaking with laughter as Fiona did her stuff. Also at the Darwin lunch was the presentation of the biennial Law Society Award for Contribution to the Community which acknowledges pro bono work by an individual orfirm for a community organisation (see For the Record, page 6). Photos (clockwise from above): Laughing it up at the Darwin lunch. Nanette Hunter (left) wins the door prize in Darwin - a trip for two to Cairns donated by Qantas. Presentingthe prize is Qantas’ Nicola Haynes (right). Fiona O’Loughlin on stage in Darwin. Fiona and “friends” hamming it up in Alice Springs. LSNT vice president Merran Short presents NT Legal Aid’s Jonathan Kneebone with the award for Contribution to the Community. i Page! 1— May 2003 cover story LawWeek 2003: Crime Tours, Info Display, Supreme CourtOpenDay It’s never a dull moment during Law Week, with plenty of activities on offer for both the public and the profession. Photos (clockwise from above left): There were plenty of bookings for the bus Crime Tours around Darwin, each night was booked out. Crime Tour host Bill Wilson from the NTU. (Standing) Suzan Cox goes through her case in the Mock Trial at the Supreme Court Open Day. Tony Buckland presenting the NT Young Lawyers’ Small Claims Workshop at the Open Day. Interested visitors to the information stall which included Neighbourhood Watch and the Office of Crime Prevention. nt bar association - jottings on the bar NTBA applies for membership of Law Council The Northern Territory Bar Association has recently applied to become a member of the Law Council of Australia. Our application follows a similar application by the Western Australian Bar Association. Both applications have been referred to a special committee of the Law Council for consideration. The Law Council was formed in 1933 as the peak national body representing the legal profession. The Northern Territory Law Society is currently a member, as are the Law Societies of each State and Territory. Amongthe Bar Associations, those of New South Wales, Victoria and Queensland are all members, as is the Bar Association of the Australian Capital Territory. The latter is somewhat different to the others in that the Australian Capital Territory’s legal profession is a fused profession and the Bar in the ACT is a relatively small Bar, certainly by comparison to the larger Bars of the eastern States. In these respects the ACT Bar is similar to the NT Bar. On the other hand, whilst the WA Bar operates within a fused legal profession, it is much largerthan both the ACT and NT Bars. At this stage neither the South Australian Bar Association nor the Tasmanian Bar has applied for membership. The NTBA will await with interest the outcome of its application. Queensland Bar Centenary The Queensland Bar Association is 100 years old in October this year. It follows Victoria (2002) and New South Wales (2001) in celebrating its centenary. Of course, there were barristers practising in each of these jurisdictions for some time before a Bar Association was formed there. Nonetheless this history of the Bars in Australia is short by comparison to our UK and Irish counterparts. Whilst the Bar Council of England and Wales was not established until 1894, the present day equivalent of barristers first took over the Inner and Middle Temples from the Order of Knights Templar in the late 13th and early 14th century. In Scotland, the Faculty of Advocates, which is the equivalent of the Scottish Bar Association, dates back to 1532, when the College of Justice was established by an Act of the Scottish Parliament. In Ireland, the Honorable Society of Kings Inn, which is the governing body of the Bar of Ireland, was established in 1541 when a lease was granted by Henry VIII for the use of Blackfriars monastery. (This information has been obtained from the websites of each of these bodies.) QBA Centenary Conference in Cairns To mark its centenary, the Queensland Bar Association held the first stage of its Centenary Conference in Cairns over the Anzac day long weekend. The theme of the conference was “A New Century of Rights”. The conference was addressed by a large number of eminent speakers from Australia and overseas. They included Justice Callinan of the High Court, Lord Cullen, who is the equivalent of the Chief Justice of Scotland, Justice Gault, who is the President of the Court of Appeal of New Zealand, Justice De Jersey, the Chief Justice of Queensland, Sir Gerard Brennan, Mr Matthias Kelly QC, the Chairman of the Bar Council of England and Wales and Mr van der Linde, the Chairman of the General Council of the Bar of South Africa. It is not possible to summarise all of the papers that were presented (approximately a dozen) in this short column. John Reeves QC, President of the NT Bar Association However, the following are some points of interest made by some of the speakers (in no particular order): • Chief Justice De Jersey questioned whether ADR (alternative dispute resolution) had become so successful in Queensland that it may soon deprive the courts of the stock of disputes and, therefore, the decisions that are essential to the development of the common law system. • In an address entitled: “From the Celebrated Snail to the Good Samaritan”, Lord Cullen noted that the Northern Territory is unique in Australia; and in most common law countries; in designating as a crime, callously failingto rescue or provide help to a person urgently in need of it. See section 155 of the Criminal Code Act. • Mr van der Linde gave a disturbing account of attacks on individual members of the judiciary e.g. intimidating arrests in their chambers; and erosions to the rule of law e.g. governments refusing to abide by, or enforce, court orders; occurring across the African continent, including in the countries of Zimbabwe and Swaziland. continued next page Page 13 — May 2003 Jottings on the Bar, from previous page • Mr Matt Kelly QC informed the conference that the government in England was considering reforms to the rule against doublejeopardy in the criminal justice system to allow the Court of Appeal to order a retrial in relation to approximately 30 prescribed crimes. On an entirely different subject, he also informed the conference that the Office of Fair Trading in England had recommended the abolition of legal professional privilege because it was claimed to give lawyers an unfair competitive advantage vis a vis accountants. • Justice Callinan delivered the keynote address - “For and Against Constitutional Rights”. His Flonour noted that with a detailed Bill of Rights entrenched in its Constitution, the US legal system did not prevent the McCarthy era occurring in the US yet, at about the same time, the High Court in Australia was able to rely upon the Australian Constitution to strike down the Communist Party Dissolution Act 1950. See Australian Communist Party v Commonwealth (1951) 83 CLR 1. • Looking to the next century, Sir Gerard Brennan predicted that most of the advice work presently undertaken by lawyers may be dealt with by software programmes designed by legal software engineers. Whilst this would remove many of the simpler cases from the courts, many emerging areas of law involving complex issues of legal principle and morality will confront lawyers and the court system over the next century. The second stage of the QBA Centenary Conference is to be held at Noosa in mid November 2003. If that stage is as interesting and well organized as this first stage, it will be well worth attending. 1 L Page 14 — May 2003 / \ New Qantas Domestic Fare Structure Law Society NT members are invited to attend a presentation outlining changes to Qantas domestic fares with effect from 1 July. The presentation will be of particular interest to business managers, travel officers and frequent travellers DATE: Tuesday 17 June PLACE: LSNT office, 11th floor NT House TIME: from 5pm RSVP: Felicity, 89815104 If }ou can’t attend but would like more information, please contact Nicola Haynes on 08 89823386 or email: nhaynes@qantas.com.au THE AUSTRALIAN AIRLINE ! 'N Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a volunteer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Co-ordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton A McMinn Sts SAT - 10am-11.45am, Casuarina Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 till or email darlene@dcls.org.au letters to the editor - gpo box 2388, dwn nt 0801 Court figures report needs clarifying Letter from Chief Justice Brian Martin Just a few thoughts on your report concerning the Territory Superior Courts published in the February edition of Balance. I was unable to respond earlier because the complete statistics generated by the Office of Court Administration as the foundation for the Report on Government Services 2003 was not available to me until quite recently. Lest the report be seen as a valid basis for criticism of the work of the members of the Supreme Court the following might be taken into consideration: • The report was not directed to the Supreme Court of the Northern Territory alone. It included the Federal Court of Australia's work in the Territory. But, excluding that factor it cannot be said that the figures for the Supreme Court are materially altered. • The report itself expressly recognises that performance comparisons between the courts in the various jurisdictions on the basis of the published statistics is not valid. It makes the obvious pointthat unlike otherjurisdictions, Tasmania, the ACT and Northern Territory do not have intermediate courts. I note that the Supreme Courts of those three jurisdictions are at the bottom end of the table of nonappeal civil matters finalised in the reporting year. Obviously the criminal jurisdiction of those courts has a significant impact upon the time it takes to deal with matters. This Court bears a heavy burden of criminal work which has traditionally been given priority by way of allocation of sitting time. Reducing time devoted to crime would enable increased time to be made available in the civil jurisdiction, but then the figures would be skewed in the other direction. • The appellate jurisdictions of the Northern Territory Supreme Courts are well up the table. Given the small number of Judges available is it suggested we should cut back on the number of appeal sittings each year, which utilise at least three Judges on each occasion, and redirect those judicial resources to the hearing of civil cases at first instance. The published figures are for all non-appeal civil matters finalised in the period. It includes all matters, notjust those which are defended. There are a significant number of cases which simply sit in registry without any action for a long time. They are included in the figures. They have nothing to do with court performance. Prompt action by practitioners in “finalising” noncontentious actions would lead to a significant apparent improvement in the court’s performance. Another way to make the figures look better would involve increasing judicial case management directed to recently initiated actions and reducing efforts in relation to older matters. By this and other means it would be fairly easy for the court to make itself look better but, at a cost to some litigants. The figures are significantly defective in that I am told they do not include matters dealt with on appeal from the Court of Summary Jurisdiction, Local Court and Work Health Court. Nor do they include the work undertaken by the Motor Accidents Appeals Tribunal constituted by a Judge. They absorb a significant amount of time both in hearing and often in preparation of reasons for judgment, but are normally dealt with expeditiously. Matters in the Tribunal sometimes take a while to be completed due to the issues involved. Nevertheless, I am satisfied that if those matters were all included, then the percentage of matters finalised within 12 months would be significantly increased. That is but another example of how the statistics can be misleading if they are supposed to reflect upon the performance of the Court. I regret that I am notable to provide details in respect of the numbers of those cases and the length of time it takes to finalise them as they have not been able to be supplied by the Office of Courts Administration. • The number of actions, civil and criminal, which can be finalised in a given period depends upon the judicial time available to devote to hearing cases. That time is significantly reduced by a well known factor which rests in the hands of the parties and the profession. It is notorious that many defended cases resolve by settlement or change of plea at a time when it is not possible, so we are told, to substitute backup trials. The court continues its endeavours to keep matters moving through case management both in its civil and criminal jurisdictions. Ultimately, however, the speed with which matters can be finalised depends upon the response of the parties which, to a large degree, is in the hands of the profession. Another letter next page... Our letters/responses policy We welcome your views and responses to issues in Balance. Send a Letter to the Editor, to be considered for publication in our print and online editions. Letters must be short and may be edited by Balance. No letter will be published unless it includes a name and full contact details (for verification purposes). Balance may license third parties to reproduce such letters. Letters with pen names will generally not be considered for publication. Page 15 — May 2003 letters to the editor - gpo box 2388, dwn nt 0801 More about Dick Ward Solicitor-General Tom Pauling QC fondly remembers a legendary Territorian Richard Keller's reminiscences (Balance, April 2003) about the late Dick Ward prompted a small flood of memories. Dick was a keen thespian in his early days, loved reading, was politically very much to the left and a superb lawyer. His reputation was so formidable that the Editor of the Federal Law Reports in the first of my cases to be reported refused to believe that Dick was on the losing side and so put him down as counsel forthe winningshipowner much to my chagrin. (Burns Philip & Co Ltd v The Ship M.V. “Golden Swan” 17 FLR 5). After his surprise electoral defeat Dick returned to the law and managed to write accurate and pithy advices while giving the odd hour or two to Ward Keller. The Legislative Council took a great deal of his time and many an after work discussion was held with Dick over expensive scotch at tax free prices in the Legco Members bar. He introduced me to a deal of leftist writings. The one that sticks in my mind is Alan Ashbolt’s An American Experience which was a stark critique of capitalism. We discussed Shakespeare, Kenneth Slessor, Banjo Patterson and Henry Lawson. His judicial appointment preceded the independent bar which Maurice and I commenced on 1 October 1974 but a condition of his appointment as silk (as with Ian Barker) was that he practice independently of any firm. He was in fact appointed to the bench on 27 September 1974. He died on 24 November 1977. A special sitting to mark his passing was held on 28 November and is reported in 16 ALR. In 1972 during a “session” in the Legco bar Dick persuaded me that it would be undemocratic for Joe Fisher to be reelected unopposed in the seat of Fannie Bay. /---------------------------------------------------------------------------------------------------------- -------------------^----------------------------------------A J WANTED: Your nominated email address ] ■ Bulletins to the profession - CLE Seminars - Events & Functions i Above: Tom Pauling QC “plays" Dick Ward at the 30th anniversary of the NT Legislative Assembly. He produced a nomination form which he had me fill in. The names of the nominees for my brief tilt at politics was like a roll call of that bar. Dick, Tiger Brennan, Ron Withnall, “Jingle” Bell etc. But that’s another story. He was persuasive Dick I assure you. It was with special pleasure that I was asked to take on his persona to commemorate the 30th anniversary of the first sitting of a fully elected Council and I was given a particularly fiery speech to deliver giving it to the Mandarins in Canberra. RCW (as Richard Keller describes him) was a great Territorian.® Do you want to be informed by the Law Society via email? If so, please provide an all-purpose email address for your firm. Fill out this form NAME OF FIRM:___________________ EMAIL ADDRESS:__________________ SIGNATURE OF AUTHORISED PERSON: V____________________________________________________________________________________________________ / L Page 16 — May 2003 The David Hicks saga -the Federal A-G responds to LSNT In January this year, at the request of LSNT member and former councillor Diana Elliott, the Law Society NT wrote to the Federal Attorney-General and the President of the United States of America expressing its concern about the continued detention of Australian citizens David Hicks and Mamdouh Habib. In his letter, LSNT president Ian Morris said the detention was of great concern because the two men were “without access to independent legal representation and without judicial review of their detention”. Mr Morris said: “It is understood that both these Australian citizens are being held under the Presidential Military Order dealing with Detention, Treatment and Trial of Non-US Citizens in the War Against Terrorism and that this Order allows for foreigners listed as terrorists, apparently detained while fighting or being involved in fighting in Afghanistan, to be held for an indefinite period.” Referring to the length of time Mr Hicks had been detained, Mr Morris said: “Our Society believes that during this lengthy period of time sufficient information would have been gathered to determine if a prosecution could be mounted under US Law and the US Government should indicate a date for that decision and permit Mr Hicks’ access to legal advice. It is not known what interview process has been conducted in regards to Mr Habib. “While the Society appreciates that there may be consideration in relation to national security there are some basic entitlements that both men as Australian citizens should continue to enjoy: 1. They are entitled to a presumption of innocence and application of the principles of legality and human rights. 2. Neither should be held indefinitely without charge. 3. Reasonable efforts should be taken to clarify their status, determine the threat to security they mayor may not pose. That process should not be indefinite and a time limit must be set for that assessment. 4. Allow judicial review of the continued detention and any trial process or orders; and 5. Orderthe release of the men if they are not charged or acquitted after trial.” In his reply to Mr Morris and the LSNT, Federal Attorney-General Daryl Williams says criticism that Australia is taking too long to carryout its investigations “are unfounded”. He says: “Neither Australia nor the US is yet in a position to commence a prosecution of Mr Hicks or Mr Habib. We are in contact with the US and both governments are cooperating to ensure that the investigations and any potential prosecutions are conducted effectively. However, given the unique circumstances, this may take some time. “Our concern is that the detainees be treated humanely. The US has indicated that detainees are having three culturally appropriate meals a day, have daily opportunities to shower, and have access to medical attention. In addition, a representative of the International Committee of the Red Cross has access to the detainees for the purposes of independently assessingtheir health and wellbeing.” Mr Williams adds: “Australian law Above: Australian detainee in the US, David Hicks at age 23. enforcement and intelligence agencies have visited Mr Hicks and Mr Habib during the course of their detention. Officers have consistently reported that both men are in good health and are being well treated. “The question of access to all non-US nationals detained at the US military facility in Cuba rests with US authorities who have made it clear to the Government that access to Mr Hicks and Mr Habib will only be granted for the purpose of investigations into their activities. The issue of appropriate access to legal representation has been raised with the US. That issue remains to be resolved.”® Judgments at your fingertips Melbourne QC Peter Faris has set up a website The site provides an email service for decisions of the various courts around the country and is free to anyone who subscribes. Among it’s links include the House of Lords (UK), courts of which maybe useful for those in the legal world. appeal, the Federal Court, the High Court, as well as state and territory upper courts. The website is supported by BarNet and it’s address is www.farislaw.com.au ® Page 17 — May 2003 Encouraging more Pro Bono Since the National Pro Bono Resource Centre (NPBRC) was launched by Attorney General Daryl Williams on 15 August 2002, it has moved to its own premises at the University of New South Wales in Sydney, appointed permanent staff and attracted a number of project workers to assist with its ambitious program. As reported earlier in Balance, the Centre’s Director is Gordon Renouf, well known in the Territory for his work with Darwin Community Legal Service and the North Australian Aboriginal Legal Aid Service. Established by the Public Interest Advocacy Centre (PIAC) and partner organisations, NPBRC’s brief, simply stated, is to promote high quality pro bono legal services across Australia by supporting the pro bono activities of firms and individual practitioners. To do this, the Centre has started to develop a range of resources to support lawyers and law firms and will work with the profession and the community sector to match services with the clients and groups most in need of assistance. It is well into its ongoing program of consultation in each State and Territory and has started ' INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders work on a number of projects producing information and advice to legal practitioners, community and government based legal services and community organisations. Of the dozen current Centre projects the most immediate is production of a Pro Bono Good Practice Guide and Resource Kit, an invaluable resource for firms establishing or upgrading their pro bono programs. The Centre is simultaneously undertaking projects designed to extend pro bono services in rural and regional communities and for the benefit of Indigenous clients and communities. A key means of achieving the Centre’s aims is to encourage the development of partnerships between community organisations, including community based legal organisations, and lawyers offering pro bono services. The Centre also works to address barriers to pro bono. It has, for example, developed a draft protocol for adoption by government agencies to overcome the fear of loss Tax time: of work that may deter firms from undertakingsome pro bono case work. NPBRC will present the Second National Pro Bono Conference in Sydney on 20-21 October. With workshops and sessions for current and potential pro bono lawyers, the Conference will be an opportunity to learn from initiatives in Australia and from overseas jurisdictions - including South Africa and South American countries, the USA and UK. The NPBRC has set up its website www.nationalprobono.org.au which is becoming a major resource for information and research on pro bono, nationally and internationally. It produced its first eNewsletter National Pro Bono News in March 2003 and will publish an eNewsletter every two months. Interested persons are invited to subscribe to National Pro Bono News by contacting the Centre or via the website at: www.nationalprobono.org.au/ publications/index.html ® organised! Local Missing Persons Debt Collection N?&utback ^ BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemai Lnet.au www.outbackbusiness.com.au Member of Institute of Mercantile Agents Ltd \bal010602 Page 18 — May 2003 The end of the financial year is here again, which means it’s time to start thinking about getting your tax return organised. To help you with your return, the Tax Office has produced a publication specifically for lawyers. This booklet includes informaiton lawyers need to know when claiming workrelated expenses. It also contains other useful tips to help complete your tax return, and ensure you claim all your entitlements. As a lawyer, you may be able to claim as deductions the cost of renewing your practising certificate, supreme court library fees, the costs ofjournals and more. For further information, get a hold of Occupational Ruling Summary - Lawyers from late June from the Australian Tax Office. Copies of occupational ruling can be downloaded from the website: www.ato.gov.au or paper copies can be ordered by calling the ATO’s publication distribution service on 1300 720092. Details can be also found in TaxPack 2003.® Dennis Lillee he ain’t It was a lovely coming together of the judiciary, the lawyers and other legal types (and their supporters). The Chief Justice’s XI vs the LSNT President’s XI during Law Week saw a valiant effort with the willow from both sides. Proving himself a keen sportsman was none other than the Attorney Peter Toyne who padded up for the LSNT President’s side. But his enthusiasm was maybe the best thing he had goingfor him atthe match as he ended up making four runs (by getting out four times) and bowled seven wides in an over. Mind you, some of the other players (on both sides) weren’t much better. Sandra Robinson made no runs and Duncan Maclean wasn’t any better at the bat. Still, it was a day to have fun (try telling that to SOME of the players though!). And in the end, it was a great day for a solid game of cricket among mates. By the way, the Chief Justice’s team won the day and took home the No Appeals trophy. Also from the match Justice Riley was bowled by Judicial Registrar Tanya Fong Lim; some of the women players resorted to “doing a Trevor” (Chappell); and most pathetically, Michael Grove did his leg A guide from the CSA The Child Support Agency has a new product. The Guide aims to make information about legal and policy issues more accessible to the public. The new online resource replaces all CSA’s policy guidelines, determinations and rulings that were previously on the CSA website. The Guide is a comprehensive, up-to-date, guide to all technical matters about child support. Hyper text links provide easy navigation to the information you are looking for. The Guide is intended to be used by CSA staff, clients and legal practitioners. It is available on CSA’s web site www.csa.gov.au. in within the first half hour. The limping was a terrible sight! Actually, poor Michael was hurt pretty bad - he was even spotted sporting a crutch a week later! Muster Room reckons you can be as fit as you like (as Michael is), it still doesn’t stop you from getting hurt in sport! Laughing Morrie Guest speaker at the Law Week lunches was comedienne Fiona O’Loughlin and she had 'em rolling in the aisles (see the photos in the cover story). LSNT President Ian Morris scored his own humour goal at the Alice Springs lunch which was an intimate affair. When Fiona said: “Dentists have the highest suicide rate, accountants have the highest divorce rate and what do lawyers have?” Morrie answered: “The highest hourly rate”. And it wasn’t even a set-up. Movers and Shakers Congratulations to the following recently admitted: Nicholas Richard Espie, Annette Clare Templeton, Jonathon Henry Stephen Kneebone, Agata Pukiewicz, Lisa Doust, George Henry Brandis, Antony Howard Downs, Kenneth John Rook and Gregory Scott Blewitt. Good luck to you all in your legal career. The Muster Room Congratulations Alison Maynard Note from Muster Room to Alison: “You go girl!”. Yes, alright, it IS a very American saying but heartfelt nonetheless. For those of you who don’t know by now, Alison (pictured below) is now a partner of Cridlands. Examining issues of children and the law A major conference to promote discussion on a wide range of contemporary issues to do with children at the law will take place on 20 and 21 June in Brisbane. The Children and the Law: Issues in the Asia Pacific Region conference will be hosted by LAWASIA, the Queensland Law Society and the Law Council of Australia. Speakers include: Chief Justice Alistair Nicholson, Chief Justice of the Family Court of Australia; Dr Sev Ozdowski, Federal Human Rights Commissioner; Justice NazhatShameem, High Court of Fiji Islands; Bill O’Shea, President of the Law Institute of Victoria and Moira Rayner, Anti-Corruption Commissioner. Sessions and issues to be discussed range from Children and War to Family Law, Abduction and Child Labour. LAWASIA president Dr Gordon Hughes said: “It will be a unique event at which interested practitioners will be able to meet and listen to leading authorities on the subject - and hear first hand the experiences and challenges confronting both developed and developing countries.” Details of the conference in the conferences section, this edition. ® Page 19 — May 2003 j readers forum - book reviews L^trJrr'~' Torts Torts: Cases and Commentary (5th edition) by Harold Luntz & David Hambly Butterworths I cannot remember if my first exposure to law was a contracts lecture by Professor Don Greig or a torts lecture by Henry Burmester. Whatever it was, both did not make a lot of sense to me especially torts. I do have a memory of the cases and materials books that were prescribed in that first year at ANU (1982). For contracts, a largely purple copy of Pannan & Hooker’s (I think) text and for torts, I believe, the 3rd edition of Luntz & Hambly’s text on torts now in its 5th edition. I was at ANU and at that time, I believe Professor Hambly was in a research school of the university. Henry Burmester was a tall bespectacled man with a bird’s nest beard. I see now that he holds a senior position in the Federal AttorneyGeneral’s Department working on constitutional matters. Whatever the state of my memory, the tan, yes, tan coloured cover of the 3rd edition of Luntz & Hambly’s book was, at least my memory says it was, more fat than this 5th edition and the text a lot denser - the smallest print I had ever seen. I do not remember much of torts after those early lectures in 1982. It must have been the print size that turned me from the civil law and to administrative, constitutional and international law at university, the criminal law was also as jelly to my mind until later. I did not come to civil law and indeed the law of civil wrongs until I joined Ward Keller in 1996, I period of 14 years. Have the years improved? The latest edition of Luntz & Hambly’s tome is a little less dense (certainly in text size) and is more usefully set out with clearer headings. The authors have Page 20 — May 2003 picked up the recent discussion about public liability litigation without belabouring the issues the so called ‘crisis’ has entailed. I particularly liked the ‘Detailed Contents’ pages which I found more useful than the Index. Unfortunately, this current edition was printed before the significant changes in NSW, Queensland and soon to be changes to personal injury litigation in the rest of the country and the NT. Depending on what happens, I suspect that the next edition of this hardy and useful perennial will revert to the tan cover and, for the sake of economy, reduce its text size to accommodate either the mass of new legislation on the cards and the horrendous numbers of cases that will be needed to interpret the changes to what was a very simple, at least procedurally, system of fault and compensation. The decision of Perre v Apand could have received a little more attention in Chapter 2 as could have the recent decision in Ghantous. Ghantous is not just a particular incidence of negligence but has relevance to the High Court’s approach to this law particularly public liability cases. Unfortunately this edition was too late for the High Court’s decisions in Tame (on psychiatric injury) and Lepore (non delegable duty and vicarious liability). As long as you bear those recent developments in mind, this is certainly the book on torts to get. I thought that the issue of causation particularly in ‘loss of chance’ cases and medical cases could have been given a more detailed treatment. These are trivial criticisms. Along with Luntz’ work on damages and a decent pleading text, you could not do much betterthan discard all your volumes of authorities, save space and substitute this text. It goes a long way to making sense of the volumes produced by the High Court on these issues. The colour of the cover has changed - it is now a grey with a blue header with what looks like an airbrushed rendition of chopped mushrooms. Let it be so. - Michael Grove, partner, Ward Keller Intellectual Property - Commentary and Materials (3rd edition) by Jill McKeough, Kathy Bowrey & Philip Griffith Lawbook Company This edition has taken 10 years to appear, and has been significantly revised, particularly on mattersarising from the Copyright Law Review Committee and the new Trade Marks Act. The book is aimed at the law student rather than the practitioner, however it provides a good overview of intellectual property issues. The intent of the authors is to provide a set of materials covering the essential aspects of intellectual property, and to prepare students for advanced study in any of the topics covered. The book does not deal in any detail with remedies, international trade or information technology law issues, and people looking for this sort of information are better off with another publication. More than half of the book is devoted to copyright, with the balance of the book dealing with other areas, such as patents, designs, confidential information, protection of business reputation and trade marks. The authors have elected not to reproduce extracts of the legislation in the book, which in my view, actually makes it more readable, provided you have ready access to the Copyright Act. In summary, the book provides a good general overview of intellectual property law in Australia, with an emphasis on copyright law. Students of intellectual property law will find the book very useful, practitioners may be left wanting more detail. - Duncan Maclean, partner, Cridlands readers forum - conferences 20 & 21 June 2003 Children and the Law - Issues in the Asia Pacific Region Brisbane, Qld Tel: 619 8946 9500 Fax: 61 8 8946 9505 lawasia@lawasia.asn.au 23-25 June 2003 2nd Annual International Competition Network Conference Merida, Mexico Tel: +44 (0) 20 7629 1206 Fax: +44 (0) 20 7409 0456 valentina.zoghbi@int-bar.org 3 &4 July 2003 Administrative Law: Problem Areas - Reflections on Practice Canberra, ACT Tel: 02 6251 6060 Fax: 02 6251 6324 ipaa@bigpond.com 7 & 8 July 2003 Australian Institute of Criminology Conference: Inhalant Use and Disorder Townsville, Queensland Tel: 02 6292 9000 Fax: 02 6292 9002 confco@austarmetro.com.au 18 & 19 July 2003 Australian Law Practice Management Association 3rd Annual Conference: Implementing Best Practice Gold Coast, Queensland Tel: 0414 618 629 Fax: 07 3824 1475 lms@powerup.com.au 21 & 22 July 2003 Australian OFIS Regulation for the 21st Century Gold Coast, Queensland Tel: 02 62816624 Fax: 02 6285 1336 conference@conlog.com.au 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 8981 2549 Fax: 08 8981 2596 wildlyn@hotmail.com 20 & 21 July 2003 Personal Injuries Conference Brisbane, Qld Tel: 07 3842 5905 Fax: 07 3220 0616 2& 3 August 2003 14th Biennial Weekend Conference of the Family Law Pracitioners’ Association of Western Australia Hillarys Harbour, Western Australia Tel: 08 9325 9099 Fax: 08 9325 1551 ck@clairskeeley.com.au 17-23 August 2003 21st Biennial Congress - World Peace Through the Rule of Law: Celebrating 40 years of the WJA Sydney & Adelaide, Australia Tel: (Washington, US) 1202 466 5428 Fax: (Washington, US) 1202 452 8540 wja@worldjurist.org 18 & 19 August 2003 Graffiti and Disorder: Local Government, Law Enforcement and Community Reponses Brisbane, Qld Tel: 02 6292 9000 Fax: 02 6292 9002 confco@a ustarmetro.com.a u 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 3831 4477 warmid@tpg.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com


\

Spectacular view, comfortable, well appointed Why not use the Law Society's boardroom for your next meeting? hire rate: $264 (incl GST) for a full day $137.50 for a half day (four hours) + $27.50 for every hour thereafter (all incl GST) Book with the Law Society on 89815104 Page 21 — May 2003 NOTICEBOARD High Court Notes June 2003 Prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Trade practices - Unconscionable conduct - Economic inequality In ACCC v. CG Berbatis Holdings P/L ([2002] HCA 18; 9.04.2003) a tenant held a lease until February 1997 of a shop in the shopping centre owned by the respondents. The tenant, and other tenants, began proceedings in the WA Commercial Tribunal and Supreme Court allegingthey had been required by the respondent to make payments in excess of that required by their leases. The proceedings were generally successful. In October 1996thetenantfound a purchaserfor its business prepared to enter into a new lease with the respondent. The respondent agreed to enter into the new lease, enablingthe tenantto sell the business, on the tenant agreeing to release the respondentfrom the other litigation. The tenant reluctantly agreed to this. In April 1998 the ACCC commenced proceedings allegingthatthe respondent had by the agreement with the tenant contravened, inter alia, ss51AA in Part IV A of TPAAct. The Primary Federal Court Judge found forthe tenant and ordered it be released from that term of the agreement. This decision was reversed by a Full Court ofthe Federal Court. The appeal by the ACCC to the High Court was dismissed by majority: Gleeson CJ, Gummow with Hayne JJ; sim Callinan J; contra Kirby J. The majority concluded that the tenant had made a commercial decision and economic inequality did not constitute a party as being under a “special disability” amounting to unconscionable conduct within s51AA(l) as recognised in the equitable doctrine incorporated in the “unwritten law” of the States and Territories. Appeal dismissed. Criminal law - Sentencing - Whether person with no prior convictions may be sentenced other than as first offender In Weininger v. Q ([2003] HCA 14; 2.04.2003) the appellant had no previous convictions when convicted of two federal and one state offence concerning possession of narcotics. The Primary Judge was given an “agreed” statements of facts which asserted the appellant had by his offences been involved in a “continuing” cocaine importation syndicate which had encountered problems using an “established” method of bringing the drug into Australia. In sentencing the appellant to eighteen years imprisonment the Primary Judge observed that while the appellant was a first offender there was strong evidence establishing his participation in drugtrafficking before the offences in question. The Court ofAppeal (NSW) dismissed W’s appeal by majority. His appeal to the High Court was also dismissed by majority: Gleeson CJ, McHugh, Gummow, Hayne JJ; sim Callinan J; contra Kirby J. The majority concluded that taken overall the comments of the Primary Judge did not disclose error. Kirby J concluded the remarks could not be divorced from their context and did disclose error [92]. Consideration of the degree to which facts involved in sentencing must be proved. Trust - Breach of trust - Causation of loss - Damages In Youyang P/L v. Minter Ellison Morris Fletcher ([2003] HCA 15; 3.04.2003) a firm of solicitors (the respondent) acted for Page 22 — May 2003 a company (ECCCL) when in 1993 where the appellant deposited $500,000.00 with the firm to subscribe for shares in ECCCL. The funds were invested pursuantto an Information Memorandum which stated investors would receive a deposit certificate issued by a bank. The firm allowed the funds to be dispersed from its trust account otherwise than provided in the Information Memorandum. In May 1997 ECCCL was placed in liquidation. The appellant’s action for breach of trust succeeded before the PrimaryJudge who entered judgment in August 2000 in the sum of $414,009.00 (beingthe sum which would yield $500,000.00 on the redemption date of the preference shares to which the appellant had subscribed). On appeal the NSW Court of Appeal concluded, by majority, acceptance of the defective deposit certificate was a breach of trust but it caused no loss. The appellant’s appeal to the High Court was allowed: Gleeson CJ, McHugh, Gummow, Kirby, Hayne JJ jointly. The Court considered the nature of compensation in equity. The High Court concluded the Court of Appeal had erred in finding intervening events broke the train of causation [63]. The appeal was allowed and the effect of the primaryjudgment restored. Constitutional law - Trial by jury - Reserve jurors In Fittock v. Q ([2003] HCA 19; 10.04.2003) a Full Court concluded that provisions in the NT allowingfor reservejurors to be empanelled and for the actual jury to be determined by ballot did not prevent a Commonwealth offence tried by such a jury being tried other than “by a jury" as required by Constitutions80. In Ngv. Q[2003]HCA 20; 10.04.2003a Full Court of the High Court concluded the reservejuror provision in the Juries Act 1967 (Vic) (that required the final jury to be selected by ballot to exclude reservejurors) did not constitute a trial other than “byjury" within s80 of the Constitution. Extradition - Executive power In Oates v. A-G (ah) ([2003] HCA 21; 10.04.2003) a Full Court concluded that the executive power of the Commonwealth remained enabling it to request surrender of a fugitive notwithstanding that the offence in question was not one recognised in the treaty under the Extradition Act 1988 (ah) between Australia and the other country. The Court concluded a request byAustralia that Poland surrender a person to answer charges under the Companies (WA) Code was a valid exercise of executive power notwithstanding that the 1932 treaty did not specify the offences as extradition offences. High Court - Special leave - Point not taken below In Heron v. Q ([2003] HCA 17; 19.04.2003) the High Court reiterated that it would only be in exceptional circumstances that it would entertain granting special leave on grounds not considered by the Trial or Intermediate Appeal Court. Federal Court Notes June 2003 Prepared forthe Law Council of Australia and it Constituents by Thomas Hurley, Barrister, Vic., NSW, ACT (Editor, Victorian Administrative Reports) Migration - Lawfulness of indefinite detention of removees /n MlMIA v. AL Masri ([2003] FCAFC 70; 15.04.2003) a Full Court in a jointjudgment observed that while the presumption against exceedingthe bounds set by the Constitution suggested NOTICEBOARD Parliament had no power to order individuals be detained indefinitelythe Court was not required to express a final opinion on this [81]. The Court concluded that detention of a noncitizen who had requested that he be removed from Australia in circumstances where that removal was not possible was not lawful detention. The Court observed this conclusion arose from applying orthodox principals of statutory construction such asRv. Governor of Darhum Prison; ex pHardial Singh [1984] 1 WLR 704 to warrant the conclusion that Parliament intended the power to detain to exist only while removal was “reasonably practicable” [122]; [132]. Migration - Effect of Plaintiff S157 etc. on prior Federal Court decisions In Bax v. MIMIA ([2003] FCAFC 55; 37.03.2003); a Full Court concluded that where an application to the Federal Court had been decided before PlaintiffS157 v. CofA (2003) 195 ALR 24, and no consideration had occurred as to whether a jurisdictional error was involved, a Full Court should ordinarily allow the appeal and remit the mattertothe Primary Judge. Statutory construction - Notice - Period “commencing at the time specified in the notice" - Whether time in notice included In Tio V. MIMIA ([2003] FCAFC53; 27.03.2003) bysl35(4)(b) of the Migration Act the Minister must send a visa holder a notice inviting representations before cancelling the visa and the Minister is prevented from cancellingthe visa pendingthe receipt of the representations. A Full Court concluded, by majority, that a notice requiring a submission “by 7 March 2002” had the effect that the period did not include 7 March 2002. Industrial law - Awards - Parties - Business transmitted In Gribbles Radiology P/L v. HSU ([2003] FCAFC 56; 28.03.2003) a Full Court considered whether a licence granted to an employer (which was party to an industrial award) to provide radiology services at a medical clinic was a successor to part of the business by which the employer had previously been licensed to conduct radiology services forthe purposes of sl49(l)(d) of the Workplace Relations Act 1996 (Cth). In Amcor Ltd v. CFMEU [2003] FCAFC 57; 28.03.2003 the same Full Court considered whether employees transferred as a result of a part restructure of the employer’s business were made redundant or retrenched within sl70MB, 178(6) Workplace Relations Act. Migration - Natural justice - Interpreter difficulties at MRT hearing - Letter promised by RRT member to resolve uncertainties not written - Whether denial of natural justice In NAFF of2002 v. MIMIA ([2003] FCAFC 52; 31.03.2003) a Full Court concluded a breach of natural justice had not been made out where the RRT failed to write to an applicant before itto give the applicant an opportunityto comment on interpreting difficulties notwithstanding the RRT decided the review on the basis of “inconsistencies” in the evidence ofthe applicant. Customs - Diesel fuel rebate - Whether “mining operations" In BHP Billiton Petroleum P/L v. Chief Executive Officer of Customs ([2003] FCAFC 61; 7.04.2003) a Full Court considered whether the AAT erred in determining whetherthe appellant engaged in exploration and production of oil and gas within the definition of “mining operations” under sl64(7) of the Custom Act 1901 (Cth) and whether the definition of “mining operations” contemplated the operations being carried at one “place” only. Federal Court - Appeal - Procedure - Leave to re-open before orders entered In MIMIA v. WAAG ([2003] FCAFC 60; 9.04.2003) a Full Court declined to allow the respondentto re-open the appeal, prior to entry of final orders in the appeal, following a High Court decision, as the Full Court was not satisfied a different result would have been brought about. Mortgages - Whether two mortgagees of adjoining property with common mortgagor can in good faith agree to jointly sell properties In Commonwealth Bank ofAustralia v. Duggan ([2003] FCAFC 64; 9.04.2003) a Full Court considered whether two mortgagees of adjoining properties owned by a common mortgagor could in good faith sell the properties together and if so how the proceeds were to be divided. Migration - Jurisdictional error - Two surplace claims made but inly one considered In SAAD v. MIMIA ([2003] FCAFC 65; 11.04.2003) a Full Court concluded that when the RRT was aware of two sur place claims, but only dealt with one, a jurisdictional error had been established. Migration - Visa cancellation - Whether disappointment of expectation breach of procedural fairness In Untan v. MIMIA ([2003] FCAFC 69; 11.04.2003) a Full Court concluded that any failure by DIMA to contactthe appellant, as indicated, before the Minister decided to cancel his visa was overtaken by events and did not cause any breach of natural justice. Migration - Jurisdictional error - Unpersuasive factual conclusion In VGAO of2002 v. MIMIA ([2003] FCA 68; 23.04.2003) a Full Court concluded that notwithstandingthat the conclusion and reasoning of the RRT was unpersuasive it never the less involved questions of fact which fell short ofjurisdictional error. Migration - Jurisdictional error - Failure to inform of adverse information - Migration Act s424A In VAAC v. MIMIA ([2003] FCAFC 74; 17.04.2003) a Full Court allowed an appellant leave to raise a fresh ground of appeal and found a decision of the RRT involved jurisdictional error where it failed to inform the appellant of a letter from the relevant consulate advising a visa could be issued to the appellant. LETTER From Phiip Kellow, Deputy Registrar, Federal Court of Australia, 30 April 2003 Please find enclosed an unofficial copy of the Federal Court Amendment Rules 2003 (No. 2) which will be published in the continued next page Page 23 — May 2003 NOTICEBOARD Commonwealth Government Gazette on 5 May 2003 as Statutory Rule No. 78 of 2003. The Amendment Rules commence on 12 May 2003. A copy ofthe Amendment Rules will be available on the Internet from the ScalePlus site at http://scaleplus.law.gov.au/ home.htm. The Amendment Rules make a number of amendments consequential to: • the amendments made to the Workplace Relations Act 1996 by the Workplace Relations Amendment (Registration andAccountabilityofOrgan isations)Act 2002 and the Workplace Relations Legislation Amendment (Registration and Accountability of Organ isations) (Consequential Provisions) Act 2002; • the Workplace Relations (Registration andAccountability ofOrganisations) Regulations 2003; and • the amendments made to the Workplace Relations Regulations 1996 by the Workplace Relations Amendment Regulations 2003. The Workplace Relations Amendment (Registration and Accountability ofOrganisations) Act 2002 and the Workplace Relations Legislation Amendment (Regis tration and AccountabilityofOrganisations) (Consequential Provisions)Act 2002 establish a comprehensive statutory regime for the regulation of registered organisations. The provisions relating to registered organisations in the Workplace Relations Act have been replaced with a new Schedule IB to that Act. Schedule IB also replaces many ofthe existing offence provisions with civil penalties. The new statutory regime commences on 12 May 2003. Almost all the changes in the Amendment Rules deal with replacingthe references to certain provisions ofthe Workplace Relations Act 1996 and Workplace Relations Regulations 1996 with references to the equivalent provisions ofSchedule IB and the Workplace Relations (Registration andAccountability ofOrganisations) Regulations 2003. The major change is that, unlike the Workplace Relations Regulations, the Workplace Relations (Registration and Accountability of Organisations) Regulations do not prescribe the form of: • an application for an inquiry into alleged irregularities that are claimed to have occurred in relation to an election for an office in an organisation; • an application for an inquiry into alleged irregularities that are claimed to have occurred in relation to a ballotto decide whether 2 or more organisations should be amalgamated; or • an application underfor an inquiry into alleged irregularities that are claimed to have occurred in relation to a ballot to decide whether a constituent part of an amalgamated organisation should withdraw from the organisation. These forms are prescribed by the Rules, and will appear as Form 50A, Form 50B and Form SOC in Schedule 1 to the Rules. From the Family Law Section, Law Council of Australia The Chief Justice has advised FLS that he intends the commencment of the attached Practice Direction on 1 July 2003. Please forward your comments. (A copy of “Practice Direction: Guidelines for ExpertWitnesses and those instructing them in the proceedings in the Family Court of Australia” can be obtained through the Law Society NT Secretariat. Various press release announcements by the Federal Attorney-General 17 April - New Appointments to the Administrative Appeals Tribunal. Mr Deane Graham Jarvis appointed as a Deputy President of the Administrative Appeals Tribunal; Associate Professor Glenton Anthony Barton appointed as a part-time member of the Administrative Appeals Tribunal; Mrs Linda Savage Davis appointed as a part-time member of the Administrative Appeals Tribunal. 16 May - Appointment of members to the Australian Law Reform Commission. I am pleased to announce that the honourable Justice Susan Kenny has been appointed as a part-time member and Associate Professor Brian Opeskin has been re-appointed as a full-time member of the Australian Law Reform Commission. 16 May - New judge appointed to Family Court of Australia. Mr Tim Carmody SC appointed as a judge of the Family Court of Australia. 22 May - Four new federal magistrates appointed. The magistrates will be appointed to the Federal Magistrates Service in Newcastle, south-east Queensland, Adelaide and Melbourne. Page 24 — May 2003 ••••••• AUSTRALIANADVOCACY INSTITUTE Weekend Workshops 22th - 24th August 2003 Friday evening 5.30pm to 7.30pm, Saturday 9am to 5pm, Sunday 9am to 1pm. Three separate workshops will cover advocacy relating to: • Family Law • Advanced Cross-examination • General Advocacy Skills These 3 workshops, each running over the full weekend, will involve instructions, performance and review ofthe various skills, disciplines and techniques involved in good advocacy. Instruction will be by a faculty of Australia’s leading advocacy teachers. Skills covered include:

  • Case Analysis *Effective Performance Preparation * Legal Argument
  • Examination and Cross-examination ofWitnesses * Addresses * Communication

Fees: $594 (incl GST) for lawyers offive or less years experience $715 (incl GST) for those with more than five years experience Register on-line at www.advocacy.com.au, or Phone: (03) 9905 1279 Fax: (03) 9905 1278 Emails: aai@law.monash.edu.au Places will be limited...secure your registration now! Registrations close Thursday 14th August 2003 Page 25 — May 2003 COURT LIBRARY NOTES Legal practitioners who wish to access the Courts Library are reminded it is necessary to register with the library. This is done by producing a letter from your employer (firm or department). Registration is renewed every 12 months, usually in March. NT LEGISLATION Legislative changes in April 2003, notified in the NT Government Gazette New Reprints Administration and Probate Act - 7.11.02 Anti-Discrimination Act - 24.4.02 Cobourg Peninsula Aboriginal Land, Sanctuary and Marine Park Act - 1.12.00 Commercial and Private Agents Licensing Act - 30.10.02 Companies (Trustees and Personal Representatives) Act - 7.11.02 Coroners Act - 8.5.02 Criminal Code Act - 30.10.02 Cullen Bay Marina Act - 1.5.02 Evidence Act - 30.10.02 Firearms Act - 15.7.01 Juries Act - 7.11.02 Justices Act - 1.1.02 Parks and Wildlife Commission Act - 1.3.00 Poisons and Dangerous Drugs Act - 22.3.01 Prostitution Regulation Act - 11.12.01 Real Property (Unit Titles) Act - 1.3.02 Registration Act - 13.10.95 Registration of Interests in Motor Vehicles and Other Goods Act - 7.11.02 Sexual Offences (Evidence and Procedure) Act - 7.11.02 SheriffAct - 1.7.96 Small Claims Act - 13.2.02 Special Purposes Leases Act - 7.6.02 Stock Diseases Act - 1.1.02 Stock Routes and Travelling Stock Act - 1.1.02 Supreme Court Act - 1.12.00 Trespass Act - 6.12.00 Consumer Affairs and Fair Trading (Tow Truck Operators Code of Practice) Regulations - 8.5.02 Firearms Regulations - 11.12.01 Justices Regulations - 1.1.02 Port By-Laws - 9.10.02 Prostitution Regulations - 11.12.01 Public Health (Night-soil, Garbage, Cesspits, Wells and Water) Regulations - 11.11.98 Public Health (Nuisance Prevention) Regulations - 10.12.97 Public Trustee Regulations - 30.8.02 Registration Regulations -18.12.02 Sentencing - Reprint 22.10.01 Sheriff Regulations - 14.3.01 Stock Diseases Regulations - 12.2.03 Work Health Regulations - 30.6.00 Commencements 60/2002 Education Amendment Act (2.4.03) 75/2002 Petroleum (Submerged Lands) Amendment Act (1.5.03) Page 26 — May 2003 RECENT ARTICLES Building and construction law Fridman, llan - Making security of payment legislation more secure, Law Society Journal, Vol 41(3) 2003 pp: 58-61 Company directors Grantham, Ross - Can directors compete with the company?, Modern Law Review, Vol 66(1) 2003 pp: 109-112 Corporate criminal liability Sarre, Rick-Criminal manslaughter in the workplace, Law Society Journal, Vol 41(2) 2003 pp: 58-60 Corporations law Forsyth, Anthony - Corporate collapse and employees’ right to know - an issue for corporate law or labour law? Australian Business Law Review, Vol 31(2) 2003 pp: 81-96 Criminal codes Gibbs, Harry-Queensland Criminal Code-from Italy to Zanzibar, Australian Law Journal, Vol 77 2003 pp: 232-239 Criminal law Hull, Stephen -Truth vjustice - reconsideringthe rule against double jeopardy, Brief, Vol 30(3) 2003 pp: 7-10 Dembo, Hilton-The accused-a documentary of ajury trial, Brief, Vol 30(3) 2003 pp: 17-19 Corns, Chris - Retrial of acquitted persons - time for reform of the double jeopardy rule? Criminal Law Journal, Vol 27(2) 2003 pp: 80-101 Walsh, Tamara - Waltzing Matilda one hundred years later - interactions between homeless persons and the criminal justice system in Queensland, Sydney Law Review, Vol 25(1) 2003 pp: 75-96 Employment law Forsyth, Anthony - Corporate collapse and employees’ right to know - an issue for corporate law or labour law? Australian Business Law Review, Vol 31(2) 2003 pp: 81-96 Evidence Venus, Paul - Without prejudice - can communications lose their privilege? Law Society Journal, Vol 41(2) 2003 pp: SOBS Kirby, Michael-Expert evidence-causation, proof and presentation, Judicial Review, Vol 6(2) 2003 pp: 131-148 Family law Angus, Sophie - Splitting superannuation on divorce on separation, Bulletin, Vol 25(2) 2003 pp: 19-20 Forensic science Wood, J - Forensic sciences from thejudicial perspective, Judicial Review, Vol 6(2) 2003 pp: 149-176 Judges McHugh, MH -Tensions between the executive and the judiciary, Judicial Review, Vol 6(2) 2003 pp: 111-130 Thomas, J B-Guide to judicial conduct-a new handbook for judges, Australian Law Journal, Vol 77 2003 pp: 240-245 continued next page COURT LIBRARY NOTES Law office management Ma, Lawrence-Challenges to a solicitor’s retainer, Law Society Journal, Vol 41(2) 2003 pp: 61-63 Oakes, Neil-The new face of salaried partnership, Law Society Journal, Vol 41(3) 2003 pp: 48-51 Legal costs Benjamin, Robert - The scope of liens on fruits of action clarified, Law Society Journal, Vol 41(2) 2003 pp: 66-67 Litigation Ma, Lawrence-Challenges to a solicitor’s retainer, Law Society Journal, Vol 41(2) 2003 pp: 61-63 Manslaughter Sarre, Rick - Criminal manslaughter in the workplace, Law Society Journal, Vol 41(2) 2003 pp: 58-60 Motor vehicle accidents Songvajkasem, Suchada - Workers Compensation Actinteraction with the Motor Accidents Compensation Act, Australian Resources and Energy Law Journal, Vol 22(1) 2003 pp: 6-8 Motor vehicle law Gibson, Philip-Appeals against the suspension of a driver’s licence, Law Society Journal, Vol 41(3) 2003 pp: 54-56 Negligence Holy, Anthony - On country paths or bowling greens - pedestrians must avoid everyday risks, Brief, Vol 30(3) 2003 pp: 34-35 Nuisance Lee, Maria - What is private nuisance? Law Quarterly Review, Vol 119 2003 pp: 298-325 Personal injuries Ellard, John - Communication of distress, Australian Law Journal, Vol 77 2003 pp: 246-254 Real property law Budgen, Gary-Management rights-developments in building management agreements for strata schemes, Law Society Journal, Vol 41(3) 2003 pp: 42-46 Sentencing Zdenkowski, G - Non-financial non-custodial sentencing options in the Crimes (Sentencing Procedure) Act 1999, Judicial Review, Vol 6(2) 2003 pp: 189-222 Gibbs, Anita - The electronic ball and chain - the operation and impact of home detention with electronic monitoring in New Zealand, Australian & New Zealand Journal of Criminology, Vol 36(1) 2003 pp: 1-17 Separation of powers McHugh, MH - Tensions between the executive and the judiciary, Judicial Review, Vol 6(2) 2003 pp: 111-130 Stress management Waring, Trevor - How to worry productively, Law Society Journal, Vol 41(2) 2003 pp: 68-70 Superannuation Angus, Sophie - Splitting superannuation on divorce on separation, Bulletin, Vol 25(2) 2003 pp: 19-20 Trade practices Zumbo, Frank - Enforcing the Trade Practices Act internationally, Law Society Journal, Vol 41(2) 2003 pp: OSes Trusts and trustees McDermott, Peter M-Subrogation in trading trusts, Australian Law Journal, Vol 77 2003 pp: 215-220 Workers compensation Songvajkasem, Suchada - Workers Compensation Act - interaction with the Motor Accidents Compensation Act, Australian Resources and Energy Law Journal, Vol 22(1) 203 pp: 6-8 Page 27 — May 2003 Footy fever sees comp hit new highs "Young gun" Booth leads by two points, others a threat It’s tight at top of the ladder in the LSNTs AFL footy tipping competition. A yo-yo struggle for the lead between Chris Booth (Ward Keller), Graham Chandler (Dept of Chief Minister), Elizabeth Morris (Coroner’s office) and Julie McLachlan ( NAALAS) has meant there’s a lot riding on each and every game in each and every round. Booth, Chanlder and McLachlan are all newcomers to the Society’s comp with Morris being last year’s winner. Perfectly tipped rounds have been by: Elizabeth Morris and Sarah Wilkie (Dept of Justice) in Round One; Sean Bowden (Sean Bowden and Associates) in Round Four; Justice Trevor Riley in Round Eight; Julie McLachlan in Round Nine; Magistrate Vince Luppino in Round 10. After Round 10 the score are (in alphabetical order): Magistrate Jenny Blokland 73, Lyn Bond (Parliamentary Counsel) 97, Christ Booth 115, Sean Bowden, 97, Peter Boyce (Ombudsman) 85, Katrina Budrikis (Dept of Justice) 111, Jodeen Carney (Member for Araluen) 99, Graham Chandler 113, Chris Chaplin (Ward Keller) 107, Michael Davis (De Silva Hebron) 89. Glen Dooley (Office of the Director of Public Prosecutions) 89, Donna Dreier (Dept of Justice) 103, Robert Duguid (student) 99, Lorelei Fong Lim (ABC) 101, Alex Griffith (Clayton Utz) 107, Caron Henebery (Sean Bowden and Associates) 93, Laura Hopkins (NAALAS) 97, Mark Johnson (Office of the Director of Public Prosecutions) 107, Magistrate Vince Luppino 97, B&L Martin (Chief Justice and wife) 79, Julie McLachlan 113, Melart (NTLAC) 95, Glenn Miller ___________________________________________________ (NAALAS), Elizabeth Morris 113, Ian Morris (Hunt and Hunt) 59, Pipina Papazoglou (De Silva Hebron) 109, Bill Piper (Bill Piper) 87, Karen Randell (Collier and Deane) 75, Justice Trevor Riley 111, Sally Sievers (Cridlands) 111, Magistrate Daynor Trigg 107, Cassandra Tys (Cassandra Tys) 91, Peter Walker (Peter Walker) 97, Sarah Wilkie 83, David Woodroffe (NAALAS) 97. 2003 CLE Program 30 Jul 20 Aug 12 Sep Administrative Appeals Sentencing Act TBA Justice Mansfield John Lowndes SM Jenny Blokland SM The saddest score so far has been one point for an entire rounds. And that was only because a point is awarded to everyone when a draw is played. The winner of the comp will walk away with $245, second place gets $70 and third place gets $35. DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: lawsoc@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. 22 Oct AustraAsia Railway Project - Challenges Overcome Alastair Shields 19 Nov TBA Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Unless otherwise notified, the CLEs are presented in Darwin at Cridlands’ boardroom, Smith Street (opposite the TIO). The Katherine venue is the Katherine Regional Tourist Association, cnr Stuart Highway and Lindsay Street, the Alice Springs venue is the Central Australian Division Primary Health Care centre on 54 Hartley Street. Bookings are essential. CLE presentations are available on video (up until August 2002) or on CD (Sept 2002, Jan 2003, Feb 2003, Mar 2003) . Information handouts fromt he CLEs can be obtained from the Law Society Northern Territory. Ring Sonya on 89815104 for more information. i Page 28 — May 2003

i'i' > W Wt $ ■ 1/ : Level 11, NT House 22 Mitchell Street ’ DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au June 2003 COLUMNS President’s Column. EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill COUNCILLORS Mr Stuart Barr Mr Glen Dooley Mr Michael Grove Mr Christopher Booth Ms Sue Oliver Mr Markus Spazzapan For the record...................... Advocacy.............................. NTWomen Lawyers............. Criminal Lawyers Association. Case Notes.......................... NOTEWORTHY Conferences......................... Noticeboard........................ NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine Collier SECRETARIAT Chief Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Ms Sonya Ingham Administrative Assistant/Receptionist TBA Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should be forwarded to the Editor of Balance, Law Society Northern Territory', GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@laws(Knr.asn.au Views expressed in Balance and in advertising material included are nor necessarily endorsed by the Society. Court Library NotevS........................................ REGULARS Letters to the Editor........................................ The Muster Room........................................... Readers Forum............................................... FootyTipping competition results.................... CLE Calendar................................................ FEATURES Child custody inquiry...................................... Indigenous consumer justice campaign............ The ICC - A role in the Iraq conflict?................ New superannuation powers ofthe family court. Personal injuries update.................................. Page 2 — June 2003 he light at the end of the tunnel... ^tim sure that you are all aware of the old saying, determining whether 1 light at the end of the tunnel is a sign of salvation or the head ilht of an onrushing train. For me, it is a sign of salvation as my llsidency winds down to a close but for the profession the jury is out, as they say, as we collectively try to determine whether the ^lye of legislation changing the way in which we all do business is to carry us closer to the safety of the beach or dump us ^ceremoniously on the rocks. ^article this month is mercifully short . the place my meandering thoughts ....... ■ occupy in Balance is taken with an examination of the new tort iform legislation. I thought that it -Did be worthwhile to summarise the of the wave I had averted to %e so that you know the work that tirSociety will be doing over the next ^months and, if you are inclined, Su might choose to assist in performing as well. Tort law reform: the next stage |>f consultation with the Government I concern the drafting of the various .rules and regulations necessary to implement the amendments to the Legal Practitioners Act (Costs and ||pyertising) and the introduction of mew civil procedure. Inthe future [lere will be some further discussions yjth the Government in respect of £.plementation of the IPP reforms that jjve not been so far attended to. A $mmittee that will consult with the ^vernment and other interested “arties will be formed to attend these uties over the next six months or so. National Competition Policy: ‘ Government is finalising its ^ition in relation to the examination

|he Legal Practitioners Act and the

|gaj profession in general set against framework of National ^petition Policy. The Society will be ^suiting with the Government to in the formulation of the lyernment's position. This will occur lyrthe next six months or so. ^.Multi-disci pi inary practices:

  1. 0ciety will be consulting with the

4^ernment to consider the f|p^ernentation of the proposed Jfsiation that will enable practices of this nature to exist in the Northern Territory. The Society’s comments are due within a week and we would expect that there would be some conclusion reached by the Government within the next three months. 4. National model laws: the consideration of these laws has reached the level of the Standing Committee ofAttorney’s General. The Law Council has been instrumental in putting submissions to the Standing Committee and the Society has examined the legislation proposed and has commented upon that to both the Law Council and our Attorney General. There is considerable work to be done in relation to the finalisation of many of the requirements for rules and regulations that, notwithstanding they are not part ofthe main legislation, will contain many of the most important distinctions and positions in the operation of any national model. 5. Work Health Act amendments: There is currently a review of some sections of the Work Health Act under review by a committee in respect of which the Society is represented. The main thrust is a review of the definition of the term “worker”. In addition there is a national review of workers compensation legislation and the Society has been ably represented by Barbara Bradshaw in the hearings that have been conducted in Darwin. 6. Professional indemnity insurance: the Society is shortly to meet with its brokers Marsh to discuss the manner in which we might go to the market to arrange Professional Indemnity Insurance for the next insurance period. Thus far we have had no written responses from the fan Morris, president profession concerning the matters raised in the last Balance and unless otherwise indicated it looks as if we will move along the same path as this year. On a happier note I have heard anecdotal stories of a softening in the market so that the crisis we currently face might ease of its own accord. The Society will be having meetings with Marsh over the next two to three months. 7. Priestly 12: the Society has been meeting with the Admissions Board and representatives of interstate universities and colleges to formulate a proposal to the Chief Justice and the Government to deal with the requirement that post degree/preadmission education must accord with the standard of the Priestly 12. A final formulation will have to occur within the next two months to enable steps to be putting place for next year. As you can gather from the seven items above, the Society is inordinately busy at the moment and in addition faces elections in September this year that will result in a new Council. The pressure on the staff of the Society and upon the new Council to attend to all those matters I have described above (and whatever comes up in the meantime) will be immense. The catfish, of course, wishing them all well, will by then have returned to the security of the mud at the bottom of the stream.® Page 3 — June 2003 ) i feature Indigenous consumer justice ! campaign The Office of Consumer Affairs and the advisory Consumer Affairs Council are jointly running an awareness campaign to help address issues faced by Indigenous consumers. Launched in May 2003, the multimedia education campaign is fronted by local AFL football legend Michael Long. Long features in videos, posters and television commercials which carry important consumer protection messages targeted at Indigenous Territorians. The campaign focuses on consumer advice on warranties and refunds, buying cars and the safe use of debit cards and PIN numbers. These have been identified as areas where Indigenous consumers are suffering considerable disadvantage and detriment. Financial counsellors, Community Government councils, legal services, land councils, Ingidenous organisations and schools are helping to distribute the videos and posters to target groups. So far, the campaign has received postive feedback and it continues to expand as more Indigenous and community organisations become involved in distributing the campaign materials. According to Northern Territory Minister for Justice, Dr Peter Toyne, there is national recognition that Indigenous consumer protection requires increased focus and effort, including communicating consumer rights to Indigenous people. Last year the Northern Territory was tasked with leading Australia jn developing targeted strategies to address Indigenous consumer protection. “This education campaign is a key outcome ofthe work to date," Dr Toyne said. The next step will be the convening of a forum of all heads of state and territory fairtrading agencies, together with the Australian and Torres Strait Islander Commission (ATSIC) and Reconciliation Australia to have a national five-year Indigenous Consumer Justice Strategy prepared. People wanting more information can contact Marilyn McDonnell-Davis on 8999 6136.® Government announces an inquiry into child custody The Federal Government is holding an inquiry into child custody arrangements in the event of family separation. The inquiry has been called in response to a recent report from the Family Law Pathways Advisory Group, “Out of the Maze - Pathways to the Future for Families Experiencing Separation”. According to the Government, the inquiry seeks to address community concerns about the operation of contact and child support arrangements for separated familes and reflects the Government’s commitment to ensuring that children have the benefit of the love and care of both their parents when a couple separates. “There is compelling evidence that Australian children develop best when they grow up in stable, caring, nurturing and loving environments. However, it is a fact of life that familes do separate. When this happens the child's best interests must be the highest priority,” Federal Attorney-General Daryl Williams and Minister for Cihldren and Youth Affairs Larry Anthony said in a joint statement. The Standing Committee on Family and Community Affairs will look at what factors should be taken into account in deciding the respective time each parent should spend with the child post separation, considering the best interests of the child. In particular, the committee will examine whether there should be a presumption that a child will spend equal time with each parent and, if so, in what circumstances such a presumption could be rebutted. This proposal has already attracted criticism from some parenting groups. It will also look at the circumstances in which a court should order that children of separated parents have contact with persons, including their grand parents. The committee will also investigate whether the existing child support formula works fairly for both parents in relation to their care of, and contact with, their children. The inquiry is expected to make recommendations regarding the structure of existing arrangements, not for significant additional Government expenditure. The committee will report to Parliament by 31 December 2003.(i) Page 4 — June 2003 The Priestley 12 and NT admissions %#£- \Asthefinancial year winds down the Law Society, like most people we fare speaking to, seems only to be ^getting busier. One major issue we have been working on is the need to establish ta procedure that is acceptable to fhe Supreme Court and the 'Admissions Board forthe education of articled clerks in line with the ^Priestley 12 requirements.

%Under the Priestley 12

^/requirements in the draft Admission r .Rules, at the point of admission ^applicants will be expected to % provide evidence of having reached £a minimum level of competence in -the following: Skills

  • Lawyers Skills
  • Problem Solving
  • Work Management and

Business Skills

  • Trust and Office Accounting

Values

  • Ethics and Professional

Responsibility

  • Civil Litigation Practice
  • Commercial and Corporate

Practice Practice

  • Property Law
  • One of:

-Criminal Law Practice; -Administrative Law Practice; or - Family Law Practice . *One of: - Consumer Law Practice; -Employment and industrial Relations Practice; -Planningand Environmental Law Practice; or -Wills and Estate Practice The master solicitor will be required to sign off the achievements of these competencies by the articled clerk. It is possible that the only articled clerks that could meet these requirements through articles currently available in the Territory, without rotation between firms, would be those working in the Department ofJustice. Even then they may require a secondment to the DPP or Legal Aid. Completion of an approved PLT course from an acceptable organisation such as the College of Law or Australian National Legal Workshop is an acceptable basis for admission. These courses are now available with an online component-for instance the College of Law has a fifteen week online course but with additional work experience of 15 weeks, or a six month part time course. Both courses, which are tailored around the Priestley 12 requirements include a good generic component. However areas such as Civil Litigation or Criminal Law would ideally need to be tailored forthe Territory to provide maximum benefit to the persons wanting to be admitted. Presumably, if it was undertaken part time in conjunction with work in a local legal practice, this would provide some of the necessary “Territory" component and the actual experience of working in a legal practice. However there is still a place for formal articles in a senior firm or Government organisation, possibly combined with the clerk spending some time as a judge’s associate. In fact, in many respects this can still provide the most effective training and gives potential employers a better chance of assessing the capability and commitment of the clerk. It can also provide a good basis for ongoing employment. The Council of the LSNT has been Barbara Bradshaw, ChiefExecutive Officer, LSNT examining this issue for some time, and indeed last year commissioned a report from Dr Barry Fitzgerald. The Admissions Committee of the Law Society and the Legal Practitioners Admissions Board are continuing to explore these issues, and have commenced discussions with some PLT providers. Affordability of the courses and funding of any NT adaptations remain major issues. We will need to have something in place by the beginning of 2004. I will keep you informed of further developments. [^ates for your friaries 18 July NTBA & LSNT Golf Day 2.15 at Darwin Golf Club 29 Aug Farewell Dinner for Chief Justice Martin 3 Sept AGM for the Law Society 4.30pm at the Darwin Central Hotel V. J Page 5 — June 2003 t feature The International Criminal Court - A role in the Iraq conflict? By Stephen Freeland* The International Criminal Court (ICC) was established in July 2002 with jurisdiction over grave international crimes committed after that time. Its judges were appointed in March and the Prosecutor, highly respected Argentinian Uuis Moreno Ocampo, took office last week. It is expected to begin hearing its first case by early 2004 with the Prosecutor’s office already dealing with over 300 referrals. The Court's jurisdiction is ‘complimentary’ to that of States. The Court has jurisdiction over acts committed by nationals of Parties or in the territory of a Party. Australia is a Party to the Rome Statute (which established the ICC), having ratified it in June 2002, but only after a lastminute fractured debate within government ranks. The Court is strongly opposed by the USA, which fears ‘politically motivated’ prosecutions. To date 90 countries have ratified the Statute, but notable omissions, apart from the USA, include China, Russia, India and most Asian and Middle East countries. The USA had originally sought complete immunity for its nationals in the negotiations leading up to the conclusion of the Rome Statute. When this failed, it withdrew its support and has since instigated a series of actions which have the effect of undermining the Court. It has signed almost 40 bilateral immunity (non-surrender) agreements and last week pressured the Security Council to renew immunity from investigation/ prosecution by the Courtfor non-party nationals engaged in United Nations authorised missions. It has even introduced domestic legislation (sometimes referred to as the ‘Hague Invasion Act’) enabling the President

  • Stephen Freeland is a

Lecturer in International Law at the University of Western Sydney Email: s.freeland@uws.edu.au to order the forcible ‘rescue’ of a USA national held by the Court. The Court potentially may have jurisdiction in relation to the actions of Australian (and United Kingdom as it is also a Party) personnel who served in the Iraq conflict, subject to complimentarity. It is less likely that it would havejurisdiction over USA forces unless the Security Council refers a particular matter involving USA personnel to the Prosecutor (obviously unlikely) or a subsequent Iraqi Government retroactively accepts the Court’s jurisdiction in relation to the period of the Iraqi conflict (possible though unlikely). The Court may also have a potential role in relation to crimes committed by the Saddam regime after July 2002. Again, this would in all likelihood require a referral from the Security Council, which will not happen given the USA’s opposition to the Court. This does, however, raise the pertinent question as to how senior Saddam regime figures will (should) be brought to account for their actions. The USA appears to favour trials before domestic courts (Iraqi or American) or specially constituted military tribunals, such as were proposed following the September 11 attacks. An alternate (and more appropriate) route may be the establishment by the Security Council of an ad hoc international tribunal, similar to those for former Yugoslavia and Rwanda, dealing specifically with the actions of formerSaddam regime senior officials. This issue continues to be debated among the occupying powers and the broader international community, particularly as more evidence of past atrocities by the regime is uncovered. In any event, the first few cases before the ICC will be significant in order to establish its credibility among critics. This is crucial since universal support for the Court is an important first step to end the previous era of impunity.® r INVESTIGATIONS N PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection ^Cutback BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au i www.outbackbusiness.com.au i Member of Institute of Mercantile I • \_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Agents Ltd_ _ _ _ _ _ _ j Page 6 — June 2003 bal010602 presenting the appeal Appellate Judges “are the ones who lurk in the hills While the battle rages; then, when the battle is over, they descend from the hills and shoot all the wounded.” Ruth Bader Ginsberg V |n presenting the appeal it is 1 important to commence and finish / strongly. There is little point starting <’ with a formal opening that recites the -• history of the litigation or informs the

court that this is an appeal from such

%and such a court where judgment Vwas delivered on such and such a - date, and so on. The court already . knows that information. Repeating it is a waste of time and a waste of -. the opportunity you have to make an . immediate impact. Mason J, in an article published in (1984) 58 ALJ .537, said of the opening in cases before the High Court: , All too often counsel fail to .. take advantage of the unique . opportunity presented by the opening - to make an impact on the minds of the judges before they begin to move forward on their inexorable journey to a conclusion. There is no need for a ritual incantation of the history of the litigation. The court is aware of it. Better to begin with a statement of the issues, unless the case lends itself to an exhilarating or humorous introduction. It should be pointed out that ' .opportunities for an exhilarating or .humorous introduction will be rare . j indeed. Be careful. Such an opening has every prospect of falling flat, T leavingyou feeling embarrassed and pgroping for a way to get the argument T back on track. The more senior you - ore and the more comfortable you

are with the court and the court is

< with you, the greater will be the .opportunity for such an opening. For the rest of us the opportunity is .^Probably best left for another day. v though an interesting presentation is part of effective advocacy the court is more interested in substance than style. The opening, and particularly the early stages of the opening, provides an opportunity to dictate the course and content of the appeal. It is an opportunity not to be wasted. In your opening you should endeavour to get to your major point as soon as possible. In so doing you need to let the court know where you are going and how you propose to get there. You should avoid the need for the court to enquire of you: “where is this submissions taking us?” The direction of the argument should be clear to the court. If the members of the court are asking themselves whatthe submission is all about they will be experiencing difficulty in appreciating the impact of what you are intending to convey. In presenting your appeal it is important not to read lengthy passages to the court. This prohibition includes passages from relevant case law, the transcript of the proceedings below and, most importantly, the judgment the subject of appeal. If a lengthy passage has to be read then identify it for the court and allow the court to read it for itself. Throughout the presentation of your argument bear in mind that your familiarity with the case will necessarily be greater than that of the judges. This logically follows from your detailed preparation. You will need to ensure that the elements of the case essential to your argument are clearly stated and placed in a contextual framework for the court. It must be plain that each of the members of the court has an Hon Justice Riley appreciation of the crucial facts and issues. Whilst presenting your argument take care before adopting arguments provided to you by the court. Often a judge will make suggestions as to how you put your argument. That will often be introduced with words to the effect of: “You put the argument this way...” or “you would say...”. In many cases this can be seen as (and may be) reflecting a measure of support for what you have been endeavoring to say. You should carefully consider the suggestion made by the judge and only adopt it if it accurately reflects your argument. The danger of too readily accepting suggestions from the bench is that, when considered in subsequent debate with the judge or other members of the court, the argument falls flat. That may lead to a significant lessening of the impact of the balance of your argument. Alternatively the judge may simply be seeking to encapsulate your argument in order to ensure it is understood or to raise an obstacle. Of course the judge may also be looking to assist you by clarifying a particular matter. If there is a weakness in your case or your argument it is best to acknowledge that to be so and to confront it. Avoiding it will not make the problem go away but rather will emphasise it when it emerges continued page 17 Page 7 — June 2003 ] nt women lawyers association It's AGM time again It that’s time of the year again, and my term as President ends on 30 June 2003. All positions on the committee will be available and I urge all members to considerjoining the committee and getting involved with the NTWL. My time as President has been very rewarding. I have met some wonderful people and have been involved in many issues involving women lawyers at both a local and national level. I will provide a full report of my presidency in the next issue of Balance. Patrons drinks on the Supreme Court balcony was very successful, it was Legal profession earns $ 10,600m Figures recently release by the Australian Bureau ofStatistics (ABS) indicate that legal practices and organisations generated $10,600 million in income and produced 1.1 per cent of the Australian Gross Domestic Product (GDP) in the 2001-2002 period. Of the $10,600m in income, Government solicitor and public prosecutor organisations contributed $414m, legal aid authorities $326m and patent attorney practices $288m. In 2001-2002 there were 36,000 legal practitioners employing 58.000 staff within the 11,000 legal services practices and organisations across Australia. Of the 36,000 legal practitioners: 29.000 worked in private solicitor practices; 3,700 were barristers working in their own practice; and 3,300 were employed by government solicitor of public prosecutor offices, legal aid authorities, or community legal centers, ft) l a great turnout and I thank all of you for your attendance. I would also like to welcome all new members who signed up on the night, and those members who renewed their membership. It was great to see so many new women lawyers coming along to the function and becoming members. I look forward to meeting you all at the AGM. A big thank you to Judge Thomas for making this a special event on the NTWL calendar. The Annual General Meeting is on 29 July 2003. Papers will be distributed prior to the meeting. It is important that as many members as possible attend this meeting. A new Committee is to be elected, and this is your chance to get involved. Drinks and Nibbles will be provided. It will be held at the offices of Hunt & Hunt, Level 3, 13 Cavenagh Street, Darwin. Please contact me on 8981 3133 if you are attending. IF YOU ARE NOT ABLE TO ATTEND THEN PLEASE PROVIDE US WITH YOUR PROXIES. THE PROXY DOCUMENT WILL BE FORWARDED PRIOR TO THE MEETING. Look forward to seeing all of you at the AGM. Sandra Robinson, president, NTWL Dates for your diaries ANNUAL GENERAL MEETING HUNT & HUNT BOARDROOM, TUESDAY 29 JULY 2003 indigenous Readers Course AWL is sponsoring an Indigenous Readers Course for the Bar. This is in conjunction with the University of New South Wales. All of the graduates currently involved in this program are men. We would really like to see a woman enter the course. If there are any indigenous lawyers out there who are interested in going to the Bar and would like to find out more about the course, please contact me on 8981 3133.® Why not use the Law Society's boardroom for your next meeting? Hire rate: $264 for a full day $137.50 for a half day (4 hours) + $27.50 for every hour thereafter (all prices include GST) SOCIETY m ifiiiiot? Book with the Law Society on 89815104 Page 8 — June 2003 W El lawyers association Halfway through 2003: lies, damned lies and law Many o- the recent developments in criminal law, nationally and in the Territory, have flowed from the political repercussions of September H and the Bali bombings. This i The we- on terrorism declared by the prime mover of the western world, George W. Bush, has led to significant amen' vents to our criminal jurisprudence. Law is. rod always will be, the product of pc i ics and its constituent elemen s. Therefore any assessment regard- g the merits of legal change involve die political motives by which that lav mas emerged. Since * at “Declaration of War’’ of which A istralia has been very much compile v the Commonwealth, states and tei tories have passed severe anti-te orism legislation which dismandes many previously enjoyed fundan mtal rights. Much c : criminal law these days is window essing created by politicians in ordei .o attract votes, as opposed to considered changes brought in to rectify p oven problems. Sentencing legislatio i is very much created by the formers proach. The criminal lawyers, the citizens affected and the courts are often- left to deal with, as best they can, han listed unworkable legislation which m we often than not delivers unjust results rather than what we are trained expect and deliver; just results. Enough has been said by this Associati on in that regard as to the ,arge n'-Tiber of inadequacies disco ve o'; d in the mandatory sentence : regime. In the end, that regime wo: found guilty by the fact that •t had no ; feet on the crime rate and reore of:/ than not led to palpably Unjust rev.jits. Sounding tough and acting to.on may win votes but with any legis rive changes that flow on needsto ho carefully considered. One of the major problems is the fact

  • at the b oihaha, or “debate” to use

also reflected internationally. a totally inappropriate term, in regards law and order continues. The media pedal it big time. Make no mistake, the NT News' and the Channel Nines of this world are motivated by money as much as anything. NT News stories about crime per se and of grossly lenient sentences are partly there because the newspaper editor perceives this as a means to achieve “bums on seats”. They know there is an appetite for such news out there. The perceptions are fed by the media as opposed to created by informed knowledge. Our Association, aware of the politics of reality, has consistently attempted to put some balance into this very much one sided picture which has been created and continually fed by the media. The news stories, the shock jocks and the letters to the editor columns cry out for an end to pussy footing around by our judges and magistrates in regards to sentencing. When will the lollipops end and real sentences begin, they wail. As it happens, the objective facts are quite different to this picture. Territory criminal lawyers all knowthatinfact over the last five to ten years sentences have increased across the board. Sentences for specific crimes have clearly increased, namely violence, unlawful entries and drug offences. This is highlighted by the fact that in June 2003 the Northern Territory has its highest prison population ever. Historically, the Northern Territory has always jailed more of its convicted citizens per head of population than any other state or territory in Australia and we are increasing our strike rate in that regard. As it happens, the latest figures on crimes committed do not confirm the John Lawrence, President, CLANT general belief that crime is going through the roof. If anything, it seems to be levelling off or decreasing. Some areas show an increase, while others show a decrease. As judges across the common law world have said, without any real serious contradiction, the sentences passed (we call it general deterrence) have little effect on the crime rate. The penulternate station on the line of crime (the sentence) has little effect as opposed to the earlier ones, which lead to the crimes commission. There is little weight in the apparently logical proposition; tougher sentences equals less crime. It just isn’t that simple but its vulgar tucker for politicians seeking populism in these angst ridden times. The great peril is that bad laws are thereby created by politicians who are not only willing to appeal to unfounded populism but actually deliberately mislead we members of the public. In his Boyer lecturers in 2000, the Chief Justice of the High Court made the observation that the public has a very cynical and negative opinion of the politicians who lead us. One would deduce that events since then have confirmed, if anything, such a view. It’s not a good look for a society that considers itself to be open and democratic that deliberate and fundamental dishonesty from leaders to the people constitutes the norm. The means to the ends are falsehoods. This means the ends, our area, criminal law reform can be a very flawed product. L Page 9 — June 2003 i feature The new superannuation powers of the family court By George Brzostowski Blackburn Chambers* Courts that exercise jurisdiction under the Family Law Act 1975 now have power to deal with superannuation entitlements. We see that section 90MA states that the object of the new part is to allow an allocation between the parties to a (broken) marriage of certain "splittable” payments. The part is expressed to override anything to the contrary in all other laws, whether Commonwealth, state or territorial, and “anything in any trust deed or other instrument". Section 90MC extends the application of the definition of matrimonial cause in paragraph 4(ca) by saying “a superannuation interest is to be treated as property", although what the last three words really mean is open to argument. Those words may mean nothing more than that superannuation may be split just like any other property may be divided. However do they also mean that the value attributed to superannuation is to be treated just like the value of any other existing property? Perhaps not, although that is what the government may have intended. There are provisions for payment splitting and payment flagging to be achieved by agreement, and this is reinforced by section 90MO which prevents, inter alia, an order being made under section 79 in respect of a superannuation interest if there is in force a superannuation agreement. While the provisions may be welcome in those cases where there is every intention of achieving a split of superannuation entitlements, what has really changed in all those cases where no split is either necessary or sought? Will the outcomes be materially different if the value of the pool of existing property is greater than the value of superannuation? What if one person wants to keep the future

  • This article first appeared in the

Autumn 2003 edition of Ethos and is reprinted with the kind permission of Mr George Brzostowski and the Law Society of the Australian Capital Territory. superannuation benefits and the other party wants to receive a greater share of existing assets? Section 90MS is crucial. It provides - 90MS(1) In proceedings undersection 79 with respect to the property of spouses, the court may, in accordance with this Division, also make orders in relation to superannuation interests ofthe spouses. Note 1: Although the orders are made in accordance with this Division, they will be made under section 79 . Therefore they will be generally subject to all the same provisions as othersection 79 orders. Note 2: Sections 71A and90M0 limit the scope ofsection 79. 90MS(2) A court cannot make an order undersection 79 in relation to a superannuation interest except in accordance with this Part. Has section 75(2) changed sides? Courts a re therefore still bound by the requirements of section 79 in all material aspects. They must still make orders that are "appropriate". They are still restrained from making any order altering property interests (now including interests in superannuation) unless satisfied that it is “just and equitable to make the order". If one casts back to the days before 28 December 2002, the Court made orders adjusting existing property in such a way that took into account the existence of a superannuation benefit(s) that either party may have had. That type of adjustment was made under the provisions of section 75(2). Superannuation was not an item that was treated as “existing property" in coming to the assessment of the relevant pool of assets. It was taken “into account" as a “resource". The adjustment was reflected by making a percentage shift in the division of existing assets in favour of the party who was not a member of the superannuation fund (the non-member party). Now the position is that superannuation is an item to be included in coming to a figure of what the pool of assets is. The courts will, however, now have to take into account the fact that an item of property is not in reality something that is “in possession". Ultimately a person may benefit from it. Ultimately there may be a split of moneys that may become payable. In other words, the adjustment under section 75(2) may now have to be made in favour of the party who is a member of a superannuation fund (the member party). Just and equitable is still the core requirement As the'orders that were made prior to the insertion new Part VIIIB and the FLSR, were required to be “just and equitable”, and as the same requirement applies to the present provisions, the results should theoretically be much the same Page 10 — June 2003 FOR SALE Darwin Law Firm An opportunity to acquire a practice in readiness for Darwin’s anticipated economic growth over the next few years. Long established small law firm in Darwin CBD with loyal long-term secretarial staff. Pleasant and modern offices and established client base with gross fees in the vicinity of $450,000 PA. Principal available for consultancy for suitable agreed period ifrequired. Further information will be made available by personal appointment with Sale Agent Tony Pickering. Phone (08) 8981 2371 or 0418 814 708 to arrange. K.G. YOUNG & ASSOCIATES PTY. LTD. Licenced Real Estate and Business Agents 74 Cavenagh Street Darwin Tel: (08) 8981 2371 Fax: (08) 8981 8538 17 University Avenue Palmerston Tel: (08) 8932 6789 Fax: (08) 8932 6623 (except in those case where a split is required to achieve a just and equitable result). Property is not the same as property Already there are suggestions that one can proceed .on the basis that superannuation is a “different type of property". The significance of the individual “assets" and the assessment of contributions on an “asset-by-asset” approach is likely to make a come back, but just how that will be implemented is hard to tell. The asset by asset approach was useful where one was assessing contributions to specific assets in order to arrive at an overall finding on contributions. That was easy. However how will one weigh in the “asset" represented by superannuation is unclear. One thing is certain. Gone are the days of being able to advise clients on a global" basis. It is now far more difficult to come to a view of what your oiient’s entitlements may be. New World to Explore In part the problems may be due to - (a) a lack of guiding jurisprudence, which deficit is likely to be filled in the future, albeit with a range of outcomes, not all of which are going to be consistent; (b) the likelihood of challenges to the validity of some of the legislative provisions; (c) the cost and difficulty in making calculations of the value of a superannuation interest, particularly where the funds make provision for pensions, and (d) the artificiality caused by the fact that the values arrived at by the application of the FLSR leads to gross, rather than aftertax results, combined with the difficulty in advising parties of the extent of future tax burdens, particularly in view of the history of changes even in the last 20 years. Don’t discard the former principles One possible approach is to ignore (for the purpose of advice only) the value of the superannuation interest in coming to the value of the pool of assets. The second step may be to come to a view of how the existing assets may be distributed. The third step may be to take into account the existence of the superannuation interest that one party may receive in the future. In other words, proceed by applying the old principles. Is DFRDB in a special category? This is not unlike the approach taken by Justice Coleman just recently in Canberra, although the text of the decision is not available at the time of writing this article. His Honour took the view that a DFRDB pension was not “property”, and it is said that he then made an adjustment under section 75(2). Split of pension dies with death of member spouse Another approach is to seek payment continued page 16 Page 11 — June 2003 l feature Personal injuries update By Ian Morris The Personal Injuries (Liabilities and Damages) Act 2003 was introduced in Parliament last year an> was assented to by the Administrator on 18 March 2003. The Act was commenced on 1 May 2003. The introduction of the Act says that it avoided the risk that caused the injun intends to modify (read ‘limit’) the law relating to the entitlement to damages in personal injury cases. It does so by introducing a regime of statutory limitations on the entitlement of damages, statutory direction as to contributory negligence and statutory limits on the award of damages. The Act applies to all civil claims for personal injuries. That means that it will apply to claims for intentional torts, negligent torts and potentially sections of claims for nuisance and defamation. The Act does not apply to claims under the Motor Accidents (Compensation) Act, the Work Health Act and the Crimes (Victim’s Assistance) Act, save for those provisions to do with structured settlements. The Act does not interfere with the operation of the Compensation (Fatal Injuries) Act, save for the application of the limits in the Act insofar as assessment of damage is concerned. Strangely, the Act does not apply to claims for ‘dust-related conditions’. There is not much litigation in the Northern Territory in relation to ‘dustrelated conditions’ save for the wellknown bovine variety of the condition. Alterations to personal liability: sections 7 to 13 Four classes of people receive immunity from civil liability and they are:

  • Volunteers, who perform

community work for a community organisation and commit an act in good faith and without recklessness, which causes personal injury. The other side of the coin is that the community organisation for which the volunteer performs the service assumes the liability of the volunteer;

  • Good Samaritans who, in good faith

Page 12 —June 2003 and without recklessness, soberly provide emergency assistance that causes personal injury;

  • The occupier or owner of premises

is now not liable for personal injury if the person who suffers it has entered the premises with the intention of committing an offence punishable by imprisonment; and

  • People who generally injure people

who are committing an offence punishable by imprisonment, if the injured person’s conduct contributed materially to the risk of that injury. The final indemnity offered by this part of the Act is that people who express regret that injury has occurred do not admit liability for the injury and the expression of regret cannot be admitted in evidence. Although this section does not give an example of such an expression of regret the Queensland Act does and runs along the lines of (in a medical negligence case) “I am sorry that there was an adverse outcome from your operation". Contributory negligence: sections 14 to 17 There are two aspects to this part of the Act. The first is that there is a presumption of contributory negligence if the person injured was intoxicated. That presumption might be rebutted if the injured person is able to establish that the intoxication did not materially contribute to the incident or that the intoxication was involuntary. The second aspect is that a person who is injured is presumed to be guilty of contributory negligence if the injury was caused by a person who was intoxicated and the injured person had relied on the skill of that person. This presumption can also be rebutted if the other person’s intoxication did not materially contribute to the accident or the injured person could not reasonably be expected to have A person is intoxicated if at the time c the incident that person has a b!oo< alcohol reading of .08g. In the even that the presumption is not rebutted the court must decrease damages b at least 25 percent. Damages: sections 18 to 30 The definition section prescribes th( American MedicalAssociation Guide* to the Evaluation of Permanen Impairment as the guide to be used ir the assessment of permanen impairment. “Impairment" does not include t psychological or psychiatric injury prescribed by the Regulations. There are no regulations that deal with this aspect at the moment and sc psychological or psychiatric injuries are included in the assessment under the Guides. Economic loss, whether past or future, is limited to three times average weekly earnings (AWE). The AWE figure represents weekly ordinary time earnings for full-time adult persons, which is currently $852.00. There is legislative direction that the award in respect to future economic loss can only be based on the injured person’s most likely future circumstance (the common-law situation) and there is also now legislative direction for a discount for “contingencies". Both the assumptions and the contingencies must be identified in a judgment by the court. The discount rate for future economic loss has been set at five per cent, and; that will result in smaller amounts for future economic loss awards. : Gratuitous services can only be awarded if they meet the threshold of i six hours or more per week for at least six months. I No more than the amount of AWE for a j quarter may be awarded in respect of gratuitous services. . gratuitous services must be reduced

qyany benefit obtained by the person

providing the service. It is assumed that this is directed to payments received from the Department ofSocial

Security.

pain and suffering are to be determined by reference to the Guides. The Court must make its assessment on the basis of evidence produced in accordance with the assessment performed by a medical practitioner of the degree of permanent impairment jn accordance with the Guide. The Act provides for procedures relating to the assessment of permanent impairment to be prescribed by regulation. No such regulations are as yet available. There is a cap on awards for pain and suffering of $350,000, which will change with the AWE. There is a threshold for the award of pain and suffering set at five per cent permanent impairment of the whole person. An assessment of 85 per cent or more will permit an assessment of 100 per cent; the assessment of between 15 and 84 per cent will receive the percentage assessed; and for between five and 14 per cent there is a sliding scale of associated percentages. The important aspect of this section is that injuries which result in disabilities that are not permanent will not be compensated by award of pain and suffering, loss of amenities and enjoyment of life. There are a host of such injuries (such as food poisoning, fractures and ripped muscles and tendons, failed cosmetic surgery and burns) that will now not result in an award of damages because the economic loss and medical expenses component of those injuries can Sometimes be very small. Merest can no longer be awarded by the court for non-economic loss or _gratuitous services. Interest can be awarded on the basis of the Commonwealth Government ten-year benchmark bond rate to the loss from the day of the loss until the day on which the court assesses the damages. Structured settlements The court is now empowered with the consent of the parties and not of its own volition to make an order for a structured settlement. There has to be some enabling legislation brought in by the Commonwealth to allow this to go ahead and as yet that legislation has not been promulgated. Actual case studies from the American Medical Association Case Study One (Public Liability): A12 year old boy suffered a major brain injury, multiple hemorrhages in the brain, in a coma, fractured base of skull, fractured nose and face, scaring and disfigurement of the eye. Priorto the accident, the boy had above average academic achievement and was a school leader. He now requires a teaching aid at school, his academic performance has significantlydecreased, memory concentration impaired and personality changes - aggressive, easily distracted and balance problems. AMA Assessment seven per cent. Case Study Two (Medical Negligence): A patient presents to hospital with a positive pregnancy test and abdominal pain. Assumption made by the hospital that the patient has an ectopic pregnancy. No ultrasound is performed as a technician not available. The client is not referred to another hospital. Patient has a laparoscopy performed. In fact patient is 12 weeks pregnant (pregnancy could have been palpated in uterus by clinical examination but this was not done). During laparoscopy patient’s uterus is perforated. Loss of amniotic fluid. Over next two to three weeks continual loss of amniotic fluid and at 14V2 week’s gestation fetus dies. Patient attends hospital for induction of labour. Induction agent administered and patient told it will take several hours to act. Patient goes to toilet and passes fetus in toilet. Helped back to bed by nurse with fetus hanging out of vagina by umbilical cord. Taken to surgery for D&C. Patient has psychiatric reaction and is diagnosed with post traumatic stress disorder which resolves after 12 months. Patient subsequently has another pregnancy which because of past perforation is classified as a high risk pregnancy. No permanent impairment, no entitlement to compensation under AMA guidelines. Case Study Three (Medical Negligence) Three year old patient with a facial haemangioma on upper lip. Prior to removal ofthe large haemangioma the hospital decides to reduce blood flow to the lesion by injecting it with ethanol. The first (and last) time the technique is ever tried at this hospital. The ethanol extravasates from the lesion throughout the facial tissue. Causes severe necrosis of the skin over cheeks, lips and chin. Upper lip drops off. Multiple skin grafts required. The patient is left with extremely severe facial scarring over 60 per cent of face and will require further surgery as a teenager but otherwise requires no day to day care. Scarring has caused a grossly disfigured mouth but other than an inability to lick ice-cream the patient (who is now eight) has no functional impairment. As the injury requires no day-to-day care and does not impinge on function to any great degree would probably have a zero per cent impairment under AMA guidelines. Motor Accidents (Compensation) Act Late last year an amendment to the MACA Act came into effect. The stated intention for the introduction to the Motor Accidents (Compensation) Amendment Act 2002 is to confirm the manner in which section 13 of the MACA Act had been administered by the Territory Insurance Office was correct prior to what is refered to as: “doubt arising as a result of the decision in Collman VTIO”. In fact, there was no doubt which arose as a result of that decision as the basis on which the Territory Insurance Office was to have administered section 13 had been laid down by the Supreme Court since, at the very latest, 1991. Page 13 — June 2003 ^ The Department of Justice on remand prisoners A new proposal to house remand prisoners with sentenced prisoners to help combat overcrowding has been met* with some criticism from elements of the legal profession. The Department of Justice is seeking to clarify its stance on the issue. Richard Coates, Chief Executive Officer for the Department of Justice asked that we make public an explanation of the proposal. Prior to a decision being made, the issues were discussed with the Director of the North Australian Aboriginal Legal Aid Service (NAALAS), the Northern Territory Legal Aid Commission (NTLAC) and the President of the Criminal Lawyers Association. There was broad support from the director of NAALAS, provided the program only be applied to those remandees who had previously been incarcerated and freely consented to a move. Under the initiative, remand prisoners can (at their request) be transferred to a sentenced block providing they have been previously incarcerated with an appropriate security classification and have been given an opportunity to obtain legal advice on the issue. The Superintendent of the Prison has also undertaken not to transfer any remand prisoner, without first notifying the prisoner’s lawyer of the proposed move. “I accept that this interim measure to deal with the unprecedented number of remand prisoners in Darwin is less than perfect, however I believe it was preferable to the other short term options of either increased lockdowns, or the larger scale transfer of Top End prisoners to Alice Springs,” Mr Coates said. ”1 have asked Correctional Services to provide me with options for more appropriate longer term strategies for remand, but do not believe that a stand alone purpose built remand facility, such as exists in Melbourne and Sydney is necessarily the best or only solution for the Territory. “Apart from being extremely expensive, I would suggest that a maximum security, single cell environment would not be suitable for many of our indigenous prisoners,” he said. A review of the current arrangements will be held within three months and Mr Coates invites Law Society members to submit their views on the situation. Comment can be made to the Law Society or directly to the Department of Justice. ® Federal Court appointments The Hon Justice Bruce Thomas Lander has been appointed as a judge of the Federal Court of Australia and four new federal magistrates have also been announced. Justice Lander will start his appointment in July, replacingthe Hon Justice John von Doussa, who has been appointed as President of the Human Rights and Equal Opportunity Commission. The four new federal magistrates will service Newcastle, south-east Queensland, Adelaide and Melbourne to help deliver cheaper, quicker and more efficient access to the Australian legal system. The new appointments will be funded from within existing family law resources by appointing new magistrates rather than replacing former Family Court judges in Adelaide and Melbourne.® Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a volunteer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Coordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton A McMinn Sts SAT - 10am-11.45am, Casuarina Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 1111 or email darlene@dcls.org.au LEGAL SERVICE Page 14 — June 2003 letters tto the editor - gpo box 2388, dwn nt 0801 Organ donation in the Territory Letter from Helen Stewart, NT Donor Coordinator, LifeNet NT Organ donation can affect all of us. It may be as a friend or family member of an organ donor, or knowing someone who has received an organ transplant. As the Northern Territory has the highest incidence of kidney disease, the likelihood of meeting someone that needs or has had a kidney transplant is extremely high. There are approximately 2,000 people Australia-wide waiting for an organ transplant each year, many of whom will die before ever receiving a suitable organ. Despite transplant success rates being amongst the best in the world, Australia has one of the lowest organ donation rates within developed countries. For Australians suffering a life-threatening or serious illness, receiving a generous gift of an organ or tissue donation may mean a second chance at life, or improved quality of life. Currently there are 5,931 Territorians (2.96 per cent of the population) who have signed onto the Australian Organ Donor Register, making a formal decision to be an organ donor if they were to suffered a severe head injury causing death. Transplantation surgery is not performed in the Northern Territory for those who are ill enough to require a new organ, at present. Although Royal Darwin and Alice Springs hospitals have been participating in fulfilling the wishes of those who desire to donate their loved ones organs to give the greatest gift of life. In the last 22 years, 31 members of the community in the Territory have given the gift of life and health to over 70 Australians. In providing education to the community, the perception of some people towards organ donation involves placing their intended wish to donate in their Last Will and Testament. Unfortunately by the time many wills are read, a period of weeks may go by, and this will have been too late for a person’s intentions to be honoured. The most important thing is for families to discuss this issue amongst themselves. If they wish to make their intention more formal they should consider signing onto the Australian Organ Donor Register. This information obviously needs to be relayed to clients who are seeking the services ofthose within the Law Society to produce their Last Will and Testament and are keen to donate their organs and/ortissues if they die. Deciding to be an organ donor involves thinking and talking about organ donation with your family. The next step is to make your intention known by joining the Australian Organ Donor Registry. This can occur in several ways:­

  • Calling LifeNet NT (8922 8786)

- the Northern Territory Organ Donation Agency (who can provide you with registration forms for your clients);

  • Obtaining a registration form at

any Medicare office or a Motor Vehicle Registry Office;

  • Telephoning the toll free number

1800 777 203 during business hours; or

  • Visiting the Health Insurance

Commission website: www.hic.gov.au/ © Our letters/responses policy We welcome your views and responses to issues in Balance. Send a Letter to the Editor, to be considered for publication in our print and online editions. Letters must be short and may be edited by Balance. No letter will be published unless it includes a name and full contact details (for verification purposes). Balance may license third parties to reproduce such letters. Letters with pen names will generally not be considered for publication. Page 15 — June 2003 New copyright protection for Indigenous communities Proposed a mendments to the copyright works and films. Coyright Act will enable Indigenous communities to take legal action to protect against inappropriate, derogatory or culturally insensitive use of copyright material. The amendments, which will be introduced into Federal Parliament later this year, will give Indigenous communities legal standing to safeguard the integrity of creative works embodying traditional community knowledge and wisdom. The moral rights provisions of the Copyright Act give individual authors the right to be identified as the author or artist of their work and to take action to prevent false identification of the author or derogatory treatment of these However, Indigenous communities do not currently have legal standing to bring moral rights court actions regarding the treatment of Indigenous material. This legislation would introduce Indigenous communal moral rights in relation to artistic works, based on an agreement between the author/ artist and the Indigenous community. These rights could be independently exercised by the community and would mirror the nature and scope of authors’ moral rights as far as possible. The legislation aims to provide a simple, workable and practical scheme for Indigenous communities, artists, galleries and the public.® features The new superannuation powers of the family court cont... splits. It is impossible in a paper of this length to address the various ramifications of split orders, but I must warn of one aspect that may catch some people by surprise. For instance, it may seem fair to divide what is “here and now" and then to divide what comes into possession in the future. That seems fine in principle, and some would think it is fair to split each payment of the pension benefit as it is made. NOT SO. If the member spouse dies without having a reversionary beneficiary, or if the scheme does not provide for payment to any reversionary beneficiaries, the pension split also dies. The fund trustees cannot have imposed on them a duty beyond that which they do not have already - that is to pay a pension for the life of a member. There is however an argument based on the words of section 90ME dealing with payments being made to reversionary beneficiaries, that such payments are also splittable. If so, the “splittable” payment will be much reduced, as all reversionary pensions are. Therefore the outcome will be very different to what a client may have expected. If the former non-member spouse still happens to be the reversionary beneficiary, presumably she or he will take as such beneficiary, and presumably any split order will lapse. The fact that section 90ME says that payments to a reversionary beneficiary are “splittable" is not in doubt. What is debatable is whether parts of that section survive any challenge. Long wait A related issue is that unless a new interest is created in certain accumulation schemes, a former nonmember spouse will have to wait for the actual retirement of the member spouse before she or he can expect to receive payments under the splitting orders. Where the age discrepancy is significant, and the non-member spouse is older than the member spouse, the non-member will have to wait to a much older age before receiving any split payments. No one can be forced to retire earlier than required to do so by the relevant fund rules. Other aspects of the new scheme will have to await further discussion at a later date.® A move towards global legislation? A recent survey has found that the Australian legal profession, along with their international colleagues, share strong views that certain aspects of law would benefit from international standardisation. The survey was sponsored by LexisNexis and conducted by the International Bar Association (IBA) on its members in Australia, Canada, France, Germany, United Kingdom and the United States. Globally, respondents identified laws governing money transmission and ‘laundering’ as the most important area of law that need internation standardisation. Terrorism and security, trade and investment and environmental protection were also identified as important areas. In Australia, 71 per cent of legal professionals ranked laws governing terrorism and security as the next highest priority for standisation and a third of respondents felt Australia’s legal system was inadequately equipped to deal with international terrorism.® Want to stay up-to-date with news and upcoming events? ■ News PRACTITIONER & views from the LSNT Secretariat ]]l&W SOCiiT? ■ ^____________________ / .mmm rmtrM*, The Practioner is a weekly email newsletter service for members of the LSNT. To access this service provide your email address to the LSNT office, or email oublicrelations@lawsocnt.asn.au i Page 16 — June 2003 Thanks from DCLS Ms Caitlin Perry from Darwin Community Legal Service presenting NT Attorney General Dr Peter Toyne with a copy of the Law Handbook. Last month, the Darwin Community Legal Service (DCLS) symbolically thanked the entire Territory legal profession by presenting a copy of the third edition of the Law Handbook to NT Attorney General, Dr Peter Toyne. The presentation was made in acknowledgement of the important contribution soliticitors and barristers make to the community by volunteering at DCLS. "We have almost 60 volunteers on our books, from the private profession and the public sector, who give up their time for people who might not otherwise be able to access legal advice. For a small jurisdiction like the NT it is a great effort," Coordinator of DCLS, Caitlin Perry, said. “Each week, volunteer lawyers provide free legal advice to up to 30 people at legal advice clinics around Darwin. “Volunteers were also the backbone behind the production of the Law Handbook. Over 100 local lawyers researched and wrote chapters for the invaluable resource for the legal profession and public alike," she said.® Presenting the Appeal cont... through the submissions of other counsel or through the questions of the court. Kirby J, in an article written in 1995’, and which will repay reading, said: "Directness in an advocate is a great strength. Candid acknowledgement of a problem may even enlist the assistance of the court, if the merits suggest that course.” When the court is constituted by more than one judge you should endeavour to avoid doing so. Whilst appellate advocacy is necessarily different from other ■advocacy the principles and Practices you have applied elsewhere should underlay the Presentation of your argument to the appellate body.® Endnotes: 'Ten Rules of Appellate Advocacy Kirby J (1995) 69 AU 964 at 971 ATTENTION: ’ ALL SOLICITORS First Law Promotions Pty Limited (ACN 002 635 029) announce the creation of a national website forthe exclusive use and convenience of legal practitioners in the Northern Territory and elsewhere in Australia. www.coiirtqjientSoCom.qu Want a solicitor to act as your Court Agent? Want to act as a Court Agent for other solicitors? Email firstlaw@biqpond.net.com or phone (02) 9369 2600 for further information. m.. ■' x'-V1 ^ r "O i LAW Page 17 — June 2003 l case notes with mark hunter

  • . Peach v Toohey

Supreme Court (NT) No. JA 118 of 2002 Judgement of Angel J delivered 30 May 2003 CRIMINAL LAW - ABORIGINAL LAND PERMITS - s 8 SENTENCING ACT (NT). On 19 November 2002, the respondent pleaded guilty to one charge of entering Aboriginal land without having been issued a permit to do so, contrary to s 4 of the Aboriginal Land Act (NT). Mr Loadman SM found the offence proven but declined to record a conviction, and dismissed the charge pursuant to s 7(a) of the Sentencing Act (“the Act"). The prosecution appealed this sentencing disposition. The offence was committed on 13 November 2002, when the respondent drove into the Wadeye (Port Keats) Community for the purpose of investigating the death of an Aboriginal man whose funeral was to be held that day. The deceased had died in tragic and controversial circumstances, and the respondent was one of a number ofjournalists who had been refused permission by the Kardu Numida Community Government Council to visit until after the day of the funeral. Relatives of the deceased became upset when the respondent took photographs and attempted to interview them immediately after the funeral. They complained to the Council and the police were called. The respondent was shortly thereafter arrested, charged, and granted bail on the condition that he immediately leave the community. He told police that he believed it was necessary for him to attend the community, despite having been denied a permit, to cover the “story”. Counsel for the respondent told his Worship about his client’s need to: ...discharge the duty of a journalist to provide the public with information relevant to its welfare and the welfare of members ofsociety at risk. Before the Supreme Court, counsel for the appellant suggested that the respondent had been interested in obtaining exclusive coverage of the funeral - what journalists commonly call a scoop. The critical issue on appeal was whether his Worship had complied with s 8(1) ofthe Act when determining that it was inexpedient to record a conviction. This provision required the Court to have regard for the circumstances of the case and, inter alia, the extent to which the offence may properly be described as “trivial” and the circumstances of its commission “extenuating”. HELD 1. Appeal allowed / dismissal order quashed / conviction recorded. 2. The conduct of the respondent can not reasonably be said to be of a trivial nature, and the circumstances of the commission of the offence were not extenuating. Justice Angel observed that his Worship did not expressly advert to s 8 of the Act. His Worship: ...appears to have treated the respondent's ‘duty as an investigative journalist' as a significant extenuating circumstance largely determinative of the outcome. His Honour approved the appellant’s submission that funerals are ordinarily private affairs, from which the media can quite properly be excluded. The respondent's breach of s 4 of the Aboriginal Land Act was serious because it was “wilful and calculated”. His duty as a journalist was to act lawfully. Mark Hunter APPEARANCES Appellant-Carey / DPP Respondent - Tippett QC / James COMMENTARY The maximum penalty fora breach of s 4 of the Aboriginal Land Act is a fine of $1,000. Justice Angel declined to express his opinion on the alleged impropriety of police using their power of arrest when there is no reason to believe that a summons will not be effective to bring a defendant to court. His Honour did, however, refer in his judgment to recent criticism of police on this issue by the NSW Supreme Court (Smart AJ) -see Carr(2002) 127 .ACrim R 151, particularly at 159.® NTU award winners The Faculty of Law, Business and Arts at the Northern Territory University recently presented awards to three of its most promising students. Ms Michell May received an award for the highest grade in Legal Organisations, Ms Marianna Mortimer for the highest grade in Business Law and Ms Imelda Yonaedi for the highest grade in Introduction to Law. The prizes were provided by the Law Society of the Northern Territory.® Page 18 — June 2003 Sayonara Havi; ig recently resigned from the LSNT Council. Stuart Barr (NTLAC) is moving t0 japan to teach English. Musier Room has heard that Stuart’s Japanese needs a little bit of polish, but nis fellow Council members have been helping him out with some of the essentials. Welcome aboard Congratulations to Virginia Eichner, Aaron Powell and Craig Smith who have recently been admitted. Goon luck with your future endeavours. The Territory’s own IT Whiz Kid Recently, Andrew Schatz (Australian Government Solicitor) was named as IT Whiz Kid of the month on ZD Net Australia’s website. At 25, Schatz has a degree in Computer Science and has been practising law for almost two years, previously working for Clayton Utz. “I’d like to think I could expand my legal career here instead of having to move south. There may be a fulltime role for me practicing IT/IP [Information Technology/Intellectual Property] law locally,’’ he told ZD Net. QC’s on the move Steve Southwood QC and Jon Tippett QC have moved premises to Myilly Point Chambers at Mines House, Myilly Point. Seeking snouts and sources Help Muster Room to expose the-soft under belly of the NT’s legal profession. MR is seekingsnouts and sources to The Muster Room feed us tid bits of gossip and information. If wanttodish the dirt, orthinkthat you might be able to help, please contact Zoe at the LSNT or email publicrelations@lawsocnt.asn.au ;ii Legal aid and access to justice inquiry On 17 June 2003, the Senate announced a wide-ranging inquiry into legal aid and access to justice in Australia. The Senate Legal and Constitutional Legislation Committee will run the inquiry and report back to Parliament by 3 March 2004. The committee will investiage the hew effectively the current legal aid and access to justice arrangements meet community legal requirements. Specific areas of attention will include: a) achieving national equity and uniform access to justice across Australia, including outer-metropolitan, regional, rural and remote areas; b) implications of the current system on criminal law, family law and civil law matters; and c) the impact of the current arrangements on community legal services, pro bono legal services, court and tribunal services and levels of selfrepresentation. Submissions can be made to legcon.sen@aph.gov.au or faxed to (02) 6277 5794. Further information is available from: The Secretariat Senate Legislation and Constitutional Committee Room SI, 61 Parliament House Canberra ACT 2600 Tel: (02) 6277 3560 Fax: (02) 6277 5794.4 New powers passed for ASIO On 26 June 2003, the Federal Parliament passed the Australian Security Intelligence Organisation Legislation (Terrorism) Amendment Bill 2002. Federal Attorney General Darryl Williams welcomed the new legislation as a vital piece of counter-terrorism achon. “We need this legislation to give our ASiO vita! tools to deter and prevent te, rorism,” Mr Williams said. The new legislation gives ASIO the power to obtain a warrant to detain suspects for seven days and question them duringthat period without legal representation. Green Senator Bob Brown opposed the legislation, telling Parliament that: “We all have to accept that we are Australians good and true who want this country to be safe and secure, and we have different ways of reckoning where the law should stand in procuring maximum security while, at the same time, defending the freedoms and liberties which make this country the place we want to be and are proud of.” “This is not an incremental increase in the power of ASIO to intrude into people’s lives but a monumental jump forward”. \ Page 19 — June 2003 readers forum - book reviews Concise Corporations Law (4th edition) by Julie Cassidy The Federation Press The Corporations Act consists of 1,409 sections and four Schedules. The Corporate Law Reform Act consists of 1,389 sections and two Schedules. Ford’s Principles ofCorporations Law contains 1,278 pages. There are numerous other texts and services of a similar magnitude. A text entitled Concise Corporations Law, of 348 pages, is therefore of instant and understandable appeal. It is relatively easy, of course, to be “concise" if one reduces the subject to such a summary form as to be unhelpful or, at worst, misleading. The test, therefore, is to achieve a full sweep ofthe subject in a compact and accessible form. Julie Cassidy has produced a comprehensive, contemporary and accessible guide to this complex and fluid area of the law. The author holds an LLB(Hons) from Adelaide University and obtained a doctorate at Bond University. She is presently Associate Professor in Law at Deakin University. Concise Corporations Law first appeared in 1995 and is now in its 4th Edition, published in 2003. The coverage of the work is best demonstrated by the chapter headings. These, in turn, deal with; an overview of the historical development of corporations law and present judicial and administrative arrangements, choosing between business organisations, corporate personality, promoters and pre-registration contracts, incorporation registration of Page 20 — June 2003 corporations, the corporate constitution, shares and dividends, disclosure documents, appointment and removal of directors, directors duties, meetings, members remedies and external administration. The work could have, in fact, been a little more concise as the first chapter suffers from significant repetition. This malaise is attenuated, although not altogether eliminated, in subsequent chapters. A useful and user friendly feature of the book is the identification of leading cases, with a summary of the facts and ratio and often also with an extract entitled “leading statements” by the judges. These case summaries and extracts are highlighted in a way that one might use in research and preparation. The case is identified as a leading case, the citation given and the summary of facts and ratio set out in an indented paragraph with a line running down the left hand margin. Leading judicial statements are similarly highlighted. An example of how contemporary the work is, is the inclusion of cases such as ASIC v Adler arising out of the collapse of HIH Insurance. In closing I leave you with the classic statement in Jones v Lipman where in justifyingthe lifting of the corporate veil the court said that the company was: a mask which the defendant held before his face in an attempt to avoid recognition by the eye of equity. Whilst the need to consult the full and authoritative texts will remain in many circumstances, the author has achieved what she set out to do, to provide a reliable guide to the complexities of corporations law in a concise and accessible form. ® - Paul Walsh, partner, Priestley Walsh Intellectual Property - Text and Essential Cases by Rocque Reynolds and Natalie Stoianoff The Federation Press Virtually everything we do these days has some connection with intellectual property - reading a book, watching TV, listening to music, surfing the net, are obvious examples. You only have to remember the furore regarding Napster and music copyright on the internet, to realise how increasingly important this body of law is becoming. As a lawyer, there is a need to have at least a basic understanding of the principles of intellectual property, because you never know when the law relating to intellectual property will affect a particular matter you’re working on. For example, in the area revenue law, specific types of intellectual property are prescribed to be “dutiable property" for stamp duty purposes. It is therefore important to know, in relevant circumstances, what type of intellectual property, if any, your client is acquiring. The text is 552 pages and a relatively easy read as far as legal texts go. It is divided into five parts: 1. Introduction; 2. Copyright and Neighbouring Rights; 3. Patents; 4. Protecting Business Reputation and Marks; and 5. Designs, Plant Breeder’s Rights, Circuit Layouts and Confidential Information The introduction is refreshingly short and gives you a thumbnail sketch of the sources of law relating t0 intellectual property. v.^a' mUUi mmim IvVethen get into the meaty part of the %xt, with a full history lesson on the lWins of copyright and then four l^letailed chapters on copyright feanvassing subsistence of copyright, ^'rights of the copyright owner, balancing Interests and dealing with copyright. Inhere is a final chapter on the 'I interestingtopic of neighbouring rights, l%hich includes discussion on moral fights and performers protection. Iflrhe next part of the text consists of lithree chapters on Patents. This is followed by a furtherthree chapters on IvPassing Off and Trademarks - in my iview, essential reading for any ^commercial lawyer. The final part ofthe ifr-book devotes a chapter each to ilpesigns, Plant Breeder’s Rights, Circuit IfSlayoutsand Confidential Information. iffl?-:1 ’ igiOne of the things I really liked about Slfthis text is the way relevant case Extracts on each topic are included at f':.the end of each chapter. I generally find texts that include cases quite difficult to read because the dispersion > of case extracts between commentary ri?; makes it hard to stay focussed. !|: However, by includingthe case extracts atthe end of each chapter, I found this text a lot easier to read. Overall, I’d give it eight out often and gE recommend it as a text worth having ff-for reference. ~£'V || Incidentally, the Napster case is §£ discussed several times in the text. ® Leon Loganathan, Ward Keller Upcoming WANTED Balance Book Reviewers You get two months to read the book and write a 300­ 400 word review... and you get to keep the book. If you are interested please contact Zoe at the Law Society or email fiUbiicrelations@lawsocntasn.au 28 June-6 July 2003 Criminal Lawyers Association of the Northern Territory 9th Biennial Conference Port Douglas, Queensland Tel: 08 89812549 Fax: 08 8981 2596 wildlyn@hotmail.com 7 & 8 July 2003 Australian institute of Criminology Conference: Inhalant Use and Disorder Townsville, Queensland Tel: 02 6292 9000 Fax: 02 6292 9002 confco@austarmetro.com.au 18 & 19 July 2003 . Australian Law Practice Management Association 3rd Annual Conference: Implementing Best Practice Gold Coast, Queensland Tel: 0414 618 629 Fax: 07 3824 1475 lms@powerup.com.au 21 & 22 July 2003 Australian OHS Regulation for the 21st Century Gold Coast, Queensland Tel: 02 62816624 Fax: 02 6285 1336 conference@conlog.com.au 20 & 21 July 2003 Personal Injuries Conference Brisbane, Qld Tel: 07 3842 5905 Fax: 07 3220 0616 2 & 3 August 2003 14th Biennial Weekend Conference of the Family Law Pracitioners’ Association of Western Australia Hillarys Harbour, Western Australia Tel: 08 9325 9099 Fax: 08 9325 1551 ck@clairskeeley.com.au 17-23 August 2003 21st Biennial Congress - World Peace Through the Rule of Law: Celebrating 40 years of the WJA Sydney & Adelaide, Australia Tel: (Washington, US) 1202 466 5428 Conferences Fax: (Washington, US) 1202 452 8540 wja@worldjurist.org 18 & 19 August 2003 Graffiti and Disorder: Local Government, Law Enforcement and Community Reponses Brisbane, Qld Tel: 02 6292 9000 Fax: 02 6292 9002 confco@austarmetro.com.au 31 August - 3 September 2003 National Community Legal Centres Conference Hobart, Tasmania Tel: (03) 9328 8642 Fax: (03) 9326 5912 Annie_Nash@fcl.fl.asn.au 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 38314477 warmid@tpg.com.au 7-10 October 2003 Avoiding Disaster: Engineering, Technology and the Law Monash Campus Prato, Tuscany, Italy Tel: 03 9905 4734 www.law.monash.edu.au/iifs 7-8 November 2003 Juvenile Justice Conference Calwell, ACT Tel: (02) 6292 9000 Fax: (02) 6292 9002 conference@netinfo.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com Page 21 — June 2003 NOTICEBOARD , High Court Notes July 2003 Prepared for the Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Insurance - Obligations of insured - Disclosure - Whether insured required to disclose decision “probably not" to renew policy In Permanent TrusteeAustralia Ltd v. FAI General Insurance Co. Ltd ([2003] HCA 25; 8.05.2003) the High Court concluded, by majority, that an insured who renewed a policy of insurance with an insurer was not obliged by s21 of the Insurance Contracts Act 1984 (Cth) to disclose to the existing insurer a decision “probably not” to renew the policy afterwards: McHugh, Kirby, Callinan JJ; contra Gummow, Hayne JJ. The majority concluded the commercial decision of the insured was not relevant to a decision by the insurer to “accept the risk” within s21(l)(a), (2) [32], [35]. The minority concluded this factor was relevantto the decision ofthe insurer being the fulcrum on which the provisions turned [70]. The Court agreed that the Court of Appeal NSW had erred in finding an alleged misrepresentation was “fraudulent” [37], [94]. Appeal allowed. Appeal - Review of findings of fact - Issue not raised at appeal - When re-trial appropriate In Fox v. Percy ([2003] HCA 22; 30.04.2003) the appellant was ridinga horse in the company of another horse rider (M) in April 1992 when the horses were hit by a car driven by the respondent. In an action by the appellant for damages for personal injuries the Primary Judge found the respondent had negligently been on the incorrect side ofthe road. The Primary Judge based this conclusion on accepted the evidence of both the appellant and M and the evidence of a traffic engineer who explain why the skid marks and the evidence of a traffic engineerwho explained whythe skid marks on the respondent’s correct side of the road did not mean the accident did not occur on the other side ofthe road. The Court ofAppeal (NSW), by majority, allowed an appeal. It held the skid marks were incontrovertible. It declined to order a retrial. The appellant’s appeal to the High Court was dismissed: Gleeson CJ with Gummow, Kirby JJ; McHugh; Callinan J. The Court considered when the advantages oftrial judges on questions of creditability yielded to facts which were almost “incontrovertible” [37]. The High Court also concluded there was no error in failing to order a retrial [46]. Appeal dismissed. Criminal law - Offences - Fraudulent application of company by company officer In Macleod v. Q ([2003] HCA 24; 7.05.2003) the High Court considered defences made by a company officer to a charge under sl73 ofthe Crimes Act 1900 (NSW) that as a director the appellant had fraudulently taken or applied for his own benefit property ofthe company. The Court concluded that a defence of “consent” on the part of the company was inappropriate [30], [93] and the nature ofthe term “fraudulent” [38], [100], [129]. The High Court concluded a claim of “right” was not made out and was distinct from a claim of honest belief [46], [107], [133]: Gleeson, Gummow, Hayne JJ, McHugh J, Callinan J. Callinan observed the decision of R v. Roffel[1985] i Page 22 — June 2003 VR 511 was overruled. Appeal dismissed. Administrative law - Constitutional Writs - Jurisdictional error - RRT - Failure to appreciate claim made by applicant In Dranichnikov v. MIMA ([2003] HCA 26; 8.05.2003) a Full Court concluded, by majority, the RRT had denied the appellant procedural fairness when it failed to appreciate that his claim for refugee status was based on fear as a businessman in Russia who exposed corrupt practices rather than being a “Russian businessman”: Gummow with Callinan J; Kirby J; Hayne J; contra Gleeson CJ. The majority made absolute an Order Nisi in the original jurisdiction ofthe Court but dismissed the appeal from a Full Court ofthe Federal Court limited by the former provisions in Part 8 ofthe Migration Act. Constitutional Writ issued. Stamp duties (Q) - Dutiable documents - Transfer pursuant to contract - Duty paid on contract - Whether transfer liable to duty In Trust Company of Australia Ltd v. Commissioner of State i Revenue ([2003] HCA 25; 1.5.2003) a company (“Cromwell") } was licensed to engage in activities under the Managed j Investments Act 1998 (Cth). A condition of its licence required j Cromwell not to hold property of a registered scheme and to j appoint another person to hold such properties. Cromwell j appointed the appellant as “custodian” ofa particular scheme, j In November 1999 Cromwell (as purchaser) entered into a \ contractto purchase land from a vendor. The contract referred j to roles ofthe appellant as “custodian”. The contract provided f forthe vendor to be paid on completion of a transferfrom the j vendorto the appellant (custodian). The respondent assessed j both the contract of sale (between the vendor and Cromwell) j and the transfer (between the vendor and the appellant to j duty under the Stamp Act 1894 (Q). The Court of Appeal (Q) j answered questions in favourofthe validity ofthe assessment, f An appeal by the appellant was allowed by the High Court by J majority: Gleeson CJ; Gummow, Hayne JJ; Callinan J; contra j Kirby J. The majority concluded the reference in the legislation J to “the purchaser” was sufficiently flexible to identify the party j who was in substance “the purchaser” under the entire | transaction. Appeal allowed; questions answered accordingly I Criminal law - Enquiry after conviction - Whether doubt j arises as to guilt | In Eastman v. DPP (ACT) ([2003] HCA 28; 28.05.2003) the | High Courtagreed with separatejudgments given by McHugh J | and Heydon J that the power given in s475 of the Crimes Act | 1900 (ACT) to hold an enquiry where after conviction there | was any doubt or question arising as to his guilt, authorised an f enquiry into the question of whether an accused person had I been fit to plead. Appeal against contrary construction by Full j Court ofthe Federal Court allowed. I Criminal law - Willful murder - Alternative verdicts of f murder and manslaughter - Directions 1 In Stanton v. Q ([2003] HCA 29; 29.05.2003) the High Court j considered how a jury should be directed on a charge of willful j murder where alternative verdicts of murder and manslaughter I Wfg; 4 $' mFederal Court Notes July 2003 prepared forthe Law Council ofAustralia and its Constituents by Thomas Hurley, Barrister, Vic., NSW, ACT (Editor, Victorian Administrative Reports) Administrative law - Constitutional Writ - Application of High Court decision In Scargill v. MIMIA ([2003] FCAFC 116; 3.06.2003) a Full Court concluded that a correct understanding ofthe criterion '■ for a visa was a condition precedent to the valid exercise of jurisdiction by the MRT. The Court concluded that where the MRT misunderstood the concept of"usually resident” it made a jurisdictional error as explained by the High Court and no question of“reconciling" types of errors arose. Constitutional law - Implied terms - Freedom of association - Registration of political parties In Mulholland v. Australian Electoral Commission ([2003] FCAFC 91; 13.05.2003) a Full Court concluded that provisions in the Commonwealth Electoral Act 1918 (Cth) providing for the registration of political parties was a burden on political communication because it gave privileges to registered parties [22], The Court concluded the burden was reasonably adapted toa legitimate end therefore lawful within Lange v. ABC (1997) 189 CLR 520 [40]. Veterans’ affairs - Review - Procedure - Notice to proceed In Johnson v. VRB ([2003] FCAFC 89; 9.05.2003) by sl55AA(4) the Veterans’ EntitlementsAct 1986 (Cth) provided the principal Member ofVRB was to give an Applicant a notice at the end of the standard review period to establish the applicant was ready to proceed. A Full Court concluded the notice could be given a reasonable time afterthe expiry ofthe relevant period [48]. may have been available. W i§ $?:- W Migration - Refugees - Specific claims of persecution In VKAV v. MIMIA ([2003] FCAFC 87; 9.05.2003) a Full Court concluded that a person who made claims that he generally feared persecution in Sri Lanka had not made “specific claims” of persecution and the application was not valid. Migration - Refugees - Whether RRT failed to consider integer of claims - Psychological harm In SCAT v. MIMIA ([2003] FCAFC 80; 30.04.2003) a Full Court concluded the RRT and Primary Judge had erred in failing to appreciate a claim for potential psychological harm could found 3 claim for persecution. The Court concluded, by majority, failing To appreciate this integer of the claim constituted a jurisdictional error [29]. Patents - Application for extension of method claim Patent - Whether product itself within scope of patent In Prejay Holdings Ltd v. Commissioner of Patents ([2003] PCAFC 77 30.04.2003) a Full Court considered whether a claim for a pharmaceutical substance fell within the scope of claims made in a patent specification for a patent protecting Federal Court - Jurisdiction - Whether claim in associated jurisdiction survives dismissal of primary claim In Petrotimor Companhia di Pertoleos S.A.R.L. v. C ofA ([2003] FCAFC 83; 6.05.2003) a Full Court concluded that once it was accepted a claim asserting a “matter” under the Constitution brought unders39B(l)(a) ofthe JudiciaryAct was dismissed the Court had no jurisdiction to entertain the proceeding further in the absence of a common factual basis of claims in either its accrued or associated jurisdiction. In [2003] FCAFC 82 the same Full Court refused to stay other orders pending an application for special leave to appeal. Trade Practices-Trade and commerce - Documentary film In Hearn v. 0’ Rourke ([2003] FCAFC 78; 2.05.2003) a Full Court concluded thatthe conduct ofthe respondentfilm director in obtaining interviews from young persons for a proposed documentary about racism could, in a strike-out context, be found to be "in” trade or commerce as explained in Concrete Constructions (NSW) P/L v. Nelson (1990) 169 CLR 594. Migration - Privative clause In Koulaxazov v. MIMIA ([2003] FCAFC 75; 2.05.2003) a Full Court considered, per dicta, the role ofthe privative clause in s474 ofthe Migration Actfollowingthe decisions ofthe Federal Court in NAAV v. MIMIA (2002) 195 ALR 449 and the decision ofthe High Court in PlaintiffS157/2002 v. C ofA (2003) 195 ALR. Madgwick J observed that the reasoning of NAAV could not stand afterthe decision ofthe High Court [13]. Gyles J [14] agreed with Conti J who concluded that s474 must be given some effect and followed the decision of Gyles J in LOBO v. MIMIA [2003] FCA 144. Migration - Unpersuasive reasoning - Whether jurisdictional error In VGAO of 2002 v. MIMIA ([2003] FCAFC 68; 23.04.2003) a Full Court concluded that unpersuasive factual conclusions and reasoning in a decision of the RRT did not cross the line between failing to deal with claims made and failing to give what the Court thinks should be appropriate weight or consideration to privative and logically relevant material [56]. Migration - Special need relative In Chow v. MIMIA ([2003] FCAFC 88; 9.05.2003) a Full Court concluded neitherthe MRT northe PrimaryJudge had erred in concludingthe appellant had not established a “permanent or long-term need” for “substantial and continuing assitance” as required by the relevant visa class. Administrative law - Bad faith - Poor standard of decision-making. In WAFV of 2002 v. RRT ([2003] FCA 16; 17.01.2003) French J considered, per dicta, whether"bad faith” in administrative law was tied to questions of moral turpitude and extended to oor or erratic decision-making. a method of production. continued next page Page 23 — June 2003 i NOTICEBOARD Continued from previous page Sales tax - Whether yacht applied to own use In C of T (Qh) v. Baxter ([2003] FCAFC 119; 30.05.2003) a Full Court considered whetherthe purchase of a yacht was exempt from tax underthe Sales Tax AssessmentAct 1992 (ah) because it was applied to the owner’s own use where it was subject of a lease entered into before it arrived in Australia. Migration - Notice of adverse material In NATL v. MIMIA ([2003] FCAFC 112; 28.05.2003) a Full Court concluded the requirements ofs424Aofthe Migration Act had been satisfied where the substance of adverse material was brought to the notice ofthe applicant. Federal Court - Proceedings by minor where Minister guardian In SFTB v. MIMIA ([2003] FCAFC 108; 27.05.2003) a Full Court considered whetherthe RRT madejurisdictional error in refusing a claim for refugee status by a minor for whom the respondent was guardian by virtue ofthe Immigration (Guardianship of Children) Act 1946 (ah). Bankruptcy - Void transactions - Payment to spouse In Official Trustee in Bankruptcy v. Lopatinsky ([2003] FCAFC 109; 30.05.2003) a Full Court considered whether payments by a bankrupt of more than one-half interest in the matrimonial home to a spouse pursuant to an informal agreement between them was pursuant to an implied agreement by the wife to forebearto sue. Migration - Special need relative - Need for assitance In Chow v. MIMIA ([2003] FCAFC 88; 9.05.2003) a Full Court considered no error was established in the meaning given by the MRTto the regulation identifying "special need relatives”. American Department of Defense responds Following up on an article publised in the May edition of Balance, The David Hicks saga - the FederalA-G responds to LSNT (page 17), below is a response from the American Department of Defense on the same issue. Paul W Cobb, Jr., Deputy General Counsel for the Office of General Counsel in the American Department of Defense, responded to a letter from LSNT President Mr Ian Morris. In his response, Mr Cobb wrote: “Under the law of armed conflict, enemy combatants may be detained until the cessation of hostilities.” “Furthermore, US courts consistently have held that the US military may properly detain anyone who takes up arms against the United States and is captured during combat, regardless of citizenship (including US citizenship). The reason behind these rulings is not only to further the military’s abilty to gather information, but also to prevent detainess from taking up arms and rejoining hostilities against the United States. “Most recently, on March 11, 2003, the US Court of Appeals for the District of Columbia Circuit reiterated this holding with regard to certain enemy combatants captured during hostilities between US forces and members ofthe al Qaeda terrorist network and the Taliban regime. In this case, twelve Kuwaiti, two British and two Australian nationals (Messrs. Hicks and Habib) claimed that the US government was detaining them without due process of law, in voilation ofthe US constitution and international law. The court, following well-settled law, held that the US courts lacked jurisdiction. “Notwithstanding the legal permissibilty of these detentions, the US Department of Defense has paroled some detainees who have been assessed not to pose a threat against the United States or its allies, and may parole others like them in the future.”® /------------------------ ------------------- --------------------------------------- ---------------------------------------------~\ WANTED: Your nominated email address i Bulletins to the profession - CLE Seminars - Events & Functions | Do you want to be informed by the Law Society via email? ■ If so, please provide an all-purpose email address for yourfirm. Fill out this form ■ and fax to the Law Society on 8941 1623. J NAME OF FIRM:___________________________________________________ EMAIL ADDRESS:__________________________________________________ SIGNATURE OF AUTHORISED PERSON:____________________________ ___________________________________________________________________________________ / L Page 24 — June 2003 AUSTRALIAN ADVOCACY INSTITUTE Veekend Workshops Three separate workshops will cover advocacy relating to: • Family Law • Advanced Cross-examination • General Advocacy Skills iese 3 workshops, each running over the full weekend, will involve instructions, formance and review ofthe various skills, disciplines and techniques involved in Australia’s leading advocacy teachers.

  • Case Analysis ^Effective Performance Preparation * Legal Argument

animation and Cross-examination of Witnesses * Addresses * Communication Fees: $594 (incl GST) for lawyers offive or less years experience $715 (incl GST) for those with more than five years experience Register on-line at www.advocacy.com.au, or Phone: (03)9905 1279 Fax: (03) 9905 1278 Emails: aai@law.monash.edu.au Places will be limited...secure your registration now! Registrations close Thursday 14th August 2003 22th - 24th August 2003 riday evening 5.30pm to 7.30pm, Saturday 9am to 5pm, Sunday 9am to 1pm. good advocacy. Instruction faculty of Skills covered include: Page 25 — June 2003 l COURT LIBRARY NOTES NT. LEGISLATION Legislative changes in May 2003, notified in the NT Government Gazette New Regulations 13/2003 Supreme Court Rules (26.3.03) 15/2003 Registration Regulations (28.3.03) 16/2003 Unit Titles Regulations (28.3.03) 17/2003 Motor Vehicle (Standards) Regulations (1.5.03) 20/2003 Fisheries Regulations (28.3.03) 21/2003 Veterinarians Regulations (30.4.03) 22/2003 Trade Measurement (Weighbridges) Regulations (30.4.03) 23/2003 Trade Measurement (Pre-packed Articles) Regulations (30.4.03) 24/2003 Trade Measurement (Measuring Instruments) Regulations (30.4.03) 25/2003 Trade Measurement (Miscellaneous) Regulations (30.4.03) 26/2003 Residential Tenancies Regulations (30.4.03) 27/2003 Personal Injuries (Liabilities and Damages) Regulations (30.4.03) 28/2003 Legal Practitioners (Professional Indemnity Insurance) Regulations (30.4.03) Commencements 34/2002 Criminal Property Forfeiture Act (1.6.03) 35/2002 Criminal Property Forfeiture (Consequential Amendments) Act (1.6.03) 63/2002 Alice Springs (Animal Control) Regulations (26.3.03) 64/2002 Alice Springs (Control of Public Places) (26.3.03) 2/2003 ConsumerAffairs and Fair Trading Amendment Act (1.5.03) 3/2003 Personal Injuries (Liabilities and Damages) Act (1.5.03) ■ 4/2003 Personal Injuries (Liabilities and Damages) (Consequential Amendments) Act (1.5.03) 7/2003 Superannuation Amendment Act (28.5.03) 8/2003Superannuation Guarantee (Safety Net) Amendment Act (28.5.03) 9/2003 Supreme Court (Judges Pensions) AmendmentAct (28.5.03) 10/2003 Legislative Assembly Members’ Superannuation Amendment Act (28.5.03) 11/2003 Administrators Pensions Amendment Act (28.5.03) 12/2003 Statute Law Revision Act (s.ll - 16.4.03) 13/2003 Police Administration Amendment Act (7.5.03) 7/2003 Petroleum (Submerged Lands) (Datum) Regulations (1.5.03) Repealed legislation 32/1989 Crimes (Forfeiture of Proceeds) Regulations 53/1992 Crimes (Forfeiture of Proceeds) Regulations 24/1994 Crimes (Forfeiture of Proceeds) Regulations 10/1996 Crimes (Forfeiture of Proceeds) Regulations 65/1988 Crimes (Forfeiture of Proceeds) Act 1988 - ), Page 26 — June 2003 Repealed by 35/2002 (1.6.03) 16/1990 Crimes (Forfeiture of Proceeds) Amendment Act - Repealed by 35/2002 (1.6.03) 20/1992 Crimes (Forfeiture of Proceeds) Amendment Act - Repealed by 35/2002 (1.6.03) RECENT ARTICLES Child sexual abuse Aarons, Natalie - Issues related to the interviewer’s ability to elicit reports of abuse from children with an intellectual disability-a review, Current Issues in Criminal Justice, Vol 14(3) 2003 pp: 257-268 Commercial tenancy Webb, Eileen - Casual mall leasing-a coordinated approach?, Australian Property Law Journal, Vol 10(1) 2003 pp: 64-75 Criminal law Maspero, Jim - What happens when stolen cars or boats are improved by innocent purchasers?, Law SocietyJournal, Vol 41(4) 2003 pp: 64-66 Condon, Anne - The Enforcement Review Program, Journal of Judicial Administration, Vol 12(4) 2003 pp: 225-234 Discovery Charrett, Donald E- Professional indemnity insurance-do third parties have an interest?, Insurance Law Journal, Vol 14(2) 2003 pp: 77-102 Naismith, Peter G - The discovery of electronic evidence, Journal ofJudicial Administration, Vol 12(4) 2003 pp: 180­ 201 Dispute resolution Spencer, David - To what degree of certainty m ust a dispute resolution clause be drafted?, Australasian Dispute Resolution Journal, Vol 14(2) 2003 pp: 153-164 DNA Findlay, Mark - Challenging forensic evidence - observations on the use of DNA in certain criminal trials, Current Issues in Criminal Justice, Vol 14(3) 2003 pp: 269-282 Ligertwood, Andrew - Avoiding Bayes in DNA cases, Australian Law Journal, Vol 77 2003 pp: 317-326 Berryman, David - Forensic DNA profiling-infallible or fundamentally flawed?, Brief, Vol 30(4) 2003 pp: 6-12 Fordham, Judith - DNA debacles, Brief, Vol 30(4) 2003 pp: 14-16 Employment law Catanzariti, Joe - Out with the tie, in with the earring, Law Society Journal, Vol 41(4) 2003 pp: 36-37 Euthanasia Yeo, Stanley - Right to die, Alternative Law Journal, Vol 28(2) 2003 pp: 89-92 RT LIBRARY NOTES Evidence. Findlay, Mark - Challenging forensic evidence - observations 0n th - use of DNA in certain criminal trials, Current Issues in Criminal Justice, Vol 14(3) 2003 pp: 269-282 Nais; )ith, Peter G - The discovery of electronic evidence, Journal ofJudicial Administration, Vol 12(4)2003 pp: 180­ 201 Liger wood, Andrew - Avoiding Bayes in DNA cases, Austs alian Law Journal, Vol 77 2003 pp: 317-326 Bern nan, David - Forensic DNA profiling - infallible or funda mentally flawed?, Brief, Vol 30(4) 2003 pp: 6-12 Ford am, Judith - DNA debacles, Brief, Vol 30(4) 2003 pp: 14-1 Infringements Condon, Anne - The Enforcement Review Program, Journal of judic; a! Administration, Vol 12(4) 2003 pp: 225-234 Insu once Char ott, Donald E - Professional indemnity insurance - do third parties have an interest?, Insurance Law Journal, Vol 14(2 2003 pp: 77-102 Drummond, Stanley- Unconscionable conduct in insurance, Insurance Law Journal, Vol 14(2) 2003 pp: 103-126 Finn , arin - The insured’s duty of disclosure under s 21 of the Insurance Contracts Act - Permanent Trustee v FAI reaches the High Court, Insurance Law Journal, Vol 14(2) 2003 pp: 127-150 Inte actual disability Aarc: 3, Natalie - Issues related to the interviewer’s ability to elicit ^ sports of abuse from children with an intellectual disal: nity - a review, Current Issues in Criminal Justice, Vol 14(3 2003 pp: 257-268 Judges Le Brun, MJ - Professional development forjudges-adopting an holistic approach, Journal of Judicial Administration, Vol 12(4 2003 pp: 202-215 Goldring, John - The reflective judge - aims and content of judici i education, Journal of Judicial Administration, Vol 12(4) 2003 pp: 216-224 Judgments Shrof: Daraius - The future of guideline judgments, Current Issue • in Criminal Justice, Vol 14(3) 2003 pp: 316-323 Legai Aid Gibsor Frances - A decade after Dietrich, Law Society Journs Vol 41(4) 2003 pp: 52-57 Legal sth ics Shirvi;wton, Virginia - Being too polite may exacerbate oonflic; of interest issues, Law Society Journal, Vol 41(4) 2003 Pp; 3 Lyons, Aussell - Corporate misconduct and legal professional resPor loility, Law Society Journal, Vol 41(4) 2003 Legal professional liability Lyons, Russell-Corporate misconduct and legal professional responsibility, Law Society Journal, Vol 41(4) 2003 pp: 60­ 61 Motor vehicle accidents Hunt, Peter-On the road again - the right to drive normally, Law Society Journal, Vol 41(4) 2003 pp: 62-63 Murder Valer, Claire - Minimum terms of imprisonment in murder, just deserts and the senteing guidelines, Criminal Law Review, 2003 pp: 326-335 Native title Bartlett, Richard - An obsession with traditional laws and customs creates difficulty establishing native title claims in the south : Yorta Yorta, University of Western Australia Law Review, Vol 31(1) 2003 pp: 35-46 Negligence Heuzzenroeder, Henry-The High Court on nervous shockthe classical and the romantic Part II - Artificial aspects of nervous shock law, Bulletin, Vol 25(3) 2003 pp: 22-25 Professional indemnity Charrett, Donald E - Professional indemnity insurance - do third parties have an interest?, Insurance Law Journal, Vol 14(2)2003 pp: 77-102 Professional negligence Hartley, Ben - Advocacy policy and potato chips - The future of the advocates immunity in Australia, Insurance Law Journal, Vol 14(2) 2003 pp: 151-172 Sentencing Victim statements, Australian Law Journal, Vol 77 2003 pp: 270 Herbert, Andrew, Mode of trial and magistrates sentencing powers - will increased powers inevitably lead to a reduction in the committal rate?, Criminal Law Review, 2003 pp: 314­ 325 Valer, Claire - Minimum terms of imprisonment in murder, just deserts and the sentencing guidelines, Criminal Law Review, 2003 pp: 326-335 Stolen goods * Maspero, Jim - What happens when stolen cars or boats are improved by innocent purchasers?, Law Society Journal, Vol 41(4) 2003 pp: 64-66 Victims of crime Victim statements, Australian Law Journal, Vol 77 2003 pp: 270 Page 27 — June 2003 Budrikis sneaks up ij to share the lead It's getting towards the pointyend of the season, hut there are still plenty of contenders for the final honours It’s tight at top of the ladder in the LSNT’s AFL footy tipping competition. Recent developments at the top ofthe LSNT’s AFL footy tipping ladder have seen Katrina Budrikis (Dept of Justice) sneak up to join Chris Booth (Ward Keller) at the top of the table with 144 apiece after Round 13. However, ten more punters are within striking distance ofthe top and we still have nine rounds to go. A tough couple of rounds have seen low scores of 4 and 5, and the only perfectly tipped rounds were by Magistrate DaynB Trigg and Glen Dooley (Office ofthe Director of Public Prosecutions) in lucky Round 13. After Round 13 the scores are (in alphabetical order): Magistrate Jenny Blokland 106, Lyn Bond (Parliamentary Counsel) 126, Christ Booth 144, Sean Bowden, 124, Pet! Boyce (Ombudsman) 116, Katrina Budrikis (Dept of Justice) 144, Jodeen Carney (Member for Araluen) 128, Graha," Chandler 138, Chris Chaplin (Ward Keller) 138, Michael Davis (De Silva Hebron) 112, Glen Dooley (Office ofthe Directo of Public Prosecutions) 124, Donna Dreier (Dept of Justice) 124, Robert Duguid (student) 126, Lorelei Fong Lim (ABC) 12 Alex Griffith (Clayton Utz) 138, Caron Henebery (Sean Bowden and Associates) 122, Laura Hopkins (NAALAS) 134, Mar Johnson (Office ofthe Director of Public Prosecutions) 140, ------------------------:------------------- Magistrate Vince Luppino 128, B&L Martin (Chief Justice and wife) 110, Julie McLachlan 140, Melart (NTLAC) 126, Glenn Miller (NAALAS) 128, Elizabeth Morris 142, Ian Morris (Hunt and Hunt) 68, Pipina Papazoglou (De Silva Hebron) 140, Bill Piper (Bill Piper) 110, Karen Randell (Collier and Deane) 102, Justice Trevor Riley 140, Sally Sievers (Cridlands) 142, Magistrate Daynor Trigg 142, Cassandra Tys (Cassandra Tys) 122, Peter Walker (Peter Walker) 126, Sarah Wilkie 112, David Woodroffe (NAALAS) 124. The winner will walk away with the glory and $245, second prize is $70 and third place gets $35. (D DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: publicrelations@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. 2003 CLE Prograi Justice Mansfields John Lowndes SM-* Jenny Blokland SM i 30 Jul Administrative Appeals 20 Aug Sentencing Act 12 Sep TBA 22 Oct AustralAsia Railway Project - Challenges Overcome Alastair Shields 19 Nov TBA Justice Angel Prices are $22 members, $27.50 non-members, $5.4 students (all include GST). The CLE presentations are videoconferenced to venues! Alice Springs and Katherine. Unless otherwise notified, CLEs are presented in Darwin^ Cridlands’ boardroom, Smith Street (opposite the TIO),thj Katherine venue is the Katherine Regional Tou.jp Association, cnr Stuart Highway and Lindsay Street, and t| Alice Springs venue is the Central Australian Division Prinfi|. Health Care centre on 54 Hartley Street. Bookings are essential. CLE presentations are available on video (up until Augif 2002) or on CD (Sept 2002, Jan 2003, Feb 2003. M?- 2003) . Information handouts from the CLEs can be obtained from the Law Society Northern Territory. Ring Sonya on 89815104 for more information. Page 28 — June 2003

Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au July 2003 COLUMNS President’s Column.................................................................. EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill For the record....... Advocacy................ NT Young Lawyers. Jottings on the Bar......................................................................................................... 10 COUNCILLORS Ms Jenny Hardy Mr (ilen Dooley Mr Michael Grove Mr Christopher Booth Ms Sue Oliver Mr Markus Spazzapan Northern Territory University. NOTEWORTHY Conferences.......... Noticeboard.......... NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine ('oilier SECRETARIAT Chief Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Ms Sonya Ingham Administrative Assistant/Receptionist Ms Sharon Waters Balance is published 1 1 rimes a year by the Law Society Northern Territory. All contributions, letters and enquiries should he forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. Court Library Notes......................................................... REGULARS The Muster Room............................................................. Footy Tipping competition results................................. CLE Calendar.................................................................. FEATURES Wukidi ceremony for Dhakiyarr Wirrpanda................ Controversy continues for Guantanamo Bay detainees High Court centenary dinner......................................... Annual Golf Day results................................................. Farewell for ChiefJustice Martin..................................... Domestic Violence Legal Service..................................... Darwin Community Legal Service................................ Page 2 — July 2003 president's column To MDP or not MDI^ err, what was the question? There are a large number of incorporated practices in the Territory. These exist in a corporate Neverland, being neither companies nor partnerships - and some say retaining the worst aspects of both. Incorporated practices have been, however, useful on a number of “business" aspects. As the legal profession has suffered the close examination of competition policy they have been seen as a restriction worthy of eradication and these “echidnas" of the corporate world will now be removed from the “protected" list. In their place will be the corporate legal creature acronymically known as MDP. This creature will be introduced by the MDP Act (really called the Legal Practitioners Amendment (Incorporated Legal practices and Multi-Disciplinary Partnerships) Act), which is expected to be enacted in the next couple of months. As a result, the old sort of incorporated legal practices will cease to exist as an option for a new practice. The dinosaurs of old companies will continue to exist because at the repeal of the old Legal Practitioners (Incorporation) Act, this Act will continue to exist for them, but new practices that wish to incorporate will be required to incorporate as a MDP. That means that you can have a company with not just lawyers as directors, and that means we will all be more competitive. Lawyers, as you are aware, are known for wanting to work with other professions, or indeed, other people. Nonetheless, we can now all work with other people as fellow directors, the only restriction being that we can’t work with struck off lawyers (or persons otherwise disqualified under the Corporations Act from being directors). As with the introduction of any new aspect into the legal profession, there have been critics of MDPs. To the traditionalist a MDP means business and business means a departure from the profession of the law. The Chief Justice of New South Wales, Spigelman C.J. has recently commented “if lawyers are treated as if they are only conducting business, then they will behave ‘entrepreneurally’ accordingly to an even greater degree than they do now. The ethics of service, which emphasises honesty, fidelity, diligence and professional selfrestraint may, progressively, be lost". His Honour made those comments in the face of a profession that had already installed MDPs as part of the legal framework. We have heard, anecdotally, that there have not been many MDPs established in New South Wales since the passing of enabling legislation a couple of years ago. Nationally there are moves in West ern Australia and Queensland to follow the New South Wales legislation and, as you have seen above, there are similar moves here. All this is part of the thrust toward a national profession. With the prospect that there may be similar legislation in Queensland, the Chief Justice of the Queensland Supreme Court, Paul De Jersey C. J. commented that he was “not necessarily opposed" to practitioners being committed tojoin MDP’s but he conceded that there was a risk of a “pronounced retreat from professionalism into commercialism”. However His Honour went on to say “Provided the solicitor’s ethical position is maintained, the proposal would be justified by the prospect of more efficient client service, and it is service for the public which is the essence of professionalism”. Ian Morris, president There is always the unresolved dichotomy between business and professionalism. No one, of course, ever says that a certain development is forcing lawyers deeper into professionalism, although one could infer from the manner in which the profession has been dealt with in the Competition Reviewthat professionalism, if it is supported by the restrictions that we are familiar with, is a great enemy. Why that should be so is still a mystery to me. Well, what is the MDP Act all about? It brings us in line with the incorporation provisions in NSW and is pretty close to that which is proposed in the National Practice Bill. The changes are that there will no longer be the need to seek the approval of the Chief Justice to have an incorporated practice, and there will be no restriction on who can control or manage the company. However, when the company performs legal services, ethical obligations will apply to the nominated lawyer or lawyers in control, as will the Legal Practitioners Act, and the Supreme Court will still have the power to disqualify errant MDPs from offering legal services. As an adjunct to the multi-disciplinary aspect of corporations, the Bill provides for the same aspect to apply continued next page Page 3 — July 2003 i president's column continued from previous page to partnerships, should anyone wish to continue to have one. I haven’t been able to work out when anyone would like to run a MDP Partnership, but I suppose there could be situations where a lawyer might wish to enter into a joint venture with a corporation, or there may be those who see some advantage in unlimited liability and, more importantly, unlimited cross liability. A corporation becomes a MDP by providing legal services into the Territory other than legal services which the corporation provides to itself (in-house), that are services not required to be provided by a lawyer and that are provided by an employee who is not a lawyer, or for which it does not expect to be paid. In order to trade as a MDP it must notify the Law Society that it intends to operate as an incorporated legal practice and it must have at least one lawyer director. The lawyer director(s) then becomes the focus of the “professionalism" referred to by both Chief Justices (above) and is responsible for the ethical conduct of the MDP. Legal employees of the MDP have the same professional obligations and privileges that a lawyer has currently. Those professional obligations and privileges extend to the service provided by the MDP as long as that service is a legal service (and therein lies the rub) and if the MDP breaches a professional rule then either the lawyer director or the employed lawyer or, in some circumstances, the MDP becomes responsible and maybe dealt with by the Law Society or the Supreme Court. There are provisions that impose the same trust account and fidelity fund regime to a MDP. Probably the biggest change in the proposed MDP Act is the movement away from “partnership liability" for the directors. This means that a lawyer director will now not be responsible for the debts of any other lawyer director or the MDP. However ^ Page 4 — July 2003 the MDP is responsible for any damages payable to a client as a result of a dishonest act or omission by a lawyer employed by the MDP and for any action based on failure to account in the course of the provision of legal services by the MDP as if it were in partnership with the lawyer concerned. From the Law Society’s point of view there are some substantial changes to its powers and, in effect, the Law Society is granted various powers that are conferred upon ASIC to regulate, investigate, inspect and review the conduct of our MDPs and in the event that the conduct is found wanting, apply to the Supreme Court for the MDP to be disqualified from offering legal services. There is no doubt that the powers vested in the Law Society are more substantial in relation to MDPs then they are in respect ofthe profession at large, indeed they could be described as draconian. These powers were originally provded in the NSW legislation to deal with practitioners trying to abuse the system. The legislation does not specifically deal with the manner in which an old incorporated practice might become a new incorporated practice and the Law Society has raised this aspect with the Department of Justice. Hopefully some easy system for the transformation from old to new can be sorted out. The Law Society will shortly publish an instruction sheet that will show how this might be done. The catfish will closely watch to see if the butterfly of professionalism de-chrystalises into the grub of business. © Professional standards laws give real value to legal rights Consumer legal rights will be enhanced rather than diminished by national professional standards laws, according to the Law Council of Australia. “The net outcome of a professional standards approach is that Mum and Dad users of professional services will be in a far stronger position to actually recover eocnomic loss caused by the negligence of a professional than is currently the case," Law Council President, Ron Heinrich, said. “This is because to join the scheme, a professional will be required to hold profession indemnity insurance at a level which will cover consumer claims," Mr Heinrich said. “The introduction of professional standards laws which combine mandatory risk management and professional indemnity insurance requirements is a trade off for high level caps on professional liability, and is a pragmatic way to give real meaningto consumers legal rights." Professional standards legislation allows professional associations to apply to an indepednent authority to approve a scheme for that profession. Under the scheme, there are consumer protection measures, such as professional education, risk management to prevent accidents, and insurance (or asset) requirements on professionals to meet claims for negligence. There is also a limit on the amount of compensation payable for harm covered by the scheme. Lawyers under the existing NSW scheme in firms with up to three partners are required to hold $1.5 million in insurance. This figure rises to $10 million for firms with ten or more partners. However, the average claim for negligence against a NSW soliticor for professional indemnity continued next page lor the record The AGM season is looming This is likely to be the last Balance circulated before the Annual General Meeting which is to be held on 3 September 2003 at 4.30pm at the Darwin Central Hotel (corner of Knuckey and Smith streets, Darwin). A new Council will be elected at the Annual General Meeting. Under Clause 9 of the Constitution of the Law Society the Council consists of the following: (a) the President (b) the Vice President (c) the Honorary Secretary (d) the Treasurer (e) seven members (f) the Representative of the Northern Territory Bar Association; and (g) the immediate Past President. If possible, at least one councillor shall be practicing in Alice Springs, with an Alternative Alice Springs member. It is proposed that an amendment be submitted to the Annual General Meeting replacing on Council the immediate Past President with a representative of the Young Lawyers Committee. Other amendments proposed will set out the organisational structure of the Young Lawyers committee. At the June meeting of the Council it was resolved that Jenny Hardy replace Stuart Barr on Council due to Stuart’s resignation and departure to Japan. Approval will also be sought for the new Complaint Handling By-Laws, a copy of which has been circulated to members. Some members of Council have indicated they do not wish to stand again, creating some vacancies. We are looking at, subject to technology, setting up a website where details of applicants for election appear. Under Rule 10(4) of the Constitution. (4) Nominations forelection to the Council shall be lodged at least seven clear days before the date for the Annual General Meeting (they must be recieved by close of business 26 August 2003). In the event that no nominations are received for a position on the Council, nominations may be called from the floor of the meeting and seconded verbally by a member at any time prior to the closure of nominations by the Chair. An Agenda and associated papers, including the annual report will be sent out to members at least 14 days before the date of the Annual General Meeting. You would not need to be told that the next year will be challenging. Major issues include:

  • the National Model Laws;
  • Professional Indemnity Insurance

and related issues;

  • Implementation of the New

Educational requirements for Applicants for Admission; and •* Tort Law reform. The Council will also be working with a new Chief Justice following the impending retirement of Chief Justice Brian Martin at the end of October 2003. An effective Council should have a mixture of members, from the private profession and Barbara Bradshaw, ChiefExecutive Officer LSNT Government, from different sized practices and working in various areas of law. I would urge members to consider whether or not they wish to be on Council and indeed who of their colleagues they believe could make a contribution to the profession and the community generally through membership of the Council.® Professional standards law give real value to legal rights cont... insurance is less than $75,000. “In the current tight professional indemnity insurance market, some professions were finding it difficult to place insurance or to gain full cover for all activities,” he said. “This can result in a claim against a professional not being covered by insurance, or lead to the temptation for a service provider to arrange their business in a way which makes recovery of a successful claim impossible. "It will be cold comfort for a consumer to have a legal right to recover a loss if that right is worthless in a practical sense." The LSNT is considering these issues. ) Page 5 — July 2003 ) cover story Wukidi ceremony for Dhakiyarr Wirrpanda On Saturday 29 June, a Wukidi ceremony was held for Dhakiyarr Wirrpanda at the Darwin Supreme Court. This historical act of reconciliation was attended by Chief Justice of Australia Murray Gleeson, Chief Justice of the Northern Territory Brian Martin, Solicitor General, Tom Pauling QC, and a healthy contingent of the local legal profession and the general public. The first part of the ceremony took place in Liberty Square, outside the Supreme Court, and involved traditional dancing, singing and music. The ceremony was then taken inside the Supreme Court for the ceremonial installation of the Larrakitj poles (mortuary poles). The aim of the Wukidi ceremony was to lay the spirit of Dhakiyarr to rest. The ceremony stems from Garrawan (Woodah Island) in north east Arnham Land. The idea was conceived and driven by the Yolngu people, but NT SolicitorGeneral Tom Pauling QC acted as the Program Co-ordinator for the event. “This is undoubtedly the most powerful act of reconciliation in Australia ever,” Mr Paulingsaid. In October last year, Dhakiyarr’s Dgambawa Maramulli, a representative of the Yolngu, explains the ceremonial proceedings. Page 6 — July 2003 decendants (the Yolngu people) made a proposal to Chief Minister Clare Martin that a Wukidi ceremony be held in Darwin and that Larrakitj poles be erected as a permanent memorial. In the letter the Yolngu described the importance of the Wukidi ceremony. “We believe that he [Dhakiyarr] was shot and his bones are left in Darwin Harbour. To us Yolngu people, these bones are very important to our rituaI because the bones have grown from the land and contain the strength of the land. Because these bones are in Darwin, it leaves us feeling empty without the strength they contain.“ “This is undoubetedly the most powerful act of reconciliation in Australia ever.” “We know that bones are also important in your culture and you will understand. We remeberthat when Constable McColl was killed at Woodah Island that his bones were later collected and taken back to Darwin where they had a big funeral for him. This never happened for our leader and all we have left of him is a photograph.” “This ceremony will be an act of reconciliation between the Northern Territory Government and us, the family of Dhakiyarr Wirrpanda. We would like the site of the Wukidi to be a permanent memorial to our leader and a A member of the McColl family spoke at the ceremony. monument for our children, and their children also, to remind them that this was the last ground our leader stood upon.” The Larrakitj poles were prepared and painted by the foremost artists in the region and hold great spiritual significance to the Yolngu. The cover photo is of the ceremonial installation of Larrakitj poles in the Supreme Court. Chief Justice Murray Gleeson attended the ceremony on behalf of the High Court, to accept thanks from Dhukiyarr’s family. In the spirit of reconciliation, 35 members of Constable McColl’s family also attended the ceremony and received an apology from Dhakiyarr’s family. After the ceremony, some of the McColl family went to stay with the Yolngu in north east Arnhem Land. Yolngu dancing as part of the Wukidi ceremony Mistory of Dk Dhakiyarr Wirrpanda was a senior ceremony man for the Yolngu people, from Blue Mud Bay in north east Arnhem Land. In the early 1930s he speared Constable Albert McColl to death in controversial circumstances. Dhakiyarr came to Darwin to tell his side of the story and was subsequently arrested and tried for murder. Tried in the Northern Territory Idyarr Wirranda Supreme Court, a jury found Dhakiyarr guilty and he was sentenced to death. In 1934, Dhakiyarr successfully appealed to the High Court and had his conviction quashed (TuckiarVThe King (1934) 52 CLR 335). The Administrator of the Northern Territory was told to ensure that Dhakiyarr had a safe passage home, but after his release he never made it home and was last seen alive in Darwin. Dgambawa Maramuiii, Justice Trevor Riley; Chief Minister Clare Martin, Chief Justice Brian Martin, Wuyal Wirrpanda and Chief Justice Murray Gleeson, outside the Supreme Court. Page 7 — July 2003 i nt young lawyers Annual General Meeting may determine the future of the Young Lawyers Committee The Northern Territory Young Lawyers Incorporated Association was unincorporated as an association earlier this year. This was mainly due to the rising cost of indemnity insurance premiums and the rising costs of administration. This course of action was approved by the 2002 AGM of the NTYL and recommended in part by the Law Society. The Law Society subsequently established the Young Lawyers Committee of the Law Society recognising the value of such an organisation and the need to carry on its representative role. A casual vacancy on Council was created by the resignation of Ms Little in February 2003 and was filled by my appointment as current president of the NTYL. These changes to the Law Society, establishing a Young Lawyers Committee and a position for a Young Lawyer on Council, actioned the recommendations of the Strategic Planning Meeting of Council and was very much welcomed by young lawyers. The Young Lawyers Committee would like to crystallise this representation and organisational structure for future Young Lawyers. The Young Lawyers Committee will be moving Constitutional changes at the Law Society Annual General Meeting to give constitutional effect to the representation and organisational structure of NTYL and also to implement the recommendations of the Strategic Planning Meeting of Council. These changes will include an amendment to the Constitution to put a Young Lawyer on the Council and to create a Young Lawyers Committee of the Law Society. Notice of these motions will be enclosed with the AGM notice. The Young Lawyers Committee currently has approximately 80 members on its email list, however as the membership process has only just been ratified some Young Lawyers and Articled Clerks may not yet be on this list. Please email christODherbooth@wardkeller.com.au if you are a practitioner with less than 5 years post admission and would like to be on the NTYL email list. Details of membership to NTYL will be forth coming in Balance shortly. I would like to encourage all practitioners to vote for these changes so that these motions are passed. If you would like to vote for these changes and are unable to attend, please forward your proxy to a Law Society member who will be in attendance. HIGH SCHOOLS CAREERS EXPO Volunteers are sought for the 12 and 13 of August to help staff the Law Society careers expo stall. Volunteers who are interested in sharing their experiences and professional knowledge about being in the legal profession should email myself, or Zoe Malone Dublicrelations@lawsocnt.asn.au SOCIAL EVENTS Various social events will be posted by email in the coming weeks. Chris Booth, NTYL CLEs At the Advocacy Workshop conducted by Justice Trevor Riley, Rex Wild QC and Lex Silvester, Barrister-At-Law, earlier this year, a similar workshop was discussed for later in the year focussing on civil litigation. If you are a Young Lawyer and you would be interested in participating in such a workshop (probably one night a week over a few weeks) please email me so that I can gauge the interest and organise accordingly. LAWASIA YOUNG LAWYERS AWARD 2003 LAWASIA, the Law Association for Asia and the Pacific, is pleased to offer two awards, each of AU$2000, to young lawyers of the region to subsidise their attendance at a LAWASIA event. The award for 2003 will be applied to the 18th LAWASIA Biennial Conference, to be held in Tokyo, Japan. The conference will run from 1-5 September, 2003, and its theme will be A Dynamic Asia/Asia Pacific: Legal Issues in 2003 and Beyond. Full conference information can be accessed via the conference website at www.ics-inc.co.jp/lawasia2003 LAWASIA Secretariat can be contacted by email (lawasia@lawasia.asn.au), by telephone (+61 8 8946 9500) by facsimile (+61 8 8946 9505) or by post (GPO Box 3275, DARWIN NT AUSTRALIA 0810). ® Page 8 — July 2003 advocacy Communication “To express the most difficult matters clearly and intelligently, is to strike coins out of pure gold." - Geibel Advocacy is the art of persuasion. In order to persuade it is necessary to communicate with your audience. The members of the audience with whom you wish to communicate will include not only the judge or magistrate but also any juror or witness who may be present. Effective communication comes down to the language that you use. You must tailor your language to suit the audience and you must constantly be aware that the words used by yourself and any witness you may call, need to be understood by everyone involved in the proceedings. If, in the course of proceedings, you stray into language that is unfamiliar to your audience or any member of it you may be fortunate and find that the person directly concerned will ask you to clarify your meaning. That will permit others in the court to benefit from the explanation you provide. However, more often than not, where a witness is involved, the witness will wish to hide from a display of ignorance by guessing at what is meant by your question. The danger is obvious. Others in the room (excluding the judge) will not have the opportunity to seek clarification. It is especially dangerous to use other than plain language if you are addressing a jury. The members of the jury do not have the opportunity to point out that the words you are using are not familiar to them or that they have no idea what it is that you are trying to convey. A powerful argument may disappear in a fog of verbal confusion. The effective advocate will use words that can be understood by all. Except when addressing a court constituted by a judge or magistrate alone or a specialist tribunal, it is prudentto use plain and simple language at all times. It is easier to ask “where do you live?" than to risk misunderstanding by enquiring “what is your residential address?" It is also easier to refer to cars rather than motor vehicles, jobs rather than employment and beer or wine or spirits rather than intoxicating liquor. The list of examples is endless. A similar problem of misunderstanding or lack of understanding can arise when the witness you have in the witness box uses language that is likely to be unfamiliar to his or her audience. This may occur where you are dealing with an expert or simply a person who has a wider vocabulary than most. Medical practitioners are commonly witnesses in all kinds of proceedings. Their vocabulary, as with their writing, can sometimes be hard to understand. Not unnaturally they use the language or jargon of their profession. They will say that a patient was hemorrhaging rather than bleeding, or that he suffered a contusion rather than a bruise, and so on. Manyofthe expressions used may be very familiar to you but not so to others in the court. Similar observations apply to witnesses from other professions and special interest groups. You should encourage the witness to use terms that can be understood by all and, where the witness fails to do so, it is necessary for you to paraphrase the answer in terms that are readily understood. This will particularly be so where your witness is prone to using acronyms and professional jargon. It is your obligation to ensure that what is said by the witness, as with everything that is said by yourself, is understood by all present in court. In a similar vein it is necessary for you to ensure that you don’t slip into the habit of using legal terminology, shorthand or acronyms. You may know that “the Code” refers to the Criminal Code and what familiar expressions such as “adjourned generally”, “stood down”, “embarrassed", “interrogatories", “discovery" and so on Hon Justice Riley mean in their legal context. You will be familiar with the acronyms CSJ, DU!, DEU and so on. Others may not. In an article entitled “The Ten Commandments of Evidence in Chief"1 Peter Berman SC gave the following example of the use of inappropriate language in actual proceedings: "Q: Do you expect your relationship to survive the trauma of your present separation? A: Um? Q: Doyou intend to live with him after he gets out ofgaol? A: Yeah." It is not just the terminology that may create problems. People in court may also have difficulty with concepts that are thoroughly familiar to yourself and your expert witness. Part of the art of communication is ensuring that the listener is able to keep up with, and follow the thought processes behind, the language. One eye needs to be kept on the witness and the other on the listener or listeners. Endnote: 1 Available on www.lawlink.nsw.gov.au/pdo.nsf/ pages/DefenderBank c\. Page 9 — July 2003 i n* bar association - jottings on the bar ABA holds first Council meeting in Darwin The Australian Bar Association held its first ever Council meeting in Darwin on 19 July 2003. The ABA Council is comprised of the Executive (the President, Vice President, Treasurer and Secretary) and the presidents of each of the state and territory Bar associations. To mark the occasion the Annual Bar Dinner was brought forward to Saturday 19 July. To give our interstate visitors a taste of Darwin’s history and the great dry season weather the dinner was held under the stars at the old Fannie Bay Gaol. The night was organised by Mr Colin McDonald QC and, typically, had an Indonesian theme. Both events were a great success. Advocate’s immunity from suit There is an interesting article about the advocate’s immunity from suit in the most recent edition of the Australian Bar Review ((2003) 23 ABR 220). The article is based on a paper presented by Justice Charles to the Commonwealth Law Conference in Melbourne on 16 April 2003. Justice Charles makes a couple of interesting observations about the House of Lords decision in Hall v Simons (2002) I AC 615. He points out that each of the three cases involved in Hall vSimons concerned a solicitor settling a matter out of court and did not involve any in-court conduct by an advocate. Further, he notes that the effect of the decision was to retrospectively alter the position of advocates such thatthey may be liable for claims in negligence for past actions in relation to which they may have been either not insured at all, or inadequately insured. Justice Charles suggests that if the advocate’s immunity from suit is to be removed it should be undertaken by the legislature rather than the courts, so that the changes will take not take effect retrospectively. The article also discusses two recent decisions, one in New Zealand (Lai v Chamberlain unreported, High Court of New Zealand, 19 December 2002) and one in Scotland (Wright v Paton Farrell, Court of Session, 27 August 2002) where Hall v Simons was not followed. Justice Charles deals in detail with the four principal reasons for maintaining the advocate’s immunity from suit: the John Reeves QC, President of the NT Bar Association cab rank rule, the advocate’s duty to the court, the general immunity from civil liability for all participants in court proceedings and the problem of collateral attack or re-litigation. He concludes by suggesting, among other things, that if the advocate’s immunity from suit is to be retained it is incumbent upon the Australian Bar and its leadership to ensure that the cab rank rule and other professional standards inextricably linked to the immunity from suit i.e. the advocate’s duty to the court, is maintained with “full vigor”.® Why not use the Law Society’s boardroom for your next meeting? Hire rate: $264 for a full day $137.50 for a half day (4 hours) + $27.50 for every hour thereafter (all prices include GST) _________________ L Page 10 —July 2003 Book with the Law Society on 89815104 law school notes Inagural column for the NTU Law School It may be that some of the many and distinguished readers of Balance have been wondering what has been happening at the “NTU” Law School recently. Well, this column is the answer to your needs, your opportunity to keep up to date with developments, and there have been plenty. First, of course, the name change. NTU will be no more as of 1 January 2004, welcome CDU - Charles Darwin University. Although one may often be sceptical about “re-badging” the name change heralds more than just an opportunity to change the sign in front of Building 39. The new university is, of course, an amalgam of NTU and Centralian College ( based in Alice Springs). For the Law School this means taking our courses to Alice for the first time with the enrolment of approximately 20 students (at last count) who will complete their studies without having to relocate to Darwin. This semester the Law School is offering 2 subjects in Alice, Legal Process and Torts A. Other subjects will be rolled out over the next couple of years. But the changes don’t stop there folks (hold the steak knives)! This semester the Law School is also offering its program to students enrolled externally for the first time. There has been good initial support for this initiative with about 25 students set to enrol in the 2 subjects offered this semester. Students are primarily from northern Australia, the only area where advertising has taken place to date. The delivery of these units will make extensive use of the university’s “Learnline” webpages, where students will access not only text-based materials but also audio recordings of lectures and “powerpoint” slides, billboards and group discussion pages. External students will have the opportunity to participate in real-time audio and keyboard tutorial sessions. The reality of higher education is that student numbers to a large extent dictate funding. The initiatives taken recently by the Laws School under the leadership of Flead ofSchool Prof. Ned Aughterson look certain to succeed in achieving a significant lift in enrolments, with consequent benefits to the School, our students and the legal community generally. Other exciting developments are also underway, including a re-launch of the Masters in Comparative Law. Further details in a subsequent column. Briefly on other issues, the Law School would like to thank all of those practitioners who have contributed their time. The School has always depended upon the strong support of the profession and, with higher education funding unlikely to increase significantly any time soon, this will continue to be the case. Many people have made great contributions over a long period. Personally, I would like to thank Ian Morris and Michael Grant who generously donated their time to sit as moot court judges in the assessable mooting programme in Torts B in semester 1. The experience was a very valuable one for students and there has been much positive feedback. In addition, thankyou to the Law Society for the generous donation of two copies of Riley J’s “Red Book” which were presented to the students achieving the highest mark in the mooting program in each of Torts B and Contracts A. The Torts B mooting prize was won by Anne Burns and the Contracts A prize by Elizabeth Farquhar. On a sad note, the Law School has recently bid adieu to Prof. Jesse Wu who retired on 30 June 2003 after 17 years association with the institution and its’ predecessors. Prof. Wu has made an outstanding contribution to the Law School and the NT legal community and he will be sorely missed. Amongst many other achievements, Prof. Wu was Foundation Director of the Centre for Southeast Asian Law (1994-1999), which he helped establish. Fie is also joint editor (since 1998) of the international journal, LAWASIA Journal, the journal of the Law Association for Asia and the Pacific. In addition he has published 12 books and numerous articles, his most recent book being Malaysian Public Law in 2002, which he co-authored with Prof. Hickling of the UK. As many of you are aware, Prof. Wu is a leading legal scholar with an international reputation. His work will continue and he is currently working on a book about the Malaysian judiciary. Also in demand as a speaker, Prof. Wu delivered the 4th Prof. Ahmad Ibrahim Memorial Lecture at the International Islamic University in Kuala Lumpur on 12 July 2003. The lecture was entitled “Sacrificing Personal Freedom in the Name of National Security” and concerned the Malaysian security laws, a very topical issue after September 11,2001. Prof. Wu will speak in Kuala Lumpur again on 10 September 2003 when he gives the keynote address at a conference organised by the Malaysian Human Rights Commission. Fortunately, the Law School will continue its association with Prof. Wu. Although he now resides in Adelaide, he has been appointed Adjunct Professor of Law at NTU/CDU. He will return to Darwin (and the Law School) approximately once every 6 months. We look forward to that. For the moment however, we wish Jesse well in retirement and for the new challenges he is sure to take up. We hope that he finds some time to improve his golf with the new “spaceage” putter he received as a parting gift! Meredith Day, Lecturer Tel: 8946 6839 Email meredith.dav@ntu.edu.au fi) Page 11 — July 2003 feature Controversy continues over Guantanamo Bay detainees The American Government is still holding Australian citizens David Hicks and Mamdouh Habib in Guantanamo Bay, Cuba, for their alleged association with al-Queda. American President George W Bush recently announced that six detainees were eligible to face trail by military tribunal, including Australian David Hicks. This has again flared concerns about legal processes and justice. There have been few serious complaints about the actual conditions in which the detainees are being kept, instead the discontent lies in the ambiguous authority under which they are being kept and the unclear process by which they will be tried. “Guilty or not, David Hicks cannot be kept in indefinite detention without charge. To do so is a fundamental breach of human rights,” said South Australian Labor Senator Linda Kirk. The legal profession in Australia has joined the outcry calling for fairjudicial proceeding to ensure that justice is served. Earlier this year, at the request of the one of our members, the Law Society wrote to Australian Prime Minister John Howard and American President George Bush, highlighting concerns regarding the judicial process (as covered in Balance, May 2003 page 17). The New South Wales Law Society has openly stated that it finds the proposed trial by military tribunal as unacceptable. “These tribunals effectively form a parallel system for trying people when the criminal justice system has determined that there may be no criminal act on which to base a prosecution. Australian has a long tradition of accepting only one overridingjudicial system and one rule of law for all,” Law Society of New South Wales President, Robert Benjamin, said. “We have concerns about the justice of such military tribunals even as they Page 12 —July 2003 apply to American citizens, but greater fears about the implications they have for Australian citizens who may be subject to them and who have less rights than American citizens,” Law Society of New South Wales President, Robert Benjamin, said. The only American citizen to be detained as an unlawful combatant, John Walker Lindh, was detained in Afghanistan in late 2001. He has since faced trial in an American court and in September 2002 he was sentenced to 20 years in jail, which he is serving near his family. Earlier this yearthefull bench ofthe United States Federal Court ruled that the Guantanamo Bay detainees were outside United States jurisdiction because they are being held at a US naval base leased from the Cuban Government. The Law Council of Australia has been active in voicing its concerns regardingthejudicial process. “What the United States has done in Guantanamo Bay is establish its own military law regime which is isolated and insulated from the American legal system. Unlike a civilian court or a court martial, there is no ability for review or appeal to a court - people can be held indefinitely at the whim of the United States Government,” Law Council President, Ron Heinrich, said. “The detainee is then possibly subject to trial by military commission which has significantly lower protections than a normal court, and which does not even have Australian David Hicks at 23 the power to order someone’s release if they are acquitted,” Mr Heinrich said. “Military commission proceedings, as presently proposed, are a vote of no confidence in the ordinary legal system. And, if it is necessary forterrorism, why not apply it to the ‘war on drugs' or the ‘war on crime’, and jettison the legal system altogether,” he said. The key concerns outlined by the Australian legal profession are:

  • Indefinite detention;
  • Chief defence counsel has been

appointed by the military;

  • Restricted access to lawyers, all must

have security clearance;

  • Rules of evidence do not apply;
  • Trial by US military officer - the seven

person military commission panel only has to have one lawyer;

  • No avenue of independent appeal;

and

  • Death penalty can apply (there have

feature been assura nces thatthis wi 11 not a pply to David Hicks, but it can apply in other cases). “He will be prosecuted by the military, he will be defended by the military and he will be tried by the military,” Hicks’ lawyer Frank Camatta told The Age. The Australian Government has come under some criticism for its handling of this issue. Don Rothwell, associate professor of law at Sydney University, said: “The Australian Government has effectively abandoned David Hicks. Irrespective of what he might have done, he is still entitled to basic rights of protection from his government. It is a basic issue of human rights”. Some commentators have been critical of the Government’s lack of involvement, particularly on a consular level. The inaction is in direct contrast with the dozens of other international cases where the Australian Government has become diplomatically involved to protect the rights of citizens who have been accused, or found guilty, of drug smugglingand murder. The Government, the Opposition and Australia’s media has also come under some criticism by the sensational way in which it has dealt with the story, particularly the apparent presumption of guilt despite charges having not yet been laid. American Ambassador to Australia, Tom Schieffler, said: “David Hicks is a dangerous man and we want to be sure that he’s not allowed to hurt anyone else”. After the announcement that Hicks would face trial by military commission, Federal Justice Minister Chris Ellison led a delegation to Washington to negotiate specific details of the trial process. “We have every faith in the American judicial system, and we’ve come to continued next page f5ACK.GROUND Adelaide-born Hicks, 27, has been in detention since he was captured in Afghanistan by the Northern Alliance in November 2001. Habib, 47, was born in Egypt but is an Australian citizen. Previously he resided in Sydney, where his wife and four children still live. He was arrested in Pakistan in December 2001 and has been detention ever since. Hicks and Habib have been given no consular assistance, have not had access to their own lawyers and are yet to be charged. The future of these two Australians, and others like them held in Guantanamo Bay, still remains uncertain-atthe very least they face indefinite detention. The detainees have not been given Prisoner of War (POW) status under the Geneva Convention (which would mean they could not be interrogated) - instead the United States Government has labelled them ‘unlawful combatants’. This status means that they can be detained until the end of ‘the war on terrorism’. The key justification for their ‘unlawful combatant’ status seems to be in the fact that they were not wearing uniforms. Regardless, America’s treatment of the detainees has still come under attack. The main arguments stem from:

  • Article 9 of the Universal

Declaration of Human Rights states: “No-one shall be subject to arbitrary arrest, detention or exile...”

  • Article 10 of the Universal

Declaration of Human Rights states: “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal in the determination of his rights and obligations and of any criminal charge against him”

  • Article 5 of the Third Geneva

Convention provides that prisoners in a military conflict are entitled to a hearing in a competent tribunal to determine their status. ATTENTION: ' ALL SOLICITORS First Law Promotions Pty Limited (ACN 002 635 029) announce the creation of a national website forthe exclusive use and convenience of legal practitioners in the Northern Territory and elsewhere in Australia, www.courtqgents.com.qu Want a solicitor to act as your Court Agent? Want to act as a Court Agent for other solicitors? Email firstlaw@biqpond.net.com or phone (02) 9369 2600 for further information. W\ Law Page 13 —July 2003 ALRC's work praised at World Genetics Congress The International Congress on Genetics, held in Melbourne, praised the Australian Law Reform Commission’s (ALRC) work on human genetics. The ALRC recently published a two volume report - Essentially Yours: the protection of human genetic information in Australia - which includes 144 recommendations of how to deal with the ethical, legal and social implications of ‘New Genetics’. The report covers a wide range of areas, including the regulation of human genetic research and genetic databases; genetic privacy and discrimination; and regulating the use of genetic testing and information in employment, insurance, immigration, parentage testing, sport and other contexts. The report is the result of a two-year public inquiry, which was jointly conducted by the ALRC and the NHMRC’s Australian Health Ethics Committee. Speaking at the International Congress on Genetics, Dr Francis Collins (who chaired the international Human Genome Project) described the ALRC’s report as “a truly phenomenaljob” and “ahead of what the rest of the world is doing”. High Court justice Michael Kirby (who is a member of UNESCO’s Bioethics Committee and the Ethics Committee of the Human Genome Organisation) praised the resport, saying that “increasingly, decisions are goingto be made about all of us on the basis of our genetic profile. I hope the Parliament will examine the [ALRC’s] proposals and notjust simply put them into thetoo-hard basket.” ALRC President, David Weisbrot, welcomed the positive reactions to the report, and noted that the recommendations were directed to a large number of bodies, including government, professional and industry associations. “Our genetic scientists have demonstrated they are among the world’s best. Australia is now in an excellent position to lead the world in developing public policy to harness the benefits of this research in the public interest. This is an opportunity and a challenge that we should not let slip,” Professor Weisbrot said. © Controversy continues over Guantanamo Bay detainees cont from page 13... Washington in an effort to ensure that the procedures in relation to any military commission involving David Hicks is a fair and transparent one.” The four key concessions that seem to have come from the negotiations are that: 1. the death penalty has been ruled out; 2. the Government has undertaken not to monitor lawyer-client communications; 3. Hicks may be able to serve any term of imprisonment in Australia; and 4. an Australian lawyer will be able to act as a consultant for the military defence team (however negotiations are continuing as to whether the lawyer will be able to have any direct contact with Hicks). “The United States Government has assured Australia, that in the matter of David Hicks, the prosecution does not intend to seek the death penalty. The Department of Defence does not intend to monitor communication that Mr Hicks may have with military and Page 14 —July 2003 civilian defence counsel,” Senator Ellison said. “As well as that, it has been agreed that the United States will work on ways to provide family members with additional contacts with Mr Hicks that [is] to include telephone contact. "... the prosecutor has indicated... that he does not intend to produce evidence which would result in the accused being excluded from the trial, there is a provision where that can occur where there are matters of security involved. “We understand that the trial will be conducted in Guantanamo Bay and will be public.” In June, the Law Council sent an open letter to the Prime Minister and all members of Parliament to express its “deep and widespread concern” about circumstances under which David Hicks and Mamdouh Habib are being detained. The letter was also signed by the Law Society NT, and the respective law societies and bar associations of each jurisdiction. “Australian lawyers are concerned that fundamental legal norms are being abandoned by the United States in its treatment of the two men, and are callingfor Mr Hicks and Mr Habib to be dealt with according to principles of legality,” Law Council President, Ron Heinrich, said. “Australian lawyers do not accept that the war on terrorism justifies indefinite detention withoutjudicial oversight. It is unconscionable that both men can be held indefinitely without clarity of their status, or any certainty as to what criminal charges, if any, either will face,” Mr Heinrich said. The Law Council will seek permission from the United States to send a trial observer on behalf of the Australian legal profession to attend any hearings involving the two men. It has labeled the lack of independent judicial oversight as “totally unacceptable”. Despite recent negotiations in Washington, concerns about a free, fair and independent trial have not been alleviated and this issue does not seem to have an end in sight. © high court dinner Centenary of the High Court commemorative dinner f }“iistom of the x high (_2ourt of /\ustralia Although the High Court of Australia was established in 1901 by Section 71 of the Constitution, the appointment of the first Bench did not occur until the Judiciary Act was passed in 1903. ! The first sitting of the High Court took place in the Banco Court of the Supreme Court building in Melbourne on 6 October 1903. There was an opinion held by many at the time that the High Court would prove to be a redundant tribunal, with little work to do and no real status. However, the Court quickly gained an international reputation for judicial excellence. Over time the Court’s bench was increased to seven judges to deal with the increased workload. In the early 1970s, a national competition was held for the design of a permanent home for the High Court, in Canberra. Construction of the building began in 1975 and it was opened by Her Majesty The Queen on 26 May 1980. The Court and its Principlal Registry were immediately transferred to the new building and the first sitting in this location took place in June 1980. £ y On Friday 27 June 2003, the Law Society of the Northern Territory hosted a commemorative dinner for the High Court of Australia. Chief Justice of Australia, the Hon Murray Gleeson AC and his wife, Mrs Robyn Gleeson, and the Administrator of the Northern Territory, John Anictomatis AO, and his wife, Mrs Jeanette Anictomatis, attended as guests of honour. Held in the picturesque surrounds of Government House in Darwin, the evening featured a devine three-course meal and was sponsored by Goundry Fine Wines. Tom Pauling QC and Mr Austin Asche AC QC Members of the local legal profession, and their partners, attended the dinner to mark the centenary ofthe High Court of Australia. Phil Jameson, Gail Jameson, Robyn Laever, Helen Findlay, Tony Young, Peter McNab, Raelene Webb, Nula Murphy and Colin McDonald. Kathie Luppino, Vince Luppino, Ian Morris, Brenda Lord, Michael Grove and Peter Barr Page 15 —July 2003 golf day Annual golf day a success The 4th Annual NT Bar Association and Law Socity NT golf day was held at the Darwin Golf Club, Marrara, on Friday 18 June 2003. Despite competing against the international cricket match, the golf day attracted a record attendance and the weather turned out to be perfect. Lex’s Lackeys took out the nett prize (and trophy). The nett score takes into consideration the teams golfing handicap. Justice Jocks 2 had the lowest gross score with 32. John Reeves and Barbara Reeves won prizes for the longest drives and Julian Valvo won an award for closest to the line.® Lex's Lackeys took out the grand prize. Gross Scores 32 - Justice Jocks 2 Phil Timney, Peter Wilson, Peter Elliot and Lloyd Shepherd 33 - Lex’s Lackeys Lex Silvester, Peter Maley, Rob Perry, Michael Aughterson 34 - Heaps of Jones Jan Jones, G Jones, Mr Heap and Mrs Heap 35 - Catfish Ian Morris, Daynor Trigg, John Roberts and Rod Hicks 35 - Ward Keller Chris Booth, Julian Valvo, Tim Jacobs and Aaron Powell 35 - Justice Jocks 1 David Lisson, Terry Dreier and Greg Shanahan 36 - Cohen and Side Anne Cohen, Jackey Foley, Val Durand and Rhonda Laurie 37- Women Of the World (WOW) Barbara Reeves, Jan Riley, Alison Maynard and Imagen Meier. 37 - Cridland Crushers John Munn, Mary-Rose Risdale, Allison Robertson and Craig Smith 40 - Plodders Peter McQueen, Mark Hunter and Andrew Fleming 41 - Wilson Wackers John Reeves, Ross Noye, Kenny Faulkner and Garry Wills 45 - Clayton Utz Wade Roper, Joe Paterson, K Williams and M Hall LSNT President ian Morris and NT Bar Association President John Reeves QC announce the winners. Close competition resulted in some winners being decided by the roll of the dice. Want to stay up-to-date with news and upcoming events? “ PRACTITIONER News & views from the LSNT Secretariat LAW SOCIETY n*»ww The Practioner is a weekly email newsletter service for members of the LSNT. To access this service (members only) provide your email address to the LSNT office, or email publicrelations@lawsocnt.asn.au Page 16 — July 2003 farewell to the chief justice Farewell to Chief Justice Brian Martin Northern Territory Chief Justice Brian Martin MBE AO will be retiring in October this year after 44 years in the legal profession. Brian Frank Martin was born in Lithgow, NSW, in 1936. At the age of 17, he started studying law under the Solicitors Admission Board Scheme while completing articles with a Lithgow solicitor. In 1959, Martin was admitted in New South Wales and just four years later moved to Alice Springs to start work as a barrister and solicitor. While living in Alice Springs, Martin was actively involved in the Town Council. Alice Springs became a municipality in 1971 and elected its first council. Martin held the position of Deputy Mayor on the original council and became Mayor in 1973 when Jock Nelson resigned. When Martin first became Mayor there was a tied vote for the position of Deputy Mayor - between Peter Leunigand Len Kittle. Opting not to cast the deciding vote, Martin asked Works Manager Eric Johnson to determine the outcome by flipping a coin. Peter Leunig became the Deputy Mayor. Martin was re-elected as Mayor in 1974 and resigned in 1976 to move to Darwin with his wife, Lorraine, and theirfourchildren. In 1974, Martin was admitted to the Northern Territory Supreme Court and in 1981 he was appointed as the Solicitor General and secretary of the Department of Law. Martin was awarded Queens Counsel in 1983, became a Judge of the Supreme Court of the Northern Territory in 1987 and Chief Justice in 1993. In 1982, Martin received an Order of the British Empire Member (Civil) award and in 1989 he received an Order of Australia award, both for services to the community. Chief Justice Martin has had a long a distinguished legal career in the Northern Territory, and we wish him and his family a happy retirement and all the best in the future.® At 3pm on the 31 October, there will be a ceremonial sitting of the Full Court to mark the Chief Justice’s retirement. This will be held in Court 1 of the Darwin Supreme Court and followed by a farewell function. The Law Society wiCChost afareweCCdinnerfor ChiefJustice 'Brian Martin MBB JAO on friday 29 Augustfrom 6.30pm at Cornucopia Museum Cafe, BuCCocky Toint. Invitations have been issued Tickets: $88perperson (incCud. CjST) Seating is CimitecC. 'Book earCy to avoiddisappointment. Jorfurther informationpCease contact Zoe at the Law Society on 8981-5104 Page 17 — July 2003 New DVLS open for business On Friday 1 August, the Legal Aid Commission opened its Domestic Violence Legal Service (DVLS). The service provides legal advice for people on issues relating to domestic violence. Traditionally the Darwin domestic violence legal service was run under the Darwin Community Legal Service, however the previous Government decided to put the service out to tender. The original tender was won by private law firm Withnall Maley and it has run the service for the past two years. The community legal services were keen to see the DVLS run by a community organisation as opposed to a private firm. The contract recently came up for tender again and the Legal Aid Commission submitted a bid. The LAC has been awarded a 12-month contract to run the DVLS from 1 August 2003. Agatha Pukiewicz has moved across from Withnall Maley to continue her association with the DVLS, which will provide valuable continuity during the transition period. The service will provide: clinics for domestic violence victims; free legal advice; a telephone information service; a duty iawyer at the Darwin Magistrates Court two days a week; general advocacy and minor assistance; and community legal education. Where relevant, Legal Aid also hopes to be able to provide a link to the Family Law unit. Although the DVLS does not have the resources to directly service remote communities, the staff provide a telephone information service and, where possible, priority will be given to clients that travel in from outlying areas. Indigenous people make up a large number of the clients of the DVLS. In an attempt to try and best service this section of the community, the Legal Aid DVLS has employed an Aboriginal Client Service Officer and can also provide an interpreter for Indigenous and non-English speaking clients. As required under the tender, Legal Aid will also establish an advisory continued page 21 .'(Austr: PO Box 251 Avoca Beach NSW 2251 Tel/fax: (02) 4365 0556 We offer a full range of forensic science services in the investigation of fires and explosions including ■ direct incident investigation (origin & cause, liability, recovery etc.) ■ laboratory analysis and interpretation of results ■ assessment and commentary on previous investigation findings ■ expert testimony and advice to counsel (criminal and civil litigation) We have particular expertise in ■ incidents involving fatalities ■ interpretation of thermal injury distribution ■ gas and vapour explosions ■ electrical systems and causes of fire ■ interpretation of documentary and photographic evidence ■laboratory testing of fire-related evidence Jim Munday has specialised in fire and explosion investigation since 1979, with Scotland Yard’s forensic laboratory and in private practice in the UK & Australia. He has investigated more than 1700 fire and explosion incident scenes, including over 300 fatalities, and carried out laboratory testing on materials from many others. He has given expert evidence in many courts. Trained as a forensic chemist, Jim is also a qualified fire engineer and one of the few holders of the prestigious Diploma in Fire Investigation awarded by the UK Forensic Science Society. He has made a special study of the way in which distribution of skin burns and other thermal injuries relates to the location, position and activities of the person involved. Our Senior International Associates include Dr John DeHaan (USA) and Mr Michael Gardiner (UK). For more details, visitourwebsitewww.fireforensics.com.au ore-mail info@fireforensics.com.au Page 18 —July 2003 The Muster Room Welcome to Sharon The Law Society Secretariat is pleased to welcome Sharon Waters, who has started working as our Reception ist/Ad ministration Assistant. With extensive experience in office administration, Sharon also has previous experience as a legal secretary and will be a great asset to ourteam. Sharon has recently started to learn the piano, she also likes travelling and gardening. Relocation Caroline Scicluna has relocated her office from Alice Springs to Darwin. Her new details are: GPO Box 2577 Darwin NT 0801 Tel: 89817399 Fax: 89817699 Agatha has moved Agatha Pukiewicz has recently started working for Legal Aid at the Domestic Violence Legal Service. Previously Agatha was working at the domestic violence service at Withnall Maley. Farewell drinks On Sunday 20 July, Stuart Barr had farewell drinks at the Darwin Sailing Club. The guest of honour, however, was upstaged by the visiting Australian cricket team, who had just completed a resounding test victory against Bangladesh - taking just two-and-a-half days. Stuart has now moved to Japan to take up a position teaching English. We wish him all the best. Admissions Congratulations to Omar Khan from Povey Stirk, who was recently admitted in Alice Springs, and to Heather Ross from Ward Kellar, who was recently admitted in Darwin.® Extra CLE in August On Monday 18 August a lunchtime CLE will be held on federal unlawful discrimination law. Jonathan Hunyor, Senior Legal Officer for the Human Rights and Equal Opportunity Commission, is coming from Sydney to make the presentation. The seminar will:

  • review developments in

federal unlawful discrimination law;

  • highlight key jurisprudential

developments under the Racial Discriminaation Act, Sex Discrimiation Act and Disability Discrimation Act; and

  • outline findings of the

Commission’s review under the first two years of the jurisdiction’s transfer to the Federal Court and Federal Magistrates Service. Attendees will receive a copy of the Commission’s publication "Change and Continuity: Review of the Federal Unlawful Discrimination Jurisdiction, September 2000 - September 2002" and the August 2003 supplement to that publication. This continuing legal education seminar is free and will be held in the Law Society Boardroom (Level 11, NT House, Mitchell Street) from 12-1.30pm on Monday 18 August. ® ' INVESTIGATIONS N PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection V^Outback _________ BUSimiSS SERVICES Level z,i+, oumus nuusc 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness(a)ozemail. net.au www.outbackbusiness.com.au V Member of Institute of Mercantile Agents Ltd J bal010602 Page 19 — July 2003 L readers forum - conferences World Masters of Law Firm Management conference Following the success of the World Masters of Law Firm Management seminar conducted in 2002, the Legal Practice Section of the Law Council of Australia will host the second in this series - World Masters of Law Firm Management: Being good is not good enough. This seminar will provide Australia’s upper echelon of executives from legal and professional services firms access to the world’s best advisors in the industry. This one-day event will be held at Sydney’s Four Seasons Hotel on Friday 12 September 2003. Confirmed speakers include Brad Hildebrandt, Gerry Riskin, Danny Gilbert and Elizabeth Nosworthy. These world experts in law firm management will provide their insights into key strategies for managers today, including issues such as:

  • Leadership

What makes today’s leaders? The one key asset all leaders share, whether young or old, is their adaptive capacity - their ability to process new experiences, to find their meaning and to integrate them into life. Will these same qualities define the lifetime leaders and learners of tomorrow?

  • Growth

Is bigger better? When firms set out on expansion journeys it is akin to moving from one mountain peak to another. Where is the next peak that your firm should be moving toward? What lies between and what hazards exist?

  • Client relationships

Understanding your clients is one of the most important levers of profitability, but one of the least understood. How can you improve client service and lower costs at the same time? It is essential to reexamine some important assumptions about how client service is defined, measured, and managed.

  • Innovation

Is your firm ‘on a mission’ - doing something difficult but important? Stimulate creativity by putting together diversely skilled teams, encourage leaders to communicate effectively, value individual contributions, set clear goals and reward and stimulate innovative work.

  • Planning

People often question the value of planning given the need in today’s business world to be nimble and not tied to yesterday’s ideas. How does your firm plan? Is it merely a budget driven process or is your organisation adopting various levels of planning? A chance to rethink your firm’s approach. For further information on this event, or to obtain your registration brochure, visit the event website at www.lawcouncil.asn.au/lps/ worldmasters.html. or contact the event administrator, Gerard O’Neill, on (02) 6246 3722 or email: gerard.oneill@lawcouncil.asn.au. WANTED Balance Book Reviewers You get two months to read the book and write a 300-400 word review... and you get to keep the book. If you are interested please contact Zoe at the Law Society or email publicrelations@lawsocntasn.au 2003 CLE Program 20Aug Sentencing Act - John Lowndes SM 12 Sep TBA-Jenny Blokland SM 22 Oct AustralAsia Railway Project - Challenges Overcome - Alastair Shields 19 Nov TBA-Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Unless otherwise notified, CLEs are presented in Darwin at Cridlands’ boardroom, Smith Street (opposite the TIO), the Katherine venue is the Katherine Regional Tourist Association, cnr Stuart Highway and Lindsay Street, and the Alice Springs venue is the Central Australian Division Primary Health Care centre on 54 Hartley Street. Bookings are essential. CLE presentations are available on video (up until August 2002) or on CD (Sept 2002, Jan 2003, Feb 2003, Mar 2003). Information handouts from the CLEs can be obtained from the Law Society Northern Territory. For more information ring Sonya at the Law Society on 8981-5104. Page 20 —July 2003 readers forum - conferences 17-23 August 2003 21st Biennial Congress - World Peace Through the Rule of Law: Celebrating 40 years of the WJA Sydney & Adelaide, Australia Tel: (Washington, US) 1202 466 5428 Fax: (Washington, US) 1202 452 8540 wja@worldjurist.org 18 & 19 August 2003 Graffiti and Disorder: Local Government, Law Enforcement and Community Reponses Brisbane, Qld Tel: 02 6292 9000 Fax: 02 6292 9002 confco@austarmetro.com.au 31 August - 3 September 2003 National Community Legal Centres Conference Hobart, Tasmania Tel: (03) 9328 8642 Fax: (03) 9326 5912 Annie_Nash@fcl.fl.asn.au 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 618 8946 9505 lawasia@lawasia.asn.au 4-6 September 2003 The 16th Annual Stamp Duties Symposium Sheraton Mirage, Gold Coast Tel: 02 9080 4307 Fax: 02 9290 3844 12 -14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 38314477 warmid@tpg.com.au 12 September 2003 World Masters of Law Firm Management: Being good is not enough FourSeasons Hotel, Sydney Tel: 02 6246 3722 gerard.oneill@lawcouncil.asn.au 18-19 September 2003 3rd Sheriff’s Seminar Perth, Australia Tel: 03 9600 1311 Fax: 03 9606 0366 www.aija.org.au 19 September 2003 Masters’ Conference Perth, Australia Tel: 03 9600 1311 Fax: 03 9606 0366 www.aija.org.au 19-21 September 2003 AIJA Conference University of Notre Dame Australia Fremantle, Western Australia Contact: Rommie Masarei Tel: 0417 979 867 Fax: 08 9384 9663 masarei@arach.net.au 1-3 October 2003 Australia and New Zealand Society of Criminology Conference - Controlling Crime: Risks and Responsibilities Sydney, Australia www.lawlink.nsw.gov.au/ anzsoc2003/ 1-3 October 2003 12th Annual Australian and New Zealand Education Law Association Conference Sydney, Australia Contact the CLE Centre Tel: 02 9233 4999 Fax: 02 92311995 www.clecentre.com.au 7-10 October 2003 Avoiding Disaster: Engineering, Technology and the Law Monash Campus Prato, Tuscany, Italy Tel: 03 9905 4734 www.law.monash.edu.au/iifs 20-21 October 2003 2nd National Pro Bono Conference Marriot Hotel, Sydney Contact Conference Co-ordinators Tel: 02 6292 9000 Fax: 02 6292 9002 www.nationalprobono.org.au 7-8 November 2003 Juvenile Justice Conference Calwell, ACT Tel: (02) 6292 9000 Fax: (02) 6292 9002 conference@netinfo.com.au 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com New DVLS open for business cont... committee and provide policy advice to the Government. The Committee will involve women’s shelters, victim support groups, rape crisis centres, police, ATSIC and other people working with domestic violence. The idea is to increase community input and look at what is currently being done to address the problem of domestic violence and provide support for its victims and therefore evaluate where things need to go from here. The DVLS unit is being run out of the Legal Aid offices in Cavenagh Street Darwin, and can be contacted on 8999­ 3000. Page 21 — July 2003 WANTED: Your nominated email address Do you want to be informed by the Law Society via email? If so, please provide an allpurpose email address for your firm. Fill out this form and fax to the Law Society on 8941 1623. NAME OF FIRM: EMAIL ADDRESS: SIGNATURE OF AUTHORISED PERSON: Bulletins to the , profession - i CLE Seminars - i Events & j Functions ■ v________________/ L Page 22 —July 2003 Getting out there with the DCLS Darwin Community Legal Service Inc (DCLS) is well known in the legal sector for providing free legai advice sessions in Darwin, Casuarina and Palmerston. Many Balance readers have been part of our volunteer roster forthese advice sessions. What you may not know is that DCLS runs advice sessions in many other places as part of our Outreach program. This program first began 3 years ago and has been expanding all of the time. The outreach program focuses on providing legal advice and legal education to those who are most disadvantaged and vulnerable and who are unlikely to access our regular advice sessions. The program began with monthly advice sessions in Katherine and Batchelor and fortnightly sessions at Nungalinya College. These sessions are still operating and provide legal advice in most areas of the law. Two years ago, the program expanded to include a fortnightly advice session at Bagot Community. More recently, advice sessions are being trialed at Belyuen Community on a six weekly basis. The newest advice session runs from St Vincent de Paul in Stuart Park in the mornings when they provide a free breakfast to homeless people. This session operates weekly and has so far been very successful. DCLS will soon be looking at ways in which to utilise volunteer individuals or legal firms at these advice sessions. If you or your firm is interested or has an innnovative idea for staffing these sessions, please contact Wendy or Caitlin at DCLS on 8982 1111. Getting stressed with multi-million dollar litigation? Tired of wills and probate? Need some interview and/or general legal experience? Why not become a volunteer with the Darwin Community Legal Service? The DCLS, established since 1991, provides a number of services including Free Legal Advice Sessions. These sessions are staffed by volunteers in roles of: Supervising Solicitors, Advisors, Session Coordinators. We need volunteers, particularly those interested in attending the Palmerston Free Legal Advice Sessions. The DCLS holds three after-hours Free Legal Advice Sessions in Darwin and beyond throughout the week: MON - 6.30pm-7.30pm, NTU Palmerston campus, Palmerston THU - 5.30pm-7pm, DCLS Office, Cnr Manton & McMinn Sts SAT - 10am-11.45am, Casuarina Library The DCLS thanks all current volunteers If you would like to volunteer, please contact Darlene Devery, on ph 8982 till or email darlene@dcls.org.au 1 NOTICEBOARD High Court Notes September 2003 Prepared for the Law Council of Australia and its Constituents by Thomas Hurley, Barrister, Vic, NSW, ACT (Editor, Victorian Administrative Reports) Negligence - Medical negligence - Damages - Damages for birth of healthy child In Cattanach v. Melchior ([2003] HCA 38; 16.07.2003) the High Court concluded that damages were recoverable by the parents of a healthy child born as a consequence of medical negligence and the damages included the costs of raising and maintaining the child to the age of eighteen: McHugh, Gummow JJ; Kirby J, Callinan J; contra Gleeson CJ; Hayne J; Heydon J. Appeal dismissed. Federal Court Notes September 2003 Prepared forthe Law Council of Australia and it Constituents by Thomas Hurley, Barrister, Vic., NSW, ACT (Editor, Victorian Administrative Reports) Bankruptcy - Provable debt - Whether parking fines imposed by “Court” In State of Victoria v. Mansfield ([2003] FCAFC 154; 18.07.2003) a Full Court concluded fines imposed under the PERIN penalty notice procedure authorised by the Magistrates’ Court Act 1989 (Vic) as an alternative to proceeding by way of a charge in Court remained fines imposed “by a Court” and excluded as provable debts in a bankruptcy by s82(3) of the BankruptcyAct [51]. Courts - Disqualification of Judge for bias - Conduct of retrial - Misfeasance in Public Office In Sanders v. Snell ([2003] FCAFC 150; 2.07.2003) a Full Court concluded that the Chief Justice of Norfolk Island did not err in failing to disqualify himself for bias by proceeding to make procedural orders in, and hearing, the retrial ordered by the High Court (1998) 196 CLR 329 84. The Full Court concluded the Judge had erred byfindingthe tort of misfeansce in public office was made out when there was no basis on which the Court could conclude the decision to dismiss the respondent was made with actual knowledge by the appellant of want of power or reckless indifference to the absence of power based upon want of procedural fairness [116]. Appeal allowed. Trade practices - Whether item performing its functions is not of merchantable quality In Medtel P/L v. Courtney ([2003] FCAFC 151; 7.07.2003) a Full Court concluded the Primary Judge did not err in finding a pacemaker which had a risk of malfunctioning was not of merchantable quality within s74D of the TP Act notwithstanding the pacemaker had yet to malfunction. Consideration of determination of liability in class action proceeding. Federal Court - Representative proceedings - Trade practices claim based on conduct outside Australia In Bray v. F Hoffmann-La Roche Ltd ([2003] FCAFC 153; 15.07.2003) a Full Court considered when an action under the Trade Practices Act was based on conduct engaged in outside Australia, when leave to serve out of the jurisdiction should be granted and whether in a representative proceeding every member of the group must have a claim against each respondent. Migration - Cancellation of visa on character grounds - Natural justice In Ayan v. MIMIA ([2003] FCAFC 139; 27.07.2003) a Full Court concluded the errors in the summary of the appellant’s criminal history given to the Minister were not significant enough to have affected the decision to cancel his visa and any failure to give the appellant a copy of the submission prepared for the Minister did not constitute a breach of natural justice. Income tax - Collection of tax - Whether taxpayer and FCT had rights of set-off In Deputy C of T v. Dexcam Australia P/L ([2003] FCAFC 148; 30.06.2003) a Full Court considered whether the relations between a taxpayer and the Commissioner involved any right to set-off or cross-claim different tax liabilities and credits accrued pursuant to the Prescribed Payments System. Veterans’ entitlement - Injury - Whether consumption of alcohol in Mess contributing cause to injury In Roncevich v. Repatriation Commission ([2003] FCAFC 146; 30.06.2003) a Full Court concluded, by majority, that the finding of the AAT that injury suffered by the appellant while intoxicated following a function at his sergeant’s Mess did not reveal a defence caused injury within s70(5) of the Veterans’ Entitlements Act 1986 (Cth). Income tax - Income - Monies received by elite athlete In Stone v. C of T ([2003] FCAFC 145; 27.06.2003) a Full Court considered whether payments made to an elite athlete were assessable as income in addition to the salary she received as a police officer. The Court considered which of the various payments for sponsorships, prize money and grants were assessable as income. Migration - Protection visa - Doctrine of effective protection - When jurisprudence arising from incorrect decision should be applied In NAGV v. MIMIA ([2003] FCAFC 114; 27.06.2003) a Full Court concluded an earlier decision in MIMA v. Thiyagarajah (1997) 80 FCR 543 was wrongly decided but the doctrine of “effective protection” which arose from it should be applied. Administrative law - Whether breach of natural justice an error of law In Clement v. Independent Indigenous Advisory Committee continued next page Page 23 —July 2003 r NOTICEBOARD continued from previous page ([2003] FCAFC 143; 27.06.2003) a Full Court considered when a denial of natural justice by the AAT (which determined an application on the erroneous belief that the absent applicant knew of it) constituted an “error of law” on which an appeal lay to the Federal Court. Migration - Good faith In MIMIA v. NAOS of 2002 ([2003] FCAFC 142; 27.06.2003) a Full Court allowed an appeal against a decision of a Federal Magistrate which concluded a decision of the RRT did not constitute exercise of power in good faith. Racial discrimination n Toben v. Jones ([2003] FCAFC 137; 27.06.2003) a Full Court considered that Part IIA of the Racial Discrimination Act 1975 (Cth) (prohibiting offensive behaviour based on racial hatred) was constitutionally valid, the degree of causal connection required by sl8C of that Act and whether publication of racially offensive material could be justified on the grounds of genuine academic purpose or as being in the public interest. Trade practices - Market power In ACCC v. Australian Safeway Stores P/L ([2003] FCAFC 149; 30.06.2003) a Full Court considered whether a supermarket operator had a substantial degree of market power in the wholesale market of bread products and whether it had ceased to acquire bread from one baker for a reason that contravened s46(l) of the Trade Practises Act. Migration - Protected information - Publicly available information In Ball v. MIMIA ([2003] FCA 699; 11.07.2003) Ryan J set aside a decision to cancel a visa on character grounds for error of law where the decision was based on counting as separate terms of imprisonment ordered to be served concurrently. This decision was based in part on “protected information” within 503A Migration Act. On the relevant agency reconsideringthe status ofthe information it became apparent thatthe “protected information” was in fact publicly available records of New Zealand Courts. Consideration of how a visa holder is to be given natural justice by being informed of the outline of protected information. In Hicks v. MIMIA [2003] FCA 757; 21.07.2003 French J also set aside a decision to cancel a visa where concurrent criminal sentences were counted separately. Assent to Proposed Laws His Honour the Administrator assented to the following proposed laws: Thursday 26th June 2003 Tobacco Control Amendment Act 2003 (No. 24 of 2003) Firearms Amendment Act 2003 )L Page 24 — July 2003 (No. 25 of 2003) Information Amendment Act 2003 (No. 26 of 2003) Financial Management Amendment Act 2003 (No. 27 of 2003) Major Cricket Events Act 2003 (No. 28 of 2003) Energy Pipelines Amendment Act 2003 (No. 29 of 2003) Desert Knowledge Australia Act 2003 (No. 30 of 2003) Friday 27th June 2003 Land Development Corporation Act 2003 (No. 31 of 2003) Trade Development Zone Act Repeal Act 2003 (No. 32 of 2003) G.GADD for Clerk of the Legislative Assembly Family law update The Family Court has indicated that the comencement date of the proposed new Family Court Rules will be approximately 1 April 2004 rather than 1 January 2004 as originally announced. It is expected that a Judges’ meeting will be held in November 2003 to discuss the draft Rules. The Attorney-General and the Minister for Children and Youth Affairs have announced an inquiry into child custody arrangements in the event of family separation. The House of Representatives Family and Community Affairs Committee will look at what other factors should betaken into account in deciding the respective time each parent should spend with the child post separation having regard to the fact that the best interests of the child are the paramount consideration. In particular, the Committee will examine whetherthere should be a presumption that a child will spend equal time with each parent and, if so, in what circumstances such a presumption could be rebutted. It will also look at the circumstances in which a court should order the children of separated parents have contact with other persons, including their grandparents. The Committee is to report to the Parliament by 31 December 2003. Inquiry into ministerial discretion in migration matters On 19 June 2003 the Senate established the Select Committeon Ministerial Discretion in Migration Matters. The Committee is inquiring into: a) the use made by the Minister for Immigration of hte discretionary powers available under sections 351 and 417 of the Migration Act 1958 since the provisions were inserted in the legislation; b) the appropriateness of these discretionary ministerial powers within the broader migration application, decision- NOTICEBOARD making and review and appeal processes; c) the operation of these discretionary provisions by ministers, in particular what criteria and other considerations applied where ministers substituted a more favourable decision; and d) the approriateness of the ministerial discretionary powers continuing to exist in their current form, and what conditions or criteria should attach to those powers. The Committee comprises ALP Senators Ludwig, Nick Sherry and Penny Wong, Government Senators Santo Santoro, David Johnston and Gary Humphries and Australian Democrat Senator Andrew Bartlett. Submissions to the committee close on 1 August 2003. Public hearings are expected to be held in late August and early September and the Committee will report to Parliament by 3 November 2003. Refugee Review Tribunal The fee for unsuccessful applications for review, made to the Refugee Review Tribunal, has increased to $1,400 for applications lodged after 1 July 2003. For applications lodged before 30 June 2003, the fee will remain at $1,000. On 12 June 2003 the Migration Amendment Regulations 2003 (No. 4) were made. Amoungthe amendments to the existing migration regulations 1994, subregulations 4.31B (1) and (5) were amended to read: (1) The fee for review by the Tribunal of an RRT-reviewable decision is: (a) if the application for review was made before 1 July 2003-$1,000; or (b) if the application for review was made on or after 1 July 2003-$1,400. (5) This regulation applies in relation to a review of a decision only if the application for review was made on or after 1 July 1997 and before 1 July 2005. The amendments will commence on 1 July 2003 and will apply in relation to an applicaiton for a visa whether (a) made, but not finally determined (within the meaning of subsection 5 (9) of the Migration Act 1958), before 1 July 2003; or (b) made on or after 1 July 2003. The substitution of subregulation 4.31B(1) increases the fee payable for review by the Tribunal of an RRT-reviewable decision to $1,400 for review applications made on or after 1 July 2003. The amendment to subregulation 4.31B(5) amends the sunset clause so that r.4.31B as amended will only apply in relation to a review if the reivew application was made before 1 July 2005. AACL launches new branch in Darwin On Thursday 24 July 2003, the Australian Association of Constitutional Law (AACL) held its first event in the Northern Territory-a book launch at the Supreme Court, Darwin. NT Solicitor General Tom Pauling QC officially launched Reflections of the Australian Constitution, which is edited by the Hon Robert French (a Justice in the Federal Court and President of the AACL), Professor Cheryl Saunders AO (from the University of Melbourne and Vice President of the AACL) and Professor Geoffrey Lindell (Professorial Fellow of the University of Adelaide and fomer Secretary of the AACL). The AACL aims to: develop and promote constitutional law in Australia; support the teaching, research and practice of the discipline; provide a forum for the exchange of knowledge and information between members; increase public awareness and understanding; and maintain membership to the International Association of Constitutional Law. For further information please contact the Australian Association of Constitutional Law Secretariat on Tel: (03) 8344 1011, Fax: (03) 8344 1013, or Email: cccs@law.unimelb.edu.au AACL Program Co-ordinator Patrick Keyzer and NT Solicitor General Tom Pauling QC at the book launch. Page 25 — July 2003 COURT LIBRARY NOTES New Acts 1/2003 Commercial Passenger (Road) Transport Amendment Act (1.3.03) 2/2003 Consumer Affairs and Fair Trading AmendmentAct (1.5.03) 3/2003 Personal Injuries (Liabilities and Damages) Act (1.5.03) 4/2003 Personal Injuries (Liabilities and Damages) (Conseq. Arndts) Act (1.5.03) 5/2003 Trade Measurement Amendment Act (18.3.03) 6/2003 Trade Measurement Administration Amendment Act (18.3.03) 7/2003 Superannuation Amendment Act (28.5.03) 8/2003 Superannuation Guarantee (Safety Net) Amendment Act (28.5.03) 9/2003 Supreme Court (Judges Pensions) Amendment Act (28.5.03) 10/2003 Legislative Assembly Members’ Superannuation Amendment Act (28.5.03) 11/2003 Administrators Pensions Amendment Act (28.5.03) 12/2003 Statute Law Revision Act (s8 - 9.12.02, s9 - 1.12.00, sll-16.4.03, Rest -18.3.03) 13/2003 Police Administration Amendment Act (7.5.03) 14/2003 Petroleum Amendment Act (N/C) 15/2003 Kava Management Amendment Act (N/C) 16/2003 Private Security Amendment Act (N/C) 17/2003 Personal Injuries (Civil Claims) Act (ss.1-4,6,12-15 and 22-1.7.03, Rest-N/C) 18/2003 Legal Practitioners Arndt (Costs & Advertising) Act (ss.1-6-1.7.03, Rest-N/C) 19/2003 Dangerous Goods (Road and Rail Transport) Act (N/C) 20/2003 Dangerous Goods Act 1998 Amendment Act (N/ C) 21/2003 Places of Public Entertainment Amendment Act (N/C) 22/2003 Terrorism (Emergency Powers) Act (N/C) 23/2003 Terrorism (Northern Territory) Request Act (29.5.03) New Regulations 18/2003 Registration of Interests in Motor Vehicles and Other Goods Regulations (28.3.03) 19/2003 Fisheries Regulations (28.3.03) 29/2003 Port By-Laws (28.5.03) 30/2003 Veterinarians Regulations (4.6.03) 31/2003 Petroleum Regulations (N/C) 33/2003 Local Court Rules (21.5.03) 34/2003 Supreme Court Rules (18.6.03) New Reprints Status of Children Act - 1.1.97 Work Health Act - 1.11.02 Commencements 43/1999 Marine Pollution Act 1999 (Parts 1-4, 6-15 - 25.6.03, Part 5-N/C) 34/2002 Criminal Property Forfeiture Act (1.6.03) Page 26 — July 2003 35/2002 Criminal Property Forfeiture (Consequential Amendments) Act (1.6.03) 62/2002 Information Act 2002 (1.7.03) 63/2002 Ombudsman (Northern Territory) Amendment Act (1.7.03) 8/2003 Marine Pollution Regulations (25.6.03) 14/2003 Marine Pollution Regulations (28.3.03) 63/2002 Alice Springs (Animal Control) Regulations (26.3.03) 64/2002 Alice Springs (Control of Public Places) (26.3.03) Repealed legislation 27/1962 Prevention of Pollution of Waters by Oil Ordinance - Repealed by 43/1999 19/1971 Prevention of Pollution of Waters by Oil Ordinance - Repealed by 43/1999 13/1972 Prevention of Pollution of Waters by Oil Ordinance - Repealed by 43/1999 1949-1987 Traffic Act (Part IV) - Repealed 30.4.03 by NT Gazettes 7 122/1978 Transfer of Powers (Health) Act 1978 - Repealed by 12/2003 1/1980 Transfer of Powers (Law) Act 1978 - Repealed by 12/2003 2/1980 Transfer of Powers (Law) Act 1979 - Repealed by 12/3003 68/1983 Criminal Law (Regulatory Offences) Act 1983 - Repealed by 12/2003 1/1986 Commission of Inquiry (Chamberlain Convictions) Act - Repealed by 12/2003 65/1988 Crimes (Forfeiture of Proceeds) Act 1988 - Repealed by 35/2002 16/1990 Crimes (Forfeiture of Proceeds) Amendment Act - Repealed by 35/2002 17/1991 Racing, Gaming & Liquor Commission Act Repeal Act - Repealed by 12/2003 20/1992 Crimes (Forfeiture of Proceeds) Amendment Act - Repealed by 35/2002 74/1982 Motor Vehicles (Standards) Regulations - Repealed by 17/2003 13/1986 Commission of Inquiry (Chamberlain Convictions) Regs - Repealed by 12/2003 31/1988 Motor Vehicles (Standards) Regulations - Repealed by 17/2003 32/1989 Crimes (Forfeiture of Proceeds) Regulations - Repealed by 35/2002 53/1992 Crimes (Forfeiture of Proceeds) Regulations - Repealed by 35/2002 24/1994 Crimes (Forfeiture of Proceeds) Regulations - Repealed by 35/2002 10/1996 Crimes (Forfeiture of Proceeds) Regulations - Repealed by 35/2002 RECENT ARTICLES Aborigines, Aust - sentencing Edney, Richard - Sentencing of indigenous offenders in Victoria •*• •• « AUSTRALIANADVOCACY INSTITUTE Weekend Workshops 22th - 24th August 2003 Friday evening 5.30pm to 7.30pm, Saturday 9am to 5pm, Sunday 9am to 1pm. Three separate workshops will cover advocacy relating to: • Family Law • Advanced Cross-examination • General Advocacy Skills These 3 workshops, each running over the full weekend, will involve instructions, performance and review ofthe various skills, disciplines and techniques involved in good advocacy. Instruction will be by a faculty of Australia’s leading advocacy teachers. Skills covered include:

  • Case Analysis *Effective Performance Preparation * Legal Argument
  • Examination and Cross-examination of Witnesses * Addresses * Communication

Fees: $594 (incl GST) for lawyers offive or less years experience $715 (incl GST) forthose with more than fiveyears experience Register on-line at www.advocacy.com.au, or Phone: (03) 9905 1279 Fax: (03) 9905 1278 Emails: aai@law.monash.edu.au Places will be limited...secure your registration now! Registrations close Thursday 14th August 2003 Page 27 —July 2003 It's tight at the top With only four rounds to go, there's still no clear winner. Competition is fierce at the top of the tables in the LSNT’s AFL footy tipping competition. Magistrate Daynor Trigg has made a late charge to take over the lead with 206. Snapping at his heels are Sally Sievers, Chris Booth and Katrina Bukrikis, all on 204. Four more (Mark Johnson, Julie McLachlan, Elizabeth Morris and Pipina Papazoglou) have reached the double century and are within striking distance of the top. As we start the reverse round, and teams play each other for second time, we have had some high scoring rounds and most people have been able to tip at least five winners (out of eight). After Round 18 the scores are (in alphabetical order): Magistrate Jenny Blokland 156, Lyn Bond (Parliamentary Counsel) 178, Chris Booth 204, Sean Bowden 168, Peter Boyce (Ombudsman) 162, Katrina Budrikis (Dept of Justice) 204, Jodeen Carney (Member for Araluen) 174, Graham Chandler 194, Chris Chaplin (Ward Keller) 184, Michael Davis (De Silva Flebron) 150, Glen Dooley (Office of the Director of Public Prosecutions) 180, Donna Dreier (Dept of Justice) 176, Robert Duguid (student) 180, Lorelei Fong Lim (ABC) 180, Alex Griffith (Clayton Utz) 198, Caron Flenebery (Sean Bowden and Associates) 166, Laura Hopkins (NAALAS) 196, Mark Johnson (Office of the Director of Public Prosecutions) 200, Magistrate Vince Luppino 188, B&L Martin (Chief Justice and wife) 168, Julie McLachlan 200, Melart (NTLAC) 194, Glenn Miller (NAALAS) 170, Elizabeth Morris 202, Ian Morris (Hunt and Hunt) 116, Pipina Papazoglou (De Silva Hebron) 202, Bill Piper (Bill Piper) 158, Karen Randell (Collier and Deane) 148, Justice Trevor Riley 196, Sally Sievers (Cridlands) 204, Magistrate Daynor Trigg 206, Cassandra Tys (Cassandra Tys) 188, Peter Walker (Peter Walker) 188, Sarah Wilkie 158, David Woodroffe (NAALAS) 174. The winner will walk away with the glory and $245, second prize is $70 and third place gets $35. Page 28 — July 2003 ✓-------------- A £)ates to remember... j 12-13 August - Futures Expo J Careers expo for Darwin senior secondary ■ school students. 5-7pm on 12 August and ■ 9am-3pm on 13 August at Darwin High j School. Volunteers wanted. | 18 August - Federal unlawful discrimi- J nation law CLE J Jonathan Hunyor (Human Rights and Equal J Opportunity Commission). 12-1.30pm in ■ the Law Society Boardroom (NT House, | Darwin). | 20 August - Sentencing Act CLE J John Lowndes SM. 5.30-6.30pm at J Cridlands Boardroom (videoconferenced to . Katherine and Alice Springs) ■ 29 August - Farewell dinner for Chief I Justice Brian Martin MBE AO I From 6.30pm at Cornucopia Museum Cafe, ■ Bullocky Point. J 3 September - AGM of the Law Society | of the Northern Territory I From 4.30pm at the Darwin Central Hotel, I cnr Smith and Knuckey streets, Darwin I 31 October - Retirement of Chief ■ Justice Brian Martin MBE AO j A ceremonial sitting of the Full Court will | mark the Chief Justice’s retirement, fol- | lowed by a farewell function. 3pm in Court I 1 of the Supreme Court, Darwin. I V _____________________________________________ / DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: publicrelations@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our websife: www.lawsocnt.asn.au.


LAW SOCIETY NORTHERN TERRITORY Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au EXECUTIVE President: Mr Ian Morris Vice-President: Ms Merran Short Treasurer: Mr Duncan Maclean Secretary: Ms Eileen Terrill COUNCILLORS Ms Jenny Hardy Mr Glen Dooley Mr Michael Grove Mr Christopher Booth Ms Suzanne Oliver Mr Markus Spazzapan NT Bar Association Representative Mr Michael Grant Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine C'oilier SECRETARIAT Chief Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Ms Sonya Ingham Administrative Assistant/Receptionist Ms Sharon Waters August 2003 COLUMNS President’s Column................ For the reeord......................... Advocacy................................. Jottings on the Bar................... Northern Territory University. Criminal Lawyers Association. ..3 ..5 ..9 ..8 11 15 NOTEWORTHY Conferences...................................................................................................................18 Noticehoard...................................................................................................................15 Court Library Notes......................................................................................................19 REGULARS The Muster Room........................................................................................................ 12 CLE Calendar................................................................................................................ 5 FEATURES Nominations for Council..............................................................................................6 LSNT at the Futures Expo 2003................................................................................. 12 East Timor’s legal system thrown into doubt..............................................................13 booty tribunal tips......................................................................................................... 12 Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should he forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Vie ws expressed in Balance and in advertising material included are not necessarily endorsed by the S( >ciety. Page 2 — August 2003 president's column Home is the Catfish, home to the mud I must say that I pen this article with mixed feelings. Mixed, only in the sense that they involve several levels of relief. So much has happened over the past two years that it is difficult to remember precisely how the profession has changed. The first and most significant development and one I am, probably inordinately, proud of is the way in which the profession has banded together after the destructive events that occurred in the first couple of years of the new century. If it were possible to give the profession a literary pat one the back, I now do so. Not only has the profession been able to move on from the difficulties that were confronted, but it has also been able to meet the enormous changes that have been visited upon it. The past two years have been very busy and have seen the implementation (against the wishes of the Society) of the Tort Law Reform package and the examination of the legal profession from the point of view of competition theory. We have also seen a substantial amendment to the Legal Practitioners Act. Forthe firsttime, there is provision in the Legal Practitioners Act for the legal operation of Community Legal Centres, largely as a result of urging from them. Long overdue amendments to the Legal Practitioners Professional Indemnity Insurance Regulations have been effected and we have been forced to examine the path forward in relation to Professional Indemnity Insurance as we have ridden for ever-increasing wave of higher insurance premiums. We have been required to consider the possibility of abandoning our own scheme and establishing a new scheme or indeed, joining with another scheme. The national travelling practicing certificate regime has also produced amendments to the Legal Practitioners Act. There are still some wrinkles in the legislation particularly in relation to the nebulous concept of “practicing” and where that “practicing” actually happens. This is also important to the Law Society because somehow we have to make a decision about it and keep a list ofthose who are “practicing” in our jurisdiction without necessarily being told by those who commence to practice in the Territory. I have to say that over the past six yea rs I’ve struggled with the Legal Practitioners Act and I think it is one of the most poorly drafted acts in the Northern Territory. Since I began to deal with it, there have been quite a lot of amendments that make the Act look like a liquorice allsort, each different colour representing a different style of drafting and coming from different generation of legal thought. The last couple of years have finally seen the coalescence of thought necessary in the national legal profession to produce a draft of a National Practice Bill. The Law Society has examined the proposed model Bill and could find little wrong with it. The Bill is still in early form and has left a number of tricky questions for local rules and regulations to handle but even so, it is still in much better shape than our own Act. I think there is some merit in seeking to adopt the provisions of the National Practice Bill wholesale and replacing our current Legal Practitioners Act. It will be a great deal easier to do that than to try to fix ours up and will have the advantage of keeping us directly in line with otherjurisdictions. When, not if, the national gurus get their act together the changes will probably be forced upon us and we may as well act now when we have some time to properly consider the matter rather than wait until we have no time and no choice. Over the same period we saw the partial repeal of the mandatory Ian Morris, president sentencing regime and, now, the introduction of legislation tailored to step back from the “life means life” bloody mindedness of the previous government. The trouble with riding the boundaries of fairness is that a return to the middle can be seen as such a long distance that any step towards the middle deserves recognition and acclaim. To think in that way is flawed. What if a rubber band behaved in the same way after it had been stretched? It would be thrown away. What if a necessary medical operation only saw a minor improvement in the patient’s condition? It would be seen as a failure. A step towards only partial injustice is not a step towards justice: instead it is recognition of failure. I have attended my last meeting of the Law Council of Australia and the Conference of Law Societies. The meeting of the Law Council was significant in two ways. The first was that we saw the end of the old unincorporated association and introduction of the new corporation, limited by guarantee. Coincidentally the occasion was precisely 70 years from the first meeting of the Law Council in 1933 although, the photo of that meeting showed it was nowhere near as cold then as it was when we had our meeting in Canberra. continued next page Page 3 — August 2003 L president's column The second significant event was that the meeting saw a combined strategic planning meeting of the constitutional bodies and the sections of the Law Council as well as the executive of the Law Council itself. The purpose of the planning meeting was to consider the future of the Law Council and whether the largely unworkable internal arrangements of the Council (catfish view only) should continue into the future. There were a lot of horses and gallons water but there was not a lot of drinking. It seems to me that any objective view of the future of the Law Council, particularly given the national trends atthe moment, must be the establishment of a National Law Society, but to do so will involve a great deal of tricky work in dismantling the well-established local patches and having those who now inhabit them try to see their way clear to being part of a truly national body. I wonder sometimes if there is an inversely proportional rule that links the size of the patch to be protected with the volume of opposition to it being changed. If so, I’m happy to report that the Law Society of the Northern Territory is the exception to the rule. I think that all members of our Council and the members of the Secretariat, looking back at the volume of work that has been done by us and could have been done instead by national body and looking forward to more ofthe same will agree that there are some considerable advantages in a National Law Society. At the moment, though, this is just another matter that the new Council will have to deal with in the coming months. We have seen the implementation of a web page to host the nominations for the election. I am sure that everyone found that being able to see the people who were standing and having summary of their views and ambitions a step for the better. Once upon a time everyone knew everyone else in the profession, but those times are fading. Developments of the web page will continue so that it becomes a more useful tool for the legal Page 4 — August 2003 profession. The introduction of the weekly “Practitioner” has been an extremely useful development and has proved so essential in informing the profession that I wonder what we used to do without it. But developments over the internet are not the only improvements in technology or its application that has occurred afterthe past two years. The computer system of the Society has been upgraded and the old software replaced. By the time practising certificates expire we will see (figuratively) the operation of the new Law Society database that will enable certificates to be issued reasonably automatically. The data base will have a great effect on the ease in dealing with not only practicing certificates but also the administration of complaints, the application of a compulsory CLE program (if that eventuates, as I expect it will) and the registration of those things required by the travelling practicing certificate regime. Within a short period of time, and certainly by the end of the year, the Law Society will have issued its new brochure on how to start-up a legal practice and moves will be afoot to amend the standard solicitor client contract to accommodate the new cost disclosure rules in the Legal Practitioners (Costs and Advertising) Act. Both of these will see some essential information given to the profession, and both will help increase the level of service that the profession can give the public, and a well set up practice will do much to reduce the risk of complaints and claims. Just recently we have been required to deal with the new proposals for post degree pre-admission training. The Priestly 12 set out the requirements for training in either articles of clerkship or a course at an educational institution such as the Australian National University or the College of Law. The new requirements involve far more substance in training than we are used to here and we have had to determine how these requirements might be met. Atthe momentthe Law Society and the Admission Board have recommended that all our clerks and judges associates enrol in one of the courses being offered and a selection will be made of the preferred course. Those who do not obtain articles of clerkship will be able to enrol the course themselves but will be subject to the requirement of performing the outplacements. Judges associates will no longer be required to complete six months of articles after the cessation of their associateship. It is intended that there will be a number of sections run by the local profession to assist in the crossover between the law in the course and the local law. As mentioned in my last Balance article the Legal Practitioners Amendment (Incorporated Legal Practices and Multi-Disciplinary Partnerships) Act is to come into effect in September 2003 and that will have a major impact on the operation of legal practices into the Territory. We have negotiated with the Department of Justice to provide an enabling section in the legislation that will permit the current Incorporated Practices to easily change into MDPs, should they choose to do so (as I think they will). The MDP Act will also require that the Law Society assume more extensive powers in the regulation (and some might say interference) of these MDPs. However there will be another effect upon the operation of these new incorporated practices and that will be the requirement for compulsory insurance to a particular level and capping of liability at that level. The same changes can be expected in ordinary practices and the national thrust seems to permit the anti-competitive requirements of the current legislation to be translated into the ability to operate a corporation in the same way that any other profession can. Finally, I have to thank some people for the help they have given me in the last two years. Without that help, continued page 10 for the record Welcoming in the new Council year The Council year winds down, the elections are on the horizon, retiring members of Council look forward to some well earned rest and incoming Councillors think One of the major projects for the short and longer term will be the National Model Legal Practice Bill (LPB). Earlier this year Council put a greet deal of effort into considering and commenting on a draft LPB, as did otherjurisdictions. Further work was done on the draft LPB which was considered by the Standing Committee of Attorneys General (SCAG) at its 7 August 2003 meeting. It appears the Ministers, amongst other things, have: • Endorsed the model provisions as the basis for consistent laws for regulation of the profession, including those areas where textual uniformity is required; of the challenges ahead. As I write this article it appears the next version of the Bill could be released as early next week for review by the Law Council of Australia and constituent bodies. The Law Society has generally welcomed the provisions in the draft LPB to date. One issue outstanding has been the issue of Professional Indemnity Insurance, in particular exemptions and the applicability of national standards. This issue has not been signed off by Ministers, with more work done on the proposed reinsurance and automatic models, as well as the development of national standards. The Society has, of course, been working hard to arrive at acceptable outcomes in this area. • Intend to proceed with the next phase of the project towards implementation of the model provisions and have authorized officers to finalise the provisions in a manner consistent with the model provisions endorsed by Ministers at previous meetings; • Flave also approved Council having the opportunity to review final model provisions; • Intend that Ministers approve out of session any substantive changes to model provisions; • Approved public release of the model provisions once finalised; • Authorised the drafting of supporting draft model regulations and rules; and • Authorised development of an intergovernmental mechanism for uniformity. It would be fair to say timeframes are tight, with a lot of work required in a very short period. At this stage a likely outcome appears the enactment of the Barbara Bradshaw, Chief Executive Officer, LSNT LPB, with necessary Territory variations, some time next year. However, this process has already begun with the passage of the Legal Practitioners (Incorporated Legal Practice and Multi-Disciplinary) Bill through the Northern Territory Parliament on 20 August 2003. I would be happy to answer any member queries about this process. In closing, I would like to thank the outgoing Council, in particular President Ian Morris, for the support provided over the last few months. 2003 CLE Program 12 Sep TBA-Jenny Blokland SM 220ct AustralAsia Railway Project - Challenges Overcome - Alastair Shields 19 Nov TBA - Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Unless otherwise notified, CLEs are presented in Darwin at Cridlands’ boardroom, Smith Street (opposite the TIO), the Katherine venue is the Katherine Regional Tourist Association, cnr Stuart Highway and Lindsay Street, and the Alice Springs venue is the Central Australian Division Primary Health Care Centre on 54 Hartley Street. Bookings are essential. CLE presentations are available on video (up until August 2002) or on CD (Sept 2002, Jan 2003, Feb 2003, Mar 2003). Information handouts from the CLEs can be obtained from the Law Society Northern Territory. For more information ring Sonya at the Law Society on 8981-5104. Page 5 — August 2003 nominations Nominations for the 2003-2004 LSNT Council MERRAN SHORT (De Silva Hebron) Nomination for President DUNCAN MACLEAN (Cridlands) Nomination for Vice-President i ♦ * GLEN DOOLEY (Department of the Director of Public Prosecutions) Nomination for Secretary MICHAEL GROVE (Ward Keller) Nomination for Treasurer TONY WHITELUM (Morgan Buckley) Nomination for Alice Springs Representative NARDINE COLLIER (Collier & Dean) Nomination for Alice Springs Alternate Representative PLEASE NOTE: These are the nominations for this year’s AGM as at close of business Friday 22 August - nomination did not close until close of business Tuesday 26 August 2003 L Page 6 — August 2003 nominations Nominations for the 2003-2004 LSNT Council MARKUS SPAZZAPAN (Markus Spazzapan) Nomination for Councillor DANIELLE HOWARD (Hunt and Hunt) Nomination for Councillor MARGARET ORWIN (Janet Terry) Nomination for Councillor NO PHOTO AVAILABLE AT TIME OF PUBLICATION MATTHEW STOREY (Department of Justice) Nomination for Councillor JO TOMLINSON (De Silva Hebron) Nomination for Counciller PLEASE NOTE: These are the nominations for this year’s AGM as at close of business Friday 22 August - nomination did not close until close of business Tuesday 26 August 2003 Page 7 — August 2003 L nt bar association - jottings on the bar Bar farewells Chief Justice Brian Martin The retirement of Chief Justice B F Martin AO MBE at the end of October this year will mark the end of one of the longest and most distinguished legal careers in the Northern Territory’s history. The Chief Justice’s legal career in the Northern Territory has spanned 40 years, commencing as a young solicitor in Alice Springs in 1963 and moving through the posts of Secretary of the Department of Law (1981 to 1986), NT Solicitor-General (1981 to 1987), NT Supreme Court judge (1987 to 1993) and NT Chief Justice (1993 to 2003) He was appointed a Queen’s Counsel in 1981 and has been made a life member of the NT Bar Association. Outside of the law, Brian Martin has taken an active role in public life and he has provided great service to his community. He was the Deputy Mayor and then Mayor of Alice Springs from 1971 to 1975. He was active in the local theatre company in Alice Springs, the establishment of the Araluen Foundation, the local Golf Club and also the Uniting Church. After he moved to Darwin in January 1981, he served as the Chair of the Australian Bicentennial Authority in the NT until 1989. For his services to the community he was awarded The Order of Australia in 1989. Brian Frank Martin was born in Singleton New South Wales a little over 66 years ago. He was admitted as a solicitor in the Supreme Court of NSW in 1959 and practised in Sydney until 1963. Brian and Lorraine Martin were married in Sydney in 1963 shortly before they moved to Alice Springs, which became their home for the next 17 years. Each oftheir four children was born in Alice Springs. When he first arrived in Alice Springs the town boasted a population of around 5000 - about one sixth of its present size. What is more, the firm of Barker and Martin (now Martin and Partners) was the only legal firm Page 8 — August 2003 in town. Legend has it that footraces were held to see who could getto their offices first to determine which side of the case got legal representation. Alice Springs remained a ‘one firm town’ until Paul Everingham arrived there from Queensland in mid-1966. Not only has his Honour played his part in the Territory’s history, he has also been associated with many other characters who have themselves played their part in our history. He was in legal partnership with Ian Barker QC in Alice Springs in the 1960s. He served on the Alice Springs Town Council as an alderman with Paul Everingham in the early 1970s. He was Deputy Mayor of Alice Springs to Jock Nelson, becoming Mayor in 1973 when Jock retired to become Administrator of the Territory. Then in the 1980s he became the Territory’s second Solicitor-General after his former partner, Ian Barker. In 1989 both he and Paul Everingham were given Orders ofAustralia in the same honours list. As Chief Justice, Brian Martin has always been a staunch defender of the legal profession and of the independence of thejudiciary. He was often known to vent his spleen on members of the Executive and others who presumed to make incursions in these respects. In 2001 he responded publicly to criticisms ofthe Supreme Court made by the then Chief Minister Mr Denis Burke aboutthe sentencing decisions of judges. As part of that response, he implemented a website to allow members of the public access to sentencing remarks made by Judges and to foster a more informed debate. Not surprisingly, he has been involved John Reeves QC, President of the NT Bar Association in many significant cases in the Territory - from both sides of the bench. Limits on space in this column will only allow me to give a few examples. In 1973, he and Michael Maurice acted as counsel in one ofthe Territory’s longest running mining cases

Jervois Sulphates (NT) Ltd -vPetrocarb Explorations NL (1974) 5

ALR 1. The issues in that case included estoppel, partnership, fiduciary relationships, forfeiture of mining tenements, improper purpose, malicious prosecution, perjury , trespass, remoteness of damage, negligence , the rule in Rylands v Fletcher, slander of title, injurious falsehood, conspiracy to commit tort, and aggravated and exemplary damages. It was Territory litigation at its highest intensity and complexity. As Chief Justice he presided in the Court of Appeal decision in the ‘euthanasia case’ of Wake -vNorthern Territory ofAustralia (1996) 5 NTLR 170 and in the ‘mandatory sentencing’ case of Wynbyne v Marshall (1997) 117 NTR 11. Both cases involved important constitutional issues for the Northern Territory. Most Territorians will recall that before the High Court appeal was heard in Wake, the Federal Parliament set aside Northern Territory legislation continued page 10 advocacy Objections to evidence 'I'm not indecisive. Am I indecisive?” - Jim Scheibel The making of an objection to evidence may call for a difficult exercise ofjudgment. The question "do I?" or "don’t I?” must be answered in an instant. Failure to object quickly is to allow the objectionable material to be aired and often to make any objection redundant. On the other hand an objection that is made quickly and without thought for the consequences, even if successful, may lead to an unnecessary emphasis upon the information to which objection is taken. It must be remembered that the information may come before the court in other ways eg: by the rephrasing of a badly framed question or through another witness. The fact that objection was taken may indicate to the court a special sensitivity on your part to the disclosure of the information and serve to highlight it. The prospect that an objection may be tactically unsound will be greater when the tribunal of fact is a jury rather than a judge or magistrate. Whilst a judge or magistrate is trained to ignore or put to one side information that comes before the court in an inadmissible form, it is not difficult to envisage members of a jury having difficulty in doing the same. Similarly, a judge or magistrate can be expected not to speculate as to why counsel may have been concerned to exclude inadmissible material but counsel may have a greater concern when a jury is involved. How a jury may react is not so predictable. Where counsel has made vigorous objection to the introduction of some evidence the jury may wonder why. If the objection is successful the jury may be concerned that the advocate was seeking to keep from them information relevant to the decision that has to be made. Whilst the judge will give the jury directions as to what may and may not be considered there will be a concern that the jury will be left wondering what it was that was so important that led to the objection being made. It may be that the speculation of the jury will be even more adverse for your clientthan the information excluded. There will be no way of knowing what, if any, impact the objection had. It follows from the above that in considering whether to object it is necessary for counsel to make a quick decision and, where that decision is to object, to do so immediately. One source of guidance in the making of the appropriate decision will come from reference to the case strategy developed in your preparation. As I have observed on many occasions, all decisions relating to your conduct of the case should be guided by your case strategy. By reference to the case strategy an immediate and informed assessment can be made as to the importance of the material to which objection is taken. If you are confident that the answer to an objectionable question will not provide information inconsistent with your case strategy, or that a witness straying into irrelevant material in a non-responsive answer to a question will not impact upon your case strategy, then you may prefer to let the matter go. If you are concerned that there is no immediate problem but that there may be an ongoing danger then it may be preferable to allow the information to be provided by the witness and for you to then point out to the court that the question was objectionable or that the information provided was irrelevant. You may then ask that your opponent not repeat the error or that he or she maintains control of the witness in future. In this way you make your point without being seen to be anxious to keep information from the jury. If further objection is called forthejury will be more likely to understand and accept the basis for it. However, if you are concerned that the information emerging is inconsistent Hon Justice Riley with, or undermining of, your case strategy then you will quickly and firmly object. It may be necessary for you to interrupt or, indeed, talk over the witness to ensure that the objectionable material is not introduced before you have a chance to record and explain the objection. Of course, in many cases the position will be less than clear and the decision whether or not to object will be based upon your instincts ratherthan any fully considered assessment of the situation. You may be quite unsure whether or not the information called for will be inconsistent with your case strategy. A difficult exercise of judgment on your part will be called for. The nature of the evidence that is likely to be lead and what may be necessary to exclude is something you will address in your preparation. The prospect that the other party may wish to introduce material that is inadmissible is something to be considered at that time. You may be able to reduce the stress of having to make some decisions on the run by careful preparation. Unfortunately it is unlikely that you will be able to anticipate all, or even most, of the matters for objection which will emerge in a trial and you will be called upon to make important decisions as to whether to object to evidence in less than ideal circumstances. Oj Page 9 — August 2003 i We offer a full range of forensic science services in the investigation of fires and explosions including ■ direct incident investigation (origin & cause, liability, recovery etc.) ■ laboratory analysis and interpretation of results ■ assessment and commentary on previous investigation findings ■ expert testimony and advice to counsel (criminal and civil litigation) We have particular expertise in ■ incidents involving fatalities ■ interpretation of thermal injury distribution ■ gas and vapour explosions ■ electrical systems and causes of fire ■ interpretation of documentary and photographic evidence ■ laboratory testing of fire-related evidence For more details, visit our website www.fireforensics.com.au ore-mail info@fireforensics.com.au Jim Munday has specialised in fire and explosion investigation since 1979, with Scotland Yard's forensic laboratory and in private practice in the UK & Australia. He has investigated more than 1700 fire and explosion incident scenes, including over 300 fatalities, and carried out laboratory testing on materials from many others. He has given expert evidence in many courts. Trained as a forensic chemist, Jim is also a qualified fire engineer and one of the few holders of the prestigious Diploma in Fire Investigation awarded by the UK Forensic Science Society. He has made a special study of the way in which distribution of skin burns and other thermal injuries relates to the location, position and activities of the person involved. Our Senior International Associates include Dr John DeHaan (USA) and Mr Michael Gardiner (UK). Home is the Catfish, home to the mud cont... the job would have been much tougher, and probably impossible. In the Secretariat, chronologically, Maria Ceresa, Julie Davis, Sam Willcox, Lorelei Fong Lim, Josephine Stone and Barbara Bradshaw. I also would like to thank the current members of the secretariat, Sonya, Zoeand Sharon. None of the improvements that have occurred over the past two years would have been possible without the great assistance from the members of the Council. Eileen Terrill, Merran Short, Duncan McLean, Sarah Hawke, Michael Grove, Michael Grant, Glen Dooley and Sue Oliver (in no particular order) have all played major roles in the Council. My thanks to them, and my best wishes for those who stand again to face the incredible workload the Council has to take on. My thanks also to my partners for letting me have the time to be involved in the Society, and have graciously let my failings in the firm pass uncommented. My greatest thanks must go to my wife, who has patiently listened to my ravings, has suffered the boredom of being my proof reader and has given me the advantage of her great common sense in dealing with some of the conundrums I have had to face. Splash.® Bar farewells Chief Justice Brian Martin cont... underscoring the tenuous nature ofthe Northern Territory’s legislative powers. On their retirement, Brian and Lorraine have plans to ‘go bush’ on extensive outback camping trips. Whilst they intend to divide their time between Adelaide and Darwin, Darwin will remain their home base. In his entry in Who’s Who his Honour gives as one of his recreational pursuits; barbeque cooking - what better way to spend part of any retirement than cooking up a typical barbie on a peaceful dry season Darwin afternoon. The NT Bar wishes both Brian and Lorraine Martin a very happy and lengthy retirement. (T) Page 10 — August 2003 law school notes NTU Law School update Semester Two is now well under way and with it the reality of delivering law units to external and Alice Springs students. Enrolments have been very encouraging, and from a wide geographical area. We have external students in Katherine, Tenant Creek and throughout the remote regions of the NT and WA. Perhaps surprisingly, there are also students studying externally who live in Sydney and Perth: an indication of the unmet need for external studies in law in Australia. Course material is delivered to all students via the NTU’s “Learnline” intranet. Each subject offered externally or in mixed mode has a website within the system where all unit information, assessment information, study guides, tutorial problems and audio recordings of lectures are available. In addition the websites are an essential tool for communication with students, in particularthe bulletin boards and chat facilities. Websites for subjects only offered internally have documents and notice facilities but not audio recordings at this stage. All internal subjects will progressively be offered for study externally over the next few years. In Semester 1 2004 it is intended to offer the subjects Legal Process Research and Writing, Torts B, Criminal Law and Procedure and Introduction to Public Law for external study. A feature of study for external students that is being trialled this semester is the “e-tutorial". This involves students logging on to a voice chat program (the “e-tutorial room") which allows participants to speak to each other and to communicate via text. In addition the program has an internet browser window, which allows the tutor to display documents either from the NTU’s computer system or the Web, eg. Austlii. The tutorials in Torts 1 are conducted at 8.30pm (after my kids are in bed!) from my computer at home. The flexibility that this technology offers is opening up new possibilities for students and staff. Initial feedback from the tutorials with external students has been positive and it is intended to continue with this mode of tutorial delivery for the balance of the semester. In relation to the Law School’s external studies program credit should be given to NTU Law School lecturer Ken Parish, who has worked tirelessly to ensure that the technology is both appropriate and functional. Despite sometimes difficult issues he has succeeded in making the online study of law technologically possible at NTU this semester and his expertise with website design and in the setting up of the tutorial system (just to mention two aspects) has been invaluable. In relation to the mixed mode program being offered in Alice Springs thanks must also go to the Alice Springs practitioners who have volunteered to assist in a practical way by acting as tutors. Ms. Nardine Collier of Collier & Deane has been the first with tutorials in Torts 1 (commencing the first week in August) and we thank her also for allowing those to be conducted in her conference room. Apparently the glass of wine on offer was a significant aid to academic discussion! Over the last few weeks a number of Law School staff have contacted practitioners in Alice Springs to discuss tutoring and although not everyone was able to assist immediately we are grateful for the support that those in Alice have shown. The Law School looks forward to a productive partnership with Alice Springs practitioners. In other news, Senior Lecturer Stephen Gray is moving to a fractional appointment (of 25%) for the remainder of the semester. Stephen will spend the next few months adding the finishing touches to a book, working title “Northern Territory Criminal Law", for which he has a contract with Federation Press. The book is likely to be published in January 2004. There may be some who are disappointed to think that Stephen may be concentrating upon academic writing to the exclusion of his fictional work. Fear not! Stephen has also secured a grant from the Australia Council to assist with his new (third) novel and, whilst details are hard to confirm at this stage, it is said to be set in the Territory with themes involving Aboriginal Australia and South East Asia. Look out for it in 2005. It is the Law School’s intention to offer as wide a range of subjects for study as possible and, as many of you may be aware, Head of School, Prof. Ned Aughterson has been working towards building partnerships with other university law schools both in Australia and overseas. Negotiations are presently well advanced in a number of areas, including with the University of Adelaide. As part of those arrangements the Law School is pleased to be able to host a course entitled “Transnational Crime and Terrorism” being delivered in Darwin by Dr Andreas Schloenhardt from The University of Adelaide Law School. The course will be taught in intensive mode in the period Saturday 20 September to Friday 3 October 2003, inclusive. Topics include the globalisation of crime, trafficking (narcotics, people, firearms and ammunition) and terrorism, both from an Australian and international perspective. Enrolment is available both to NTU students and to those who wish to study the unit as a short course. Fees are payable. Further details of course content and fees together with a brochure and application form may be obtained by contacting Ms. Jill Thyne on 8946 6833 or by email iill.thvne@ntu.edu.au. Another short course, available to practitioners and others on a feepaying basis, is to be offered by visiting University of Paris academic Prof. Antoine Bullier in September/October 2003. Taught in intensive mode on Friday afternoon and Saturday over 4 weeks commencing 19 September 2003, the course is entitled “The French Legal System" and includes an introduction to the civil law via the law of France with topics dealing with continued page 13 Page 11 — August 2003 i Social Butterflies attend Chamber opening Recently Steve Southwood QC and Jon Tippett QC christened their new premises - Myilly Point Chambers. The momentus event was covered by a full-page spread in the Social Butterflies section of the NT News. Contributions Any suggestions or contributions for Muster Room can be emailed to publicrelations@lawsocnt.asn.au ® The Muster Room Footy tribunal tips Grab a beer and a pie and enter the sweaty and somewhat secret sanctum of the Sporting Tribunal! The Northern Territory chapter of the Australian Institute of Administrative Law (NTAIAL) is holding a seminar on sporting tribunals. The seminar is being held on Thursday 25 September atthe Pub Bar, Mitchell Street, Darwin. Starting at 5.30pm, a gold coin donation is requested for entry. The NTAIAL invites all sports fans and administrative law aficionados to attend this seminar, the first in its 2003/2004 lecture series. Prominant speakers will include Rex Wild QC (Director of Public Prosecutions) and David DeSilva (DeSilva Hebron). Complementary meat pies will be supplied by the NTAIAL and the bar will be open. Watch The Practitioner' for topic details. For further information about this seminar or membership to the NTAIAL, please contact Mary Chalmers on 8999 1974. Morgan Buckley wins award Morgan Buckley was announced as the Panasonic Australia Business category winner at the 2003 Telstra and Northern Territory Government Small Business Awards held at the MGM Grand on Tuesday 22 July 2003. “Everyone at Morgan Buckley is extremely excited to have won this award," Tony Morgan, Managing Partner of Morgan Buckley, said. “The Telstra award is a significant milestone in our goal to be the premier law firm in the Northern Territory," he said. “We believe that with unparalleled technological and practice management systems we will be able to compete with the top tier national and international firms both in the Northern Territory of Australia and in the expanding Southeast Asian marketplace. “Darwin’s small business sector is characterised by hard work and sheer determination and we are proud to be a part of it." LSNT at the Futures Expo 2003 Recently, the Law Society spent the day manning a booth atthe Futures Expo 2003. The Futures Expo was a major career exhibition held at Darwin High School on Tuesday 12 August (7-9pm) and Wednesday 13 August (8.30am-3pm). Organised by the Department of Employment, Education and Training, Futures featured a circuit of booths representing different organisations, industries and professions. Students were bussed in from various Page 12 — August 2003 schools and ranged from year seven through to senior students (years 10, Hand 12). A wide range of industries were represented atthe Expo and there was solid attendance by students. The Law Society became involved to promote potential careers in the legal profession. Using volunteers and a small range of brochures, the intention was to discuss career options with interested students. A big thank you to all the volunteers: Ian, Wendy, Earl and Anne (Darwin Community Legal Service), Sam and Chris (Legal Aid), John Duguid (DPP), Brenda Monaghan and Steven Hutton (Magistrate’s Court), Chris Booth (Ward Keller), Ben Lee (Clayton Utz), Peter Barr (William Forster Chambers), John Lawrence (John Toohey Chambers) and Barbara Bradshaw (LSNT). feature East Timor's legal system thrown into doubt On the 15 July 2003, East Timor’s Court of Appeal ruled that Indonesian law had never been validly in force in the country and that Portuguese law should be applied. According to the Judicial System Monitoring Programme (JSMP) “the decision has generated an enormous amount of uncertainty, confusion and division within the Courts, East Timorese legal fraternity and community at large regarding the The Court of Appeal decision was based on the case of Armando dos Santos who had been convicted of murder and sentenced to 20 years imprisonment by the Special Panel for Serious Crimes in September 2002. In a split decision (2:1) the Court of Appeal ruled that Dos Santos was guilty of genocide under the Portuguese Criminal Code (a crime he had not been charged with) and increased his sentence to 22 years. The ruling is based on the United Nations Transitional Authority in East Timor (UNTAET) Regulation 1999/1; Section 3.1 which states: “Until replaced by UNTAET regulations or subsequent legislation of [the] democratically established institutions of East Timor, the laws applied in East Timor prior to 25 October 1999 shall [continue to] apply..." The Court has ruled that as Indonesia’s occupation of East Timor from 1975 until 1999 was unlawful under international law, Indonesian law was never validly in force in the country. The majority of the court comprised Judge Claudio Ximenes (presiding) and Judge Jose Maria Antunes affirmed their position that the appropriate subsidiary law in East Timor is Portuguese. The third panel member, Judge Jacinta Corria da Costa expressed a dissenting opinion, stating that she found no ambiguity regarding the clear intention of UNTAET that Indonesian law apply as the subsidiary law in East Timor. “Subsequent to its decision on 15 July, the Court of Appeal has applied Portuguese law in several subsequent appeal cases. However... the Dili District Court, including the Special Panels for Serious Crimes, spear to have decided they are not obliged to fundamental basis, or source of E follow the Court of Appeal’s decision, and are continuing to apply Indonesian law in their decisions," JSMP reported. “In its broader application, the Court of Appeal decision has the potential to render invalid many transactions conducted in East Timor during the last 28 years because they have been determined under Indonesian, and not Portuguese law. These would include commercial contracts, registration of births, deaths and marriages, bank loads, bankruptcy proceedings and other matters, such as criminal prosecutions undertaken between December 1974 and 25 October 1999. Taken to its full extent, the Court of Appeal decision has the potential to cause massive disruption to life in East Timor, to business centres, and the East Timorese economy." Since the decision there have been several further developments in East Timor:

  • the Prosecutor-General filed an

appeal to the Court of Appeal (sitting as the Supreme Court) seeking a declaration that Indonesian law is the applicable subsidiary law in East Timor;

  • the Special Panel for Serious Crimes

issued a decision in the case of Public Prosecutor vJoao Sarmento and Dongos Mendonca, declaring that they did not consider themselves bound by the decision of the Court ofAppeal, and that they considered the proper source of subsidiary laws to be the Laws of Indonesia; and

  • nine Members of Parliament have

tabled a draft bill in the national Parliament which proposes that Indonesian, and not Portuguese law be confirmed as the applicable law it Timorese laws.” in East Timor. “The future of commercial investment in East Timor is likely to hinge on whether East Timor can deliver a mature, developed and properlyfunctioning legal system able to provide commercial certainty for investors," said the JSMP. “Given the present uncertainty regarding this fundamental issue of law. JSMP considers that it is incumbent upon the national Parliament to intervene. NTU Law School update cont... legal profession and civil and administrative law and procedure. The Law School looks forward to welcoming Prof. Bullier, as he offers a rare opportunity to study European law in Darwin. Those interested in enrolling in either this unit or that offered by Dr. Schloenhardt should enrol as soon as possible. Finally, the text of the 4th Prof. Ahmad Ibrahim Memorial Lecture entitled Sacrificing Personal Freedom in the Name of National Security delivered by Prof. Jesse Wu at the International Islamic University in Kuala Lumpur on 12 July 2003 (mentioned in last month’s column) can now be found at http://www.ntu.edu.au/lba/law/ staff/wu/wul.htm. It’s well worth a read. Meredith Day Lecturer Email: meredith.dav@ntu.edu.au Tel: 8946 6839 Page 13 — August 2003 criminal lawyers association CLANT 9th "Bali conference" in Oz CLANT'S 9th Biennial Conference was held between 28th June - 6th July 2003, this year in Port Douglas, North Queensland. Following the Bali tragedy and its political fall out, it was decided, albeit with great reluctance, that we couldn’t hold it in Bali this year. At some stage duringthe debate, it was seriously considered not having a conference at all. The outbreak of SAR’s and the actual holding of the bomber’s trials in the Conference week, confirmed the tragic impossibility of maintaining the tradition of holding it in Bali. So for the first time in its eighteen year history, CLANT’s Conference was held on Australian soil. As usual, the proposed venue of Port Douglas was investigated thoroughly before choosing the Portsea Resort which in the end, proved a great success. Over 90 delegates attended from all over Australia. That figure was only 20 odd less than the last Conference which was encouraging. From most feedback, the Conference was a great success. Many qualified to speak have commented that it probably produced the best quality of papers presented ever. The theme was “Law, Liberty and the Lab” but as usual it was open-ended and many issues relevant to criminal lawyers were addressed, discussed and explained. Over 20 speakers from various backgrounds presented papers. The topics varied from the jurisprudential to the hands on mechanics of recent courtroom trial developments. We were graced once again by Justice Kirby who delivered the opening Keynote Address on the recent High Court decision of R v Carroll 77AUR157 dealing with doublejeopardy. Justice Kirby didn’t sit on that case. His outline of its factual and procedural history through the various judgments combined with recent international developments on this subject and the relevance and applicability of international laws was a veritable Masterclass. Needless to say, the presentation expanded quite naturally into an exposition of fundamental legal and political principles which are at play on this importanttopic. The debate continues in Australia as to whether the law should be amended. All who were present at this presentation are consequently better informed as regards that debate. The first morning then continued with another giant from his field, Aboriginal activist and lawyer, Noel Pearson from Cape York Partnerships. Our conference was being held in Mr Pearson’s neck of the woods which initially led us to enquire if he would be willingand able to come on down and present a paper. He duly obliged and John Lawrence, President, CLANT addressed the conference on his analysis and work in his community as regards substance abuse. As readers would be aware, Noel Pearson has very much turned this debate on its head. Neither the left nor the right in politics quite know what to make of this man’s radical and in many ways, compelling diagnosis and prognosis. Noel outlined his critique on passive welfarism and previous approaches to the problem. He replaced that with his diagnosis and prognosis. Particularly relevant to NT Lawyers was the evils that he was addressing and attacking are identical Delegates enjoy a fish and chips night at the Port Douglas Hotel. i Page 14 — August 2003 NOTICEBOARD Legal Practitioners Act The Legal Practitioners Fidelity Fund Committee has determined, pursuantto section 90A, that legal practitioners holding an unrestricted practising certificate a re required to paythesum of $100.00 to the Fidelity Fund in respect of the period of 12 months commencing on 1 October 2003. Dated 13th August, 2003. T.COULEHAN Chairperson Ceasing To Act in the Court of Summary Jurisdiction: A number of instances have been noted where practitioners intending to cease representing a client in the Court of Summary Jurisdiction, have simply written to the Court advising that they cease to act. Whereas there is some provision for this to occur in the Local Court, the position in the Court of Summary Jurisdiction is that a practitioner who is noted on the Court file as having appeared before the Court on a matter, must obtain the leave of the Court to subsequently withdraw from that matter. That will require the attendance at Court of the practitioner or another practitioner on his or her behalf. Notification of Regulations Notice is given ofthe making ofthe following regulations, effective from the date of the 1 August 2003: Regulations EmpoweringAct Limousine Regulations Commercial Passenger (No. 39 of 2003) (Road) Transport Amendment Act Amendments of Private Commercial Passenger Hire Car Regulations (Road) Transport (No. 40 of 2003) Amendment Act Amendments of Minibus Commercial Passenger Regulations (Road) Transport (No. 41 of 2003) Amendment Act Amendments of Taxis Commercial Passenger Regulations (Road) Transport (No. 42 of 2003) Amendment Act Amendments of Passenger Commercial Passenger Bus Regulations (Road) Transport (No. 43 of 2003) AmendmentAct Amendments of Commercial Commercial Passenger Passenger (Miscellaneous) (Road) Transport Regulations AmendmentAct (No. 44 of 2003) Copies ofthe regulations may be purchased at Northern Territory Government Publications, Government Printing Office, Railway Street, Pa rap, Darwin NT 0800, and the Alice Springs Access Centre, Westpac Building, Todd Mall, Alice Springs NT 0870. Motor Vehicles Act The instrument specifying rates of compensation contributions forthe NT Motor Vehicles Act has been amended. I, KONSTANINE VATSKALIS, the Minister for Transport and Infrastructure acting for and on behalf of the Treasurer, in pursuance of section 47(1) ofthe Motor Vehicles Act and with reference to section 43 of the Interpretation Act, amend, on and from 1 August 2003, the instrument specifying rates of compensation contributions dated 21 May 2003 and published in Gazette No. G28 of 28 May 2003 - (a) by omitting from item C. of the Schedule paragraphs (2) and (3) and substituting the following: “(2)Courtesy vehicle - where the vehicle has a seatingcapacity - (a) for more than 9 persons (including the driver) - 402.15 (b) for not more than 9 persons (includingthe driver) - 402.15 (3) private hire vehicle - 592.15 (3A) limousine - 592.15"; and (b) by adding atthe end of item C. oftheSchedule the following: “(7) Special function vehicle - 402.15” Dated 31 July 2003. Ministerfor Transport and Infrastructure acting forand on behalf ofthe Treasurer Guidelines for the Child's Representative Family Court ofAustralia Practice Direction: No. 3 of 2003 Applications for contact/residence duringthe ChristmasSchool Holiday Period - National Filing Deadline The Court has fixed a national filingdeadline to allowthe proper and expeditious hearing of contact and/or residence disputes during the 2003/04 summer school holiday period. Subject to numbers being within expected limits, the Court anticipates r Why not use the Law Society’s boardroom for your next meeting? SOCIETY iIK rEftlHOtY Hire rate: $264 for a full day $137.50 for a half day (4 hours) + $27.50 for every hour thereafter (all prices include GST) Book with the Law Society on 89815104 Page 15 — August 2003 i criminal lawyers conference CLANT 9th "Bali conference" in Oz to the ones which blight so many Territory Aboriginal Communities. Our Government has said it is addressing that huge problem by setting up a Parliamentary Sub-Committee looking at substance abuse. Our Association has said that that’s merely a backburner approach. In many ways this approach only leads to re-discovering yet again the chronic levels of dysfunction in Aboriginal Communities caused by substance abuse. It was disappointing to note that no-one from the Northern Territory Government attended as regards this issue notwithstanding our efforts to persuade them which included informing them that Noel Pearson would bespeaking. The conference descended from the Olympian heights of that first morning into the grime and slime of more practical issues and developments that face criminal lawyers; e.g. using audio-visuals to explain legal concepts to jury’s; interacted crime scene technology now being used to present video-visuals of crime scenes etc. Sessions on DNA as well as the recent developments in Aboriginal customary law as seen in the recent NT case of Pascoe illustrate the breadth as well as the hands on nature of the topics covered. In between all that, as has now become customary, Rex Wild QC penned a famous criminal trial for re-enactment. The trial chosen this conference was the famous murder trial of R v Derek Bentley and Christopher Craig heard before Lord Chief Justice Goddard in England in 1952. This case graphically illustrated to all that despite the inbuilt protections and safeguards accorded to accused persons within our trial system, they all amount to nothing if the trial Judge, for whatever reason, decides to take over the show and railroad the process into verdicts of guilt. Lord Chief Justice Goddard, considered by those who know, to be a genuine giant of twentieth century common law, did just that in this trial. Certain explanations were proffered to explain his motivation which led to Page 16 — Augusf 2003 much vigorous debate throughout the week. It must be said that Tom Pauling QC’s performance in that role and in particular the moment when he passed the sentence of death upon Mr Bentley was a Masterful display of method acting. I understand he is very keen to continue with performances in this role in the future. Woe betide us all! Some ofthe later papers dealt with the recent in-roads into human rights through Australian and American legislation to address the “war on terrorism”. This extended and included scathing criticisms of the US treatment of their prisoners in Guantanamo Bay and of course the plight of the Australian citizens held there. Some of the presenters involved were the NSW DPP Mr Nicholas Cowdry QC and Labour Shadow Spokesman on Foreign Affairs, Daryl Melham MP. We had therefore returned at least into the Olympian foothills where the Conference there ended. In between all that work, there was the usual play. All bars and dens were laid waste in the customary CLANT fashion. What’s more, many an outrageous scandal was committed involving the usual suspects; cross dressers, a donkey and judicial officers! All of the details will be revealed in the next r INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection ^Cutback _ _ BUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au Member of Institute of Mercantile V _____________ Agents Ltd______________y ba!010602 NOTICEBOARD 4 allocating hearing dates prior to Christmas for applications filed prior to the deadline. The Court cannot guarantee that applications filed after the deadline will be fixed for hearing prior to Christmas. Which applications: All Form 8 or other applications seeking orders in relation to contact ora period of residence during the December 2003/January 2004 school holiday period. Closing date for filing: 4pm on Monday 10 November 2003. Consequences: Applications filed after 10 November 2003 will be allocated the next available date in the usual way. That date may be in 2004. Exceptions: After 10 Novemer 2003, appliations to abridge times and list a matter on short notice can be made to Registry staff. The usual criteria for an urgent hearing will apply the factthat an application relates to school holiday contact will not itself justify a listing before Christmas. The Honourable Justice JE Ellis Acting Chief Justice Fa m i ly Cou rt ofAustraI ia 15 August 2003 —----------------------------------------------------~~------------------------ ATTENTION: ALL SOLICITORS First Law Promotions Pty Limited (ACN 002 635 029) announce the creation of a national website for the exclusive use and convenience of legal practitioners in the Northern Territory and elsewhere in Australia. www.courtqgents.com.qii Want a solicitor to act as your Court Agent? Want to act as a Court Agent for other solicitors? Email firstlaw@biqpond.net.com or phone (02) 9369 2600 for further information. Offers of Compromise and Payments to Court In order to ensure that no correspondence or other documentation relating to Offers of Compromise or Payments into Court reach the relevant Court file, practitioners are requested to ensure that all such documentation is delivered to the Registry in a sealed envelope and marked “Confidential for the attention ofthe Registrar”. Margaret Rischbieth Registrar 20 August 2003 Proposed CLE seminar If members are interested, the Law Society is proposingto run a CLE seminar on theAssociations Bill and the Business Tenancies (Fair Dealings) Bill. Any interested members should contact Barbara Bradshaw on 8981-5104 or email bbradshaw@lawsocnt.asn.au “ PRACTITIONER News & views from the (■I LSNT Secretariat Want to stay up-todate with news and upcoming events? The Practioner is a weekly email newsletter service for members of the LSNT. To access this service (members only) provide your email address to the LSNT office, or email publicrelations@lawsocnt.asn.au Page 17 — August 2003 readers forum - conferences 31 August - 3 September 2003 National Community Legal Centres Conference Hobart, Tasmania Tel: (03) 9328 8642 Fax: (03) 9326 5912 Annie_Nash@fcl.fl.asn.au 1 - 5 September 2003 18th LAWASIA Biennial Conference Tokyo, Japan Tel: 619 8946 9500 Fax: 61 8 8946 9505 lawasia@lawasia.asn.au 4-6 September 2003 The 16th Annual Stamp Duties Symposium Sheraton Mirage, Gold Coast Tel: 02 9080 4307 Fax: 02 9290 3844 12-14 September 2003 Transforming Trauma: Critical, Controversial and Core Issues Melbourne, Australia Tel: 07 38314466 Fax: 07 3831 4477 warmid@tpg.com.au 12 September 2003 World Masters of Law Firm Management: Being good is not enough Four Seasons Hotel, Sydney Tel: 02 6246 3722 gerard.oneill@lawcouncil.asn.au 18-19 September 2003 3rd Sheriffs Seminar Perth, Australia Tel: 03 9600 1311 Fax: 03 9606 0366 www.aija.org.au 19 September 2003 Masters’ Conference Perth, Australia Tel: 03 9600 1311 Fax: 03 9606 0366 www.aija.org.au 19-21 September 2003 AIJA Conference University of Notre Dame Australia Fremantle, Western Australia Contact: Rommie Masarei Tel: 0417 979 867 Fax: 08 9384 9663 masarei@arach.net.au 1-3 October 2003 Australia and New Zealand Society of Criminology Conference - Controlling Crime: Risks and Responsibilities Sydney, Australia www.lawlink.nsw.gov.au/ anzsoc2003/ 1-3 October 2003 12th Annual Australian and New Zealand Education Law Association Conference Sydney, Australia Contact the CLE Centre Tel: 02 9233 4999 Fax: 02 92311995 www.clecentre.com.au 7-10 October 2003 Avoiding Disaster: Engineering, Technology and the Law Monash Campus Prato, Tuscany, Italy Tel: 03 9905 4734 www.law.monash.edu.au/iifs 14-15 October 2003 National Indigenous Juvenile Justice Conference Riviera Motel and Function Centre Adelaide, South Australia Tel: 07 54713161 Fax: 07 4938 7553 Email: indigenousconventions@bigpond.com 16-17 October 2003 National Indigenous Custody Conference Riviera Motel and Function Centre Adelaide, South Australia Tel: 07 54713161 Fax: 07 4938 7553 Email: indigenousconventions@bigpond.com 16-19 October 2003 APLA National Conference Hyatt Regency Coolum, Queensland Tel: 02 9698 1700 Fax: 02 9698 1744 www.apla.com.au 20-21 October 2003 2nd National Pro Bono Conference Marriot Hotel, Sydney Contact Conference Co-ordinators Tel: 02 6292 9000 Fax: 02 6292 9002 www.nationalprobono.org.au 22-24 October 2003 11th Annual Family Law Masterclass, Melbourne Stamford Plaza, Melbourne Tel: 1800 772 772 Fax: 02 9422 2338 7-8 November 2003 Juvenile Justice Conference Calwell, ACT Tel: (02) 6292 9000 Fax: (02) 6292 9002 conference@netinfo.com.au 10-12 February 2003 Family Law Masterclass, Brisbane Brisbane, Queensland 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com WANTED Balance Book Reviewers You get two months to read the book and write a 300-400 word review... and you get to keep the book. If you are interested please contact Zoe atthe Law Society or email publiaelations@lawsocntasn.au Page 18 — August 2003 COURT LIBRARY NOTES NT LEGISLATION Legislative changes in July 2003, notified in the NT Government Gazette New Acts 24/2003 Tobacco Control Amendment Act (31.5.03) 25/2003 Firearms Amendment Act (1.7.03) 26/2003 Information Amendment Act (26.6.03) 27/2003 Financial Management Amendment Act (30.6.03) 28/2003 Major Cricket Events Act (26.6.03) 29/2003 Energy Pipelines Amendment Act (26.6.03) 30/2003 Desert Knowledge Australia Act (N/C) 31/2003 Land Development Corporation Act (1.7.03) 32/2003 Trade Development Zone Act Repeal Act (1.7.03) 33/2003 Appropriation Act 2003-2004 (30.6.03) 34/2003 Taxation (Administration) Amendment Act (ss. 11­ 22 and 28 - 27.5.03, ss.4 and 23 - N/C, Rest - 1.7.03) 35/2003 Stamp Duty Amendment Act (ss.5(a) and (b) - 27.5.03, Rest - 1.7.03) 36/2003 Pay-Roll Tax Amendment Act (s.10 - 27.5.03, Rest - 1.7.03) 37/2003 Mineral RoyaltyAmendment Act (1.7.03) 38/2003 First Flome Owner Amendment Act (27.5.03) 39/2003 Motor Vehicles Amendment Act 2001 Amendment Act (30.6.03) 40/2003 Commercial Passenger (Road) Transport Amendment Act (No.2) (S.22-N/C, Rest - 1.8.03) 41/2003 Commercial Passenger (Road) Transport (Consequential Amendments) Act (1.8.03) 42/2003 Building Amendment Act (N/C) 43/2003 Evidence Amendment Act (N/C) 44/2003 Statute Law Revision Act (No.2) (7.7.03) New Regulations 35/2003 Information Regulations (1.7.03) 36/2003 Firearms Regulations (1.7.03) 37/2003 Major Cricket Events Regulations (1.7.03) 38/2003 Tobacco Control Regulations (11.7.03) Repealed legislation 32/1987 Trade Development Zone Regulations - Repealed by Act 32/2003 RECENT ARTICLES Aboriginies, Aust - children Loizou, Brendan - Administrative negligene in educating indigenous childres, Plaintiff, Vol 57 2003 pp:34-36 Aboriginies, Aust - criminal law Kriby, Michael - Black and white lessons for ht eAusttrlaian judiciary, Adelaide Law Review, Vol 23(2) 2003 pp: 195­ 214 Pasco v Hales, Australian Indigenous Law Reporter, Vol 7(4) 2002 pp: 40-41 Aboriginies, Aust - land Indigenous Land Coporation, Public Affiars Office - The Indigenous Land Corporation, Indigenous Law Bulletin, Vol 5(4) 2002, pp: 11 Aboriginies, Aust - land rights Northern Territory ofAustralia v Honourable Justice Olney, Australian Indigenous Law Reporter, Vol 7(4) 2002, pp: 31 Aboriginies, Aust - violence Quayle, Cleonie - Breaking the silence - puttingthe violence into context, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 228-232 Menmott, Paul - Community-based strategies for combating indigenous violence, University of New South Wales Law Journal, Vol 25(1) 2003, pp: 220-227 Lawrie, Rowena - holistic communityjustice - a proposed response to family violence in aboriginal communities, University of New South Wales Law Journal, Vol 25(1) 2003 pp:228-232 Atkinson, Judy - Voices in the wilderness - restoringjustice to traumatised peoples, University of the New South Wales Law Journal, Vol 24(1) 2003 pp: 233-241 Cunneen, Chris - Preventing violecne against indigenous women through programs which target men, University of New South Wales Law Journal, Vol 25(1) 2003, pp: 242­ 250 Forster, Christine - The Stolen Generation and the Victim Compensation Tribunal-the ‘writing in’ of aboriginally to ‘write out’ a right to compensatory redress for eexuaI assault, University of New South Wales Law Journal, Vol 25(1) 2003 pp:185-193 Aboriginies, Aust - women Forster, Christine - The Stolen Generation and the Victim Compensation Tribunal -the ‘writing in’ of aboriginality to ‘write out’ a right to compensatory redress for eexual assault, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 185-193 Barrasters Charles, Stephen-The immunity of the advocate, Australian Bar Review, Vol 23(3) 2003 pp:220-238 Case management Technology in the County Court - behind the firewall, Victorian Bar News, Vol 125 2003 pp:36-39 Child sexual abuse Morrison, Andrew - Liability of education authorities for sexual abuse fo a student by a teacher, Plaintiff, Vol 57 2003 pp: 6-11 Mathews, Ben - Limitation periods in child sexual abuse cases in Queensland - recent cases provide both hope and caution, Plaintiff, Vol 57 2003 pp:6-ll Children and young people Erkelaar, John - Corporal punishment, parents’ religion and children’s rights, Law Quarterly ReviewJ/ol 119 2003 pp: 370-375 Civil litigation Potter, Sandra - Managing e-files in discovery in civil litigation matters, Law Institute Journal, Vol 77(7) 2003 pp: 38-41 Common law Wright, David - Discretion with common law remedies, Adelaide Law Review, Vol 23(2) 2003 pp: 243-276 Company directors Harding, Matthew-Dual listed companies-understanding conflicts of interest for directors, University of New South Wales Law Journal, Vol 25(2) 2003 pp: 594-610 Computer law Hogan-Doran, - Jurisdiction of cyberspace - the when and whereof online contracts, Australian Law Journal, Vol 77(6) 2003 pp: 377-396 Consent Keough, William J - Authority to treat-a comparative look at Page 19 — August 2003 COURT LIBRARY NOTES the jurisdiction, practice and procedure of the Supreme Court of Victoria, Children’s Court of Victoria and Family Court of Australia in medical matters, Journal of Law and Medicine, Vol 10(4) 2003 pp: 442-459 Paterson, Moira - Disclosing health information breaches of confidence, privacy and the notion of the ‘treating team’, Journal of Law and Medicine, Vol 10(4)2003 pp: 460-469 Consumer law Guild, Wayne - Consumer protection: developments in trade practices law in Australia 1999-2001, Australian Law Journal, Vol 77(7) 2003 pp: 446-465 Constitutional law Birch, Christopher - Mill, Frege and the High Court - the connotation/denotion distinction in constitutional interpretation, Australian Bar Review, Vol 23(3) 2003 pp: 296-313 Contracts law Christensen, Sharon - Moving the Statute of Frauds to the digital age, Australian Law Journal, Vol 77(7) 2003 pp: 416-419 Carter, J W - Good faith in Australian contract law, Journal of Contract Law, Vol 19(2) 2003 pp: 155-172 Robertson, Andrew - The Statute of Frauds, equitable estoppel and the need for ‘something more’, Journal of Contract Law, Vol 19(2) 2003 pp: 173-180 Davies, Chris - Post-Bosman and the future of soccer is contract law, Journal of Contract Law, Vol 19(2) 2003 pp: 190-202 Carlin, Tryrone M - The rise (and fall) of implied duties of good faith in contractual performance in Australia, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 99-123 Hogan-Doran, - Jurisdiction of cyberspace-the when and where of online contracts, Australian Law Journal, Vol 77(6) 2003 pp: 377-396 Conveyancing Butt, Peter - Plain language in conveyancing and property documents, Australian Law Journal, Vol 77(6) 2003 pp: 345-346 Copyright Copyrightjurisdiction extended to Federal Magistrates Court, Bulletin, Vol 25(5) 2003 pp: 15 Coroners Bugeja, Lyndal - Coroners’ recommendations - do they lead to positive public health outcomes?, Journal of Law and Medicine, Vol 10(4) 2003 pp: 399-400 Corporal punishment Erkelaar, John - Corporal punishment, parents’ religion and children’s rights, Law Quarterly Review, Vol 119 2003 pp: 370-375 Corporate criminal law Serve, Rick - Criminal manslaughter in the workplace - what options for legislators?, Bulletin, Vol 25(5) 2003 pp: 25-27 Corporations law Fogarty, Melissa - Sleepers awake! Future directions for auditing in Australia, University of New South Wales Law Journal, Vol 25(2) 2003 pp: 408-433 Courts Page 20 — August 2003 Designing courts for people, Victorian Bar News, Vol 125 2003 pp: 50-52 Keough, William J - Authority to treat-a comparative look at the jurisdiction, practice and procedure of the Supreme Court of Victoria, Children’s Court of Victoria and Family Court of Australia in medical matters, Journal of Law and Medicine, Vol 10(4) 2003 pp: 442-459 Criminal law Kirby, Michael - Black and white lessons for the Australian judiciary, Adelaide Law Review, Vol 23(2) 2003 pp: 195­ 214 Clarke, Ben - An ethics survey of Australian criminal law practitioners, Criminal Law Journal, Vol 27(3) 2003 pp: 142-156 Criminal trials Thornton, Peter-The prejudiced defendant-unfairness suffered by a defendant in a joint trial, Criminal Law Review, 2003 pp: 433-445 Summers, Mark - Cross-contamination - time to extend the abuse of process doctrine?, Criminal Law Review, 2003 pp: 446-462 Watkin, Tony - In the dock - an overview of the decisions of the High Court on dock identifications in the Magistrates Court, Criminal Law Review, 2003 pp: 463­ 470 Customary law Customary law and underage sex, Alternative Law Journal, Vol 28(3) 2003 pp: 151-152 Damages Cameron, Camille - Hired guns and smoking guns - McCabe v British American Tobacco Australia Ltd, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 768- 797 Mullany, Nicholas J - Tort reform and the damages dilemma, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 876-887 Carver, Tracey - Wife after death - the assessment of damages for wrongful death, Plaintiff, Vol 56 2003 pp: 6­ 12 Defacto relationships Dickey, Anthony - Epitaph for marriage in Western Australia, Australian Law Journal, Vol 77(7) 2003 pp: 421-423 Defamation Hyde, Jonothan - Dow Jones v Gutnick - defamation and advances in technology, Bulletin, Vol 25(5) 2003 pp: 28­ 31 Discovery Potter, Sandra - Managing e-files in discovery in civil litigation matters, Law Institute Journal, Vol 77(7) 2003 pp: 38-41 Groves, Matthew-The implied undertaking restricting the use of material obtained during legal proceedings, Australian Bar Review, Vol 23(3) 2003 pp: 314-344 Dispute resolution Crabb, Scott - Costs consequences for failing to participate in ADR, Brief, Vol 30(6) 2003 pp: 27-29 Domestic violence Quayle, Cleonie - Breaking the silence - putting the violence into context, University of New South Wales Law COURT LIBRARY NOTES Journal, Vol 25(1) 2003 pp: 207-211 Quayle, Cleonie - Breaking the silence - putting the violence into context, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 207-211 Menmott, Paul - Community-based strategies for combating indigenous violence, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 220-227 Lawrie, Rowena - Holistic communityjustice - a proposed response to family violence in aboriginal comunities, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 228-232 Atkinson, Judy - Voices in the wilderness - restoringjustice to traumatised peoples, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 233-241 Cunneen, Chris - Preventing violence against indigenous women through programs which target men, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 242­ 250 Forster, Christine - The Stolen Generation and the Victim Compensation Tribunal - the ‘writing in’ of aboriginally to ‘write out’ a right to compensatory redress for sexual assault, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 185-193 Drug courts McClone, Daniel - Drug Courts - a departure from adversarial justice, Alternative Law Journal, Vol 28(3) 2003 pp: 136-140 East Timor Bhuta, Nehal - East Timor Justice delayed, Alternative Law Journal, Vol 28(3) 2003 pp: 141-142 Education law White, Steven - Precarious liability-the High Court in Lepore, Samin and Rich on school responsibility for assaults by teachers, Torts Law Journal, Vol 11(2)203 pp: 101-116 Morrison, Andrew - Liability of education authorities for sexual abuse of a student by a teacher, Plaintiff, Vol 57 2003 pp: 6-11 Tronc, Keith - A plaintiff lawyer’s guide to Internet dangers for children and schools, Plaintiff, Vol 57 2003 pp: 37-39 Watson, Penelope-The supposed safe haven of schoolsbullying and the law, Plaintiff, Vol 57 2003 pp: 17-22 Electronic courts Potter, Sandra - Managing e-files in discovery in civil litigation matters, Law Institute Journal, Vol 77(7) 2003 pp: 38-41 Employment law Davies, Chris - Post-Bosman and the future of soccer is contract law, Journal of Contract Law, Vol 19(2) 2003 pp: 190-202 Environmental law Martin, Rosemary - Alternative sentencing in environment protection - making the punishment fit the crime, Law Institute Journal, Vol 77(7) 2003 pp: 32-36 Equitable remedies Burns, Fiona R - The equitable lien rediscovered - a remedy for the 21st century, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 1-32 Estoppel Robertson, Andrew - The Statute of Frauds, equitable estoppel and the need for ‘something more’, Journal of Contract Law, Vol 19(2) 2003 pp: 173-180 Ethics Glover, John - Conflicts of interest, conflict of duty and the information professional, Adelaide Law Review, Vol 23(2) 2003 pp: 215-242 Evidence Goldring, John - An introduction to statistical evidence, Australian Bar Review, Vol 23(3) 2003 pp: 239-262 Preston, Brian J - Science and the law - evaluating evidenciary reliability, Australian Bar Review, Vol 23(3) 2003 pp: 263-295 Watkin, Tony - In the dock - an overview of the decisions of the High Court on dock identifications in the Magistrates Court, Criminal Law Review, 2003 pp: 463­ 470 Aitkenm Karen - Similar fact evidence in civil trial - a review of the law, Plaintiff, Vol 57 2003 pp: 43-44 Expert evidence Preston, Brian J - Science and the law - evaluating evidentiary reliability, Australian Bar Review, Vol 23(3) 2003 pp: 263-295 Family law Stone, Adrain - Superannuation splitting - cure or curse?, Law Institute Journal, Vol 77(7) 2003 pp: 50-53 MacDonald, Arlene - Splitting property - between couples and the GST - another tax issue for the family lawyer, Bulletin, Vol 25(5) 2003 pp: 16-18 Federal Magistrates Court Copyright jurisdiction extended to Federal Magistrates Court, Bulletin, Vol 25(5) 2003 pp: 15 Fraud Glover, John - Conflicts of interest, conflict of duty and the information professional, Adelaide Law Review, Vol 23(2) 2003 pp: 215-242 GST MacDonald, Arlene - Splitting property - between couples and the GST - another tax issue for the family lawyer, Bulletin, Vol 25(5) 2003 pp: 16-18 House of Lords - Appellate Committee Kentridge, Sydney - The highest court - selecting the judges, Cambridge Law Journal, Vol 62(1) 2003 pp: 55­ 71 Human rights Redman, Ronnit-Williams, George-Weaker protections rejected, Law Society Journal, Vol 41(6) 2002 pp: 62-65 Insurance law Stanton, Keith - A duty to provide insurance?, Tort Law Review, Vol 11(2) 2003 pp: 65-69 Graycar, Reg-Public liability-a plea for facts, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 810­ 818 Luntz, Harold - Reform of the law of negligence - wrong questions, wrong answers, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 836-841 Callinan, J D F - Problems in insurance law, University of New South Wales Law Journal, Vol 25(3) 2003pp: 859­ 864 Mason, Alan - Reform of the law of negligence - balancing costs and community expectations, University of New Page 21 — August 2003 COURT LIBRARY NOTES South Wales Law Journal, Vol 25(3) 2003 pp: 831-835 Internet Tronc, Keith - A plaintiff lawyer’s guide to Internet dangers for children and schools, Plaintiff, Vol 57 2003 pp: 37-39 Judges Kentridge, Sydney - The highest court - selectingthe judges, Cambridge Law Journal, Vol 62(1) 2003 pp: 55­ 71 How judges and QCs are made, Bulletin, Vol 25(5) 2003 pp: 19 Judges - biography A tribute to Mary Gauldron, Australian Bar Review, Vol 23(3) 2003 pp: 215-219 Judicial independence Haslem, Matthew-Judicial independence and part time judicial appointments, Brief, Vol 30(5) 2003 pp: 42-44 Law office management Dwyer, Greg - File reviews, Law Society Journal, Vol 41(6) 2002 pp: 46 Legal costs Crabb, Scott - Costs consequences for failing to participate in ADR, Brief, Vol 30(6) 2003 pp: 27-29 Legal drafting Butt, Peter - Plain language in conveyancing and property documents, Australian Law Journal, Vol 77(6) 2003 pp: 345-346 Kimble, Joseph - The elements of plain language, Australian Law Journal, Vol 77(6) 2003 pp: 346-347 Legal ethics Shirvington, Virginia - No unbundling for ethical obligations. Law Society Journal, Vol 41(6) 2002 pp: 58­ 60 Halphen, Ashley-Prosecutorial misconduct-Goliath’s slingshot, Victorian Bar News, Vol 125 2003 pp: 40-43 Groves, Matthew-The implied undertaking restricting the use of material obtained during legal proceedings, Australian Bar Review, Vol 23(3) 2003 pp: 314-344 Legal profession Macken, Hugh - Step-in, step-out litigation, Law Society Journal, Vol 41(6) 2002 pp: 48-51 Giddings, Jeff - Making sense of helping yourself, Law Society Journal, Vol 41(6) 2002 pp: 52-53 Renouf, Gordon - Pro bono opportunity in discrete task assistance, Law Society Journal, Vol 41(6) 2002 pp: 54­ 55 Shirvington, Virginia - No unbundling for ethical obligations Law Society Journal, Vol 41(6) 2002 pp: 58-60 Fenton, Jane - Love me tender, Law Institute Journal, Vol 77(7) 2003 pp: 54-57 Liens Burns, Fiona R - The equitable lien rediscovered - a remedy for the 21st century, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 1-32 Limitation periods Mathews, Ben - Limitation periods in child sexual abuse cases in Queensland - recent cases provide both hope and caution, Plaintiff, Vol 57 2003 pp: 12-16 Litigants in person Macken, Hugh - Step-in, step-out litigation, Law Society Page 22 — August 2003 Journal, Vol 41(6) 2002 pp: 48-51 Giddings, Jeff - Making sense of helping yourself, Law Society Journal, Vol 41(6) 2002 pp: 52-53 Renouf, Gordon - Pro bono opportunity in discrete task assistance, Law Society Journal, Vol 41(6) 2002 Shirvington, Virginia - No unbundling for ethical obligations, Law Society Journal, Vol 41(6) 2002 pp: 58-60 Marriage Mills, Eithune - The right of transsexual people to marry in Australia confirmed, Law Institute Journal, Vol 77(7) 2003 pp: 58-62 Dickey, Anthony - Epitaph for marriage in Western Australia, Australian Law Journal, Vol 77(7) 2003 pp: 421-423 Medical law Cashman, Peter - Tort reform and the medical indemnity ‘crisis’, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 888-894 Luntz, Harold - Medical indemnity and tort law reform, Journal of Law and Medicine, Vol 10(4) 2003 pp: 385­ 398 Medical negligence Amirthalingam, Kumaralingam-Anglo-Australian law of medical negligence - towards convergence, Torts Law Journal, Vol 11(2) 2003 pp: 117-135 Parker, Malcolm - Reforming the law of medical negligence-solutions in search of a problem, Torts Law Journal, Vol 11(2) 2003 pp: 136-164 Addison, Thomas - Negligent failure to inform - developments in the law since Rogers v Whitaker, Torts Law Journal, Vol 11(2) 2003 pp: 165-195 Watson, Penelope-Damages for wrongful birth, Plaintiff, Vol 56 2003 pp: 32-35 Murder Kirby, Michael - Black and white lessons for the Australian judiciary, Adelaide Law Review, Vol 23(2) 2003 pp: 195­ 214 Native title Castenoble, Karen - Defining native title - what is a normative system?, Native Title News, Vol 6(3) 2003 pp: 30-34 Negligence Stanton, Keith - A duty to provide insurance?, Tort Law Review, Vol 11(2) 2003 pp: 65-69 Kramer, Adam - Proximity as principles - directness, community norms and the tort of negligence, Tort Law Review, Vol 11(2) 2003 pp: 70-103 Charles, Stephen - The immunity of the advocate, Australian Bar Review, Vol 23(3) 2003 pp: 220-238 Graycar, Reg-Public liability-a plea for facts, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 810­ 818 Luntz, Harold - Reform of the law of negligence-wrong questions, wrong answers, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 836-841 Callinan, J D F - Problems in insurance law, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 859­ 864 Handford, Peter - Limitation of actions and torts reform, COURT LIBRARY NOTES University of New South Wales Law Journal, Vol 25(3) 2003 pp: 871-875 Mullany, Nicholas J - Tort reform and the damages dilemma, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 876-887 Cashman, Peter-Tort reform and the medical indemnity ‘crisis’, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 888-894 Luntz, Harold - Medical indemnity and tort law reform, Journal of Law and Medicine, Vol 10(4) 2003 pp: 385­ 398 Davidson, Alan - Email disclaimers, Plaintiff, Vol 56 2003 pp: 46-47 Mason, Alan - Reform of the law of negligence - balancing costs and community expectations, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 831-835 Nuisance Crabb, Letitia - The property torts?, Tort Law Review, Vol 11(2) 2003 pp: 104-118 Nursing law Forrester, Kim - Who’s next? The clinical responsibility, day-to-day reality and legal obligations of the triage nurse, Journal of Law and Medicine, Vol 10(4) 2003 pp: 401­ 405 Personal injuries Campbell, Jane - Structured settlements - an overview of the new federal and state laws, Plaintiff, Vol 56 2003 pp: 24-26 Young, Gavan - A financial planning perspective on structured settlements, Plaintiff, Vol 56 2003 pp: 27-29 Stephens, Judi - Structured settlements - a plaintiff’s perspective, Plaintiff, Vol 56 2003 pp: 30-31 Police Carabetto, Joseph - Employment status of the police in Australia, Melbourne University Law Review, Vol 27(1) 203 pp: 1-32 Privacy Paterson, Moira - Disclosing health information breaches of confidence, privacy and the notion of the ‘treating team’, Journal of Law and Medicine, Vol 10(4) 2003 pp: 460-469 Property law adan, Peter-Indefeasibility and overriding statutes, Law Society Journal, Vol 41(6) 2002 pp: 66-68 Prosecutions Halphen, Ashley - Prosecutorial misconduct - Goliath’s slingshot, Victorian Bar News, Vol 125 2003 pp: 40-43 Public health law Reynolds, Christopher - Public health law in the new century, Journal of Law and Medicine, Vol 10(4) 2003 pp: 435-441 Public liability insurance Campbell, Jane - Structured settlements - an overview of the new federal and state laws, Plaintiff, Vol 56 2003 pp: 24-26 Young, Gavan - A financial planning perspective on structured settlements, Plaintiff, Vol 56 2003pp: 27-29 Stephens, Judi - Structured settlements - a plaintiffs perspective, Plaintiff, Vol 56 2003pp: 30-31 Remedies Wright, David - Discretion with common law remedies, Adelaide Law Review , Vol 23(2) 2003 pp: 243-276 Restitution Mason, Keith - Where has Australian restitution law got to and where is it going?, Australian Law Journal, Vol 77(6) 2003 pp: 358-368 Restraint of trade Davies, Chris - Post-Bosman and the future of soccer is contract law, Journal of Contract Law, Vol 19(2) 2003 pp: 190-202 Sale of land Radan, Peter - Indefeasibility and overriding statutes, Law Society Journal, Vol 41(6) 2002 pp: 66-68 Christensen, Sharon - Moving the Statute of Frauds to the digital age, Australian Law Journal, Vol 77(7) 2003 pp: 416-419 Sentencing Martin, Rosemary - Alternative sentencing in environment protection - making the punishment fit the crime, Law Institute Journal, Vol 77(7) 2003 pp: 32-36 Colvin, Eric - Sentencing principles in the High Court and the PSA, Queensland University of Technology Law and Justice Journal, Vol 3(1) 2003 pp: 86-103 Bagaric, Mirko-What’s instinct got to do with it? A blueprint for a coherent approach to punishing criminals, Criminal Law Journal, Vol 27(3) 2003 pp: 119-141 Halphen, Ashley-A public voice in sentencing?, Criminal Law Journal, Vol 27(3) 2003 pp: 157-164 Sexual assault White, Steven - Precarious liability-the High Court in Lepore, Samin and Rich on school responsibility for assaults by teachers, Torts Law Journal, Vol 11(2) 203 pp: 101-116 Sexual offences Customary law and underage sex, Alternative Law Journal, Vol 28(3) 2003 pp: 151-152 Smoking Cameron, Camille- Hired gunsand smokinggunsMcCabe v British American Tobacco Australia Ltd, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 768- 797 Social Security Anforth, Allan - Compensation recovery provisions in the Social Security Act 1991 (Cth), Plaintiff, Vol 56 2003 pp: 18-23 Sports law Duthie, Max-Sports discipline on and off thte field, Law Institute Journal, Vol 77(7) 2003 pp: 42-46 Davies, Chris - Post-Bosman and the future of soccer is contract law, Journal of Contract Law, Vol 19(2) 2003 pp: 190-202 Succession Hockley, John J - The need for succession law reform in WA - please don’t die in WA?, Brief, Vol 30(6) 2003 pp: 13-16 Superannuation Stone, Adrain - Superannuation splitting- cure or curse?, Law Institute Journal, Vol 77(7) 2003 pp: 50-53 Taxation Richards, Robert - Advantages of pensions over lump sum Page 23 — August 2003 i COURT LIBRARY NOTES payments, Law Society Journal, Vol 41(6) 2002 pp: AO41 Torts law Handford, Peter-Fear of disease and psychiatric injury in Ireland, Tort Law Review, Vol 11(2) 2003 pp: 61-65 Crabb, Letitia - The property torts?, Tort Law Review, Vol 11(2) 2003 pp: 104-118 Corbett, Argus - The (self) regulation of law - a synergistic model of tort law and regulation, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 616-650 Cameron, Camille - Hired guns and smoking guns - McCabe v British American Tobacco Australia Ltd, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 768- 797 Handford, Peter - Limitation of actions and torts reform, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 871-875 Mullany, Nicholas J - Tort reform and the damages dilemma, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 876-887 Cashman, Peter - Tort reform and the medical indemnity ‘crisis’, University of New South Wales Law Journal, Vol 25(3) 2003 pp: 888-894 Tennant, Chris - Definition of psychological trauma - psychiatric and legal approaches, Australian Law Journal, Vol 77(6) 2003 pp: 369-376 Trade practices Guild, Wayne - Consumer protection - developments in trade practices law in Australia 1999-2001, Australian Law Journal, Vol 77(7) 2003 pp: 446-465 Trespass Bright, Susan - The concept of the tolerated trespasser - an analysis, Law Quarterly Review, Vol 119 2003 pp: 495-515 Unjust enrichment Barnett, Katy-The uneasy position of unjust enrichment after Roxburgh v Rothmans, Adelaide Law Review , Vol 23(2) 2003 pp: 277-304 Vicarious liability White, Steven - Precarious liability-the High Court in Lepore, Samin and Rich on school responsibility for assaults by teachers, Torts Law Journal, Vol 11(2) 203 pp: 101-116 Victims of crime Forster, Christine - The Stolen Generation and the Victim Compensation Tribunal - the ‘writing in’ of aboriginally to ‘write out’ a right to compensatory redress for sexual assault, University of New South Wales Law Journal, Vol 25(1) 2003 pp: 185-193 Witnesses Summers, Mark - Cross-contamination - time to extend the abuse of process doctrine?, Criminal Law Review, 2003 pp: 446-462 ✓-------------------------------------------------------------- -------------- N [ £)ates to remember... j

  • 3 September - AGM of the Law Society J

J of the Northern Territory J J From 4.30pm atthe Darwin Central Hotel, J J cnr Smith and Knuckey streets, Darwin j | 31 October - Retirement of Chief | | Justice Brian Martin MBE AO \ | A ceremonial sitting of the Full Court will | | mark the Chief Justice’s retirement, fol- | I lowed by a farewell function. 3pm in Court I I 1 of the Supreme Court, Darwin. I V______________________________________________ / L Page 24 — August 2003 DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contribufions fo fhe Law Sociefy: 08 8941 1623 or send them via email: publicrelations@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. 2003-2004 Council Merran Short President Jo Tomlinson Councillor Tony Young NT Bar Association Rep Duncan Maclean Vice-President Danielle Howard Councillor Chris Booth Intrim Young Lawyers Rep Glen Dooley Secretary Jenny Hardy Councillor Margaret Orwin Councillor Michael Grove Treasurer Markus Spazzapan Councillor Matthew Storey Councillor Edition: September 2003 A i. A N C Level 11, NT House 22 Mitchell Street DARWIN NT 0800 September 2003 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au EXECUTIVE President: Ms Merran Short Vice-President: Mr Duncan Maclean Treasurer: Mr Michael Grove Secretary: Mr Glen Dooley COLUMNS President’s Column........................................................................................................3 For the record..................................................................................................................4 NT Women Lawyers Association.................................................................................. 6 Criminal Lawyers Association........................................................................................ 7 Advocacy......................................................................................................................... 8 Northern Territory University........................................................................................9 COUNCILLORS Ms Jenny Hardy Ms Danielle Howard Ms Margaret Orwin Ms Jo Tomlinson Mr Markus Spazzapan Mr Matthew Storey NOTEWORTHY Conferences...................................................................................................................21 Noticeboard.................................................................................................................. 22 Court Library Notes..................................................................................................... 25 Alice Springs Representative Mr Tony Whitelum Alice Springs Alternate Representative Ms Nardine Collier NT Bar Association Representative Mr Tony Young SECRETARIAT Chief Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Ms Sonya Ingham Administrative Assistant/Receptionist Ms Sharon Waters Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should be forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. REGULARS CLE Calendar.................................................................................................................9 The Muster Room......................................................................................................... 16 Case Notes................................................................................................. 19 LSNT footy tipping...................................................................................................... 28 Dates for your diary...................................................................................................... 28 COVER STORY AGM report.....................................................................................................................6 FEATURES Superannuation in Family Law-Where are we at?....................................................11 Official opening for DVS.............................................................................................. 13 ChiefJustice’s farewell dinner........................................................................................14 Developing Torrens Title in Cambodia....................................................................... 20 Page 2 — September 2003 president's column Introduction to the new President As Ian Morris gave a summary in his last column of the current issues the Council is facing, and as I have only been in the job for a week I thought I would spend my first column introducing myself to those of you who do not know me (to those of you that do, please bear with me). I grew up in Katherine. My family moved from Darwinto Katherinewhen I wasabout twoyearsold. Originally,wewereonlygoing to stay for six weeks, however we ended up staying for some 30 years. My father, Peter, is a doctor (now retired, at the time he was working for the Commonwealth Government) and my mother, Kathleen, is ateacher. My parentsare bothfrom Sydney and in 1964, after my father graduated, they decided to move to Darwin for somethingofan “adventure”. Myolder brother Rohan (or, as some ofyou fishingdevoteeswould know him, “Shorty”) was born in Townsville prior to moving to Darwin. My younger siblings, Susan and Lachlan (also knowas “Shorty”toyou indoor cricket devotees, notto be confused with the older “Shorty”), were both born in Darwin. Katherine was a fantastic town to grow up in. As you can imagine everybody knew each otherand we had many happyyears there. We mostly lived nearthe river and went camping every second weekend (when Dad was not working). We had a very “outdoorsy” life - it certainly wouldn’t take me seven days to build a shelter like it did thoseYankeegirls on the recent series ofSurvivor. I completed myschooling in Katherine and left at the end of year 11 (promising my parents I would return) because I was utterly sickofteachersandauthorityfigures. Ileft to start a hairdressing apprenticeship. Duringthe apprenticeship I boughta salon in Katherine - Shortcuts. About halfway through my apprenticeship I realised that hairdressing was not for me... it was not unusual for me to snip ears and necks - a little tip, applying baby powderto a cut will disguiseoozing blood! After completingmy apprenticeship I returned to my old high school as a mature aged student-well they called me mature, but I was only21! Upon successful completion ofmy matriculation I travelled overseas before returning to Katherine. During that period my sister, Susan, had moved to Darwin to attend NTU to obtain herBatchelorofEducation, Mum and Dad had bought her a nice flat in Darwin, so I decided if I wentto university I could share the flat. Now all I needed was something to study... I have always found that if you are going to convince your parents to supportyouacareergoalisagoodidea! I flicked through the NTU handbook, looking atall ofthe courses. I hit upon the law page and thought“I could dothat”, so I enrolled, and graduated in 1992. I undertook my Articles with Des Crowe at Crowe Hardy, which was incorporated into De Silva Hebron some years ago. Crowe Hardy had an office in Katherine and for the most part of Articles I moved back to Katherine. It was a rustic Articles experience, with the regular presence of Des’ children (dropped offforthe dayjust forfun) and his blue heeler Popeye. After being admitted in February 1994,1 immediately took off overseas again, returning in July. The time had come to knuckle down and find a job. I began my legal career at Morgan Buckley where I happily remained until I decided to move to DeSilva Hebron inAugust 1998.1joined the Law SocietyCouncil in 1999 and here I am now as President! In my first President’s column, I wish to record my profound thanks to (and admiration for) Ian Morris. Ian attended about ten Law Council of Australia meetings, monthly Council meetings and committee meetings. He implemented, or oversaw, interalia: (i) The appointment of Josephine Stone as the Complaints Officer which has made the complaints procedure much more efficientand streamlined; Merran Short, President (ii) The establishment ofthewebpage and website; (iii) The upgrading of the IT systems within theSecretariat; and (iv) Introduced a streamlined agenda format for the monthly Council meetings, which reduced the length of the meetings considerably (perhaps the favourite innovation amongst Council members). In recognition of his hard work, Ian was presented with a commemorative pen and a bottle ofGrange. I wish Ian well and happy golfingand bid him to rememberPresident Gerald Ford words: “I know I’m gettingbetter atgolf‘cause I’m hittingfewerspectators”. But, Ian, ifyou do hitany spectators make sure their claim is not worth more than $15,000. There is no doubt that Ian could not have achieved what he has in the lasttwoyears without the assistance of Council members. I would like to also thank the outgoing Councillors Sue Oliver, Michael Grant and especially Eileen Terrill. Eileen has been on the LSNT Council for ten years. She has served many years as Secretaryand a coupleofyearsasTreasurer. TheSociety’s current comfortable financial position is in no small part due to Eileen’s tight hold on the purse strings. At the Annual General Meeting the members unanimously resolved to appoint Eileen a Life Member of the Law Society in recognition of her contribution and I congratulate her on her achievement. continued page 13 Page 3 — September 2003


n* women lawyers association Presidential farewell This is my final report as President of NTWL. I have resigned and a new Committee has been elected. The new Committee is made up as follows: President, Gabrielle Martin; Secretary, Jodi Mather; Treasurer, Frieda Evans; and Committee Members, Sharon Krause, Heather Ross, Shirley Rowe and Artemis Kaltourimidis. It's great to see so many new faces on the Committee and I urge you all to get behind your Committee and support them as much as you can throughout the coming year. As outgoing President I would like to thank my Committee Frieda Evans, Megan Lennie, Jo Tomlinson, Sylvia Tomazos, Shirley Rowe and Marguerite Bowen for their great support during the year. I also wish to thanks Judge Thomas for her support during the year and her continuing support of our organization. I have enjoyed my role as President of NTWL and I have made many friends and contacts in the profession. Being a member of the Australian Women Lawyers Board was also a very worthwhile experience and a great way of meeting fellow professional women from all over Australia. On a personal note I will be leaving Darwin to move to Melbourne. I have lived in the Territory for over 20 years, and I know that I will miss the lifestyle and my friends, but the time has come to make the move. I have enjoyed working in the law in the Territory and would especially like to thank Hunt & Hunt for their support of NTWL during my Presidency. THE YEAR IN REVIEW November 2002 - Christmas Drinks A great night, well attended, and champagne flowed freely, very kindly donated by Hunt & Hunt. February 2003 - Wine Tasting, presented by Vintage Cellars. This was held at the offices of Hunt & Hunt, Cavenagh Street, Darwin. This was a great success, a mixed function with some very nice wines. We also managed to score a few new members on the night. Big thanks to Vintage Cellars. April 2003 - Quiz Night. This was held at Waratahs Sports Club, and it was an enjoyable afternoon. It was however a bit of a shame to see such little support from women lawyers, most ofthe attendees were friends and family, and I thank them all very much for attending. The prizes were great. A big thank you to the Fannie Bay Shopping Centre for the wonderful basket of goodies and Centrebet for a voucher. June 2003 - Patron's Drinks (on the Supreme Court balcony). As usual this was a great success and very well attended. It was also wonderful that many new members signed up on the night. It was great to see so many new women lawyers coming along to the function and becoming members. AUSTRALIAN WOMEN LAWYERS I attended the Australian Women Lawyers Board Meeting (AWL) on Sunday 13 April 2003. It was a marathon event, starting at 9am and finishing at 4.30pm. It was great to Sandra Robinson, NTWL President catch up with these women who are really committed to raising awareness of women’s issues in the law. Gabrielle Martin will be your new representative on the Board, and if there are any issues that you wish to raise with the National Body, please let her know. This was the year that Justice Gaudron retired from the High Court. The replacement by a male judge caused some friction amongst many ranks of the legal profession and several state attorneys-general are who were of the opinion that a female should have been selected. The national body was very vocal in expressing its disappointment and wrote many editorials and letters to attorneys-general and relevant ministers. AWL has now resolved to start lobbying government now, to adopt a selection criteria that has been prepared by the Law Council of Australia, when they are assessing suitability for appointment ofjudges to the High Court.® Why not use the Law Society's boardroom for your next meeting? Hire rate: $264 for a full day $137.50 for a half day (4 hours) + $27.50 for every hour thereafter (all prices include GST] Page 6 — September 2003 A J criminal lawyers association Declining crime rate: good news is no news On Monday 15 September 2003 the NT Attorney General, Dr Peter Toyne, published the NT Quarterly Crime and Justice Statistics, which were issued by the Office of Justice. It was an important It should be noted that upon taking power the NT Labor Government established this important Office, which has the responsibility of gathering relevant crime statistics from across the Territory. For years, the Criminal Lawyers Association has complained to previous governments that the creation of such a body (of which there are equivalents in every state and territory across Australia) was essential to allow the establishment of a proper debate concerning law and order issues and its important attendant; sentencing. That aside it is the substance of these statistics that is important. The statistics dealt with the type, number and location of offences committed in the Northern Territory over a 12-month period. The data therefore provides an effective representation of crimes committed in the Territory and from that “trends” can be drawn. These statistics revealed a clear and important fact. Crime in the Northern Territory is on the decline. It is dropping consistently and markedly. The data informs the NT public that over the last twelve months (June 2002 to June 2003):

  • Unlawful entry of houses dropped

by 32 per cent (in Darwin 39 per cent and in Alice Springs 40 per cent);

  • Unlawful entry of commercial

premises dropped by 16 per cent;

  • Car thefts and related offences

dropped by 21 per cent;

  • Assaults dropped by 2 per cent;

and

  • Sexual assaults dropped by 16

per cent. of Crime Prevention, Department announcement. Importantly these figures are also consistent with the equivalents from the previous twelve months; in other words, the Northern Territory has experienced two years of significant, consistent reduction in the commission of crime. Of course that trend is to a degree general. The statistics further revealed that there have in fact been increases in assaults in Katherine and Tennant Creek. However there is no getting around the fact that: 1. Crime is far from being on the increase (never mind out of control!); and 2. The NT crime rate is dropping and has been dropping significantly for two years. This is important stuff, if for no other reason than it flies in the face of the NT population’s perception of crime in our community. However, these figures did not contain all good news. Some aspects revealed in the data are highly damning. The greatest calumny the statistics revealed is that, incredibly, more than 20 years after the Royal Commission into Aboriginal Deaths in Custody, the number of Aboriginal people in jail has significantly increased. This is despite claims from previous governments that the Commission’s recommendations had been implemented. In the last 12 months the number of Aboriginal people in Territory prisons has increased by an incredible 34 per cent! Crime drops, yet more and more Aboriginal people are inprisoned. Associated with this shameful state of affairs is the shocking fact that the Territory’s jail population is higher than it has ever been. Bearing in John Lawrence, President, CLANT mind the Territory has historically jailed more people per head of population than any other Australian state or territory, this state of affairs is a disgrace and one which needs to be addressed directly and immediately. Incredibly, Aboriginals make up 78 per cent of the Northern Territory’s prison population - which is more than in 1989 when Justice Muirhead was briefed to inquire into the deaths in custody situation. One glaring trend which emerges is that despite a signficant and consistent drop in the crime rate in the Northern Territory, Aboriginal people are being increasingly jailed. To return to the fact that Territory crime is clearly dropping, it is extremely telling to see how those facts were reported by our media. These facts fly in the face of popularly held beliefs as regards the Territory’s crime rate. It is highly likely the majority of Territorians consider crime is on the increase. The main reason for this is the way our media irresponsibly, yet deliberately, reports crime. New stories about crime and resultant court sentences invariably sell a theme of inadequate sentencing. News stories create an atmosphere of dissatisfaction in regards to the way criminals are dealt with in the justice system, particularly through sentencing. continued page 10 Page 7 — September 2003 advocacy Unnecessary objections to evidence “I often regretted my speech, never my silence’ Anonymous In the course of a trial it is important that you do not take unnecessary objections. Counsel who persists in making unnecessary objections will testthe patience of the court. If a jury is present you may alienate the people you most want to keep on side. It is likely that all present in court would rather “get on with it" than deal with interminable objections to matters which, ultimately, may be of little or no moment in the proceedings. In an earlier article in this series I discussed the desirability of counsel developing a relationship with the jury in which the jury felt trust in the advocate. I noted that it would be unhelpful to your client's cause if the jury felt antagonistic or distrustful towards you for whatever reason. With the making of frequent objections, and with the consequent interruptions to the flow of evidence, you are not likely to enhance your relationship with the jury. If it be the case that your objections are regularly overruled, or upheld, but with an air offrustration by the bench, you are likely to find your relationship with thejury deteriorating. You run the risk thatthe jury will regard you as deliberately disruptive and, through you, your client may be seen as not willing to allow the full story to be told. In any defended case you will see many examples of objectionable questions being allowed to pass without comment. In most cases the counsel leading the witness in his or her evidence in chief will, for a time, be allowed to lead the evidence by asking leading questions without objection. That will continue until a sensitive area is reached, at which time counsel will be expected to ask properly formulated questions and, if the witness tends to give non-responsive answers, to better control the witness. In my view it is prudent to object only Page 8 — September 2003 when necessary. This may be when your opponent continually offends against the rules of evidence or when an objectionable question is asked, the answer to which is likely to be damaging to your case. The advice of Glissan & Tilmouth 1 is that you should “object only when you have something to gain by objecting and then only when you are confident you can make the objection good." In determining whether you have “something to gain" it is necessary to stand back from the immediate question and the potential answer and make your decision in the context of the whole of the case. It is not enough that the gain that you may obtain is an immediate and small victory but, rather, you need to determine whether you have something to gain when looking at the case as a whole. You must keep your eye on the big picture. If it becomes necessary to make an objection you should tailor the objection to suit the circumstances. If the matter is proceeding before a judge alone then an objection to the effect: “I object as the question invites a hearsay answer" may be sufficient. If you are before a jury it may be preferable to build a short explanation into the objection, designed to indicate that you are reluctantto object and only do so because your opponent is not obeying the rules. For example you may object by saying: “As my learned friend is perfectly aware the question asked is quite inappropriate. It invites a speculative response which this witness is not able to give". Not all objections will create the perception that you are trying to keep something from the court. Some objections are designed to assist and to ensure misunderstandings do not occur. The observations I have made as to the dangers of objecting would not apply to objections to questions Hon Justice Riley that are unintelligible, compound questions (ie asking two questions in the form of one), questions that are too general or which call for the witness to speculate or provide an opinion. Objections to such questions are less likely to cause you harm and, if you are correct, may avoid problems in the evidence. In relation to such questions it is still necessary to ensure that you are not seen to be unduly interfering and you should limit your objections to those instances in which it is really necessary. In the event that you are the counsel leading evidence from a witness and your opponent makes an objection it is necessary to consider how you respond to that objection. In determining your response you should bear in mind the impact the objection may have on your witness and whether a heated debate as to the efficacy of the objection or the quality of the question will put the witness off his or her stride. Whilst it may be satisfying to you to defend your question or to point out that your opponent is wrong or has misunderstood the position, it may be better from the point of view of the witness and the overall presentation of your case, to simply rephrase the question. You may do so with the observation that: “Whilst I do not accept the objection is valid I will put the matter in another way". You will have made your point and unproductive debate will have been continued page 13 law school notes CDU Law School update As I sit down to write this Semester 2 is half gone and the line of students at my door trying to work out what I really meant by those essay questions is growing. Hopefully we will all work it out before November! In the meantime, the launch of the external program in law and the enrolment of Alice Springs students through Centralian College has seen an initial increase in student numbers which should continue to grow as more subjects are made available for external study in 2004, and beyond. It is hoped that these and other initiatives will enable an increase in staffing levels at the Law School to about 14 full-time staff over the next five years. Perhaps the good readers of Balance are not aware of who the staff at the Law School are nowadays. This month we set out to answer that question! There are currently eight members of Law School staff. They are: Prof. Ned Aughterson (Head of School), Stephen Gray, Marco Piazza, Usha Vidot, Ken Parish, Phillip Eatwell, Meredith Day and Khami Nyuant (Bill Herd is currently on leave). In addition there are many part-time or “external” lecturers and tutors who have taught at the Law School this year. The contribution of these people is outstanding and (bearing in mind that none of them would have done it for the money and some weren’t paid at all!) it is a testament to the personal commitment that members of the NT profession are prepared to make to legal education. Commitment to training of students and young lawyers is one of the defining attributes of law as a profession. That ethos appears to be alive and well in the NT. As a tribute we have decided to “out” our 2003 contributors in this column. (Please note that whilst I have tried to ensure that this is a complete list my sincere apologies go to those inevitably left off. If you contact me I will promise to perform some appropriate penance.) The 2003 part-time lecturers are: Justice Mildren (Legal History); Rex Wild QC (Advocacy); John Lowndes SM (Advanced Legal Research and Writing); Jenny Blokland SM (Evidence); Anthony Beven (Corporations Law and two business law subjects); Matthew Storey (Environmental and Planning Law, Indigenous Peoples and Property Law and Indigenous Peoples and the Legal System); Bill Parish (Trusts); Alexis Fraser (Evidence); Paul Ewens (Succession); John Munn (Succession); Rob Jobson (Principles of Criminal Law); Peter Tiffin (Employment Law); Michelene Lee (Human Rights Law); Ann Glen, Peter McNab and Cassandra Goldie (all International Law); and Leon Loganathan (business subject Introduction to Law). Those who have been involved in tutoring are Philip Jamieson (Contract); Donna Strachan (Legal Process Research and Writing); Cherie Pitman (Torts) and in Alice Springs, Nardine Collier (Torts) and Gerry Green (Legal Process Research and Writing). Members of University staff (but not Law School) who have been involved in lecturing or tutoring are Chris Howse (Criminal Law) and Fiona Hussin (Legal Process). The Law School extends its sincere thanks to all of the above people and indeed all of those who have contributed at any time. Without your efforts it would not be possible to continue to run the law program in the NT. The Law School staff hope that you will all join us, together with our other friends in the profession (we know you’re out there!) for a drinks function on 28 November 2003, time and venue to be announced later. If you were not named above but you would still like to be involved, don’t despair, there is still an (unpaid) opportunity! Readers of a previous column might recall that Messrs Morris and Grant spent a fabulous few hours in the moot court in semester 1 living out their judicial fantasies for the edification of students. Well, torts mooting is on again, and it’s bigger and better! The moots will be held 3-4 November in the moot court in building 39. Ifyouwantto help out by acting as a judge (or even just want to work the video camera!) we’d love to have your help. Please contact me (see below) to obtain further details and a copy of the problems. It is not necessary to be available for the full two days, just a couple of hours would allow you to participate in one moot. It’ll be a hoot! Meredith Day Meredith.dav@cdu.edu.au Telephone: 8946 6839.® 2003 CLE Program 22 Oct AustralAsia Railway Project - Challenges Overcome - Alastair Shields 19 Nov TBA-Justice Angel Prices are $22 members, $27.50 non-members, $5.50 students (all include GST). The CLE presentations are videoconferenced to venues in Alice Springs and Katherine. Please note that a Darwin venue has not been finalised for the October seminar, details will be provided as soon as they are available. ^The Katherine venue is the Katherine Regional Tourist Association, cnr Stuart Highway and Lindsay Street, and the Alice Springs venue is the Central Australian Division Primary Health Care Centre on 54 Hartley Street. Bookings are essential. CLE presentations are available on video (up until August 2002) or on CD (Sept 2002, Jan 2003, Feb 2003, Mar 2003). Information handouts from the CLEs can be obtained from the Law Society Northern Territory. For more information ring Sonya at the Law Society on 8981-5104. Page 9 — September 2003 L Declining crime dissatisfaction and fear is created, cultivated and encouraged. The politicians also embrace populism on law and order issues resulting in party X claiming that “hanging is too good for them”, while party Y responds by promising to “throw away the key”. This was illustrated by the CLP’s disastrous introduction of mandatory sentencing laws. Current criminal statistics show that during the mandatory sentencing period property crime rose, while since its abolition property crime has steadily and consistently decreased. So how did our media report the general trend of crime rate reduction in the Territory as unequivocally established by these statistics published on Monday 15 September 2003? The ABC television news ran it that night as the lead story. It presented a fairly thorough break down of the statistics as well as allowing the politicians their respective spins on the rate: good news issue. Not so for Channel Nine television. The story ran as number three on the evening news, with analysis that lasted less than two minutes. The NT News’ coverage the next day was entirely predictable. Now if these statistics had revealed in any way, shape or form an increase in crime in the Northern Territory it would have undoubtedly taken front page. On Tuesday 16 September 2003, the NT News’ front page featured a crocodile story and a lead story about someone who had found packets of needles/ syringes on Nightcliff beach! (Who says the NT News encourages anxiety?) The statistics on the NT crime reduction made it onto page four! Of course it had to be reported; it was reported, but page four says it all. The media has to be brought to book; it has to be called to account for why it reports crime in the negative way in is no news cont... which it does. Of course this is a chicken and egg situation; is society’s angst legitimately there or is it created by the media? Newspapers in many respects are like any other product; they are driven primarily by the profit motive; negative stories regarding crime sell better than positive stories about crime. Presumably, that’s the reason why newspaper editors choose to present the news in this fashion. However, in regards to crime rate levels dropping, good news is no news. Editor's Note: The Law Society, in conjunction with the NT Legal Aid Commission and Neighbourhood Watch, are conducting community education workshops on sentencing.. The Judgment Day workshops are being held in Darwin, Palmerston/ Litchfield, Katherine, Tennant Creek and Alice Springs throughout October and November.® PRI ESTLEY • WALSH Pre-admission education cont... expenses including the costs of a lecturer working part time, is awaiting the approval of the Attorney-General. The course also requires accreditation through the CDU Council. Work is just beginning on adaptation of material - this could be a progressive process. The Law Society is working closely with CDU, ANU and the Admissions Board on this project which will benefit those seeking admission, local firms and ultimately the public. One further advantage is that the CDU resources will be able to be used for CLE for the profession. Bill Priestley are pleased to Julian Johnson Associate with and Paul Walsh announce that is now an PRIESTLEY* WALSH The process is still in its formative stages and a lot of work remains to be done to get things up and running by next year. More detailed explanatory material will be issued shortly. ® BARRISTERS & SOLICITORS First Floor, 21 Cavenagh Street Tel: 08 8941 5957 Page 10 — September 2003 feature Superannuation in Family Law: where are we at? By Alison Shaw of Wallmans Lawyers* The Full Court of the Family Court of Australia has now provided some guidance and answers to burning questions in relation to consent orders under Part VIIIB (the new Part) of the Family Law Act 1975 (the Act) and associated Regulations and Superannuation Legislation dealing with superannuation interests in family law. Since the implementation and operation of this new scheme, not unexpectedly procedural and legal issues have arisen. These issues have led to uncertainty, particularly in relation to consent orders pursuant to Section TQoftheAct.1 Manyofthese issues have now been clarified by the Full Court of the Family Court in the decision of Hickey & Hickey & Anor2 (Hickey). The Full Court has also made several other important statements of law that, not surprisingly, are largely common sense. However, there are other issues which have not been resolved or addressed by the Full Court in Hickey which will be left to the discretion of the Family Court on a case by case basis, or left to Registrars to determine when asked to make Orders by consent, or for parties to negotiate, or the trial judge to decide. The purpose of this article is to provide an overview of the new scheme and review the first decisions of the Court considering and using the new scheme including Jovanovich & Jovanovich,3 Levick & Levick,4 Crown & Yarnold,5 Cahill & Cahill6 and Gardner& Gardner7 and the Full Court decision of Hickey. The new scheme has created flexibility to achieve just and equitable outcomes and the article will consider some consequences for both parties and practitioners.

  • This article was first

published in The Bulletin and has been reproduced with the kind permission of the Law Society of South Australia. Overview of the New Scheme The Family Law Legislation Amendment (Superannuation) Act 2001 which came into force on 28 December 2002, stipulating that superannuation now be treated as property.8 The new scheme enables the Court to make orders in relation to superannuation interests of the parties to a marriage, in particular orders splitting superannuation payments between the parties.9 The new scheme provides that the trustee of superannuation funds must be given procedural fairness10 and may be bound by the orders of the Court.11 The trustee is required to provide detailed information about the superannuation entitlements to both member and non member spouses.12 The Family Law (Superannuation) Regulations 2001 provide the machinery for the operation of the new scheme and the mechanism for the valuation and splitting of superannuation payments once an order is made. The Regulations forthe determination of the valuation of superannuation interests are comprehensive and complex and set out circuitous formulae for defined benefit funds and accumulation funds in both the growth and payment phases. The Superannuation Industry (Supervision) Amendment Regulations 2001 (No. 3) complete the scheme and provide for the creation of new interests, rollover or transfer of benefits and ultimate payment of superannuation. The new scheme now enables parties and trustees for superannuation funds to achieve a clean break for most superannuation interests consistent with the aims set out in Section 81 of the Act.13 Flexibility In Hickey the Full Court recognised that previously there were difficulties relating to the manner in which the Court could deal with superannuation interests in property settlement proceedings and the ability ofthe Court to make orders binding on trustees of superannuation funds.14 The new scheme allows the Court greater flexibility in achievingjust and equitable outcomes for separated parties because the superannuation interest can be split and the trustee of the superannuation fund will be bound by the orders.15 It is particularly helpful with respect to the immediate splitting of accumulation superannuation funds between separating parties. However, while an interest in an accumulation fund can be split and become payable to a non-member spouses’ superannuation fund as they may direct upon the making of the order, the new scheme cannot assist with the payment of defined benefit funds immediately, as they are not payable until the condition of release is met (which may be, for example, retirement or resignation of the member). The new legislation is not so helpful for defined benefit funds. These funds are linked to the retirement salary of the member and by their very nature cannot be split or paid until the member retires, resigns or otherwise meets the conditions of release. Defined benefit funds can be valued pursuant to the Regulations butare not immediately payable into another fund underthe new scheme. In these cases it would seem prudent for practitioners continued next page Page 11 — September 2003 1 feature and parties to continue including injunctions in the orders for property settlement, like those that were included in all orders made pursuant to Section 79 prior tot he operation of this new scheme. The injunction restrains a party from dealing with their superannuation member interest pending retirement, resignation or meeting such other conditions of release. Valuations Before making a splitting order, the Court must make a determination of the amount (value) of an interest in accordance with the Regulations or by such other method as the Court considers appropriate.16 Interestingly, in the case of Gardner, Burr J felt obliged to make his own determination of the values of the superannuation fund despite the agreement between the parties as to the lump sum values. His Honour bravely and accurately performed the valuation of the defined benefit superannuation fund in accordance with the Regulations on his own.17 Prior to the Full Court's decision in Hickey, there was some confusion about whether or not it was necessary for the Court to determine the amount of a superannuation interest in accordance with the Regulations. In the case of Crown & Yarnold there was an appeal against property orders made by a Federal Magistrate and exercised by a single Judge in accordance with the determination of the Chief Justice that found that before making a splitting order, (albeit 100% to the member and 0% to the non-member) in relation to a superannuation interest, the Court must determine the overall value of the interest in accordance with the Regulations. For a time and until the pronouncement of the Full Court in Hickey, there was uncertainty expressed by the Registrars of the Court and practitioners about whether or not a valuation and Superannuation Information Form (SIF) was required to be filed, even though it was clear that this was an additional and unnecessary expense to the parties and not envisaged or anticipated by the new scheme. Page 12 — September 2003 The Full Court in Hickey upheld the decision of Jovanovic which was cited as authority in Gardner and it is now clear law that a valuation in accordance with the Regulations is not required if each party is to retain their own existing accumulation superannuation entitlements and orders are made by consent.18 It seems logical that in most cases member statements will be sufficient evidence of the value of accumulation funds in the growth phase, if there is no splitting order sought or made by consent. However, the Court has not been so clear about whether or not a valuation of a defined benefit fund is needed even where the parties, by consent, do not seek a splitting order. Presumably not, but query the same especially if at least one party is unrepresented. Super to be included in the pool? Once the superannuation entitlements are valued in accordance with the Regulations, (if necessary) it then needs to be negotiated or decided by the Court whether or not the superannuation interest should be included in the pool of property available for division between the parties. The Court in Cahill found that even though the Regulations provide a method of valuing a pension as a lump sum, the lump sum valuation of the future entitlement to receive a fortnightly pension (which could not be taken as a lump sum at anytime) was artificial and complete fiction. Coleman J in Cahill found that the new scheme does not detract from the Court’s duty to do justice and equity to litigants appearing before it as directed by Section 79 oftheActand on that basis, the Court treated the pension as a guaranteed income stream within the context of Section 75(2) rather than as an asset. Burr J, in the case of Gardner, adopted as ‘sensible and appropriate’ an agreed submission to consider a superannuation interest, which had accumulated subsequent to separation, within the context of Section 75(2) rather than as an item of property to be included in the pool. Competing proposals - to split or not? Where a property settlement matter is not resolved by consent orders and the matter proceeds to a trial in the Family Court, there may be a contest about how to deal with the superannuation. Since the operation ofthe new scheme this has become a negotiating point between the parties. A member spouse may seek to retain all their superannuation entitlements and offer to provide the non-member spouse with current nonsuperannuation assets while the nonmember spouse may seek a splitting order. Similarly, a non-member may not seek a splitting order but seek other non-superannuation assets instead and the member may be keen to split their superannuation interests so they may be able to retain other current non-superannuation assets to reestablish themselves. Where the parties cannot agree how the property, including superannuation, is to be divided, it will be for the Court to determine whether or not a non-member’s spouse’s entitlement should be satisfied from currently available assets, or whether the superannuation fund ought to be the subject of a splitting order. By necessity, the Court will be required to weigh up the level of complexity and the uncertainties contained within the proposals of each party to decide between the competing proposals and wishes of the parties. In the case of Gardner Burr J upheld the wife’s suggested approach to make an order splitting the pension payment and lump sum when they fell due. His Honour found that the husband’s approach was complicated and uncertain and so it was inappropriate to exercise direction in favour of his approach. By comparison, His Honour found that the wife’s approach was consistent with the level of simplicity and precision envisaged by the amendments and new scheme.20 This may lead one to the conclusion that a splitting order is to be preferred over an order preserving one party’s superannuation continued page 18.... Unnecessary objections Official opening for DVS to evidence cont... avoided. Where the objection by your opponent is to admissibility or relevance rather than simply the form of your question you will need to determine whether the objection is sound and, if it is not, whether it is a matter that is worth pursuing. You will do this by reference to your case strategy. There is little point engaging in lengthy debate regarding matters that are not necessary to the proper presentation of your case in accordance with your case strategy. To enter upon such a debate is to distract you from the presentation of your case and to emphasise issues that may distract the court from your true argument. An assessment needs to be made as to whether you move on or stand and fight.® (Endnotes) 1 Glissan & Tilmouth: Advocacy In Practice; Butterworths 1998 On Monday 8 September, NT Minister for Justice Dr Peter Toyne officially launched the Domestic Violence Legal Service (DVLS). The DVLS commenced operation within the Family Law Section of the NT Legal Aid Commission on 1 August 2003. “The Commission has taken on the contract with a commitment to providing quality legal and advocacy services to people who are victims of, or at risk of, family and domestic violence in Darwin,” said Legal Aid Director Suzan Cox. “Domestic violence clients need a service that is accessible, supportive and proficient. With over a decade of experience servicing the legal needs of clients we believe the Commission has the skills to deliver a high quality service to domestic violence clients,” she said. “In recognition of the high number of Indigenous people who require legal assistance in relation to domestic violence we have employed an Aboriginal Client Services Officer to provide them with culturally appropriate and sensitive assistance to Indigenous clients. “The Service also provides legal advice sessions, a duty solicitor service, court representation, advocacy and community legal education.”® Suzan Cox (LAC Director) and Agata Pukiewicz (Principal Solicitor) Introduction to the new President cont... I would also like to take this opportunity to welcome the new members of the Council - we have another busy year ahead of us, but I will go into that in my next column. Also in the next edition of Balance, lookoutfora newfeaturewhich will introduce practitioners who are new tothe profession in the Northern Territory. Hopefully this will help to stem the comment of “who is that, I don’t know them”, which seemsto be heard so often these days. The Law Society hosted the farewell dinner for the Chief Justice on the 29 August2003attheCornucopia Museum Cafe. The night was very well attended and Ron Heinrich (President) and Michael Lavarch (Secretary-General) represented the Law Council ofAustralia. ChiefJustice Brian Martin delivered a very entertaining speech, which reflected on the 40 years he has spent in the Territory’s legal profession. The Chief Justice’s wife, Mrs Lorraine Martin, and his children Tony, Leanne and Christine also attended the dinner. Unfortunately his daughter Janelle was unable to attend from Perth, Western Australia. On behalfof its members, the Law Society presented the Chief Justice and his wife Mrs Lorraine Martin with a memorial pole . created byAboriginal artistWulu Marawili. The giftwas verywell received and we have been advised that itwill take pride of place in the entrance hallway oftheir home. An enjoyable night was had by all and on behalfofthe Law Society and members of the profession I wish the Chief Justice a longand happy retirement ® Want to stay up-to-date with news and upcoming events? “ PRACTITIONER News & views from the LSNT Secretariat law smm The Practioner is a weekly email newsletter service for members ofthe LSNT. To access this service (members only) provide your email address to the LSNT office, or email publicrelations@lawsocnt.asn.au Page 13 — September 2003 chief justice's farewell Chief Justice's farewell dinner The Law Society held a farewell dinner for retiring Chief Justice Brian Martin at Cornucopia Museum Cafe on Friday 29 August 2003. Many members of the local legal profession took the opportunity to attend the dinner to wish the Chief Justice and his wife a long, safe and happy retirement. The dinner was also attended by special guests Ron Heinrich, President of the Law Council, and Michael Lavarch, Secretary General ofthe Law Council, along with the Chief Justice’s family. In a letter of appreciation, the Chief Justice expressed his sincere thanks to the Law Society for holding an enjoyable and memorable farewell dinner. “Lorraine and I will not forget the eveningyou may be assured, especially the generous remarks and the superb gift." The Law Society presented the Chief Justice and Mrs Martin with Yathikpa Baraltja, a beautifully decorated memorial pole (Larrakitj) which was created by Aboriginal artist Wulu Marawili. The gift was well received and the Chief Justice and Mrs Martin have advised the Law Society that it will take price of place in the entrance hallway oftheir home. “It [the gift] is undoubtedly an impressive reminder of my long and happy association with the Society and it will be treasured. ® Chief Justice's family (L-R): Chief Justice Brian Martin, Kristen Macrides, Mrs Lorraine Martin, Andrew Macrides, Rick Williams, Leanne Williams and Tony Martin. Tom Pauling QC, Chief Justice Brian Martin MBE AO, Ron Heinrich, Mrs Lorraine Martin, Ian Morris. LSNT gift to the Chief Justice The painting on this Larrakitj (Memorial pole) depicts two areas within the artist's Madarrpa clan land - Baraltja, a flood plains area and home of Mundukul the Lightning Snake and the saltwater country of Yathikpa where the actions of Baru the Ancestral Crocodile and Hunters Burrak and Garramatji took place. The artist, Wulu Marawili, is the 35 year old son of Barunga Statement artist Marrirra Marawili. He resides at Yilpara with his father and his own family and has increasingly been taking over the artistic mantle from his father. Photo (left): Mrs Lorraine Martin and Chief Justice Brian Martin when they received Wulu MarawUi’s piece as a retirement gift from the Law Society members. L Page 14 — September 2003 chief justice's farewell John Birch SM and Melanie Little SM On Friday 27 July 2003, Alice Springs hosted a farewell dinnerfor ChiefJustice Brian Martin, in the foyer of the Court complex. The dinner was combined with Christmas in July celebrations and was well attended by members ofthe local legal profession. The magistrates and court staff fully catered forthe event and by all reports a terriffic evening was had by all. ® The ChiefJustice's farewell combined with Christmas in July celebrations in Alice Springs. The Solicitors' Solicitor for all Court Agency Work including Mentions and Referrals in the Northern Territory and all States of Australia -Instructions Welcome - www.courtagents.com.au Chief Justice Brian Martin John McBride and Ruth Morley. Michael Ward SM Nardine Collier and Allan Salmon Page 15 — September 2003 Footy tipping fever Competition was tight after the final round of the LSNT’s AFL footy tipping competition. To build suspense, the final results were not released for a couple of days - but the suspense was too much for some people. Muster Room has learnt that one culprit rang some of the other leaders to find out how many winners they had picked so that they could work out the final placings. Reeves’ golf day from heaven Muster Room recently received a very impressive golf score card. On 27 August, Barbara Reeves managed an impressive nett score of 59 (Gross 88, Handicap 29). Congratulations! Let’s hope you can do it again next week. A fine trip overseas By all reports, Peter Barr’s recent trip to New Zealand got off to a fine start. After a parking infringement at the airport before leaving, Peter was pulled up at immigration in New Zealand and fined for trying to smuggle in a miscelaneous manderine which was located in his luggage. Some people try to smuggle arms or drugs, but the lucrative manderine market has previously escaped the attention of Muster Room. The Muster Room Contributors If you’ve got a more impressive golf score that Barbara Reeves or any other gossip for Muster Room, please send it to oublicrelations@lawsocnt.asn.au PO Box 251 Avoca Beach NSW 2251 Tel/fax: (02) 4365 0556 We offer a full range of forensic science services in the investigation of fires and explosions including ■ direct incident investigation (origin & cause, liability, recover/ etc.) ■ laboratory analysis and interpretation of results ■ assessment and commentary on previous investigation findings ■ expert testimony and advice to counsel (criminal and civil litigation) We have particular expertise in ■ incidents involving fatalities ■ interpretation of thermal injury distribution ■ gas and vapour explosions ■ electrical systems and causes of fire ■ interpretation of documentary and photographic evidence ■laboratory testing of fire-related evidence Jim Munday has specialised in fire and explosion investigation since 1979, with Scotland Yard’s forensic laboratory and in private practice in the UK & Australia. He has investigated more than 1700 fire and explosion incident scenes, including over 300 fatalities, and carried out laboratory testing on materials from many others. He has given expert evidence in many courts. Trained as a forensic chemist, Jim is also a qualified fire engineer and one of the few holders of the prestigious Diploma in Fire Investigation awarded by the UK Forensic Science Society. He has made a special study ofthe way in which distribution of skin burns and other thermal injuries relates to the location, position and activities of the person involved. Our Senior International Associates include Dr John DeHaan (USA) and Mr Michael Gardiner (UK). For more details, visit our website yyww.fireforensics.com.au or e-mail info@fireforensics.com.au )_ Page 16 — September 2003 feature Superannuation and Family Law: where are we at? cont... entitlements intact where there are competing proposals by the parties. This will continue to be an issue between negotiating parties and ultimately the priority of the wishes of the parties will be left to the Court to exercise its discretion by considering whether the orders are just and equitable in the circumstances. Already, as demonstrated by Moore J in the case of Levick, this has increased the focus on and weight to be given to the consideration of what is just and equitable in the circumstances by the Court. Just and equitable The Full Court in Hickey expressly confirmed the four-step approach to property settlement21 and highlighted in particularthe fourth step of ensuring a just and equitable outcome for the parties. After making findings regarding the identity and value ofthe property, the contributions to the marriage and future needs ofthe parties (known as Section 75 (2) factors), the Court is then required to consider the effect of those findings and resolve what order is just and equitable in the circumstances. In the case of Levick, Moore J demonstrated that it is open to the Court to separate the nonsuperannuation assets from the superannuation and order that a nonmember receive their property settlement entitlement partly by way of a splitting order and partly by way of increasing entitlements in other nonsuperannuation assets. Her Honour used judicial creativity on the basis of considering what is just and equitable to balance the competing priorities of the parties to achieve a satisfactory outcome which would not have otherwise existed or been available prior to the operation of the new scheme. The Court held that the wife’s entitlement could be satisfied from some non-superannuation assets up front and a percentage of the husband’s superannuation entitlement. The fourth step may be increasingly exercised tojustify the reasoning ofthe Court in deciding between the competing wishes and priorities ofthe parties about the division of property. The Court and practitioners should embrace the opportunity to analyse all possible outcomes and consequences ofthe parties. Splitting orders The Full Court in Hickey has found that if superannuation interests are unaffected by the order for property settlement, there is no splitting order and it is not possible to have a zero percent splitting order. Therefore, if by consent each party retains their own superannuation entitlements but gives one party a greater share of the nonsuperannuation assets by way of adjustment, it is not a splitting order. It is just an order like any other order pursuant to Section 79 of the Act for property settlement. ‘Catch air type orders can include superannuation Historically, practitioners, parties and the Court have included a paragraph in property settlement orders made pursuant to Section 79 of the Act that seeks to declare that each party will otherwise retain all other assets in their sole name and possession. This issue was considered at length by the Full Court in Hickey and it held that the Court may include in an order pursuant to Section 79 of the Act, a paragraph or clause of the ‘catch all' type which may include superannuation in circumstances where one or both parties shall retain their own superannuation interest. The ‘catch all’ type order included as a clause or paragraph of an order resolves the ownership of chattels in the possession of the person as collectively (altering title in some cases and confirming title in others) because it is part of an entire order which adjusts the interest of the parties in the whole oftheir property.22 The ‘catch all’ type order may include superannuation because the effect of Section 90MC is that in proceedings in relation to property under Section 79 of the Act, a superannuation interest is to be treated as property irrespective of whether or not a splitting or flagging order is proposed.23 Further, the Full Court in Hickey has maintained that it is desirable to provide certainty and assurances to parties that all the property has been dealt with, including superannuation interests and to resolve any doubt arising from any preliminary distributions. It follows that the mandatory obligation under the new scheme in relation to procedural fairness to the trustee and the determination of the amount (value) in accordance with the Regulations do not apply unless a splitting or flagging order is sought or made. Registrars can make Orders pursuant to Section 79 including superannuation It has also been confirmed by the Full Court in Hickey that Registrars have the jurisdiction to make orders pursuant to Section 79 of the Act by consent which include superannuation interests relying upon Order 36A ofthe Family Law Rules. The principles to be applied by the Registrars and Court in making an order pursuant to Section 79 of the Act by consent, depend on the circumstances of each individual case but are upheld by the Full Court as identified in Harris v Caladine (1991) FLC 92--217.24 Tax on superannuation - how is it taken into account? Taxation on superannuation is another complexity to be faced by the Court and practitioners. The tax components and burden are split between the parties according to the percentage split, or continued next page Page 17 — September 2003 t feature Superannuation and Family Law: where are we at? cont... shared equally in the same proportions.25 There is no tax payable in respect of undeducted contributions. 5% ofthe pre-July 1983 component is taxed at the marginal rate and the post-July 1983 component is taxed at 16.5% (15% plus Medicare levy of 1.5%) up to the Reasonable Benefit Limit (‘RBL’), if taken after the age of 55 years. The RBL for lump sum superannuation is $562,195, and pension $1,124,384. If taken prior to the age of 55 the whole component is taxed at 20% plus Medicare levy of 1.5%. Any benefit over the RBL is taxed at the highest marginal rate plus Medicare levy (48.5%).26 The Full Court has set out in Rosati & Rosati (1998) FLC 92-804, that typically the taxation will betaken into account where it is a realisation cost pursuant to orders for property settlement, is inevitable or probable or alternatively may be taken into account as a Section 75(2) factor.27 In Levick Her Honour took into account the tax-free threshold and then applied a 15% plus Medicare levy tax payment on the balance in her calculations. Moore J in Levick expressly states that the time delay before being able to access superannuation needs to be taken into account by the Court. However, unfortunately, Her Honour did not indicate what weight is to be given to it. Given the uncertain and prospective nature of tax payable on future superannuation entitlements by both members and non-members, the Court may struggle to accurately take account of the same. The tax will depend upon the income earned in the year it is received as well as whether it is taken as a lump sum or pension. The tax concessions available for pre1983 superannuation provides opportunities for tax planning for the benefit of both parties. It is also a negotiating tool to resolve the matter for the benefit of both parties. This is especially so where there is a larger pool of property including the superannuation. Page 18 — September 2003 The taxation on superannuation will often require expert advice given the possible hidden liabilities including the surcharge tax and other detailed taxation knowledge required in considering the consequences of splitting orders for the parties. Further, corresponding amendments have been made to the taxation legislation with respect to Capital Gains Tax. Rollover relief is available for in specie transfers for self managed superannuation funds.28 Are Superannuation Agreements binding? Clearly, under the new scheme, orders with respect to superannuation are binding on trustees of superannuation funds.29 Once procedural fairness has been forwarded to the trustee, it is bound by the order.30 However, there is no corresponding section in the Act that relates to Superannuation Agreements. The service of the Superannuation Agreement on the trustee enlivens the trustee's obligations under the Act but importantly, the operative time cannot be retrospective without the prior agreement of the trustee.32 The Superannuation Agreements would appear only to ‘trigger’ the operation of the new Part but of itself may not bind a trustee. It may be open to a trustee to refuse to be bound by a Superannuation Agreement, so as a matter of course it would be appropriate to include the trustee in the negotiations of any Superannuation Agreement and confirm their willingness to give effect to the Agreement prior to its execution. And finally... The Court has indicated that at this stage, it does not intend to publish all judgments relating to the application of the new scheme, on the basis that it wishes to monitor and ensure a consistency of approach to the issue of superannuation.32 Acknowledgement The writer gratefully acknowledges the contribution by Mr David Berman, Counsel at Campbell Chambers. (Endnotes) 1 Family Law Act 1975 s 79. 2 Hickey & Hickey & Anor [2003] FamCA 395 Nicholson C J, Ellis and O'Ryan JJ. 3 Jovanovic & Jovanovic unreported, Family Court, Chisholm J, 24 January 2003. 4 Levick & Levick unreported, Family Court, Moore J, 31 January 2003. 5 Crown & Yarnold unreported, Family Court, May J, 27 February 2003. 6 Cahill & Cahill, unreported, Family Court, Coleman J, 7 March 2003. 7 Gardner & Gardner unreported, Family Court, Burr J, 28 March 2003. 8 Family Law Act 1975 s 90MC. 9 Family Law Act 1975 s 90MT. 10 Family Law Act 1975 s 90MZD(l)(a). 11 Family Law Act 1975 s 90MZD and Hickey [2003] FamCA 395, 11 & 25. 12 Family Law Act 1975 s 90MZB. 13 Family Law Act 1975 s 81. 14 [2003] FamCA 395, 7. 15 Family Law Act 1975 s 90MZD and Hickey [2003] FamCA 395, 11 & 25. 16 Family Law Act 1975 s 90MT(2). 17 [2003] FamCA 395, 26, 30 and 31. 18 Ibid 14. 19 Ibid 14, compare with approach taken in Cahill unreported, Family Court, Coleman J, 7 March 2003. 20 Gardner & Gardner unreported, Family Court, Burr J, 28 March 2003 21 [2003] FamCA 395, 16 and 22. 22 Ibid 395,11 and 25. 23 Ibid 36. 24 Income Tax Assessment Act 1936 s 27ACA and s 27ACB. 25 Berman ‘Practical Implications of Super Reform', June 2003, 19. 26 Ibid 26. 27 Bourke, above n 68, 29. 28 Family Law Act 1975 s 90MZD. 29 Ibid s 90MZD. 30 Bourke, above n 68. 31 Watts, Watts McCray Lawyers, Fiji, 8th Australian Family Lawyers' Conference, June 2003. case notes with mark hunter DPP (NSW) v A MAGISTRATE & anor. Supreme Court (NSW) No. 11243/2003 Judgment of Dowd J delivered 29 August 2003 COURTS AND JUDGES - BIAS - PREJUDGMENT OF ISSUE On 10 March 2003, the first defendant (the magistrate) commenced hearing criminal proceedings brought by the plaintiff (DPP) against the second defendant (D2) in the local court at Burwood, in Sydney. D2 is a police officer and a former police prosecutor. His surname is Thurbon, and he was charged with dishonesty offences. On 12 April a female clerk in the NSW Police Department unexpectedly received a copy of an e-mail on her home computer. Ms Thurbon is not related to D2. The magistrate was the author of the message, which he had only intended on 12 April to send from his home computer to his Chamber computer on the Attorney-General’s domain site. An attachment to the email was a document in which the magistrate summarised a portion of the trial, which by this stage was part heard over five days. In the document, the magistrate referred to the prosecution case, and the conduct of the prosecutor, in terms that included: / babbled on about completeness relating to the link between the payslips and the evidence from ms... In many respects (the prosecutor) is misleading. On 17 April police lodged a complaint against the magistrate with the NSW Judicial Commission, alleging that he had either deliberately or negligently disseminated an e-mail concerning a matter which he was currently hearing. On 9 May the magistrate refused an application by the DPP that he disqualify himself from further hearing the charges against D2. In his judgment, the magistrate elected to explain to the parties (in closed court) how a somewhat complex problem with a computer program (Lotus Notes) had caused a copy of his e-mail to be accidentally transmitted to Ms Thurbon’s computer. The DPP applied to the Supreme Court for an order in the nature of prohibition against the magistrate, and declaratory relief. The magistrate and D2 filed submitting appearances except as to costs. HELD A. The integrity of the trial was compromised by the disclosure to the parties of the magistrate’s views on various matters concerning the part heard proceedings. B. It cannot be said that the general “informed, reasonable bystander”1 would understand the particular problems ofthe Lotus Notes program and, despite the reasonableness ofthe magistrate’s explanation, there is a “real possibility”2 that such a person may harbour an apprehension that the magistrate intended to communicate with D2 and was therefore biased. ORDERS 1. Declaration that the magistrate erred in decliningto disqualify himself from further hearing the proceedings against D2. 2. The magistrate is prohibited from further hearingthe proceedings against D2. 3. No order as to costs. Justice Dowd rejected the DPP’s submission that the magistrate’s notes demonstrated prejudgment of the prosecution case: .. .judicial officers must be able to make notes as a case progresses about aspects of the case, the parties and those appearing before them. It is inevitable that provisional views will be formed subject to displacement or confirmation by later evidence. His Honour was advised by the DPP that the Judicial Commission had dismissed the complaint against the magistrate. Justice Dowd described the magistrate’s decision on 9 May to give evidence from the bench as to the Mark Hunter; Barrister likely cause ofthe transmission to Ms Thurbon as “unfortunate”. ENDNOTES 1 In Livesey v NSW Bar Association (1983) 151CLR 288 at 293-295, the High Court chose the term “fair-minded observer”. 2 Ebner v Official Trustee (2000) 75 AUR 277 at 279 (High Court). APPEARANCES Plaintiff - Knox SC/ SE O’Connor First Defendant - IV Knight Second Defendant - Taylor & Scott Lawyers COMMENTARY Some readers may understand how the magistrate’s Lotus Notes program’s “...recently acquired facility of searching for names in the address line” caused the name Thurbon to “flip up” from the subject line to the address line ofthe e-mail. This case is a cautionary tale for the senders of sensitive e-mails.® Page 19 — September 2003 Developing Torrens title in Cambodia Earlier this year I was invited to travel to Cambodia to assist the Land Legislation Implementation Project in Cambodia, by providing introductory training to judges, prosecutors and trainers in Cambodian land law, and, as part of that training, to conduct seminars in Torrens title based on the provisions of the Land Act (NT). The invitation to go to Cambodia came from Colin McDonald QC, a director of the Cambodian Legal Resources Development Centre, a non-profit organisation which is committed to the promotion and development of Cambodian legal resources and the rule of law in Cambodia. The team leader ofthe project is Patricia Baars, an American lawyer working and living in Phnom Penh. She is ably assisted by Matthew Rendall, an Australian lawyer, who is also a permanent resident of Cambodia. Both Ms Baars and Mr Rendall are co-directors ofthe Cambodian Legal Resources Development Centre. The funds forthe trip were provided through East West Management Institute and the Asian Development Bank. Cambodian land law has had a turbulent history since French colonial government of Indo-China ceased in the 1950s. Prior to 1975, Cambodian land law was based on French law, with the relevant provisions contained in the Civil Code of 1920. During the period 1975-1989, private ownership of land was prohibited and records relating thereto were destroyed. In 1992 a new land law was introduced which permitted the private ownership of land in residential areas. This provided for a recordation system of land registration. The 1992 law, in general, restated principles found in the previous Cambodian Civil Code. In 1993 Cambodia adopted a new constitution, and it was considered necessary to enact a new land law because of significant problems which existed with the implementation of the 1992 law. After a number of drafts had been considered, the new land law Page 20 — Sepfember 2003 came into force on 30 August 2001. The Land Law 2001 contains a number of features which are to be found in most Torrens title systems, including a system of land registration based upon accurate cadastral surveys, a system of registration of instruments dealing with interests in land, provisions dealing with indefeasibility of title and state guarantee of title. Cambodia is also in the process of revising its Civil Code, which deals with, inter alia, property law and contract law. A draft is being prepared by a Japanese team, the Japan International Cooperation Agency, Legal and Judicial Co-operation Project. This team has interpreted the Land Law 2001 as establishing a land recordation system and the draft Civil Code has been prepared on that basis. My role was to explain the way in which the Torrens system works in Australia, and to see to what extent the Land Law 2001 implemented a system of land registration with indefeasibility of title, rather than a recordation system. This had to be kept at a fairly basic level, for much of the audience was not legally trained. Beginningon Monday, 23 June 2003, at the Royal School for Judges and Prosecutors, Phnom Penh, I conducted a seminar involvingjudges, judge trainers and lawyers, followed by an afternoon workshop conducted by Matthew Rendall in which I participated. This seminar contained a detailed explanation ofthe Land Title Act (NT). I was greatly assisted by a PowerPoint presentation prepared by Robert Bradshaw and Caroline Heske from the Department of Justice, which formed the basis of this seminar. The seminar was well attended and I had the opportunity to meet a number of VIPs, including a director ofthe Asian Development Bank. Mr Urooj Malik; the Director ofthe Royal School, Ms Kim Sathavy; His Excellency Sum Manit, the Secretary of State Office ofthe Council of Ministers; Mr Winston McColgan, Charge d’Affaires from the European Union; Judge Michael Bonniew from Justice Dean Mildren RFD the School of Magistrates in Bordeaux, as well as many others too numerous to name individually. The questions from the floor indicated a level of sophistication beyond what I had been told to expect. On Tuesday, 24 June 2003,1 conducted a half-day seminarto the officers from the Cadastral Administration, which is supervised by the Ministry of Land Management, Urban Planning and Construction. The Cadastral Administration runs the equivalent of our Lands Titles Office. This was a much smaller seminar and was more focused on the administration of a lands title registration system. I presented copies of documents (such as title documents) in former and present use in the Lands Titles Office. As I was not sure before I departed Australia, whetherthe new system was to be a paper system or electronic system, I brought samples of both systems. Subsequently, I visited the Cadastral Administration and was shown the records relating to the old 1992 recordation system, as well as the records relating to the new (and very impressive) electronic 2001 registration system. These records showed how land was brought under the new registration system, the survey process and the steps leading to the issue of a certificate of title. On Thursday morning, 26 June 2003,1 presented a third seminar, this time to private law firms, both local and international, to members ofthe nongovernment organisations community, readers forum - conferences 1-3 October 2003 Australia and New Zealand Society of Criminology Conference - Controlling Crime: Risks and Responsibilities Sydney, Australia www.lawlink.nsw.gov.au/anzsoc2003/ 1-3 October 2003 12th Annual Australian and New Zealand Education Law Association Conference Sydney, Australia Contact the CLE Centre Tel: 02 9233 4999 Fax: 02 92311995 www.clecentre.com.a u 7-10 October 2003 Avoiding Disaster: Engineering, Technology and the Law Monash Campus Prato, Tuscany, Italy Tel: 03 9905 4734 www.law.monash.edu.au/iifs 14-15 October 2003 National Indigenous Juvenile Justice Conference ^ INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection "%€)utback JUSINESS SERVICES Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au Member of Institute of Mercantile ___________ Agents Ltd____________ J bal010602 Riviera Motel and Function Centre Adelaide, South Australia Tel: 07 54713161 Fax: 07 4938 7553 indigenousconventions@bigpond.com 16-17 October 2003 National Indigenous Custody Conference Riviera Motel and Function Centre Adelaide, South Australia Tel: 07 54713161 Fax: 07 4938 7553 indigenousconventions@bigpond.com 16-19 October 2003 APLA National Conference Hyatt Regency Coolum, Queensland Tel: 02 9698 1700 Fax: 02 9698 1744 www.apla.com.au 20-21 October 2003 2nd National Pro Bono Conference Marriot Hotel, Sydney Contact Conference Co-ordinators Tel: 02 6292 9000 Fax: 02 6292 9002 and some participants who had attended one or other of the first two seminars. Amongst the many important Cambodian officials who attended the seminars was Mr Sek Setha, the Director General of Cadastre and Geography (who occupies a similar office to that of the Registrar General in our system); his Deputy, MrLimVoan; and Mr So Vanna the Deputy Director, Technical Department of the General Department of Cadastre and Geography. On Thursday evening I attended at the University of Phnom Penh, where I was met by the Dean ofthe Faculty of Law and Economics, MrYuok Ngoy, and one of the senior lecturers Mr Nick Rine (from the University of Michigan). I gave a 1-hour lecture to a small group of law students. I departed Phnom Penh on Friday, 27 www.nationalprobono.org.au 22-24 October 2003 11th Annual Family Law Masterclass, Melbourne Stamford Plaza, Melbourne Tel: 1800 772 772 Fax: 02 9422 2338 7-8 November 2003 Juvenile Justice Conference Calwell, ACT Tel: (02) 6292 9000 Fax: (02) 6292 9002 conference@netinfo.com.au 10-12 February 2003 Family Law Masterclass, Brisbane Brisbane, Queensland 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com June 2003, to return to Australia via Kuala Lumpur. Whilst there, my wife and I had only a small amount of time to do any sightseeing, but we did have the opportunity to visit some ofthe tourist spots in the city and to take a cruise on the river, organised by Pat Baars and Matthew Rendall. The trip was apparently a success - or so I have been told - and I understand a further invitation to conduct more detailed seminars may be forthcoming in 2004. I would like to thank the Attorney General and the Chief Justice for their support in making this trip. I was able to make gifts of Australian textbooks on land law to our Cambodian friends, paid for out of the court’s budget. This was clearly much appreciated, as textbooks of this kind are hard to acquire in this country. Developing Torrens title in Cambodia cont... Page 21 —September 2003 NOTICEBOARD Agents Licensing Board The Department of Consumer and Business Affairs is seeking nominations forthe position ofAlternate Member and Chairman oftheAgents Licensing Board. For more information contact Barbara Bradshaw at the Law Society. Zimbabwe Observer The Department of Foreign Affairs has invited the Law Council of Australia to provide an observer at the trial fo Zimbabwe’s opposition leader Morgan Tsvangirai. The trial is expected to take place in Harare, Zimbabwe, in November this year. The Law Council is seeking nominations from lawyers who would be interested in undertaking this role on a pro bono basis. LSNT members interested in this role can contact the Law Society on (08) 8981-5104 for more information. Federal Court of Australia In 2004, sitting of a Full Court of the Federal Court of Australia will be held in all capital cities within the following periods: 9 February - 5 March; 3-28 May; 2-27 August; and 1-26 November (subject to there being sufficient business). The Court has also released a copy of the Federal Court Amendment Rules 2003 (No 3) which came into effect on 11 August 2003. The Amendment Rules:

  • Insert a new Order 4 rule 15 that will allow a registrar with

the appropiratie delgated power to issue a summons under section 596A or 596B ofthe Corporations Act while sitting in chambers;

  • Insert a new Order 10 paragraph 1 (2) (cab) to provide that

the Court may direct parties to considerjointly instructing an expert;

  • Amend Order 46 rule 6 so that writtien submission may be

searched for and inspected by a person without the leave of the Court or a Judge unless the document is subject to an order of confidentiality;

  • Amend Order 57 to relfectthe legislative changes that have

replaced the National Crime Autoruty with the Australian Crime Commission;

  • Replace Order 62 rule 9 with a new rule 9 that, witout limiting

the discretion of the Court to award costs, provides some guidance as to the power of the Court or a Judge to order a legal practitonerwho is responsible for costs incurred improperly or with reasonal cause, or wasted by undue delay or by any other misconduct or default, to be liable forthose costs;

  • Amend Order 81 rule 5 so that form 167 (claim for relief

underthe Human Rights and Equal Opportunity Commission Act 1986 for unlawful discrimination) is used as an attachment to form 5 (in the same way that form 5A is used to assist applicants claiming unlawful termination of employment under the Workplace Relations Act 1996);

  • Omit form 60, which related to the old Order 57 and is no

longer necessary; and

  • Amend forms 5 and 167 to reflect the change to Order 81

rule 5 mentioned above. A copy of the rules is available from http:// scaleplus.law.gov.au/home.htm Family Court of Australia The Family Court ofAustralia has released Practice Direction No 3 of 2003 regardingthe national filing deadline for contact and resident applications duringthe Christmas school holiday period for 2003/2004. The Court has set a closing date for hearings of 4pm Monday 10 November 2003. This deadline applies to all Form 8 applications, orthose relatingto contact or a period of residence duringthe December 2003-January 2004 school holiday period. Applications filed prior to this deadline will be allocated a hearing date before Christmas, subject to numbers being within expected limits. Applications filed afterthe deadline will be allocated the next available date in the usual way - that date may be in 2004. After 10 November 2003, applications to abridge times and to list a matter on short notice can be made to Registry staff. The usual criteria for an urgent hearing to apply. The fact that an appliation relates to the school holiday contact will not in itselfjustify a listing before Christmas. High Court Notes - October 2003 Prepared for the Law Council of Australia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Insurance - Contracts - Public liability cover of operator of marine pleasure craft used for commercial paraflying - Whether insurance a contract to which Marine Insurance Act 1909 (Cth) applied In Gibbs v. Mercantile Mutual Insurance (Aust) Ltd. ([2003] HCA 39; 5.08.2003) from 1986 the appellant, who operated a marine pleasure craft on the Swan River in Perth for paraflying, insured the vessel with the respondent against liability to third parties. In 1989 a woman sued the appellant after receiving injuries whilst paraflying. The respondent denied indemnity to the appellant contending the insurance policy was a contract under the Marine Insurance Act 1909 (Cth) and that therefore the failure of the appellant/insured to give notice of the occurrence could not be relieved under the provision under the Insurance Contracts Act This was rejected by the primary judge but accepted by the Full Court of the Supreme Court of WA and on, or appeal, by a majority of the High Court: Gleeson CJ; Hayne, Callinan JJ; contra McHugh J; Kirby J. The majority observed providing indemnity against liability to third parties was a form of marine insurance and the activity of paraflying took place in estuarine waters to which the Marine Insurance Act applied. (Subsequently the Insurance Contract Act was amended to provide the Marine Insurance Act does not apply to contracts of insurance in respect of pleasure craft). Consideration of the relationship between marine and general insurance. Appeal dismissed. Criminal law - Evidence - Identification - Whether need Gummow J; Callinan J; contra Kirby J. The majority concluded that the reference in s4D(l)(b) to the “purpose" ofthe arrangement addressed the subjective purpose which was to structure a national competition rather than to exclude the supply of services to the respondent. Appeal allowed. Federal Court Notes Page 22 — September 2003 NOTICEBOARD for caution where reliability of evidence not in dispute In Dhanhoa v. Q ([2003] HCA 40; 5.08.2003) the High Court by majority (Gleeson CJ with Hayne J; McHugh J with Gummow J; contra Callinan J) dismissed an appeal where an appellant asserted his conviction involved a miscarriage ofjustice because the trial judge failed to accept sll6 of the Evidence Act 1995 (NSW) provided a mandatory requirement to warn a jury in relation to identification evidence even where the point was not taken at trial. Appeal dismissed. Appeal and new trial - Findings by primary judge creating version of events not advanced by either party - Powers of Appellate Court In Suvaal v. Cessnock City Council ([2003] HCA 41; 6.08.2003) S sued the nominal Defendant and relevant municipal council for damages for injuries asserting a motor vehicle forced him and his bicycle onto a part of the road which was potholed. The Master determined that S left the road following a momentary lapse of concentration. This theory was not advanced by any party in the trial. The Court of Appeal reversed the judgment for S and his appeal to the High Court was dismissed by majority: Gleeson CJ with Haydon J; Callinan J; contra McHugh, Kirby JJ. Consideration of how and when Appellate Courts can review findings of fact. Appeal dismissed. Criminal law - Burglary - Offence committed while on another’s place without that person’s consent - Proof - Whether prosecution required to negative consent In King v. Q ([2003] HCA 42; 6.08.2003) K was convicted of aggravated burglary contrary to s401(2) of the Criminal Code (WA). He committed acts of violence on his estranged wife after obtaining entry to her premises by a trick and in an apparent breach ofa violence restraining order made under the Restraining Orders Act 1997 (WA). By s62 of this Act it was a defence to a prosecution under it to establish the protected person consented to the entry. The Court of Criminal Appeal in WA accepted that the trial judge erred in observing that it was for the accused to prove he was on the premises with consent. All members of the High Court agreed that the appeal be dismissed on the basis that the onus remained at all times on the prosecution to prove all elements of the charge, including negativing consent, and this had been properly explained to the jury and occurred [10], [50]. Appeal dismissed. Industrial law - Constitutional law - Power to authorise industrial award extending to employers not in Australia - Offshore employers of crews of vessel in Australian waters In Re Maritime Union of Australia & Ors.; ex parte CSL Pacific Shipping Inc. ([2003] HCA 43; 7.08.2003) following changes brought by the ANL (Conversion into Public Company) Act 1988 (Cth) two ships operated by ANL on the coast of Australia came to be acquired in 2000 by a company (“CSL Pacific") incorporated in Barbados which together with an Australian corporation was ultimately owned by a Canadian corporation. The two ships variously operated in Australian waters under licences granted under the Navigation Act 1912 (Cth). By 5(3)(b) the Workplace Relations Act 1996 (Cth) defined “industrial issue” to include matters relating to the relationship between employers and maritime employees relating to trade or commerce within Australia and between Australia and other places. In January 2002 a group of unions (the prosecutors) applied to the AIRC to vary certain awards to add any persons who from time to time employed the crew of the ships as subject to the award. A Full Bench of the AIRC found in September 2002 that an industrial issue existed and it had jurisdiction to consider whether to vary the award. A single justice of the High Court granted an Order Nisi for Constitutional Writs. The High Court discharged the Order Nisi in a joint judgment given by all seven members. The court concluded the provisions of the WR Act and the Navigation Act were not “at odds" [29] and that the provisions of the WR Act were not to be read down to exclude authoring awards where an employer has no “presence" in Australia [39]. The court rejected submissions that the proposed award would affect international laws concerning “innocent passage" [48] and customary international law [54]. The court finally concluded the proceedings in the AIRC had been properly served and in any event jurisdiction arose by reference to the objectively established relationship in employment in Australia. Order Nisi discharged. Tort - Joint tort feasors - Contribution from third party not liable to plaintiff In Amaca P/L v. State of NSW ([2003] HCA 44; 7.08.2003) a plaintiff sued three defendants and obtained consent judgment against two. These two defendants sought contribution under s5 of the Law Reform (Miscellaneous Provisions) Act 1946 (NSW) from the respondent which was not then a party to the proceedings. The trial judge and Court ofAppeal in NSW dismissed the appellant's claim both “assuming" the respondent would have been liable to the injured plaintiff. In a joint judgment all five members of the High Court concluded this was in error and the appellant's contribution claim should not have been dismissed without first deciding whether the respondent, if sued by the plaintiff, would have been liable. Appeal allowed. Matter remitted. Trade practices- “Exclusionary provision’’ in a contract- Merger of competing sporting competitions with provision for reduced number of teams - Whether for purpose of preventing or restricting supply of goods to excluded teams In News Limited v. South Sydney District Rugby League Football Club Ltd ([2003] HCA 45; 13.08.2003) before 1997 commercial Rugby League football in NSW was conducted by both the appellant (News Ltd which conducted a competition involving ten clubs) and the ARL (which conducted a competition involving twelve clubs including the respondent club). By an agreement in 1997 between the appellant and ARL it was agreed to merge the two competitions by 2000 into a united national competition which would have fourteen clubs some based in NSWand others outside. The respondent club sought injunction to restrain its exclusion from the new competition relying on, inter alia, the allegation that the arrangement was void as an “exclusionary provision within ss4D, 45(2)(a)(i) and 45(2)(d)(i) ofthe TP Act This was rejected by the primaryjudge in the Federal Court but accepted by a majority of the Full Court of that court. The appeal by the appellant was allowed by majority: Gleeson CJ; McHugh J;\ Page 23 — September 2003 /


COURT LIBRARY NOTES 2003 pp: 44-47 Compensation Donaghey, Tim - Compensation as a remedy in the unfair dismissal jurisdiction, Law Institute Journal, VoI 77(9) 2003 pp: 52-55 Corporations - financial reporting Kennedy, Gerard - In search of financial reporting relief, Law Institute Journal, Vol 77(8) 2003 pp: 54-57 Courts Young, P W - Abolition of the House of Lords as a court, Australian Law Journal, Vol 77(8) 2003 pp: 475 Siegel, Natalie - Court is the system - the impact of the circulating bush court upon criminal justice administration and domestic violence prosecution in Aboriginal communities, Current Issues in Criminal Justice, Vol 15(1) 2003 pp: 56-60 Crime prevention Lee, Murray - The role of place management in crime prevention - some reflections on governmentally and government strategies, Current Issues in Criminal Justice , Vol 15(1) 2003 pp: 26-39 Criminal law Hidden, Peter - Some ethical problems for the criminal advocate, Criminal Law Journal, Vol 27(4) • 2003 pp: 191-198 Gray, Stephen - A third look at criminal responsibility under section 3 of the Criminal Code (NT), Criminal Law Journal , Vol 27(4) 2003 pp: 211-212 Dawson, John - Diminished responsibility, Journal of Law and Medicine, Vol 11(1) 2003 pp: 103-112 Crofts, Penny - White collar punters - stealing from the boss to gamble, Current Issues in Criminal Justice, Vol 15(1) 2003 pp: 40-52 Siegel, Natalie - Court is the system - the impact of the circulating bush court upon criminal justice administration and domestic violence prosecution in Aboriginal communities, Current Issues in Criminal Justice, Vol 15(1) 2003 pp: 56-60 Heaton, Russell - Dealing in death, Criminal Law Review, 2003 pp: 497-509 Criminal liability Pedain. Antje - Intention and the terrorist example, Criminal Law Review, 2003 pp: 579-593 Criminal trials Zilko, Matthew - Bali bombers - a very different kind of trial, Brief, Vol 39(7) 2003 pp: 27-29 Damages Mendelow, Paul - Trade Practices Act - recent developments in assessment of damages, Australian Law Journal, Vol 77(8) 2003, pp: 534-548 Dangerous drugs Heaton, Russell - Dealing in death, Criminal Law Review, 2003 pp: 497-509 Dispute resolution Power, Mary - Conflict resolution in neighbourhood skate parks, Australasian Dispute Resolution Journal, Vol 14(3) 2003 pp: 177-187 Domestic violence Holder, Robyn - What do women want? Prosecuting Page 26 — September 2003 family violence in the ACT, Current Issues in Criminal Justice, Vol 15(1) 2003 pp: 5-25 Employment law Catanzartiti, Joe - Drug and alcohol testing at work - what are the legal issues?, Law Society Journal, Vol 41(7( 2003 pp: 42-43 Evidence McMahon, Marilyn - Polygraph testing for deception in Australia - effective aid to crime investigation and adjudication?, Journal of Law and Medicine, Vol 11(1) 2003 pp: 24-47 Forsham, Judith - Some issues for prosecutors and defence lawyers in trials involving DNA, Brief, Vol 39(7) 2003 pp: 20-21 lorns, Catherine - Indigenous oral evidence, Indigenous Law Bulletin, Vol 5(25) 2003 pp: 22 Family law Watts, Garry - Cautions on ‘catch-all’ superannuation consent orders, Law Society Journal, Vol'41(7) 2003 pp: 62-64 Campbell, Jacqueline - Splitting the super ,,, and selling the home, Law Institute Journal, Vol 77(9) 2003 pp: 56-60 Human rights Redman, Ronnit - Guarding human rights, Law Institute Journal, Vol 77(9) 2003 pp: 63-66 Judges Moore, Michael - Judges as mediators - a chapter in prohibition or accommodation, Australasian Dispute Resolution Journal, Vol 14(3) 2003, pp: 188-197 Gleeson, Murray - State of the judicature, Australian Law Journal, Vol 77(8) 2003 pp: 505-513 Juvenile justice Curran, Liz - On the right track, Law Institute Journal, Vol 77(8) 2003 pp: 42-47 Legal profession Arup, Christopher - Law without borders?, Law Institute Journal, Vol 77(8) 2003 pp: 48-52 Hidden, Peter - Some ethical problems for the criminal advocate, Criminal Law Journal, Vol 27(4) 2003 pp: 191-198 Kontelj, Srechko - Professional service trusts - are you covered?, Law Institute Journal, Vol 77(9) 2003 pp: 40-43 Liquor law Spence, Judy - Liquor restrictions in Queensland indigenous communities, Indigenous Law Bulletin, Vol 5(25) 203 pp: 5-6 Barclay, Kelly - The drink without the trouble - hope for our future, Indigenous Law Bulletin, Vol 5(25) 203 pp: 7-8 Hoolihan, Richard - Public drunkenness in Townsville; the way forward, Indigenous Law Bulletin, Vol 5(25) 2003 pp: 9-10 Rosewarne, Clive - Alcohol and Alice Springs - meeting the needs and wishes of the community, Indigenous Law Bulletin, Vol 5(25) 2003 pp: 11-15 Magistrates Courts Popovic, Jelena - At your service - a guide to the Magistrates’ Court services and programs, Law COURT LIBRARY NOTES Institute Journal, Vol 77(8) 2003 pp: 32-37 Manslaughter Heaton, Russell - Dealing in death, Criminal Law Review, 2003 pp: 497-509 Matrimonial property Campbell, Jacqueline - Splitting the super ,,, and selling the home, Law Institute Journal, Vol 77(9) 2003 pp: 56-60 Mediation Moore, Michael - Judges as mediators - a chapter in prohibition or accommodation, Australasian Dispute Resolution Journal, Vol 14(3) 2003 pp: 188-197 Jesser, David - Mediator - not legal advisers, Australasian Dispute Resolution Journal, Vol 14(3) 2003 pp: 211-221 Van Gramberg, Bernadine - ADR and workplace justice - just settlement?, Australasian Dispute Resolution Journal, Vol 14(3) 2003 pp: 233-242 Medical law McSherry, Bernadette - Amicus curiae and the public interest in medical law cases, Journal of Law and Medicine, Vol 11(1) 2003 pp: 5-8 Devereux, John - Falls and fall-related injuries - farreaching implications, Journal of Law and Medicine, Vol 11(1) 2003 pp: 16-17 Remedies Donaghey, Tim - Compensation as a remedy in the unfair dismissal jurisdiction, Law Institute Journal, Vol 77(9) 2003 pp: 52-55 Sentencing Dawson, John - Diminished responsibility, Journal of Law and Medicine, Vol 11(1) 2003 pp: 103-112 Superannuation Watts, Garry - Cautions on ‘catch-air superannuation consent orders, Law Society Journal, Vol 41(7) 2003 pp: 62-64 Campbell, Jacqueline - Splitting the super ,,, and selling the home, Law Institute Journal, Vol 77(9) 2003 pp: 56-60 Taxation Johnson, James - Less margin for error, Law Institute Journal, Vol 77(8) 2003, pp: 82-83 Currie, John - Tax consolidation - the new nightmare, Law Institute Journal, Vol 77(9) 2003 pp: 48-51 Terrorism Williams, David - Terrorism and the law in the United Kingdom, University of New South Wales Law Journal, Vol 26(1) 2003 pp: 179-190 Pedain. Antje - Intention and the terrorist example, Criminal Law Review, 2003 pp: 579-593 Trade practices Kontelj, Srechiko - Unconscionability and the Trade Practices Act, Law Institute Journal, Vol 77(8) 2003 pp: 38-41 Mendelow, Paul - Trade Practices Act - recent developments in assessment of damages, Australian Law Journal, Vol 77(8) 2003 pp: 534-548 Unconscionability Kontelj, Srechiko - Unconscionability and the Trade Practices Act, Law Institute Journal, Vol 77(8) 2003 pp: 38-41 Unfair dismissal Donaghey, Tim - Compensation as a remedy in the unfair dismissal jurisdiction, Law Institute Journal, Vol 77(9) 2003 pp: 52-55 Warrants Moore, Robin - Executing warrants against fine defaulters - the continuing search for effectiveness and efficiency, Criminal Law Review, 2003 pp: 594­ 606 White collar crime Crofts, Penny - White collar punters - stealing from the boss to gamble, Current Issues in Criminal Justice, Vol 15(1) 2003 pp: 40-52 Page 27— September 2003 We hove a winner... The footy tipping finale Congratulations to Katrina Bukrikis who is the winner of this year’s LSNT footy tipping competition. Sally Sievers came in second, while Chris Booth and Alex Griffith were equal third. The results came right down to the final round of tips and the competition was fierce. The final scores (in order) were: Katrina Budrikis (Dept of Justice) 255, Sally Sievers (Cridlands) 251, Chris Booth (Ward Keller) 249, Alex Griffith (Clayton Utz) 249, Pipina Papazoglou (De Silva Hebron) 247, Julie McLachlan (NAALAS) 247, Elizabeth Morris (Office of the Coroner) 245, Magistrate Daynor Trigg 243, Justice Trevor Riley 241, Malert (NTLAC) 239, Mark Johnson (Officer of Director of Public Prosecutions) 239, Greame Chandler (Dept of Chief Minister) 239, Peter Walker (Peter Walker) 237, Magistrate Vince Luppino 235, Laura Hopkins (NAALAS) 231, Cassandra Tys (Cassandra Tys) 223, Lyn Bond (Parliamentary Counsel) 221, Donna Dreier (Dept of Justice) 217, Robert Duguid (student) 217, Jodeen Carney (Member for Araluen) 215, Glen Dooley (Office of Director of Public Prosecutions) 215, Lorelei Fong Lim (ABC) 215, Chris Chaplin (Ward Keller) 209, Caron Henebery (Sean Bowden & Assoc) 203, B&L Martin (Chief - Justice & wife) 203, Sarah Wilkie (Dept of Justice) 201, David ' Woodroffe J \ m (NAALAS) 210, Sean Bowden (Sean Bowden & Assoc) 199, Glenn Miller (NAALAS) 195, Bill Piper (Bill Piper) 187, Peter Boyce (Ombudsman) 187, Karen Randell (Collier & Deane) 187, Magistrate Jenny Blokland 181, Michael Davis (De Silva Hebron) 175, Ian Morris (Hunt and Hunt) 141. I Page 28 — September 2003 £)ates for your Alary Saturday 11 October - Judgment Day in Palmerston/Litchfield. Judgment Day is a community education workshop program on sentencing. A workshop will be held at Girraween Primary School, 9.30am-12.30pm. Thursday 23 October - Judgment Day in Katherine. A Judgment Day workshop will be held at the Katherine Court House, 6-9pm. Wednesday 29 October - Alice Springs farewell for Chief Justice Brian Martin MBE AO. A ceremonial sitting of the Court and farewell function to mark the Chief Justice’s retirement. 3pm at the Alice Springs Courts. ■ Friday 31 October - Retirement of Chief Justice Brian Martin MBE AO A ceremonial sitting of the Full Court will mark the Chief Justice’s retirement, followed by a farewell function. 3pm in Court 1 ofthe Supreme Court, Darwin. Thursday 6 November - Judgment Day in Tennant Creek. A Judgment Day workshop will be held at the Tennant Creek Court House, 6-9pm. Saturday 9 November - Judgment Day in Alice Springs. A Judgment Day workshop will be held at the Alice Springs Court House, 9.30am-12.30pm. Saturday 22 November - Judgment Day in Darwin. A Judgment Day workshop will be held at the Darwin Magistrates Court, 9.30am-12.30pm. ^ -------------)) DEADLINES Contributions to Balance are welcome. Copy should be forwarded to the Editor of Balance, Law Society NT, no later than the 5th of each month. Either fax your contributions to the Law Society: 08 8941 1623 or send them via email: publicrelations@lawsocnt.asn.au. Advertising rates can be obtained from the Society on tel: 08 8981 5104 or downloaded from our website: www.lawsocnt.asn.au. s

LAW SOCIETY NORTHERN TERRITORY Level 11, NT House 22 Mitchell Street DARWIN NT 0800 GPO Box 2388 DARWIN NT 0801 Telephone: (08) 8981 5104 Fax: (08) 8941 1623 Email: lawsoc@lawsocnt.asn.au Website: www.lawsocnt.asn.au EXECUTIVE President: Ms Merran Short Vice-President: Mr Duncan Maclean Treasurer: Mr Michael drove Secretary: Mr Glen Dooley COUNCILLORS Ms Jenny Hardy Ms Danielle Howard Ms Margaret Orwin Ms Jo Tomlinson Mr Markus Spazzapan Mr Matthew Storey Alice Springs Representative Mr Tony Whitelum Alice Sprint's Alternate Representative Ms Nardine C't>11 ier NT Bar Association Representative Mr Tony Young October 2003 COLUMNS President’s column...................... For the record.............................. NT Women Lawyers Association Jottings on the Bar....................... Advocacy...................................... Charles Darwin University........ Cyberlex........................................ Disciplinary matters.................... NOTEWORTHY Conferences................................. Noticeboard................................. Court Library Notes.................... REGULARS .3 ..5 ..6 ..7 ..8 ..9 .17 19 .21 .22 ,25 SECRETARIAT Chief Executive Officer Ms Barbara Bradshaw Finance and Administration Manager Ms Julie Davis Public Relations Officer Ms Zoe Malone Complaints Investigation Officer (part time) Ms Josephine Stone Front Office Manager/Personal Assistant Ms Sonya Ingham Administrative Assistant/Receptionist Ms Sharon Waters Balance is published 1 1 times a year by the Law Society Northern Territory. All contributions, letters and enquiries should he forwarded to the Editor of Balance, Law Society Northern Territory, GPO Box 2388, DARWIN NT 0801 or via email to: lawsoc@lawsocnt.asn.au Views expressed in Balance and in advertising material included are not necessarily endorsed by the Society. The Muster Room......................................................................................................... 15 Darwin Community Legal Service............................................................................... 16 Readers forum...............................................................................................................20 COVER STORY Changes to murder sentencing.................................................................................... 10 FEATURES Strategic planning meeting.............................................................................................4 ChiefJustice Brian Martin retires................................................................................12 New ChiefJustice appointed........................................................................................13 CREDIT NT (the drug court).......................................................................................18 LAWASIA farewells the NT..........................................................................................28 Page 2 — October 2003 president's column LSNT priorities list Currently the Law Society is working on several major issues including information requests from the ATOf Professional Indemnity Insurance and, at the top of the priority list, the Financial Services Reform Act (FSRA). All members should have received a letter from the Law Society alerting them to the impact of FSRA and encouraging them to seek independent legal advice. Essentially the FSRA amendment is the introduction of new laws regarding businesses that advise, deal or offer a depository or custodial service in finacial products. The definition of financial products is quite broad. The obligations under the Act require that if you deal in financial products then you must either have an Australian Financial Services licence or an exemption in respect of the same. The Law Society has sought independent advice in respect of: 1. The Legal Practitioners Fidelity Fund Committee; 2. The Professional Indemnity Insurance scheme; 3. The Law Society Public Purposes Trust; and 4. The Legal Practitioners Trust Committee. We have been advised that all of the above fall under the definition of financial services and we are seeking exemptions. We have also been advised that we may not get an exeption for the Pll Scheme. If that is the case, the Law Society will need to apply for a licence. Barbara Bradshaw, the Secretariat and the LSNT Executive are currently working on this. It has placed an enormous burden on the Secretariat, especially Barbara, as the applications are by no means simple - they require a considerable amount of precise information. Professional Indemnity Insurance The Law Society has continued discussions with its brokers, Marsh. The Pll committee met with Cheryl Richardson of Marsh on the 16 October 2003. Marsh is continuing to go to the general market in Australia, and possibly in London, to look for the best possible deal for our Pll. I will keep you updated on this matter. It has been suggested by Marsh that we alter our insurance year to end in June rather than December. This complicates matters a little, because it means we will have to either secure 18 months insurance from this December, or two blocks of 9 months, or 6 months and then 12 months. We are currently considering a number of avenues regarding Pll, however the Council is keen to secure insurance on the best possible terms for all our members and that includes taking into consideration such things as the wording of the policy, the level of insurance and, of course, the premium. Australian Taxation Office Another issue the Law Society has dealt with is the Australia Taxation Office’s (ATO) request for information about members. As Barbara Bradshaw advised in The Practitioner; the LSNT sought advice from Senior Counsel as to whether the Law Society must provide the ATO with the information requested, which includes: 1. Full name: surname, first name, middle initial; 2. Date of Birth; 3. Residential address; 4. Firm or employer name; 5. Firm or employer address; and 6. Whether engaged in legal practice as a Barrister, Partner, Employee, Sole Practitioner or Director of a Company practicing law. Our brief to Senior Counsel was whether or not: (a) The information request fell within the scope of information which may be requested under at least one of the authorising provisions of the Legal Practitioners Act, (b) Whether the request from the ATO is made for a purpose within at least Merran Short, President one ofthe authorising provisions of the LPA; and (c) If yes to both of the above, does the Law Society Northern Territory have any lawful excuse not to provide the information. The concluding opinion of Senior Counsel was that the Law Society Northern Territory has no basis or grounds not to comply with the notice and is obliged to do so, insofar as it has the necessary information. Senior Counsel also advised the LSNT that it was appropriate to inform our members of the fact of the notice and that we will be providing the requested information. This has now been done. The ATO has indicated it is satisfied with the information provided. For further information regarding the ATO’s request please contact Barbara Bradshaw at the Secretariat. Priestley 12 Another matter which the LSNT has been working hard on duringthis month is the introduction of the Priestley 12 pre-admission course at the Charles Darwin University (formerly the Northern Territory University). Barbara Bradshaw will provide more information through The Practitioner, however this change essentially means that from January 2004 anyone seeking admission in the Northern Territory will have to complete a preadmission course or equivalent to be continued page 6 i Page 3 — October 2003 Isnt council news Strategic Planning Meeting On Saturday 18 October, the new LSNT Council held a Strategic Planning meeting to establish its direction for the next 12 months. As part of the meeting, committees were set up to consider key issues over the coming year. Each committee has been requested to meet and come up with a plan of action before the November 2003 Council meeting.

  • Professional Indemnity

Insurance Chairperson: Merran Short Members: Michael Grove, Markus Spazzapan and Barbara Bradshaw. Aim: to consider and recommend Pll proposals for 2004 and examine other issues such as wording of Master Policy, national terms and conditions suggested by the Law Council of Australia, proposed legislative provisions and other relevant issues.

  • Admissions and Charles

Darwin University Chairperson: Duncan Maclean Members: Danielle Howard, Christopher Booth, Matthew Storey and Barbara Bradshaw. Aim: to implement a pre-admission (Preistley 12) training regime in the NT and consider other issues that may arise. Liaise with CDU and the Law Faculty on issues relating to the Law School including the Centre for South East Asian Law.

  • Financial Services Reform Act

Chairperson: Barbara Bradshaw Members: Markus Spazzapan, Michael Grove, Duncan Maclean and Merran Short. Aim: to consider FSRA implications of the activities of the Law Society and related bodies; and its members, with a view to ensuring compliance.

  • Tort Law Reform

Ch,hiperson: Michael Grove Members: Merran Short, Jenny Hardy, Tony Young, Tony Whitelum and Zoe Page 4 — October 2003 Malone. Aim: to monitor and respond to developments relating to Tort Law Reform, particularly in the area of medical indemnity. Consider the implementation of legislation already passed. Develop an effective public relations strategy.

  • Complaints Procedures

Chairperson: Merran Short Members: Duncan Maclean, Tony Young, Danielle Howard, Barbara Bradshaw and Josephine Stone. Aim: to consider amendments relating to By-Laws and their implementation and other issues as they arise.

  • Information Brochures for

Law Society Chairperson: Margaret Orwin Members: Judith Dikstein, Glen Dooley, Melanie Little SM (ex-officio), Barbara Bradshaw and Julie Davis. Aim: to finalise a draft brochure on Starting Up on your Own in Legal Practice and consider other publications as required.

  • Continuing Legal Education

Chairperson: Matthew Storey Members: Danielle Howard, Jo Tomlinson, Jenny Hardy, Christopher Booth, Barbara Bradshaw, Zoe Malone and Sonya Ingham. Aim: to develop an effective CLE programme for 2004. Analyse the effectiveness of the 2003 programme, including delivery to Alice Springs and Katherine. Consider the implications of possible mandatory CLE attendance in the future. Consider the development of new technology to facilitate the delivery of programmes.

  • Legal Aid Funding/Pro Bono

Chairperson: Jenny Hardy Members: Matthew Storey, Glen Dooley, Margaret Orwin, Tony Whitelum and Barbara Bradshaw. Aim: to consider problems caused by current reductions to Legal Aid funding and make appropriate submissions to Government. To consider other issues relating to Legal Aid funding, specifically issues relating to legal aid fundingfor Aboriginal legal services and pro bono legal work.

  • Alternative Income Sources/

Investment of Funds Chairperson: Michael Grove Members: Duncan Maclean, Merran Short, Glen Dooley, Barbara Bradshaw and Julie Davis. Aim: to consider possible alternative income sources including the establishment of procedure management systems and letting of mediation rooms in new LSNT premises. To consider the effective and prudential investment of LSNT funds in line with the Constitution and FSRA requirements.

  • New Premises

Chairperson: Merran Short Members: Barbara Bradshaw, Markus Spazzapan, Duncan Maclean and Julie Davis. Aim: to consider and implement options for new premises for the LSNT.

  • Costs

Chairperson: Markus Spazzapan Members: Danielle Howard, Michael Grove, Tony Whitelum and Barbara Bradshaw. Aim: to develop revised costs submission to go to the Chief Justice and generally consider other costs issues. Further details are to be provided on the Young Lawyers Committee. The national model laws for the legal profession are to be considered by Council as a whole. New legislative initiatives are to be looked at by individual members or ad hoc committees as the need arises. Any queries can be directed to the committee chairperson or the LSNT Secretariat.® for the record Incorporated Legal Practices and MultiDisciplinary Partnerships Josephine Stone (Complaints Investigations Officer) and I recently attended the Regulatory Officers Conference in Melbourne One of the most interesting presentations was by Charles Cawley (NSW Law Society) and Stephen Mark (NSW Legal Services Commissioner) about their experiences with Incorpated Legal Practices Partnerships (MDPs). This legislation was introduced in New South Wales a couple of years ago. The Northern Territorys Legal Practitioners Amendment (Incorporated Legal Practices and Multi Disciplinary Partnerships) Act has not yet commenced but will hopefully be in place by 1 January 2004. To some extent, the NT legislation is modeled on the NSW provisions. In NSW, MDPs appear not to be particularly popular as it is used as a device to incorporate interstate partners into a firm. However, 270 ILPs have been set up to date and around 50 further applications are pending. Most of the practices setting up as ILPs have been smaller ones, though it is understood that bigger practices are also becoming interested. There has been talk of some banks and credit unions setting up as an ILP with a lawyer director to offer legal services in some areas. So far this is yet to come to fruition. There are a number of advantages seen in establishing ILPs. As I am (thankfully) not an accountant, I cannot comment on the financial or other advantages of these approaches and neither the Law Society nor myself is purporting to provide financial advice, however reasons for setting up an ILP include:

  • Staff can become shareholders;

(ILPs) and Multi-Disciplinary

  • It is easier to disengage equity

partners;

  • Tax issues including income

splitting and paying salaries;

  • Ability to use corporate veil;
  • Some see it as good for

business; and

  • Some practices have set up as

partnerships consisting of a number of ILPs. Currently, the Legal Practitioners (Incorporation) Act allows for a form of incorporated practice. These should be relatively easy to transfer to the new legislation, when it commences. NSW has identified some issues and concerns in the development of ILPs in particular. One is the ability of ILPs to adopt the management practices required under the new legislation - failure to do so could constitute professional misconduct by the solicitor director. NSW is working on this issue and has prepared a schedule of areas to be addressed so that the requirements of the legislation are satisfied and, hopefully, complaints are generally reduced. Very strict compliance obligations are placed on lawyer directors - there needs to be education regarding professional responsibilities. Other issues include problems in Barbara Bradshaw, Chief Executive Officer; LSNT lifting the corporate veil and finding out who shareholders are. There are also concerns that a stooge solicitor director could be appointed and then if something goes wrong a new entity is created with another stooge director. Another issue is the impact on Professional Indemnity Insurance. If a claim is made in respect to the ILP or MDP’s other activities. What will happen in the case of a borderline activity? Will it increase exposure for Pll insurers and what action will they take? These are just some of the issues that the Law Society will be following. The NT Government is currently developing regulations. Balance is looking at getting a local accountant to write an article on some of the tax implications of the legislation. It would be desirable for the NT legislation to commence as soon as possible. It would appear that in spite of the issues raised and problems identified in NSW that the ILP structure is becoming increasing popular with the legal profession.® Page 5 — October 2003 l nt women lawyers association NTWUtfs new President reporting in As the newly elected President of the NTWLA, I am pleased to announce that the Annual General Meeting was held on 4 September 2003 and the following people were elected, unopposed, to the Executive Committee: Secretary - Jodi Mather (DoJ Courts); Treasurer - Frieda Evans (DoJ Courts); Committee - Sharon Krause (Cridlands), Shirley (both of Ward Keller). The new committee is full of enthusiasm and new ideas. There are several more events being added into the usual diary. This committee is also planning on ways to increase membership and the involvement of the women lawyers in the Territory, particularly in Alice Springs and Katherine. Since starting as President, I have met with NTWLA Patron Judge Sally Thomas, Chief Justice Brian Martin and Chief Magistrate Hugh Bradley. As the NTWLA representative to the Australian Women Lawyers Board (AWL), I travelled to Sydney in September to attend the the first of four face-to-face meetings being held over the next year. The AWL’s objectives are mainly policy driven. Recently, AWL has been involved in the promotion of paid maternity leave within the legal profession, the adoption oftransparent Rowe (Telstra); members - Heat\ judicial appointments protocols by each of the Federal and State Attorneys-General, and the development of a Model Briefing Policy with the Victorian Women Barristers Association. The central objective of the Model Briefing Policy is to promote nondiscriminatory briefing practices. Chief Justice Black is supportive of the policy and has agreed to collect statistics on the gender of counsel appearing in the Federal Court jurisdiction. Also of concern to AWL is the proposed increase in HECS fees for law students and the effect it will have when the law graduates are admitted as practitioners. The Federal Government appears to be justifying its argument to increase these fees on the basis that all law students will have the capacity to repay the debt incurred for HECS fees. Women in the law rarely achieve the same earning capacity as their ■ Ross and Artemis Kaltourimidis male counterparts. In New South Wales during 2002,37% of the practising profession holding current practising certificates were women and, ofthis group, only 7% were partners. In the 1998/99 period, nationally, only 29% of the practising profession holding current practising certificates were women and, of this group, only 7% were working proprietors and working partners of unincorporated businesses1. I will be collecting statistics on women in the law in the Territory for AWL and endeavour to report them in Balance. Gabrielle Martin - President (Endnotes) 1 “After Ada - a new precedent for women in law" 29 October 2002. Paper of the Law Society of New South Wales adopted by the NSW Law Society Council on 19 September 2002. ® President's column: LSNT priorities list com eligble for admission to the Supreme Court of the Northern Territory. A transition period means that this will not apply to people who started articles prior to January 2004. Events The previous two months have also been a busy time for more soical events. On 8 September 2003, the Attorney General officially opened the Domestic Violence Legal Service forthe Northern Territory Legal Aid Commission. The new LSNT Council has met four times since it was voted in at the Annual General Meeting on 3 September 2003. The large number of pressing issues that the Council is currently dealing with has required a greater number of meetings. On 19 and 20 September 2003, Barbara Bradshaw, Duncan Maclean Page 6 — October 2003 and myself attended Law Council meetings in Canberra - the Law Society’s meeting on Friday and the Law Council meeting on Satruday. At the Law Council meeting Stephen Southwood QC was elected unopposed to the position of President Elect, so next year the Northern Territory will have its first President of the Law Council of Australia. I congratulate Steve on his achievements. He is very well regarded within the Law Council for his hard work and dedication. On 26 September 2003, I attended farewell drinks for Chief Justice Nicholson, who is retiring from the Federal Court. On Monday 13 October 2003 the Attorney General hosted farewell drinks on his balcony for Chief Justice Brian Martin. Chief Justice Martin was presented with a painting by Carl Van Nieuwmans. Apparently the painting has been hanging in the Alice Springs Court Residence for some time and the Chief Justice has admired it on many occasions. On 14 October 2003 South Australian Supreme Court Judge, Brian Ross Martin, was announced as the incoming Northern Territory Chief Justice. The Law Society welcomed the appointment of Justice Martin who is extremely well-regarded within the South Australian legal profession. As you can see it has been a very busy month. I have had an opportunity to speak to some members regarding current issues and concerns. I would also like to extend an invitation to all members who have issues they wish to raise - please contact me through the Secretariat or via telephone or email at the office.® nt bar association ■ jottings on the bar Bar Council elections There are some new faces on the Bar Council following the annual general meeting of the Northern Territory Bar Association (NTBA) held in September 2003. Geoff Clift is the new Secretary/Treasurer replacing Ben O’Loughlin. Steve Southwood QC has resigned from the position of Vice President and that position will be filled at the first meeting of the Bar Council to be held in the near future. Michael Grant has not sought re-election to the Bar Council and he has been replaced as the NTBA representative on the Law Society council by Tony Young. I would like to express my thanks to those retiring members for the time and effort they have devoted to the NTBA. We do not employ staff so the load falls upon those members who volunteer their services. Without them, the NTBA could not operate as effectively as it does. For the record, the new Bar Council comprises: President: John Reeves QC Secretary/Treasurer: Geoff Clift Council members: Jon Tippett QC - Myilly Point Chambers Peter Barr - William Forster Chambers David Alderman - William Forster Chambers Raelene Webb - William Forster Chambers Martin Carter - Edmund Barton Chambers Pat McIntyre - John Toohey Chambers Jack Karczewski QC - DPP - special members representative. Tom Pauling QC elected a life member of the NTBA In recognition of his contribution to the formation and development of an independent Bar in the Northern Territory, Tom Pauling QC was appointed a life member of the NTBA at the recent annual general meeting. Tom Pauling firstjoined the Bar in the Northern Territory a little over 30 years ago, in September 1974. At the time, there were only two other members of the independent Bar: Michael Maurice and Ian Barker. In the late 70s Tom served as an NT Magistrate, returning to the Bar in 1979. When the NTBA was formed at a meeting held in Darwin on 27 June 1980, Tom Pauling was one of the nine barristers present. At that meeting he was elected the first Secretary of the fledgling Bar Association. About 18 months later he became the second President of the NTBA, succeeding Michael Maurice. Tom Pauling then served as President for about five and a half years, thereby becoming the NTBA’s longest serving President. In the meantime, he was appointed a Queen’s Counsel on 22 November 1984. He became the Northern Territory’s third Solicitor General on 1 February 19881. Without the significant contribution of people like Tom Pauling QC, the independent Bar and the NTBA would not be the vibrant and effective bodies they are today. John Reeves QC, President of the NT Bar Association Congratulations to Steve Southwood QC The Bar congratulates our erstwhile Vice President, Steve Southwood QC, upon his election as President Elect of the Law Council of Australia. His election means that in September 2004, when Bob Gotterson QC completes his term, Steve will become the President of the LCA. This is a great achievement for both Steve Southwood and the Northern Territory legal profession. It is a demonstration that even though we are one of the smallest parts of the Australian legal profession, we can still make a significant contribution to the profession at the national level. (Endnotes) 1 See Mildren J “A short history of the Bar in the NT” {2001} 21 ABR 81.® Why not use the Law Society’s boardroom for your next meeting? Hire rate: $264 for a full day $137.50 for a half day (4 hours) + $27.50 for every hour thereafter (oil prices include GST) ■\ y Page 7 — October 2003 i advocacy Objectionable questions In determining whether an objection is to be taken to a question, it is necessary for counsel to clearly understand what may be the subject of legitimate objection and what may not. As has been observed in earlier articles, the making of unnecessary objections is likely to have a negative impact upon a jury and possibly upon a judge or magistrate. Objections that are readily overruled may be seen as having been unnecessary in the first place. There are many bases for objecting to questions asked or evidence sought to be led. Objections commonly taken include that counsel is asking a leading question in examination in chief, that a question is directed to irrelevant matters, and that a question invites a hearsay answer or the expression of an opinion where relevant expertise has not been established. These are familiar examples. There are some areas in which objection may legitimately be taken to questions asked in cross-examination which are less frequently recognised. One such area is where counsel is cross-examining as to collateral matters, for example the credit of the particular witness, rather than in relation to the issues in the case. Where there is cross-examination directed solely to the credit ofthe witness or to some other collateral matter, and not directed to eliciting evidence relevant to the issues in the case, the crossexaminer is bound by the answers ofthe witness. The answer is to be treated as final and “the cross-examiner must take them for better or worse and cannot contradict them by other evidence/’1 It may be necessary for opposing counsel to put an end to a line of questioningthat proceeds too far down such a track. Similarly, if any question is putto a witness in cross-examination that relates to a matter not relevant to the proceeding except insofar as it affects the credit of the witness by injuring his character, then the court is to decide whetherthe witness shall be compelled to answer2. The court may, if it thinks fit, inform the witness that he or she is not obliged to answer the question. The considerations to which the court shall have regard in determining whether such a question shall be answered are set out in s 15 of the Evidence Act (NT). The court must have Page 8 — October 2003 regard to whetherthe question may elicit an answer which would seriously affect the opinion of the court as to the credibility of the witness on the matter in relation to which he or she testifies. The question will be disallowed if the imputation which it conveys relates to matters so remote in time or of such a characterthatthe truth ofthe imputation would not affect, or would affect only in a slight degree, the opinion ofthe court as to the credibility ofthe witness on the matterto which he or she testifies. The question may also be disallowed if there is a “great disproportion” between the importance of the imputation made against the character ofthe witness and the importance ofthe evidence. There is anotherform of question that is not only objectionable but also contains what WAN Wells3 calls “hidden dangers”. It is the question which starts: “You know, do you not, that...?” followed by an assertion of fact. As the learned author points out, the flaw in the question is that the witness may have gained his knowledge in all sorts of ways that are sufficient to satisfy him but, when analysed, reveal sources that are unacceptable in law. For example, the knowledge of the witness may come from a hearsay source or from a “best guess” on the part of the witness or reflect some other unsatisfactory basis for reaching the conclusion identified. There are dangers for counsel askingthe question and there are dangers for counsel on the other side. The danger for the person asking the question is that, if the incompetence of the witness is subsequently revealed, the evidence loses its impact and cannot be relied upon. On the other hand, if opposing counsel does nottake objection, the evidence will be in and later may be difficult to undermine. A further form of objectionable questioning occurs where the crossexaminer seeks to challenge a witness by reference to the evidence given by another identified witness. Generally speaking it is inappropriate to suggest to witness A that witness X said something quite different and invite the witness to comment. To do so is to invite witness A to give answers influenced by reference to the status of the witness X. The thrust ofthe question is to invite the witness, not to provide evidence of what he or she recollects but, rather, to alter or modify that evidence by reference to the evidence of another. There is no reason why the challenge to the witness should not proceed by putting the alternative scenario to him or her, but this should not occur by reference to the evidence of another identified witness. Of course this will not be the case where the witnesses are both experts and giving expert testimony on the same issue. One form of question likely to require early intervention is that which contains editorial content or puts an unacceptable gloss on evidence that the witness has already given. Such questions are often ofthe kind: “Afteryou had recklessly cut across oncomingtraffic...” or “When you had finished attacking Mr Smith...” where the evidence does not support the description provided by counsel. In many cases the use of the description “victim” in relation to a person the subject of an alleged assault may itself be objectionable especially if issues of consent or who was the aggressor are continued next page law school news New online law course at CDU Charles Darwin University (formerly the Northern Territory University) has officially launched its external, fully interactive online Bachelor of Laws degree. The first of its kind in Australia, this new course format allows for more flexible delivery and recognises the needs of students who live in remote locations or are juggling study around work or family commitments. CDU law lecturer Ken Parish has been the driving force behind the degree becoming interactive. “We know there are a couple of other universities that have external online law Objectionable questions cont... alive. The examples of questions that may be objectionable in form or content are innumerable. Many more examples will be found in the leading texts on evidence. (Endnotes) 1 Cross on Evidence (Butterworths Looseleaf edition at para 17580 eteq.) 2 Evidence Acts 14. 3 WAN Wells: Evidence and Advocacy (Butterworths 1988)® Obituary: On Thursday 9 October, Williamson Mitchell Herd sadly passed away. Bill Herd graduated from the University of Queensland with a B. Com. and LL.B(Hons) in 1975. He was admitted to practise as a Solicitor of the Supreme Court of Queensland in 1976. There followed a period of practice and parttime teaching in law at the University of Queensland and the, then, Queensland Institute of Technology. He took up a fulltime academic appointment in the Faculty of Law at the University of Queensland in 1977. He moved to the University College of the Northern Territory in 1988 with the establishment ofthe School of Law and was admitted to the Supreme Court of the NT. He completed his LL.M(Qld) in 1989. degrees but this is the first really interactive degree in Australia where the students get to experience aspects ofthe course like student and lecturer discussions and debates,” Mr Parish said. “We thoughtthatthere was a real need for a degree that wasn’t just external, where students completed their studies pretty much alone, but a degree that gave the students the experience of live debate, conversation, discussion about the course, where students can ask a question and get an answer straight away from a voice and not just a text response.” The unique aspect of the degree is in the audio technology. Tutorials are scheduled for the external students; they log in to the tutorial on their computers and they can hear the lecturer present the subject in a ‘chatroom’ environment. Students can also follow what the lecturer is talking about on screen and can interject with questions and comments at anytime by signalling the lecturer and other students on their computers. They can also hold a text Bill Herd Most recently, Bill held the position of Senior Lecturer in Law in the Faculty of Law ofthe Northern Territory University. His teaching interests were Equity, Trusts, Succession, Military Law, Legal Process and Legal Research and Writing. Bill was extremely popular with students. He was a brilliant lecturer and had a quick wit. His lectures were both informative and entertaining. In 1992, he won the inaugural Northern Territory University Excellence in Teaching award. Bill was a well-known and valued member of the Northern Territory legal profession. He was an institution in Law at NTU, a Lecturer extraordinaire and a much-loved mentor to many in the Territory legal profession. He will be greatly missed and always remembered. (T Ken Parish showing NT Minister for Education, the Hon Syd Stirling, the features on the new online course. conversation on screen while the lecture is taking place. The course started operating in the middle of this year and has already attracted students from Perth, the Kimberley and other remote parts of Western Australia, the Northern Territory, Sydney, Brisbane, and even a student from Dunedin in New Zealand.® — mentions.com.au lists solicitors who will mention matters and act as agents in courts throughout Australia bal010602


Page 9 — October 2003 1

cover story Changes to murder sentencing During the October sittings of parliament, Attorney-General Dr Peter Toyne introduced the Sentencing (Crime of Murder) and Parole Reform Bill 2003. This bill introduces a series of changes to the Territory's murder sentencing arrangements and reforms the Parole Board. The bill institutes a parole process for inmates currently serving mandatory life sentences for murder and sets a non-parole period of 20 years. The reforms also involve the introduction of a new offence for aggravated murder which would attract a non-parole period of 25 years. Previously, inmates serving life for murder were only eligible for parole under the special circumstances of a mercy release, which was at the discretion ofthe Administrator and the government of the day. The introduction of parole procedures is a welcome step towards judicial independence, but it does not go nearly far enough. Under the proposal there will be some limited flexibility in setting longer or shorter non-parole periods depending on the circumstances ofthe case, however a head sentence of life will still be mandatory. Aggravated murder will include cases where:

  • the victim is a community worker,

public official (i.e. police officer, teacher, health worker, judicial officer, etc) killed while carrying out their duties;

  • the death was accompanied by

sexual assault;

  • the victim was a child;
  • the offender is convicted of more

than one murder; or

  • the offender has a previous

conviction for murder or manslaughter. “By retaining mandatory life and creating a new category for aggravated murders, and allowing the courts to set a higher non-parole or order that an offender never be released, this new regime is significantly tougher,” Dr Toyne said. Page 10 — October 2003 “While retaining mandatory life, the court will now be able to set higher nonparole periods or decline to set a nonparole period, by taking into account community safety and protection, the level of culpability of the offenders and community interest in retribution, deterrence and punishment,” he said. The bill will allow a shorter non-parole period to be set only when there are exceptional circumstances:

  • the offender is otherwise a person

of good character and unlikely to re-offend; and

  • the victim’s conduct, or conduct

and condition, substantially mitigate the conduct of the offender. “While we are toughening up nonparole periods, the court will be able to make a lower non-parole period in extremely limited cases like battered wife or mercy killing cases,” Dr Toyne said. One point that seems to be too often overlooked in debates about sentencing is that eligibility for parole does not equate to automatic release. However, the Attorney-General did address this point when presenting the bill: “Eligibility for parole is of course no guarantee of release. However, there is an unfortunate tendency for the media when reporting on the sentence of a crime to focus on the non-parole period as being the actual sentence handed down by the court and which will be served by the prisoner.” It is widely believed that getting released on parole by the government’s new-look Parole Board could be a difficult task. According to a government media release: “Under the new framework, the Parole Board will now be required to consider community safety and the public interest, as well as the likely effect on the victim’s family when considering parole applications from convicted murderers”. To order release on parole, the ten person Board would need to make a unanimous decision (with a quorum of eight board members). “The new process is deliberately rigorous as the Parole Board must reach an unanimous decision when considering parole applications from prisoners convicted of murder, and with the current record of less than 50% of parole applications being successful, the process will certainly be tough,” Dr Toyne said. “The overhaul ofthe Parole Board also includes significant changes to the Board’s membership,” Dr Toyne said. The Parole Board members will include:

  • the Chief Justice or another Judge

of the Supreme Court nominated by the Chief Justice;

  • the Director of Correctional

Services; and

  • a member of the police force

nominated by the Commissioner of Police. The remaining seven members will be appointed by the Administrator for a three-year term and will include a medical practitioner or a psychologist, a representative of victims of crime and five people who reflect the composition ofthe community at large including women and Aboriginals and Torres Strait Islanders. Editor's note: As this edition was going to print, the Sentencing (Crime of Murder) and Parole Reform Bill 2003 was passed through parliament. The next edition ofBalance will include an article looking at the changes and implications ofthese reforms Territory Revenue Management has released a TAXPAYER'S CHARTER The document outlines the service levels Territory Revenue Management will provide, as well as taxpayer's obligations. For a copy of the charter visit www.revenue.nt.gov.au Northern Territory Government Northern Territory Treasury chief justice's farewell Chief Justice Brian Martin retires The legal profession was out in force to mark the retirement of Chief Justice Martin During October, the Northern Territory Supreme Court held ceremonial sittings to mark the retirement of Chief Justice Brian Martin MBE AO (in Alice Springs on Wednesday 29 October and in Darwin on Friday 31 October). Both sittings were well attended by the local legal profession and many familiar faces took the opportunity to reflect on Chief Justice Martin’s time at the helm. Dr Peter Toyne (AttorneyGeneral), John Reeves QC (President of the NT Bar Association), Merran Short (President ofthe LSNT), Rex Wild QC (Director of Public Prosecutions), Tom Pauling QC (Solicitor-General), Ian Barker QC, Tony Whitelum (LSNT), Dr Nanette Rogers (DPP), David Bamber (Central Australian Aboriginal Legal Aid Service) and Russell Goldflam (NT Legal Aid Commission) all spoke at the ceremonies. The Chief Justice also had a few words to say. Here are some excerpts from his speech in Alice Springs: “These occasions are quite remarkable for a number of reasons, not the least being the apparent furious agreement between a number of senior counsel at the Bar table in open court. It’s a rare spectacle indeed. I anticipated it would be likely that you’d be kindly in your remarks, after all it’s the traditional thing to bring to bear the good on an ocassion such as this, bit like a eulogy really, but you get to hear it.” “Now although this function has directed special attention to my time on the Bench and imminent departure as Chief Justice, this is a sitting ofthe Supreme Court, and by your attendance you honour it, and importantly to me, you affirm its good standing. “I guess you’d not be here if you didn’t respect the court, and that makes me feel good. During my term as Chief Justice I’ve striven to testify that the court maintains the reputation in the community as the institution on which it can rely to administer justice accordingto law. “That it’s not open to criticism based upon perception that it lacks independence, or that any of its member are paritsan, in any respect, and that they act fairly in the discharge of theirjudicial duties. These ends are continued next page new chief justice Incoming Chief Justice Brian Martin On 14 October 2003, AttorneyGeneral Dr Peter Toyne announced that South Australian Supreme Court Judge Brian Martin will be the Territory’s next Chief Justice. The Law Society welcomed the appointment of Justice Brian Ross Martin, who has been a South Australian Supreme Court Judge since 1999 and recently presided over the infamous Snowtown ‘bodies in the barrels’ case. “Justice Martin is highly regarded and very well-respected throughout the legal profession,” LSNT President Merran Short said. “Justice Martin is an excellent appointee and will bring a wealth of legal experience to the position,” Ms Short said. “We look forward to working with Justice Martin and believe that he will continue the tradition of strong leadership in the Northern Territory courts.” Justice Martin’s long and established legal career includes a number of highlights. In January 1974, after four years in private practice, he took up a position as an Assistant Crown Prosecutor in the Crown Prosecutions Section of the Adelaide Crown Law Office. He was appointed Deputy Crown Prosecutor in August 1979 and became Crown Prosecutor for the State of South Australia on 23 December 1982. On 4 October 1984 he was appointed a Queen’s Counsel. During his time as a Crown Prosecutor Justice Martin appeared in many complex criminal trials and his latter years involved an extensive appellate practice in the Court of Criminal Appeal and High Court. Trials of some notoriety included the prosecutions of Emily Perry and Bevan von Einem. In May 1985 Justice Martin resigned and commenced private practice as a barrister. He practised in all jurisdictions until accepting a position as Senior Counsel assisting the West Australian Royal Commission into Commercial Activities of Government and Other Matters. The Commission occupied his time for almost two years during 1991 and 1992. Following the completion ofthe Royal Commission he resumed his practice as a barrister appearing in both criminal and civil jurisdictions in Adelaide and Perth. His retainers in Perth included the prosecution of Alan Bond. In 1994 Justice Martin reviewed the operation of the South Australian Equal Opportunity Act 1984 at the request of the Attorney-General for South Australia. He delivered a report in October 1994. In March 1997 Justice Martin was appointed to the position of Commonwealth Director of Public Prosecutions. He resigned in February 1999 upon his appointment as a Judge of the Supreme Court of South Australia. “His breadth of experience and calibre will be a welcome addition to the Territory’s bench,” Dr Toyne said. “Justice Brian Martin has an outstanding reputation both as a barrister and for his leadership skills,” he said. Justice Martin will commence his appointment in January 2004. Justice David Angel will sit as Acting Chief Justice for the interim period since Chief Justice Brian Frank Martin MBE AO retired from his ten-year tenure at the end of October.® Chief Justice Brian Martin retires cont... only met through strict adherence to principle. It’s been my privilige, for the time being, to be entrusted with the office of Chief Justice, and I trust I leave it in good stead.” Chief Justice Martin also touched on the perception that judges and magistrates are aloof and removed from the community. “Judicial officers, as you know, do not, as expected by many, live in ivory towers remote from the community. “We all live in the real world, we all partake in the same types of activites which you do, but the proper discharge of ourjudicial functions means that we may not engage in the community in a way in which we might wish or might even enjoy or as some members ofthe community might expect. “Maintaining the reputation of impartiality requires judicial officers refraining from public debate on issues, unless sorely pressed, as sometimes occurs. In so doing, the judge is not being aloof or unsympathetic, but simply properly detached. That is not to say that judges are not entirely isolated from the wider world, because many are very actively involved in a variety of community based activities, often as leaders in those organisations.” The Chief Justice also touched on the issue of media criticism ofthe court. "... the criticism can be put up with a long time, sometimes, with some justification. The court’s prepared to put up with that, and look at their ways and means to see if they can’t resolve it and do better. But you get to a stage where they really are quite outrageous, based on no foundation of fact. “It’s suggested that those who participate in talk back radio are those who govern the general public opinion throughout the Territory, and that their views are those which ought to influence the court. Well what’s often overlooked, is the sub-editorial headline in the five second grab, is that the court has a duty to do and it must do it regardless of those sorts of pressures and criticism, many of which, as I say, are quite unfair. ’’The courts have to apply the law, as it is, to the facts as they’ve been found upon the issues which have been joined between the parties and the evidence that they produce. The continued page 14 Page 13 — October 2003 chief justice's farewell Chief Justice Martin retires courts don’t make the case, the parties do. They define the issues. They define who’s going to be called to give evidence, and present the matter for the judge to decide. “Of course, we must realise that in practically every case, there are going to be winners and losers, and that it is quite often those whose case does not find favour that make the most ruckus. If the judge is wrong, it can be easily remedied within the established judicial system. “We’re open to fair criticism from any quarter, and after all, usually diametricially opposed arguments are advanced on behalf of parties and the trial judge must make up his or her mind as to which of them is to be preferred and to give judgment accordingly, and the appellant courts are there to correct errors where they occur. “There’s something the parliament feels that in the way the court has interpreted statues, it wasn’t what the parliament intended, then the parliament has it in its hands to fix it. The combative nature of political debate in the Territory, and I must state elsewhere, seems to engender an atmosphere in which like means are employed in order to criticise the judiciary.” Chief Justice Martin also touched on the current problems faced by the local Indigenous population. “The most serious criminal cases in this court involve accusations against Aboriginal people, normally relating to crimes of violence committed whilst alleged offender and more often the victim and those in the vicinity are plainly drunk. It’s a fact of life. “It’s well documented in courts the distinction recognised by many who are concernred about these things. The public purse and this court will continue to have much of its resources devoted to dealing with cases of that nature until the root cause of the offending is overcome. I do not profess to have the answers to all that, but what I know is that the court sees the result, and it’s ill equipped to deal with the cause. “Punishment, even punishment by imprisonment for many years, plainly does not act as a deterrrent to many other Aboriginal people. It goes on and on and on. What is undoubtedly a personal tragedy often involving death and serious injuries, one must (sic) become mundane. Chief Justice Martin also brought up his displeasure with attempts by the Commonwealth, State and Territory governments to apply commerical management techniques to the administration of justice. “Performance indicators are the in thing and an annual report is produced under the auspices of the Commonwealth Productivity Commission, purporting to show how each superior court compares with the others, for example, in time taken to finalise cases. “Who knows what the cost to the public is of compiling, producingand comparing the statistics which in the result, are frankly quite meaningless. Court structures, even at the same level, vary signficiantly. The range of jurisdiction of any court can be quite different from another. “The figures for this court appear to show that we’re a bit slack in regard to the percentage of civil cases finalised in a given period, but my investiations showed that a significant category of cases dealt with were simply not included in the count. They comprise appeals from lower courts and tribunals. They’re numerous, they’re very time consuming but are normally dealt with fairly promptly. “Whether the same position applies in other jurisdictions, I don’t know, but what I do know is that the statistics published for this court are incomplete and misleading. In any event, counting numbers is not a true reflection of the administration of justice. Quality is the primary yardstick, not quanitity.” Chief Justice Martin also paid tribute to the magistry. “For many years the Territory has been well served by the magistry, both in major communities and in bush courts, deal with the vast majority of cases coming before the judicial arm of government. “Theirs is no easy job, bearing in mind not only the quantity of work with which they must deal, but also the range of it. The Supreme Court must, from time to time, deal with appeals from decisions of magistrates in exercising their various jurisdictions, does not reflect badly upon them in any way, notwithstanding that their decisions may be overturned every now and again. “It must be remembered that the vast majority of decision made in that court are not subjected to review, and those that do are not all found to have erred in some respect. I wish to publicly thank them, that is, all the magistrates for their services to the territory. They work long and hard hours, not just in the comfy, cosy places like Darwin and Alice Springs, but in many remote places in the Territory, which no doubt involves considerable hardship.”® Page 14 — October 2003 Movers and shakers Margaret Orwin has recently moved from Janet Terry to work forthe Legal Aid Commission. Marko Cvjeticanin has left Ward Kellar to practice as a barrister at William Forster Chambers. Mark Johnston has left of the Office of the Director of Public Prosecutions to practice as a barrister at Edmund Barton Chambers. Ian Rowbottam has left Edmund Barton Chamber to join Withnall Maley. Illness of the Catfish LSNT Immediate Past President Ian Morris has recently had an unfortunate bout of illness which will see him lying low for some months. Ian has been heard to quip that the illness came on because he had to spend two years being nice to people while he was President. Although others have been heard to suggest that he may have made himself sick worrying about what to do with all his spare time now that he has passed on the Presidency. Alisdair Shields celebrating a decade at DOJ Alisdair Shields recently celebrated ten years in the Commercial section ofthe Department of Justice (DOJ). His DOJ colleagues helped him celebrate with a “Come as Alasdair” theme. Needless to say there were many interesting shirts that made an appearance. At a recent LSNT Council meeting one quick wit suggested that the parliamentary debate on gay law reform, The Muster Room which went late into the night, may have been a mass debate. A little slice of gold At the Alice Springs Judgment Day workshop on sentencing, one community member came to this relevalation all on their own: “So when the Government criticises the magistrates for sentencing, they are really just criticising the sentencing regulations that they set”.® Parliamentary debate J.W. Munday and Associates (Australasia) Forensic Fir© and Explosion investigation PO Box 251 Avoca Beach NSW 2251 Tel/fax: (02) 4365 0556 We offer a full range of forensic science services in the investigation of fires and explosions including ■ direct incident investigation (origin & cause, liability, recovery etc.) ■ laboratory analysis and interpretation of results ■ assessment and commentary on previous investigation findings ■ expert testimony and advice to counsel (criminal and civil litigation) We have particular expertise in ■ incidents involving fatalities ■ interpretation of thermal injury distribution ■ gas and vapour explosions ■ electrical systems and causes of fire ■ interpretation of documentary and photographic evidence ■ laboratory testing of fire-related evidence Jim Munday has specialised in fire and explosion investigation since 1979, with Scotland Yard's forensic laboratory and in private practice in the UK & Australia. He has investigated more than 1700 fire and explosion incident scenes, including over 300 fatalities, and carried out laboratory testing on materials from many others. He has given expert evidence in many courts. Trained as a forensic chemist, Jim is also a qualified fire engineer and one of the few holders of the prestigious Diploma in Fire Investigation awarded by the UK Forensic Science Society. He has made a special study ofthe way in which distribution of skin burns and other thermal injuries relates to the location, position and activities of the person involved. Our Senior International Associates include Dr John DeHaan (USA) and Mr Michael Gardiner (UK). For more details, visit our website www.fireforensics.com.au or e-mail info@fireforensics.com.au Page 15 — October 2003 darwin communi Human Rights Art Award and Exhibition 2003 Darwin Community Legal Service Inc. (DCLS) is once again hosting the Human Rights Art Award and Exhibition to celebrate International Human Rights Day on 10 December. Bernadine Denigan, and the voluntary participation of judges and guest speakers for opening night. There are usually twojudges appointed each year and at least one of the judges is an acclaimed local artist. The theme for this year’s exhibition is fresh water, in line with the United Nations Year of Fresh Water. United Nations International Year of Fresh Water And we need to free women and girls from the daily burden of walking great distances in search of water - time and effort that could be better spent on education and building better lives for themselves, their families and their communities. - Kofi A. Annan 2003 Artists from across the Northern Territory, from preschool to professional, are invited to enter work in this exciting and challenging exhibition. Work may be in any medium and may either address the theme of fresh water or a human rights issue of interest to the artist. Artists may submit individual work or may like to work collaboratively with other artists or community members. The exciting part of this exhibition is that it gives everyone the opportunity to have a say on human rights issues. The work may be celebratory and focus on improvements in access to human rights or draw attention to areas of human rights that need urgent attention. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits. (Article 27:1, the United Nations Universal Declaration ofHuman Rights, 1948) The exhibition will be held in the Northern Territory Supreme Court foyer in Darwin. The exhibition wil open on 10 December and run until 19 December. A number of prizes, worth over $1500, will be awarded at the opening night function, which is being held from 5.30-7.30pm on Wednesday 10 December. DCLS has hosted the exhibition since its inception in 1995 in the International Year of Tolerance. The exhibition was conceived as a key awareness-raising campaign in a week-long program of events commemorating Human Rights Week culminating with International Human Rights Day on December 10. This initial exhibition was called ‘Rights On Show - Human Rights in the Territory’ and was shown at Casuarina Library. While the visual arts were seen as a potent imaginative medium in which NT artists could imagine the plight of others less fortunate, the exhibition also reinforced the notion that the issue of human rights is very much a local, every day concern. “It can seem an abstract concept, yet our human rights are practical realities of our everyday lives. They include the right to be treated fairly, without discrimination, and the right to fair treatment by government, police and the judicial system." (DCLS Exhibition flyer, 1995) Over the years, DCLS has been ably supported by a number of public and private bodies in hostingthese awards. In-kind support together with cash and gift prizes for different award categories each year almost entirely come from Darwin’s legal, arts and business communities. DCLS is very grateful to all sponsors - both major and minor - of ‘Rights On Show' for championing the promotion of human rights and artistic expression. ‘Rights on Show' has also greatly benefited from the work of many volunteers over the years, including the exhibition’s first (voluntary) curator, After modest beginnings at Casuarina Library, ‘Rights On Show' moved to the Darwin Enterntainment Centre Gallery for a few years, then to Parliament House’s Great Hall and finally to its current location in the Supreme Court foyer. The exhibition has consistently attracted entrants representing a wide cross-section of NT communities; from schoolchildren of all ages to professional and non-professional adult/elderly artists including inmates ofthe Territory’s correctional centres. School-based art teachers are encouraged to integrate preparation for the exhibition into their curricula and DCLS offers relevant lesson-based material for this purpose. While the theme for each year’s exhibition coincides with the UN’s international theme for the corresponding year, the artworks generally explore a diverse array of human rights concerns and often reflect topical, controversial issues in the lead-up to the exhibition’s opening. These openings have also been an occasion for celebrating other artistic media (poetry readings, performance art, live music), building on an ethos of art as a vehicle for social justice and change. Entries closed on Friday 28 November. For more information about this exhibition please contact Pip Hodge on 8982-1121 or via email at Pip Hodge@fcl.fl.asn.au.(T) i Page 16 — October 2003 cyberlex with jason schoolmeester True portability USB memory drive, USB memory key, flash memory, I don’t care what you call it. The fact is everyone should have one of these little devices, and if you don't you soon will. I will use the term memory key because it best describes the device: unlocks and frees users from the constraints of traditional media, aka the floppy disk. For anyone who has ever used a laptop the frustration with getting your advice, research, presentation or other files off the laptop usually comes at the worst possible time. Do you find yourself constantly saying “I will email it when I get back to the office” or requesting the files to be burned onto a CD (opps you have no blank CDs). The memory key is now both an affordable and real solution. In simple terms the memory key is a storage device that plugs into any computer with a USB (universal serial bus) port (unless you computer is really old, you are bound to have one as USB ports are now standard). Once you plug it in, the computer treats it the same way as other disk drives, and you can simply copy files to and from it like any other disk. The memory key does not require external power, it does not require drivers (see below) and is as easy to use as plugging it in. The memory key is essentially a memory card, you may have come across similar devices used in digital cameras. You can buy a memory key in different sizes with 128MB and 256MB being the most common, but larger sizes are available (over 1GB). For a 128MB or 256MB, the prices range between $100 and $250 depending on brand. As with everything in technology memory keys are becoming more and more sophisticated, they can now be used to play MP3 music files, run applications, and there are keys that are waterproof and others that allow you to swap files without even using a computer. However, the one thing that they do and do extremely well is store data that would require a brief case of floppy disks, while being portable and compatible with any computer. But the best thing is that it works and you don’t need to be a technocrat to make it work. By the way, my favourite is the Sony Microvault - it just looks good! Things to know before buying your memory key

  • USB ports have been improved so

there are now two types: USB 1.1 and USB 2.0. The difference is essentially speed, USB 2.0 is significantly faster. USB 2.0 is recommended and also works with the older USB 1.1 ports (it just operates at the lower speed).

  • The no driver comment above

essentially means that you can plug your memory key into computers running Windows XP, Windows 2000 and some versions of Windows 98 and it just works. However, you can get drivers for other systems. You should consider what operating system you use at home, at work, what your clients and others you interact with use. However, just using it between home and work will still provide great benefits.

  • Security. If you are using your

memory key for confidential or sensitive information, make sure you get a key with encryption. This feature enables you to either completely “lock” your key, or partition your key so that it is part locked and part open.® COURTAGENTS The Solicitors' Solicitor for all Court Agency Work Including Mentions and Referrals in the Northern Territory and all States of Australia - Instructions Welcome - www.courtagents.com.au Page 17 — October 2003 feature CREDIT NT (the drug court) Recently the Court of Summary Jurisdiction started scheduling cases for assesesment in the Court Referral Evaluation Drug Intervention and Treatment program (CREDIT NT). CREDIT NT is not established by any legislation. It is a recognition by t he Court that there maybe a better way of dealing with individuals charged with drug related crime. In response to the introduction of this program, the Magistrate’s Court has released a guide for stakeholders and Jenny Blokland SM held a very popular CLE seminar on the topic. This program has been made possible by the Northern Territory Government making funds available for the appointment of two clinicians and for training. The Commonwealth has indicated further funds will be made available for treatment under a bail program. The additional Commonwealth funding for the engagement of counselling or other services suitable to address any identified drug problem are not yet available for employment by CREDIT NT. Since there will be some delay with additional funding, it has been decided that CREDIT NT will operate on an interim basis utilising the services of the appointed clinician insofar as that is possible, and otherwise employing the philosophy by way of appropriate bail conditions. To be eligible for this program, the participant:

  • Must not have a criminal history

relating to violent behaviour or be charged with a violent offence (note: this is to be at the Magistrates’ discretion); •* Cannot be subject to any other court order with a drug treatment component;

  • Must have an illicit substance use

problem;

  • Must not be suffering from a major

mental disorder at a magnitude that does not allow for effective treatment by preferred treatment providers;

  • Must be initially bailed to a court

where CREDIT NT operates (Darwin Page 18 — October 2003 or Alice Springs courts only);

  • Must be willing to attend a Darwin

or Alice Springs based treatment program (rural/remote treatment options may become available at a later date);

  • Can be adult orjuvenile;
  • Must not be currently undertaking

or have undertaken the Police Drug Diversionary Program within the past six months;

  • Must not have had more than one

previous admission to CREDIT NT in the past 12 months;

  • Must volunteerforthe program; and
  • Must meet all ofthe above criteria.

It is envisaged that in Darwin Magistrates Loadman, Luppino and Blokland and in Alice Springs Magistrate Birch (the CREDIT NT magistrates) will be the magistrates responsibile for the implementation and running of CREDIT NT. At the insistance of responsible or appropriate persons, any sitting Magistrate can be requested to have an assessment of an eligible defendant made by the court clinician on whether or not that person is an appropriate person to be the subject ofthe CREDIT NT philosophy. There is no reason why a Magistrate presiding at a circuit court cannot involve a defendant in the program. However, it will be incumbent on the defendant at this stage to fund his/ her travel for the assessment by either Alice Springs or Darwin clinicians and for any counselling or treatment. This process will invoke a “CREDIT NT Bail Report” from the Court clinician. The appointed CREDIT NT clinicians are Paul Rysavy in Darwin and Stephen Boyle in Alice Springs. For the purposes of receiving the CREDIT NT Bail Report, the matter would have to be adjourned for a period of not less than seven days to appear before one of the CREDIT NT magistrates. Upon the matter being mentioned and the Report being received, it will be evident on whether or not the clinician made a recommendation for admission to the CREDIT NT Program or whether the converse was the case. CREDIT NT will sit, initially, at 9:00 am on the Friday of each week. The presiding Magistrate will then determine whether the defendant will be admitted to the CREDIT NT Program. Counselling or treating options will initially be arranged by the defendant or his/her legal representative until such time as the expected funding is available. When additional Commonwealth funding becomes available the program may be able to fund admission to an appropriate institution or service. The clinician will follow the matter up and liaise directly with the relevant institution. Once a defendant is in the CREDIT NT program a Magistrate will continue to monitor the defendant’s progress in the program by regularly adjourningthe matter for review by the court. There is no finite time on how many adjournments might be necessary, but logically they must be dictated by the course of counselling or treatment and the defendant’s progress. Once the program of counselling ortreatment is complete, a CREDIT Magistrate would then have the responsibility of having any committal plea or finding of guilt formally addressed and making a decision as to disposition during or at the conclusion of treatment. The above arrangement will continue in concept until experience dictates change or as a consequence of funding becoming available. Queries which this communication generates should be addressed to the Chief Magistrate, the relevant Court clinician or referred to the appropriate court users program. ® losephme stone Disciplinary matters One of the services the Law Society provides for its member is the self-regulatory complaints handling process. It is a major priority for the Society and to this end the Society engaged a part-time investigator some 2 years ago. Given the emphasis the community now places on the consumer aspects of legal services and the on-going debate by the profession of professional standards legislation the Society is committed to ensuring the self-regulatory process is effective, balanced and transparent. For those who have had the misfortune to be the subject of a complaints investigation over the last few years you will note the Society’s more detailed approach to these matters, not only in terms of the information required from practitioners but the Society’s expression of its reasons and the process itself. This article will summarise the complaints handling process. Over the next few editions of Balance there will be other articles detailing some of the many types of complaints lodged by both consumers and fellow practitioners, as well as common ethical problems and benchmarking issues. The power to investigate the professional conduct of a practitioner is conferred by s47 of the Legal Practitioners Act. Linderthe Complaints Handling By-Laws, effective from 3/9/ 03, the Society is required to investigate every complaint. An investigation is to be conducted in whatever manner the Society considers appropriate and can include inspecting the files ofthe practitioner, referring the matter for conciliation and seeking expert evidence. Once the investigation is completed the matter is referred to a delegated Council Member (a “DCM”) for determination. There are currently 4 DCM’s delegated by the Council to make a determination. These are Merran Short, Duncan Maclean, Glen Dooley and Michael Grove. The DCM can dismiss the complaint or parts thereof, find the complaint proved but take no further action, or refer the complaint to the Council with a recommendation that the practitioner be admonished, fined or that charges be laid before the Legal Practitioners Complaints Committee (LPCC). If the complainant is dissatisfied with the determination to dismiss, he or she can request that the determination be reviewed by the Lay Observer. The Lay Observer has power to affirm the decision ofthe DCM, direct that further investigations be undertaken or otherwise make recommendations to the Council in relation to any matter arising from the referral. The Council meets once per month. Upon receipt of the DCM’s recommendations, and those of the Lay Observer if applicable, the Council makes a final determination. The Council has power to:

  • Dismiss the complaint;
  • Find the complaint proved but take

no further action; or

  • Admonish or fine the practitioner

or lay charges before the LPCC. If the practitioner is dissatisfied with the Council’s determination he or she may appeal to the LPCC pursuant to s47 ofthe Legal Practitioners Act. If the complainant is dissatisfied, he or she has the right pursuant to s50 of the Act to lay charges of professional misconduct against the practitioner before the LPCC. The LPCC may:

  • Confirm or quash the finding,

admonishment or fine imposed by the Society;

  • Order the practitioner to pay a fine

up to 100 penalty units;

  • Suspend the practitioner’s right to

practise;

  • Impose conditions on the

practitioner’s right to practice;

  • Recommend disciplinary action be

taken in the Supreme Court; or

  • Refer its findings to the Supreme

Court. The powers and functions of the LPCC may be found in Division 4 of the Act. In addition to the above mentioned powers the Supreme Court can of course order that the practitioner’s name be struck from the Roll of Legal Practitioners. This has happened several times over the last five years. Unhappily, there are still many practitioners who do not seem to take the complaint process seriously, preferring to criticise the Society for investigating the complaint ratherthan summarily dismissing it. Practitioners are reminded of By-Law 5.1 which requires that every complaint be referred for investigation. Complainants, be they a client or fellow practitioner, have a statutory right to complain and the profession has determined that the appropriate body to investigate such complaints is its own professional body, the Law Society. The alternative is to follow the other jurisdictions which now have external bodies, such as a Legal Ombudsman or Complaints Tribunal, which investigate and determine complaints. Whilst the organisational structure of any regulatory body is important to the process, of greater significance are attitude, experience and commitment. This is true for all the participants. The Society’s complaints handling process does have punitive force but that is because both the profession and the community require it. It also has a palliative force in the sense that assistance is available to practitioners if they ask for it (and even if they do not!). The provision of legal services, whether they involve professional standards or consumer benchmarks, has never been under closer scrutiny than in these times. To ignore that fact is to ignore the obvious and perhaps face the experience of our Queensland and Tasmanian counterparts where the governments ofthe day, driven by adverse consumer experiences, have led to an emasculation of the profession’s capacity for selfregulation.® Page 19 — October 2003 readers forum - book reviews The Brennan Legacy - Blowing the winds of legal orthodoxy by Robin Creyke and Patrick Keyzer (eds) The Federation Press 2002 This collection of essays commemorates the judicial contribution of Sir Gerard Brennan in the AAT and the High Court. The distinguished contributors include Sir Gerard himself, Sir Anthony Mason, Justices Murray Wilcox and Rosemary Balmford. There are also contributions from former Justice Daryl Davies, academic writers Gerard Carney and Robin Creyke, from Stephen Gageler SC and Stephen Skehill. Sir Gerard contributes a short overview of the Federal administrative review system. It includes an interesting discussion on the extension of the prerogative writs to private bodies exercising public functions such as private prisons. He is critical of the limitation of the jurisdiction of the Federal Court by the present government. He describes this as a “charter of arbitrariness”. He decries the resulting impossible caseload of the High Court. Sir Anthony Mason describes Sir Gerard as a principled common lawyer with a particular concern for the interests and values protected by the common law, a readiness to use international law to develop the common law and a concern with protection of individual rights combined with recognition of legislative supremacy. In the context of Sir Gerard’s judgments he discusses the theoretical basis of judicial review, the doctrine of legitimate expectations, procedural fairness, the doctrine of proportionality and the distinction between jurisdictional and Page 20 — October 2003 non-jurisdictional error of law. Stephen Gageler SC discusses Craig v South Australia and expresses scepticism about the conventional distinction, apparently espoused by Sir Gerard, between jurisdictional and nonjurisdictional error. Stephen Skehill, a former senior bureaucrat, examines Sir Gerard’s contribution to merits review of government decisions as the first president of the AAT. Justice Rosemary Balmford discusses Sir Gerard’s role in the injection of legal orthodoxy into the administrative process (to which the book’s otherwise obscure subtitle refers) and the creation of the AAT and its offshoots in the States and Territories. Justice Murray Wilcox contributes a fine essay on Sir Gerard and human rights law in Australia. It describes Sir Gerard’s firm view ofthe proper limits of the courts’ power and the importance of political assessment. Notwithstanding, Sir Gerard strongly believes that the courts stand between government and the governed. Legislation affecting private rights should be “jealously construed”. Gerard Carney also discusses Sir Gerard’s human rights perspective in his judgments and extra-curial writings. He discusses the Kable doctrine, procedural fairness, a constitutional right to liberty, Sir Gerard’s views on a bill of rights and the principles of statutory interpretation in relation to fundamental common law rights. He refers to Sir Gerard’s search for the recognition of enduring values in the common law; “..the dignity and integrity of every person, substantive equality before the law, the absence of unjustified discrimination, the peaceful possession of one's property, the benefit of natural justice and immunity from retrospective and unreasonable operation of laws”. Robin Creyke’s essay on Sir Gerard's extra-curial writings refers to Sir Gerard’s spirited defence of the High Court and its independence against unremitting attack after the Mabo and Wik decisions and his identification of public opinion as a potential source of hostility to the independence of the Court. My own recollection of Sir Gerard is from this time. He spoke at a dinner in a Darwin restaurant. He took as his text Sir Anthony Mason’s reply to the “pissant” remarks made by some otherwise unmemorable politician and defiantly spoke ofthe courts’ duty apply the law and to ignore uninformed public criticism. He was not arrogant but rather adamant about the central role of judicial independence in our democracy. Sir Gerard was an imposing and, indeed, charismatic figure. For all of that, he had a common touch. He and his wife arrived at the restaurant while I was at the bar buying drinks. I had never met him before and did not recognise the tall, grey gentleman talking to my circle. When I returned he reached out and shook my hand, introducing himself simply as “Gerry Brennan” and introduced his wife. I was impressed by his natural, unaffected courtesy and complete lack of condescension. A deeply imbued democratic sense informed his personality and his work. He was careful to accord the legislature its proper place but unwilling to accept the mighty at their own valuation. This is an excellent collection of essays and deals with fundamental issues of human rights and administrative and constitutional law in a varied and thought provoking way. It is an a ppropriate tribute to the work of great judge. - Tony Young, Barrister Administrative Appeals Tribunals by Dennis Pearce Butterworths 2003 Administrative law is an ever growing field of the law which exemplifies perhaps the only interaction that a citizen has with his or her government. The Administrative Appeals Tribunal has provided a cost effective means for anyone with a grievance to seek redress as the result of a Commonwealth governmental decision or action. As more and more agencies seem to give jurisdiction to the AAT and as its role continues to grow, Administrative Appeals Tribunals seeks to provide a much needed readers forum - conferences roadmap to the practice and procedure ofthe AAT. At first glance, I had compared this work to several other books on the administrative law. Mr. Pearce’s focus on the AAT as a benchmark institution and as a mechanism to provide a more responsive government limit the writer’s focus and allow the writer to delve more deeply into the inner workings of the AAT as living creation it was intended to be. Where other books sought to impart a more general knowledge of administrative law as a whole, Mr Pearce’s intent is geared more to those who have a desire to access the information needed to operate within the arena so to speak. Though students will find the book useful in many areas such as decisions [2.16] and jurisdictional questions [Chapter 2], it is the legal practitioner who would appear to benefit most from this work. Chapter 7, Procedure at Hearing provides a practical guide to one lacking in extensive experience ofthe administrative appeals process. The lack of commentary would seem to preclude this work as a primary source for instruction on the administrative law but the clarity with which various legal concepts such as the definition of a decision or interests affected would make this an excellent secondary source in a university setting. This apparent shortcoming is the actual strength of the book as it clearly sets out the law surrounding the AAT concisely and authoritatively. The publishers claim that this book will become an invaluable resource for governmental departments and welfare organizations—it very much appears that Mr Pearce has succeeded. - Juan Dominguez, articled clerk, Office of the Director of Public Prosecutions 10-17 January 2004 Australian Accountants & Lawyers Conference 2004 Whistler, Canada www.aalc.com.au/9home 10-12 February 2004 Family Law Masterclass, Brisbane Brisbane, Queensland 13-16 February 2004 Breaking Barriers and Building Bridges: Human Rights and the Law in South Asia Seattle, Washington, USA www.law.seattleu.edu/salsa/ 18-19 February 2004 Commercialisation of Intellectual Property Sydney, New South Wales 25-27 February 2004 13th Annual National Medico Legal Congress Sydney Harbour Marriot, Sydney NSW Tel: (02) 9923 5090 Fax: (02) 9959 4684 info@iir.com.au http://www.iir.com.au/conferences/ 26-28 February 2004 Superannuation Conference 2004 Gold Coast, Queensland Ms Di Rooney LeoCussen Institute Tel: (03) 9602 3111 Fax: (03) 9670 3242 dirooney@leocussen.vic.edu.au 26 March 2004 Australian Corporate Lawyers Association 10th Annual National Conference Shangri-La Hotel, Sydney 2-5 May 2004 Inter Pacific Bar Association 14th Annual Meeting and Conference Seoul, Korea Tel: 82-2-726-5556 Fax: 82-2-778-2514 www.ipba2004seoul.com 23 - 29 May 2004 The Greek Conference: Ethics, Etiquette & Culture Crete, Greece Tel: +613 9690 2033 Fax: +613 9696 2937 emitrakas@bigpond.com 26-30 September 2004 11th National Family Law Conference Gold Coast, Queensland www.familylawsection.org.au/ 22-24 September 2004 13th Annual ANZELA Conference Wellington, NZ Innovation and internationalisation: pushingthe boundaries of education law. Proposals are now being sought for papers. The deadline is 1 March 2004, for more information please email cle@lawyers.org.nz r INVESTIGATIONS ^ PROCESS SERVING REPOSSESSIONS FIELD CALLS Marine/Rail & Rural Enquiries Warrants/Court Orders Local Missing Persons Debt Collection ^_ _ _ _ _ _ _ _ _ _ _ BUSINESS SERVICES ck Level 24, Santos House 91 King William St, ADELAIDE SA 5000 PO Box 591, PORT AUGUSTA SA 5700 Tel: (08) 8641 2111 Fax: (08) 86412100 Mobile: 0418 838 807 outbackbusiness@ozemail.net.au www.outbackbusiness.com.au V Member of Institute of Mercantile Agents Ltd ba!010602 Page 21 — October 2003 j y NOTICEBOARD High Court Notes - October 2003 Prepared for the Law Council of Australia and its Constituents by Thomas Hurley, Barrister,Vic., NSW, ACT (Editor, Victorian Administrative Reports) Migration - Jurisdictional error - Determination of “special need relative” by reference to policy In Jackson v. MIMIA ([2003] FCAFC 203; 27.08.2003) a Full Court concluded the MRT had erred in excluding from consideration of whetherthe appellant was a “special need relative” to his parents certain assistance because this was required by policy. The Court also concluded error was established for failing to consider whether the assistance given by the appellant satisfied various aspects ofthe definition at different times. Administrative law - Unreasonableness - Jurisdictional error In Andary v. MIMA ([2003] FCAFC 211; 28.08.2003) a Full Court concluded that while the decision ofthe Respondent to cancel the visa ofthe appellant under s501(2) of the Migration Act would return the appellant to a country he had left at the age of four, in which he did not speak the language, separate him from his Australian wife and children and the rest of his family who are all Australian citizens the decision was not “unreasonable” [19]. The Court concluded there was no reason to consider whether Wenesbury unreasonableness constituted jurisdictional error [28]. Administrative law - “no-evidence ground” - Proof In VAAW of 2001 v. MIMIA ([2003] FCAFC 202; 27.08.2003) a Full Court concluded that nothing in the High Court decision in MIMA v. Rajamanikkam (2002) 190 ALR 402 altered the effect of earlier authority that it was for the applicant to the Court to demonstrate there was no evidence on which a fact found by an administrative Tribunal could have been found [35]. Federal Court - Appeal - Application to receive fresh evidence In Freeman v. NAB ([2003] FCAFC 200; 26.08.2003) a Full Court observed that the power given by s27 of the Federal Court of Australia Act 1976 (Cth) to receive further evidence in an appeal was a discretion to be exercised judicially [65]. Migration - Visa cancellation - Defects in issues paper In Sokourenka v. MIMIA ([2003] FCA 892; 27.08.2003)Goldberg J concluded criticisms ofthe way in which the “issues paper” described findings of the AAT concerning the applicant whose visa the respondent subsequently cancelled on character grounds under s501A of the Migration Act did not constitute jurisdictional error. Migration - Visa cancellation - Reasons - Best interests of children In Long v. MIMIA ([2003] FCAFC 218; 8.09.2003) a Full Court concluded that the “briefing paper" given to Page 22 — October 2003 the Minister when he cancelled the visa ofthe appellant was distinguishable from the considered in MIMA v. W157/00A [2000] FCA 281. The Court concluded the briefing paper was the statement of reasons within s501G(l)(e) Migration Act and those reasons revealed the decision was affected by jurisdictional error because the respondent adverted to, but did not address, the best interests of Australian children. Migration - Whether decision to grant visa In SGNB v. MIMIA ([2003] FCA 885; 22.08.2003) Selway J considered when intimations from a delegate that visa criteria were satisfied meant a visa had been issued and how a decision could properly be transferred from one delegate to another. Migration - Jurisdictional error - Reliance without notice on event post dating hearing In Applicant 168/2002 v. MIMIA ([2003] FCA 860; 27.08.2003) Finn J set aside the decision of the RRT where the reasoning relied on an event which postdated the hearing without notice to the applicant. Industrial law - “employer” - Operations with one company terminated after fire - Operations resumed with labour-hire company In AMIEU v. Belandra P/L ([2003] FCA 910; 29.08.2003) a Full Court considered whether an employer who closed operations following a file with intention to re-employ the workforce who subsequently obtained labour through a labour-hire company contravened any provisions ofthe Workplace Relations Act 1996 (Cth). Banking - Credit cards - Determination by Reserve Bank of access regime between credit cards in Visa International Service Association v. Reserve Bank of Australia ([2003] FCA 977; 19.09.2003) Tamberlain J rejected a submission that the Visa and Master Card scheme were not “payment systems” for the legislative scheme introduced with the Payment Systems (Regulation) Act 1998 (Cth). Further submission that the Reserve Bank had erred in its enquiries before amendingthe scheme by which credit card schemes were to be regulated based on expert evidence in proceedings under the AD (JR) Act rejected. Federal Court - Procedure - Suppression order In Herald & Weekly Times Ltd v. Gregory D Williams ([2003] FCAFC 217; 10.09.2003) a Full Court considered whether a suppression order should be made in AAT proceeding under ss35(2)(b) ofthe AAT Act in relation to taxation proceedings concerning a prominent footballer. Constitutional law - Free trade - Requirement that racing licensee be incorporated in NSW In Sportodds Systems P/L v. NSW ([2003] FCA 992; 19.09.2003) Gyles J concluded that provisions in NSW Racing Legislation that only corporations registered in NSW were eligible to hold licenses as bookmakers were invalid and the extent to which this invalidity affected other provisions prohibiting connections NOTICEBOARD between natural and corporate entities. Defence - Suspension of Air Force pilot under Defence Instructions - Whether Instructions complied with In Bromet v. Odie ([2003] FCAFC 213; 29.08.2003) a Full Court considered the operation of Defence Instructions in striking a balance between the need to achieve fair treatment of skilled personnel with flexibility with those charged with command. The Full Court concluded any departure from Defence Instructions in suspending an Air Force pilot did not establish legal error. Income tax - Scheme - Former contractor employed by company owned by himself and Wife In C of T v. MacArthur ([2003] FCA 903; 28.08.2003) Dowsett J concluded the AAT had erred in setting aside a re-assessment by the C of T based on Part IVA of ITAA in relation to a taxpayer employed by a company solely owned by himself and his wife. Income tax - Validity of amended assessments In Puzey v. C of T ([2003] FCAFC 197; 26.08.2003) a Full Court considered, inter alia, whether the power to issue amended assessments under sl70(l) ofthe ITAA Act was validly exercised where the amended assessments produced the same income and tax although the ingredients in the assessment differed [93]. Trade practices - Abuse of market power - Excusive dealing - Refusal of wholesaler of recorded music to supply retailers who engaged in parallel importation In Universal Music Australia P/L v. ACCC ([2003] FCAFC 193; 22.08.2003) a Full Court concluded that a wholesaler of sound recording who declined to supply them to retailers who engaged in parallel importation of sound recording following 1998 amendments to the Copyright Act 1968 (Cth) had not engaged in abuse of market power contrary to s46 ofthe TP Act but had engaged in exclusive dealing contrary to s47. The Court concluded the penalty imposed by the primary Judge was inadequate. Trade practices - Jurisdiction - Internet conduct outside Australia In ACCC v. Cheng [2003] FCA 897; 27.08.2003) Sackville J considered whether it was appropriate to grant a declaration that a Respondent had through the internet from outside Australia engaged in misleading conduct contrary to s52 ofthe TP Act by maintaining an unauthorised “imitation website” of the Sydney Opera House. Constitutional law - Claim against State seeking repayment of funds paid under unconstitutional State excise - Whether claim against State for repayment arises under Constitution In British American Tobacco Australia Ltd v. W.A. ([2003] HCA 47; 2.09.2003) the High Court concluded that a claim against a State seeking repayment of monies paid to the State to satisfy a tobacco licensing system found to be an invalid excise was a claim arising under the Constitution. The Full Court of W.A. had concluded that because the claim against the State was not brought as provided by ss5, 6 of the Crown Suits Act 1947 (W.A.) the State was entitled to summary judgment. This conclusion was reversed by the High Court: Gleeson CJ; McHugh, Gummow, Hayne JJ; Kirby J; Callinan J. The majority concluded that s39(2) of the Judiciary Act 1903 (Cth) gave the Supreme Court of W.A. jurisdiction to determine the claim that the State was obliged to refund the payments made pursuant to a State law that was unconstitutional. Appeal allowed; summary judgment set aside; action remitted. Negligence - Appeal - Power of appellate Court to determine proceeding on basis not argued at trial In Whispaun P/L v. Dixon ([2003] HCA 48; 3.09.2003) the High Court considered when an intermediate appellate Court could determine an appeal by reference to an issue not raised at trial and whether medical reports had an independent evidentiary value or depended on the credibility the patient. Appeal allowed. Customs - Standard of proof In CEO Customs v. Labrador Liquor Wholesale P/L ([2003] HCA 49; 5.09.2003) the High Court considered the standard of proof required to obtain conviction for specified offences in the Customs Act 1901 (Cth) and Excise Act 1901 (Cth). The High Court generally answered the questions stated to the effect that to obtain convictions in customs prosecutions for offences againstss33 and 234(l)(a) and (d) ofthe Customs Act the elements of the offence must be established beyond reasonable doubt but that provisions ofthe Evidence Act 1977 (Q) which would be applied in civil cases were to be applied in the trial. Appeal allowed in part. Questions answered accordingly. Defamation (NSW) - Defenses - Fair protective report of Court proceeding - Whether Court or Court officer a “person” In Rogers v. Nation Wide News P/L ([2003] HCA 52; 11.09.2003) the High Court considered when publication of a fair protected reported of Court proceedings could be an answer to a claim in defamation in NSW. Appeal allowed. Appeal - Appeal against findings of jury - Finding by jury that matter did not convey defamatory imputations In John Fairfax Publications P/L v. Rivkin ([2003] HCA 50; 10.09.2003) the High Court considered the Court of Appeal of NSW had erred in holding that no jury could have found the two publications on which the respondent sued as being defamatory. Appeal allowed. New trial on certain imputations ordered. continued next page Page 23 — October 2003 y NOTICEBOARD Negligence - Breach of duty - Importation of seed including weeds In Dovuro P/L v. Wilkins ([2003] HCA 51; 11.09.2003) the High Court allowed an appeal against findings by the primary Federal Court Judge, and the majority of the Full Court ofthe Federal Court, that the producer and distributor in Australia of certain seeds containing weeds which were declared prohibited plants, were negligent. The Court considered when a “declaration of liability” could be made on an interlocutory basis in representative proceedings in the Federal Court. Superannuation - Role of Superannuation Complaints Tribunal In Cameron v. Board of Trustees ofthe State Public Sector Superannuation Scheme ([2003] FCAFC 214; 5.09.2003) a Full Court considered how the SCT decided whether or not a decision of the trustee or insurer under Superannuation Deed was “unfair or unreasonable”. Social security - Repayment of compensation after damages received - Error by Department In Sekhon v. Secretary, DFCS ([2003] FCAFC 190; 3.09.2003) a Full Court concluded, by majority, that payment of benefits to a person who received damages following the failure ofthe Department to request payment from the insurer under sll79 ofthe Social Security Act 1991 (Cth) did not create a debt “attributable solely to an administrative error made by the Commonwealth..” within sl237A of that Act. Native title - Indigenous land use agreement In Murray v. Registrar NNTT ([2003] FCAFC 220; 24.09.2003) a Full Court concluded that all persons who claim to hold native title in an area are required to be parties to an indigenous land use agreement under s24CD of the Native Title Act 1993 (Cth). Migration - Protection visa - “protection obligations” - “right” to enter and reside in third country - “effective protection" In WAGH v. MIMIA ([2003] FCAFC 194; 27.08.2003) a Full Court concluded that the reference to the “right” to enter and reside in a third country referred to in s36 of the Migration Act 1958 (Cth) which prevented protection obligations arising in Australia referred to a right to enter, reside and receive like protection in a third country and more than a mere “capacity” to do so [41], [66], [75]. Migration - Protection visa - Opportunity for reasonable relocation - Whether evidence - Jurisdictional error In WAHI v. MIMIA ([2003] FCA 908; 28.08.2003) French J considered whether findings ofthe RRT that a Christian convert could on return to Iran relocate was based on no evidence or otherwise subject to jurisdictional error. Appeal from Federal Magistrate allowed. Migration - Hearing - Applicant unfit In NAMJ v. MIMIA ([2003] FCA 983; 22.09.2003) Branson J concluded no jurisdictional error was established, in the circumstances, where the RRT declined to postpone a hearing because the applicant claimed to be unfit. Family Court of Australia: Practice Direction: No. 6 of 2003 All divorce applicatiosn should be filed ite hFederal Magistrates Court. Parties/Practitioners should ensure that all applicatiosn are correctly headered “Federal Magistrates Court at [x] Registry”. The Federal Magistrates Court shares registry facilities with the Family COurt of Australia. Al divorce applications will continue to be accepted byt he joint registries. Northern Territory of Australia: Local Court Alice Springs Please note that all prehearing, directions adn conciliation conferences which may have been dealt with by a judicial registrar in Darwin will now be held locally in Alice Springs either by a magistrate (Directions Conference) or a registrar (most other matters). Those matters which have already been adjourned by a JR in Darwin to a future date, will be dealt with in Alice Springs as above. Want to stay up-to-date with news and upcoming events? “ PRACTITIONEI ■■ News & views from the LSNT Secretari< The Practioner is a weekly email newsletter service for members of the LSNT. To access this service (members only) provide your email address to the LSNT office, or email publicrelations@lawsocnt.asn.au Page 24 — October 2003 COURT LIBRARY NOTES NEW STAFF MEMBER Heather Filmer will be starting in the library during October 2003. She has worked in the library at Minter Ellison in Adelaide for many years. NT LEGISLATION Legislative changes in September 2003, notified in the NT Government Gazette New Acts 47/2003 Northern Territory Aboriginal Sacred Sites Amendment Act 2003 (N/C)* 48/2003 Electrical Workers and Contractors Amendment Act 2003 (N/C)* 49/2003 Plumbers and Drainers Licensing Amendment Act 2003 (18.9.03)* 50/2003 Public Sector Employment and Management Amendment Act 2003 (18.9.03)* 51/2003 Legal Practitioners Amendment (Incorporated Legal Practices and Multi- Disciplinary Partnerships) Act 2003 (N/C)* 52/2003 Poisons and Dangerous Drugs Amendment Act 2003 (N/C)* 53/2003 Swimming Pool Fencing Amendment Act 2003 (18.9.03) * 54/2003 Traffic Amendment Act (N/C)* New Regulations 47/2003 Supreme Court Rules (17.9.03)* 48/2003 Special Function Vehicle Regulations (1.10.03) * 49/2003 Courtesy Vehicle Regulations (1.10.03)* 50/2003 Commercial Passenger (Miscellaneous) Regulations (1.10.03)* 51/2003 Passenger Bus Amendment Regulations (1.10.03)* RECENT ARTICLES Aborigines, Aust - Alcohol Spence, Judy Liquor restrictions in Queensland indigenous communities Indigenous Law Bulletin Vol 5(25) 203 pp: 5-6 Barclay, Kelly - The drink without the trouble - hope for our future Indigenous Law Bulletin Vol 5(25) 203 pp: 7-8 Hoolihan, Richard - Public drunkenness in Townsville; the way forward Indigenous Law Bulletin Vol 5(25) 2003 pp: 9-10 Rosewarne, Clive-Alcohol and Alice Springs - meeting the needs and wishes ofthe community Indigenous Law Bulletin Vol 5(25) 2003 pp: 11-15 Aborigines, Aust - criminal law Siegel, Natalie - Court is the system - the impact ofthe circulating bush court upon criminal justice administration and domestic violence prosecution in Aboriginal communities Current Issues in Criminal Justice Vol 15(1) 2003 pp: 56-60 Siegel, Natalie - Is white justice delivery in black communities by ‘Bush Court’ a factor in Aboriginal over representation within our legal system? Monash University Law Review Vol 28(2) 2003 pp: 268-298 Dhakiyarr’s spirit laid to rest Alternative Law Journal Vol 28(4) 2003 pp: 201 Administrative law Robertson, Alan - The administrative lawjurisdiction of the Federal Court - is the AD(JR) Act still important? Australian Bar Review Vol 24(1) 2003 pp: 89-101 Attorney-General Heraghty, Ben - Defender of the faith? The role of the attorney-general in defending the High Court Monash University Law Review Vol 28(2) 2003 pp: 206-238 Bankruptcy law Hogan-Doran, Justin - Tightening up on bankruptcy - no more easy outs Law Society Journal Vol 41(8) 2003 pp: 58-60 Company directors McConvill, James - Consent no defence to fraudulently applying company property Law Institute Journal Vol 77(9) 2003 pp: 44-47 Corporate governance Johnstone, Elizabeth - HIH - a guide to the Royal Commission findings Brief Vol 30(8) 2003 pp: 30-33 Courts Siegel, Natalie - Court is the system - the impact of the circulating bush court upon criminal justice administration and domestic violence prosecution in Aboriginal communities Current Issues in Criminal Justice Vol 15(1) 2003 pp: 56-60 Siegel, Natalie - Is white justice delivery in black communities by ‘Bush Court’ a factor in Aboriginal over representation within our legal system? Monash University Law Review Vol 28(2) 2003 pp: 268-298 Lipp, Barry - Mass tort class actions under the Federal Court of Australia Act - justice for all orjustice denied? Monash University Law Review Vol 28(2) 2003 pp: 361­ 402 King, Michael - Applying therapeuticjurisprudence from the bench - challenges and opportunities Alternative Law Journal Vol 28(4) 2003 pp: 172-175, 198 Campbell, Enid-The High Court’s supervisory jurisdiction in relation to courts and judges Australian Bar Review Vol 24(1) 2003 pp: 78-88 Crime prevention Lee, Murray - The role of place management in crime prevention - some reflections on governmental^ and government strategies Current Issues in Criminal Justice Vol 15(1)2003 pp: 26-39 ‘ Crimes compensation Johns, Peter - Crimes compensation - three approaches to a common purpose Plaintiff Vol 58 2003 pp: 20-24 Criminal law Crofts, Penny - White collar punters - stealing from the boss to gamble Current Issues in Criminal Justice Vol 15(1) 2003 pp: 40-52 Heaton, Russell - Dealing in death Criminal Law Review 2003 pp: 497-509 Pedain. Antje - Intention and the terrorist example Criminal Law Review 2003 pp: 579-593 Criminal trials Zilko, Matthew - Bali bombers - a very different kind of trial Brief Vol 39(7) 2003 pp: 27-29 continued next page... Page 25 — October 2003 i COURT LIBRARY NOTES Damages Purnell, John - Tort does not pay - a guide to exemplary damages Plaintiff Vol 58 2003 pp: 25-29 Vilensky, David - The all or nothing rule appears here to stay - is there a case for legislative intervention to allow an apportionment of damage awarded under the Trade Practices Act? Brief Vol 30(8) 2003 pp: 6-11 Dangerous drugs Heaton, Russell - Dealing in death Criminal Law Review 2003 pp: 497-509 Employment law Kennan, Jim - Employer’s failure to treat employee’s posttraumatic stress disorder Plaintiff Vol 58 2003 pp: 33-36 Evidence Forsham, Judith - Some issues for prosecutors and defence lawyers in trials involving DNA Brief Vol 39(7) 2003 pp: 20-21 Irons, Catherine - Indigenous oral evidence Indigenous Law Bulletin Vol 5(25) 2003 pp: 22 Zajac, Rachael - Asked and answered - questioning children in the courtroom Psychiatry. Psychology and Law Vol 10(1) 2003 pp: 199-209 Family law Campbell, Jacqueline Splitting the super,,, and selling the home Law Institute Journal Vol 77(9) 2003 pp: 56-60 Client capacity guidelines - civil and family law matters Law Society Journal Vol 41(8) 2003 pp: 50-57 Shaw, Alison Superannuation in family law - where are we at? Bulletin Vol 25(7) 2003 pp: 2731 Federal court Lipp, Barry- Mass tort