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Family violence victims face “wall of lethal indifference”

27 November 2012

Over the last year, 60 Australian women have died at the hands of family members. As Australians commemorate White Ribbon Day around the country and pledge to take a personal stand against violence in the home, questions remain about whether we’re doing enough at a state and federal level to end the deaths, especially those of Indigenous women. Earlier this year the Western Australian Coroner released the findings into the death of Perth woman Andrea Pickett, who was murdered by her husband. The coroner found that when Andrea turned to various organisations for help — police, Indigenous legal services and domestic violence shelters — they all failed her.

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For many members of the Queensland Bar, the significant role carried out by the Incorporated Council of Law Reporting for the State of Queensland (ICLR) may not be at the forefront of your mind.

Over the last 12 months, the ICLR, under the direction of its Chairman, Mr John McKenna SC, has conducted a major review of its operations. This review has resulted in the development of important changes to the services that the ICLR provides. These changes are designed to improve the quality, efficiency and cost-effectiveness of the services provided by the ICLR to the courts, the legal profession and the public in Queensland.

The purpose of this article is to provide members of the Bar with details of these important developments, which will be implemented from1 January 2013. The ICLR looks forward to the support of members of the Bar, for the exciting new initiatives that are outlined below.

What is the ICLR?

The ICLR is a charitable corporation, which was established in 1907.

The principal object of the ICLR is:

“the preparation and publication in a convenient form, at a moderate price, and under gratuitous professional superintendence and control, of Reports of Judicial Decisions of the Supreme Court in the State of Queensland.”

To the extent that it is able to do so, the ICLR also has as a subsidiary object:

“to supplement or assist any of the libraries of the Supreme Court of the State of Queensland by gifts…of such profits of the Association as the Council shall from time to time determine to donate.”

The ICLR is under the control of a 9 member Council, which comprises three practising barristers and three practising solicitors, who are appointed annually by the Judges of the Supreme Court, together with the Attorney-General, the Solicitor-General and the Registrar of the Supreme Court, to the extent they wish to exercise their ex officio entitlement to sit on the Council. At present the Council comprises Mr John McKenna SC (Chairman), Mr Declan Kelly SC, Ms Helen Bowskill, Mr Chris Coyne, Mr David O’Brien, Ms Rachael Miller and Ms Julie Steel.

The principal function of the ICLR is to publish the authorised reports of the Supreme Court of Queensland – the Queensland Reports.

As a subsidiary function, the ICLR also prepares and publishes a weekly print publication, the Queensland Law Reporter. This publication contains advance summaries of forthcoming reports of cases, recent practice directions of the court, and legal notices published for those who wish to advertise a proposed application to the court (in particular, applications for admission to the legal profession and applications for probate or administration).

The long-standing problem of identifying key decisions

One of the key issues confronting the ICLR is how to provide a solution to the problems that presently arise because of the sheer volume of unreported Supreme Court decisions.

The vast majority of these decisions, whilst of great significance to the parties concerned, involve no change or clarification to the general law. They usually involve nothing more than an orthodox application of established principle to a particular factual dispute. The sheer volume of these decisions, however, is beginning to overload Australian legal information databases, making it harder to identify the key decisions which truly redefine or clarify the law.

The problem of identifying, from the morass of new judgments, those decisions which truly develop or redefine the law is not simply a product of the digital age.

Even at the time of Queensland’s foundation, in 1859, vast numbers of English decisions – many of very little significance – were reported in a wide variety of reports, journals and newspapers. This was the era of the Law Journal Reports, the Solicitors Journal Reports and many separate sets of nominate reports. This approach was followed in the new Colony of Queensland, with virtually every new decision of the Supreme Court being extensively reported in local newspapers or journals, including the Queensland Law Journal.

In 1901, however, the Chief Justice of Queensland (Sir Samuel Griffith) believed it was time that the key decisions of the Supreme Court of Queensland were extracted and preserved in a set of official reports, to be modelled upon the new approach to authorised law reporting which had been developed in England.

This involved establishing a Council of Law Reporting — an independent body under the control of the legal profession and the Supreme Court — which would be responsible for making a suitable selection of cases and then publishing authorised reports of these decisions at a moderate cost.

The unique feature of these authorised reports was that they were the product of a four stage process of:

• selection — to make sure that only cases which materially redefined or clarified the law were chosen for reporting;
• checking — to make sure that each report was free from any textual error, and that all quotes and references were correct;
• summarising — to include a headnote which quickly and accurately identified the key facts and points of importance; and
• authorisation — to allow the deciding Judge a final opportunity to revise and approve the report before publication.

From 1902, these authorised reports began to be published as the State Reports of Queensland – with notes of practice decisions being published as the Queensland Weekly Notes.

From 1908, these reports were supplemented by another weekly publication, the Queensland Law Reporter. This supplement provided the profession with advance notice of new cases which were thought to be of sufficient importance to justify inclusion in the Queensland Reports, and carried a range of public notices (including probate and admission notices) which were required by the Rules of Court or Practice Directions.

Once this system was established, it became the practice to cite only authorised reports of Queensland judgments in submissions to the courts.

Challenge of unreported judgments

Whilst this system of law reporting proved to be effective in Queensland for almost 100 years, new challenges have arisen because of the large number of unreported judgments which are now published on court websites every week.

For courts and practitioners alike, the sheer volume of this material is creating a serious and deep-seated problem. It affects those who seek to read new judgments to keep up-to-date with the law, as well as those searching for answers to specific legal problems, who now find themselves confronted with scores of marginally relevant cases. It also affects the courts, who are now being burdened with numerous citations of unreported judgments which add nothing of substance to established principle.

Selecting key cases

In the Council’s view, there is only one practical solution to this problem — an early application of expert and perceptive judgment to select, from the morass of new cases, those which truly develop or clarify the general law.

The Council was delighted that its Senior Editor, Mr RM Derrington SC, was prepared to take on this role. Mr Derrington SC is one of Queensland’s leading commercial silks, having been in practice for some 22 years. In reviewing new cases, he is able to draw upon advice from a panel of practitioners with specialties which cover the full range of the Court’s jurisdictions.

As well as reviewing all new cases for reporting, Mr Derrington SC also monitors earlier decisions which are cited in more recent cases, to ensure that no key decisions are mistakenly excluded from the reporting process.

The fundamental importance of skilled selection, in the context of scholarly law reporting, to the development of the common law was recently emphasised in the first annual BAILII lecture presented by Lord Neuberger, the new President of the UK Supreme Court, on 20 November 2012 ( http://www.supremecourt.gov.uk/docs/speech-121120.pdf , particularly at [35]-[40] ).

New Queensland Reports website

The practical implementation of this process will involve the introduction of a rapid case classification and monitoring system, which will be available on a free new website ( www.queenslandreports.com.au ).

The system is quite simple.

Every week, all new decisions handed down by the Supreme Court of Queensland will be reviewed and analysed by Mr Roger Derrington SC, with a view to rapidly isolating the key decisions of the Court which truly redefine or clarify the law.

These key decisions will then be briefly summarised and indexed — using the conventional Queensland Reports classification system – and added to a Key Judgments database on the Queensland Reports website. These cases will also be notified to the profession and the judiciary every week through a free email service – the relaunched Queensland Law Reporter. Appeals from these key decisions will then be monitored, with updates also provided through the Queensland Law Reporter.

As a general rule, all the cases on the Key Judgments database — unless reversed or overtaken by an appeal decision — will then proceed to be fully reported and headnoted, in authorised form, in the Queensland Reports. The aim is to ensure that the Queensland Reports continues to be a reliable source of all key decisions of the Supreme Court.

Special treatment, however, will be given to key decisions dealing with matters of practice or procedure. These cases, which often do not justify inclusion in the Queensland Reports, will be collected together in a new Key Practice Decisions database on the website.

In the initial phase of the website, it will also include, in addition to the Key Judgments database and the Key Practice Decisions database:

• a free printable backset of recent Queensland Law Reporters;
• a free searchable database of probate and administration notices; and
• background information about the history and role of authorised law reports in Australia.

These innovations are only some of the changes which are planned to be introduced to the Queensland Reports, over the next two years, to meet the needs of the modern legal system.

New Queensland Law Reporter

The launch of the new Queensland Reports website will coincide with the launch of a new Queensland Law Reporter.

The new Queensland Law Reporter will be available for email delivery, free of charge, from January 2013.

The new Queensland Law Reporter has been designed to allow the Editors of the Queensland Reports to communicate directly to the whole of the judiciary and legal profession every week — and so provide key information, which is not readily available elsewhere, about the latest developments in the law of Queensland.

The new Queensland Law Reporter will contain a weekly update of:

• all new legislation, rules of court and practice directions which affect practice in Queensland State courts;
• all new cases which have been added to the Key Judgments database, and the progress of appeals in these cases; and
• all new headnotes of cases being published in the Queensland Reports.

The Queensland Law Reporter will also include the familiar public notices concerning applications for probate and admission — but now reformatted in a way which will ensure that they are easier for busy practitioners to scan.

Changes in the Queensland Reports

The speed and quality of the Queensland Reports has also been the subject of careful review.

To ensure that the quality of the headnotes in the Queensland Reports reaches the highest academic standards, the Council has appointed a former Professor of Law at the University of Queensland — Dr Sarah Derrington — to the position of co-editor. In this role, Dr Derrington is responsible for settling all headnotes which are prepared for publication in the Queensland Reports by a team of specialist sub-editors and reporters.

This new editorial team has dramatically reduced the time lag between the delivery of judgments and the date of their publication in the Queensland Reports. They are now close to achieving their object of publishing authorised reports of judgments within six months of their delivery.

With these developments, the ICLR hopes to further enhance the contribution of the Queensland Reports to what Lord Neuberger describes as “judgment enhancement” ( www.supremecourt.gov.uk/docs/speech-121120.pdf at [33], [41]-[42]).

How can you access the new QLR?

The new website – www.queenslandreports.com.au – will be operational from 1 January 2013.

The ICLR encourages all members of the Bar to register at www.queenslandreports.com.au , from 1 January 2013, in order to obtain the free email Queensland Law Reporter, and take advantage of the useful legal information databases which appear on the website.

The University of Queensland and the Federal Court of Australia co-hosted an event to commemorate the birthplace of Lord Atkin of Aberdovey, one of the world’s most influential common law judges, at a ceremony in Brisbane on Wednesday 28 November 2012.

Lord Atkin was born on 28 November 1867 in Tank Street, Brisbane. 

Chief Justice of the Federal Court Patrick Keane and Lord Atkin’s grandchildren Sir Thomas Atkin Morison and Elizabeth Barry unveiled a commemorative plaque dedicated to Lord Atkin in the Tank Street Courtyard at Brisbane’s Commonwealth Law Courts. 

The placing of the Lord Atkin plaque was an initiative of UQ’s Dean of Law, Professor Gerard Carney, and the Federal Court of Australia. 

Sir Thomas, a retired UK High Court Judge, and Mr and Mrs Barry travelled from the UK to attend the ceremony. 

They also visited several local landmarks significant to their great-grandparents’ early days in Queensland after emigrating from the UK during the mid to late 1800’s.

 The Hon. Chief Justice Patrick Keane, Mrs Elizabeth Barry (granddaughter of Lord Atkin), The Hon. Sir Thomas Morison (grandson of Lord Atkin).

The family said the trip was a wonderful opportunity to discover more about their family’s connection to Queensland.

“I’ve learned more about my family as a result of what Gerard Carney has managed to find out than I ever knew before, so we’re immensely grateful,” Sir Thomas said.

“It’s quite emotional; it isn’t just the memory of my grandfather but of his remarkable parents who were pioneers who came out here after months at sea during which time they lost one family member and were very nearly shipwrecked.”

“Then coming to have 200 square miles of territory in Queensland, it’s a remarkable thing to do, so we have enormous admiration for his parents.”

Mrs Barry said she was particularly delighted to see the display of photographs, books and memorabilia put together by the Federal Court Library to highlight the key events and achievements of Lord Atkin’s life.

Professor Carney said Brisbane should be proud of its connection with one of the most famous judges of the common law world.

“Although he left Australia as a young child, his compassionate judicial philosophy was no doubt influenced by the liberal contribution his parents made to the political life of Brisbane during the early years of the colony,” Professor Carney said.

“Both parents were journalists and his father, Robert, was a prominent member of the Queensland Parliament.”

“I am very grateful to the judges of the Federal Court for supporting this initiative.”

Lord Atkin moved from Brisbane to the UK with his Welsh mother and siblings in 1870 at the age of three, after the early death of his prominent father, Robert Atkin.

After studying at Magdalen College Oxford and reading for the Bar at Gray’s Inn, Lord Atkin served as a judge from 1913 until his death in 1944.

He was elevated to the House of Lords in 1928 where he delivered his two most famous judgments in Donoghue v Stevenson in 1932, and Liversidge v Anderson in 1942.

Donoghue v Stevenson, commonly referred to as the “snail in the bottle” case, was a radical step forward in the law of negligence and experts believe that Lord Atkin’s judgment contains the most influential statement of legal principle used in the common law world to this day.

The case changed the course of the common law by setting the foundation for the tort of negligence, brought about when one party fails to exercise a reasonable standard of care to prevent harm to another, such as in personal injury claims, product liability and consumer law.

Lord Atkin married Lizzie Hemmant, the eldest daughter of prominent Brisbane businessman and politician, William Hemmant.

Professor Gerard Carney, (Dean of Law, TC Beirne School of Law), The Hon. Chief Justice Patrick Keane, Mrs Elizabeth Barry (granddaughter of Lord Atkin), The Hon. Sir Thomas Morison (grandson of Lord Atkin).

 

Background

Conduct and Compensation Agreements (CCAs) are a modern day feature of resource legislation. The legislature seeks to encourage relevant resource authority holders and landholders to voluntarily enter into agreements about access, the conduct of authorised activities on land and compensation liability rather than compulsorily impose such matters upon the landholder. Compulsory powers and traditional compensation dispute resolution processes are positively discouraged in the absence of parties using all reasonable endeavours to voluntarily enter into a CCA.

The usual legislative formula is to provide:

(a) that the resource authority holder is not to access or enter private land to carry out authorised activities unless an appropriate CCA has been entered into;

(b) for the relevant resource authority holder to be liable to compensate each owner or occupier of private land in the area of the authority for any compensatable effects the eligible claimant suffers that is caused by relevant authorised activities; and

(c) that parties to use all reasonable endeavours to negotiate an appropriate CCA.

In Queensland, similar if not equivalent provisions relating to CCAs exist in each of the main pieces of resource legislation, including the Mineral Resources Act 1989 (“MRA”), Petroleum and Gas (Production and Safety) Act 2004 (PAG Act), Petroleum Act 1923, Greenhouse Gas Storage Act 2009 and the Geothermal Energy Act 2010. The purpose of this paper is to examine a number of aspects relating to CCAs including:

(a) legislative requirements for CCAs under those Acts;

(b) issues faced by parties, particularly landholders, in negotiating CCAs; and

(c) the general measure of “compensation liability”.

Legislative Requirements

Sections 10 and 13 of Schedule 1 of the MRA, the provisions dealing with CCAs for exploration permits and mineral development licences, for example, provide as follows:

“10 Conduct and compensation agreement requirement for particular advanced activities

(1) A person must not enter private land in an exploration tenement’s area to carry out an advanced activity for the tenement (the relevant activity) unless each eligible claimant for the land is a party to an appropriate conduct and compensation agreement. Maximum penalty—500 penalty units.

(2) The requirement under subsection (1) is the conduct and compensation agreement requirement.

(3) In this section—

appropriate conduct and compensation agreement , for an eligible claimant, means a conduct and compensation agreement about the holder’s compensation liability to the eligible claimant of at least to the extent the liability relates to the relevant activity and its effects.”

and

“13 General liability to compensate eligible claimants

(1) The holder of each exploration tenement is liable to compensate each owner or occupier of private land or public land in the tenement’s area (an eligible claimant) for any relevant authorised activities.

(2) An exploration tenement holder’s liability under subsection (1) to an eligible claimant is the holder’s compensation liability to the claimant.

(3) This section is subject to section 11.

(4) In this section—

compensatable effect means all or any of the following—

(a) all or any of the following relating to the eligible claimant’s land—

(i) deprivation of possession of its surface;

(ii) diminution of its value;

(iii) diminution of the use made or that may be made of the land or any improvement on it; (iv) severance of any part of the land from other parts of the land or from other land that the eligible claimant owns;

(v) any cost, damage or loss arising from the carrying out of activities under the exploration tenement on the land;

(b) accounting, legal or valuation costs the claimant necessarily and reasonably incurs to negotiate or prepare a conduct and compensation agreement, other than the costs of a person facilitating an ADR;

Examples of negotiation —

an ADR or conference

(c) consequential damages the eligible claimant incurs because of a matter mentioned in paragraph (a) or (b).

relevant authorised activities means authorised activities for the exploration tenement carried out by the holder or a person authorised by the holder.”

Virtually identical access and general compensation liability provisions for advanced activities are contained in ss 500, 532 of the PAG Act; ss78Q, 79Q Petroleum Act 1923; ss283, 320 of the Greenhouse Gas Storage Act 2009 and ss216, 247 of the Geothermal Energy Act 2010.

Under each Act, the legislation provides that an eligible and a relevant authority holder may enter a CCA about how and when the authority holder may enter the land and how authorised activities under the relevant authority to the extent that they relate to the eligible claimant must be carried out and the holder’s compensation liability to the claimant or any future compensation liability that the holder may have to the claimant under the relevant authority (see s 14 Sch 1 MRA; s 533 PAG Act; s79R Petroleum Act 1923; s321 Greenhouse Gas Storage Act 2009; s248 Geothermal Energy Act 2010).

The requisite requirements or contents of a CCA are that:

(a) a CCA cannot be inconsistent with the Act, a condition of the relevant authority or a mandatory provision of the land access code and is unenforceable to the extent of that inconsistency;

(b) a CCA must provide for the matters mentioned in the earlier provisions, in particular:

(i) how and when the authority holder may enter the land;

(ii) how authorised activities must be carried out;

(iii) the holder’s compensation liability for any future liability to the claimant;

(c) must be in writing and signed by or on behalf both the authority holder and the eligible claimant;

(d) state whether the CCA is for all or part of the liability;

(e) if it is for only part of the liability state the details of each activity or affect of the activity to which the agreement relates and the period for which the agreement has effect; and

(f) provide for how and when the compensation liability will be met.

(see ss 14, 15 Sch 1 MRA; ss 533, 534 PAG Act; ss79R, 79S Petroleum Act 1923; ss322, 323 Greenhouse Gas Storage Act 2009; ss248, 249 Geothermal Energy Act 2010)

A CCA may relate to all or part of the liability or future liability (s 14 Sch 1 MRA; s 14(3) MRA; Sch 1 MRA; s 533(3) PAG Act; s79R(3) Petroleum Act 1923; s321(3) Greenhouse Gas Storage Act 2009; s248(3) Geothermal Energy Act 2010).

In addition, a CCA may provide for other matters including:

(a) monetary or non-monetary compensation. For example, a CCA may provide for the construction of works such a road or a fence;

(b) a process by which it may be amended or enforced. For example, it may provide for compensation to be reviewed on the happening of a material change in circumstances;

(c) may provide for compensation that is or may be payable under the Environmental Protection Act 1994.

(see s 14 Sch 1 MRA; s 533(2) PAG Act; s79S(2) Petroleum Act 1923; s322(2) Greenhouse Gas Storage Act 2009; s249(2) Geothermal Energy Act 2010)

Negotiation Process Issues

Each Act imposes a positive obligation upon both the resource authority holder and landholder to use all reasonable endeavours to negotiate a CCA.

Starting the Negotiation Process

Strangely, the negotiation process can only be initiated by the relevant authority holder and not by the landholder. No doubt the expectation of the legislature is that, as a authority holder cannot access or enter private land to carry out advanced relevant activities unless it has complied with the negotiation process, the incentive rests only upon the authority holder to commence the negotiation process. Until an authority holder enters upon the land, there is no need for a landholder to commence the negotiation process.

However, it is conceivable that in two instances a landholder may wish to instigate negotiations: the first is in the case of preliminary activities or activities other than advanced activities for which access can be gained by a resource authority holder without first negotiating a CCA; the second is in the case of compensatable effects suffered by the landholder caused by authorised activities on neighbouring lands in the same tenement or tenure. In each those cases, a landholder may wish to instigate the negotiation process in order to obtain proper compensation. How would the landholder do so? It is probably only with the aid of the additional jurisdiction of the Court.

Duty to Provide Information

Clearly, in order for a landholder to be able to fairly and properly participate in the negotiation process, the landholder needs to be properly informed and provided with full details of the relevant authorised activities proposed to be carried out on his land and from which he may suffer compensatable effects.

Some resource authority holders have been lax in recognising the clear implicit obligation which exists to provide landholders with full details of proposed relevant activities. It is insufficient for such details to be described generally. As a matter of natural justice and statutory obligation, a landholder is entitled to insist upon the provision of adequate or sufficient information or disclosure in relation to the activities proposed to be carried out in order to complete the negotiation process. Indeed, until provision of such sufficient information or disclosure was provided, the authority holder can be considered to have failed to use all reasonable endeavours to negotiate a CCA and, therefore, lawfully complete the negotiation process.

It is likely that an authority holder would be restrained from proceeding further with the process limiting its ability to enter upon land unless and until it provided the landholder with full and proper information concerning the relevant activities for which the legislature intends there be a CCA. Alternatively, pre-trial disclosure is likely to be ordered. Under all normal modern day Court rules, disclosure of all directly relevant documents in the possession or power of the resource authority holder is a usual requirement.

Most resource companies do recognise the need for landholders to be properly and fully informed of the relevant activity, not only as a matter of natural justice and ensuring the use of all reasonable endeavours to negotiate but also in terms of the requirements of the Act that the CCA detail each activity or the effect of the activity to which the agreement relates. Some, however, are yet to recognise the necessity of this basic obligation to provide full and proper information to landholders.

Prescription of Activities

It is important and in the interest of both parties that each activity and the effects of each activity be clearly prescribed in a CCA. It is important for a number of reasons:

(a) to ensure the resource authority holder has clear authority to enter the land and undertake the relevant activities;

(b) to ensure that questions of whether a material change in circumstances has occurred, such as to entitle a landholder to a review of compensation, can be easily determined;

(c) to ensure that the landholder receives full compensation;

(d) to ensure that the extent of the discharge of the resource authority holder’s compensation liability can be clearly and accurately identified in a CCA.

Finality and Completion of Negotiation Process

The clear intent from the relevant provisions is that, once the negotiation process commences, the process proceed through the negotiation period with both parties using all reasonable endeavours to negotiate a CCA or Deferral Agreement. Provisions use language such as “On the giving of the negotiation notice, the … holder and the eligible claimant (the parties) must use all reasonable endeavours to negotiate a CCA or Deferral Agreement” (see eg s 17 Sch 1 MRA; s 536 PAG Act; s79U Petroleum Act 1923; s324 Greenhouse Gas Storage Act 2009; s251 Geothermal Energy Act 2010).

At the end of the minimum negotiation period the legislature, each party has the election to ask the relevant officer to call a conference or to call upon the other party to agree to an alternative dispute resolution to continue the negotiation. Upon such an election notice being given, the parties again “must use all reasonable endeavours” to finish the negotiations (see s 23 Sch 1 MRA; s 537AB PAG Act; s79VAB Petroleum Act 1923; s325AB Greenhouse Gas Storage Act 2009; s255 Geothermal Energy Act 2010). Following the expiration of such a conference or ADR, an eligible claimant or the holder may then apply to the Land Court for review of the compensation.

The parties having embarked upon the negotiation process, and landholders, particularly, having expended time and costs doing so, the legislature intends that the process proceed to determination either by agreement in a CCA or referral to the Court for review.

It does not intend that either the resource holder or the landholder unilaterally ‘opt out’ of the statutory process intended for the entering into a CCA or determination of compensation upon that process having been embarked upon. This seems to have been an erroneous view taken by some parties.

ADR Attendance and Costs

Two issues, primarily for landholders, concerns, first, the inability to enforce attendance of a party to an ADR as the other party has to agree to it and if a conference is called, the other party has to agree with authorised officer’s decision to approve attendance of legal representatives.

Secondly, it is remarkable and quite unfair that, if a landholder calls upon a resource authority holder to agree to an alternative dispute resolution process, that the landholder must bear the costs of the person who will facilitate the ADR and not have those costs recoverable, even in the event of a successful negotiation. Such costs plainly would not be incurred but for the compulsory process imposed upon the landholder and the failure of the negotiation process to that point.

There seems no rational reason for an ADR process not to be compulsory if elected nor for the costs of the person facilitating ADR not to form part of the landholder’s disturbance costs.

Misleading and Deceptive or Unconscionable Conduct

Clearly, obligations under the Competition and Consumer Act and Fair Trading Act relating to misleading and deceptive conduct and/or unconscionable conduct apply to CCA negotiations.

It behoves resource authorities to ensure that land access agents and others who represent them in negotiations, particularly those conducted directly with landholders, be vigilant to ensure that their representations or promises as to the nature and extent of activities that will occur on land, the extent to which activities may or may not affect the land are not misleading or deceptive and that they conduct themselves conscionably. There is clear risk that, in the hurry to sign up landholders, matters may be misrepresented or understated or dealings unconscionably occur. The courts will protect weak and disadvantaged persons, particularly persons who have been misled or whose bargaining power is unconscionably taken advantage.

It is only a matter of time before a CCA is set aside on this basis.

Legal Representation

Whilst legal representation is not a strict necessity, resource authority holders ought to be aware of the whole body of law developed in the 1980’s surrounding the then practice of banks having persons, who were not legally represented or had not received independent legal advice, execute security documents. The absence of independent legal advice was an important factor taken into account by Courts in determining whether the bargaining power of persons was unconscionably taken advantage of. It has resulted in the almost universal practice now adopted of acknowledging the opportunity of independent legal advice being signed by mortgagors.

It ultimately benefits both resource authority holders and landholders that CCAs are properly entered into and properly drafted with the input, where appropriate, of independent legal representatives so as to ensure not only fair dealings but that the bounds of relevant activities and extent of compensation liability discharged are clearly prescribed, understood and agreed upon. Resource authority holders, as much as landholders, do not want fights later about such matters.

Two Tier Negotiations

An area of serious concern relates to the two tier negotiation tactics adopted by some resource authority holders. By “two tier”, I mean the adoption of a strategy whereby resource authority holders conduct negotiations in respect of the same matters on two fronts: formally through legal advisers but, at the same time (often in direct contradiction to the request of the landholder through his or her legal advisor), by direct approach or contact by land assess agents and/or other person with landholders.

These tactics are clearly unconscionable and, most likely, unlawful, particularly if a request has been made for all dealings to occur only through the landholder’s legal advisor. As a practice, it should desist. The clear purpose is to seek to avoid the landholder having the benefit of independent legal advice and/or to influence or coerce the landholder into an agreement.

Measure of Compensation

The compensation liability of each resource authority holder is to compensate each owner or occupier of private land for any “compensatable effect” the eligible claimant suffers caused by the relevant authorised activities.

“Compensatable effects” are defined (see s13 Sch 1 MRA; s532(4) PAG Act; s79Q Petroleum Act 1923; s320(4) Greenhouse Gas Storage Act 2009; s247(4) Geothermal Energy Act 2010) as follows:

“compensatable effect means all or any of the following—

(a) all or any of the following relating to the eligible claimant’s land—

(i) deprivation of possession of its surface;

(ii) diminution of its value;

(iii) diminution of the use made or that may be made of

the land or any improvement on it;

(iv) severance of any part of the land from other parts of the land or from other land that the eligible claimant owns;

(v) any cost, damage or loss arising from the carrying out of activities under [the relevant authority] on the land;

(b) accounting, legal or valuation costs the claimant necessarily and reasonably incurs to negotiate or prepare a conduct and compensation agreement, other than the costs of a person facilitating an ADR;

Examples of negotiation —

an ADR or conference

(c) consequential damages the eligible claimant incurs because of a matter mentioned in paragraph (a) or (b).”

Matters of General Principle

The clear purpose of the above provisions is to provide compensation. And compensation is the critical concept with regard to understanding those provisions.

The concept of compensation in the above legislation has not been given a character which is different from that which applies in other area areas of law. “It is to place in the hands of the owner expropriated the full money equivalent of the thing of which he has been deprived. Compensation, prima facie, means recompense for loss and when an owner is to receive compensation for being deprived of real or personal property his pecuniary loss must be ascertained by determining the value to him of the property taken from him” (see Nelungaloo Pty Ltd v The Commonwealth (1948) 75 CLR 495 at 571; applied in Wills v Minerva (supra) at 316).

The provisions are concerned with the loss occasioned to the landholder and the individual aspects of those provisions need to be considered within that paradigm.

The provisions closely align with other compensation provisions upon which there have been Land Court or Resource Tribunal decisions. Whilst the duty of the Court, when construing legislation, is to give effect to the purpose of that individual piece of legislation by giving the words of that legislation their natural and ordinary meaning, assistance may be derived from matters of valuation principle determined under other legislation, including the Acquisition of Land Act 1967 (ALA). As Mr Scott stated in Michael J Wills v. Minerva Coal Pty Ltd (1998) 19 QLCR 297 as regards s 281 of the MRA:

“In matters of compensation arising under s 281 MRA, it is to that provision that a Court must first turn, however, as is the practice of Courts in all jurisdictions: in searching for principle or the conceptual treatment of an issue, assistance may be sought from other relevant areas of law including in the present case that involving the question of compensation flowing from the compulsory acquisition of land to the extent that there is no inconsistency with s 281 MRA. There are broad similarities between the compulsory acquisition of an interest in land and the imposition of a mining lease over land. It follows that even without detailed analysis of s 281 MRA one could anticipate benefit from consideration of the law of compensation for compulsory acquisition. There is a natural and understandable similarity.”

This is particularly apt in those projects declared an Infrastructure Facility of Significance under the State Development and Public Works Organisation Act 1971. In those cases, the powers of compulsory acquisition by the Coordinator General may ultimately be called in aid, in which case, compensation will be assessed under the provisions of the ALA.

With the above in mind, turning to the specific words within the definition of “compensatable effects”, the following general principles may usefully be distilled as applying :

(a) The definition neither prescribes nor suggests a method of assessment or valuation. The selection of an appropriate method will be a matter for the relevant expert. It is also well established, as Callinan J observed in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 267, that there is no legal principle that purports to, or could close for all times, the categories or methods of valuation which might be acceptable in a particular case. A method can only be “closed” if the Act, properly construed, led to that result.

(b) The “value” of the land and improvements with which the definition is concerned is the value to the owner ascertained in accordance with the authority of Spencer v. The Commonwealth (1907) 5 CLR 418 especially at 441. In Stubberfield v The Valuer-General [1991] 1 Qd R 278, Carter J described market value as follows at 283:

“In Spencer v The Commonwealth [1907] 5 C.L.R. 418 the High Court propounded the proper test for the assessment of land value. It is the price which a willing purchaser would at the date in question have had to pay to a vendor not unwilling, but not anxious to sell. It seems to me that that test finds statutory expression in the Valuation of Land Act. In defining “unimproved value” for the purposes of the Act, it recites that that value is the capital sum which the fee simple of the land might be expected to realise if offered for sale on such reasonable terms and conditions as a bona fide seller would require. In simple terms it is synonymous with the market value of the land.”

(c) The land is to be treated according to its highest and best use. This requires the valuer to determine the diminution in value of land on the basis of a price that would be paid for it assuming the most advantageous purpose for which the land is adapted and which is legally possible and economically feasible. Where land to be valued enjoys in whole or in part a characteristic or advantage, even if not reflected in its present use, the Court must find the notional market price which includes full allowance for that potentiality (See eg Turner v Minister for Public Instruction (1956) 95 CLR 245; Raja’s case [1939] AC 302 at 313; McKenna v Burnie Municipality (1970) 22 LGRA 402 at 409; Yates Property Group Pty Ltd v Darling harbor Authority (1971) 73 LGRA 47. However, obviously it is essential that a mere potential not be treated as a reality.

(d) The measure of compensation should place the landholder in the same financial position as he enjoyed before the activities.

(e) The value of land is the value to the landholder which is deemed to be the amount which the landholder himself would pay for the land rather than use it;

(f) “Diminution of its value” should be understood to refer to the diminution in value of the whole of the land as a consequence of the relevant activities. To confine the diminution to the area of relevant authorised activities would mean that (iii) would be similarly confined – a result not intended by the legislature (Wills v Minerva (supra) at 319).

(g) The acquiring authority itself may be considered a purchaser of acquired land which may add to its value.

(h) Where part only of a landholder’s land is acquired the landholder is entitled not only to the value of the land taken but also to compensation for all consequential losses including severance and injurious affection.

(i) The language in the phrase “diminution of the value”, invites the use of the “before and after” method of valuation if practicable, or at least a method of valuation which recognises that compensation to be assessed is the measure of the difference between the value of the landholder’s land before the activities and the value after the activities.

(j) Injurious affection is the type of damage done to the retained land which flows from the exercise of any statutory powers by the resource authority holder injuriously affecting the retained land. This type of damage is related to the uses of, or activities on the land and the consequent depreciation in value of the retained land (see, for example, Suntown Pty Ltd v Gold Coast City Council (1979) 6 QLCR 196; Marshall v Department of Transport (Qld) (201) 205 CLR 603).

(k) “Diminution of the use made or that may be made of the land or any improvement on it” comprises what is usually called “injurious affection” arising from the impact of activities. It refers to the diminution in use either present or potential of the land or any improvements and thus repeats part of the language in item subparagraph (ii). The provision is not directed towards the area activities, but to the balance land and improvements (Wills v Minerva (supra) at 319).

(l) Such language is quite different to that considered in Sullivan v Oil Co of Aust Ltd & Anor [2003] QCA 570 where the Court of Appeal held that the then language in the Petroleum Act 1923 did not evince an explicit or implicit intention to include injurious affection. Whilst some resource authority holders cling valiantly to that decision, the language of the current legislative provisions, including the PAG Act and amendments made to the Petroleum Act 1923, now permits for a much broader construction. The MRA provisions have long been held to allow for injurious affection; including since Sullivan (see eg Watts v QCoal Pty Ltd & Ors [2007] QLRT 23). An express purpose in the Explanatory Notes for the new PAG Act, when it was introduced, was to bring gas in line with MRA provisions.

(m) Following upon the decision in Marshall, it is not only the activities or constructions on the acquired land for which injurious affection is claimable but any injurious affection resulting from the exercise of the constructing authority’s activities in pursuance of the relevant scheme.

(n) Damage for the purposes of injurious affection is not confined to physical damage to the remaining land but any other injurious consequence resulting from the activities which depreciates the value of or increases the cost of using the other land. If the exercise of the power limits the activities on or the use of the land, interferes with the amenity or character of the land, deters purchasers from buying the land, the claimant is entitled to compensation (see Marshall supra at 625-626).

(o) The dispossessed owner, in appropriate circumstances, is entitled to an additional payment on the ground that he has been disturbed. As identified by Mr Scott in Wills v Minerva Coal Pty Ltd (supra) there are two general types of disturbance. The first of these is connected with the use of the land by the owner and the leading authority on this is The Commonwealth v. Milledge (1953) 90 CLR 157, the application of which has been consistent throughout Australian jurisdictions. The second type of disturbance relates to such expenses as legal, valuation and any other expert fees associated with the preparation of a claim for compensation. Such expenses are payable up to the date of lodgement of the claim in the Court.

(p) An owner cannot receive an amount for compensation for disturbance which is inconsistent with the basis adopted for the assessment of the value of land acquired. In other words, if the loss of any value of the land is made on the basis of a potential future use for which the present use must be abandoned, disturbance expenses cannot be based on the basis of the present lesser use.

(q) Any increase or decrease in the value of the land due entirely to the scheme for which compensation is payable is to be disregarded (referred to as the Pointe Gourde principle after the seminal decision in Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendent of Crown Lands [1947] AC 565).

(r) It is the duty of any dispossessed owner to take all reasonable measures to mitigate his loss.

The application and relevance of the above principles (and the methods used by a valuer in forming his assessment of compensation) will depend upon the nature of the case in particular circumstances and apply to a greater or lesser degree to various instances. However, they are a useful touchstone in any assessment.

Application in Practice

Generally speaking, the measure of compensation recoverable is dependent upon a number of factors, the most significant of which are: whether the land or any improvements taken from the owner are taken permanently or such that the owner is unable to use the land; or, if the owner retains the right to use the land, to what extent is that right interfered with.

Often the resource authority holder’s rights taken over an area are only temporary or partial and occur by way of an easement. In such cases, the value of any right to use the land will be dependent upon the infrastructure constructed and the terms and conditions of the easement agreement. The normal approach is:

(a) to allow 100% diminution in value of the land and improvements where infrastructure or surface rights are granted within an easement area (eg a compressor station or an access track along a pipeline);

(b) to allow a percentage diminution in the value of land improvements within an easement area where rights are only temporary or partial by nature or duration (eg buried pipelines or temporary work areas).

In addition to any percentage diminution in value of the land, a disturbance allowance also may be made for production losses during the construction period and rehabilitation period. In the case of grazing properties, this is usually measured on the basis of the carrying capacity of the land multiplied by the growth in kilograms per day and the dollar value of live weight per kilogram over the construction period. So, for example, in the case of a construction area directly impacting upon 3 hectares of land with a carrying capacity of 1AE per hectare the equation would be: 3AE x 1kg per day x $2.20 per kg x 180 days construction period.

A buffer area (in addition to that construction area directly impacted upon by works) also may be allowed, depending upon the effects of activities to areas external to the construction area. For example, in the case of works comprising high levels of noise or activity, particularly of an irregular nature, a buffer area of up to 500 metres may be supported by the evidence. Of course, the impacts of such activities within such buffer area will be of a graduating nature – from 100% closest to the works to 0% impact at the far edge. An average 50% may therefore be adopted so as to take account of this graduation. Accordingly, in a buffer area of, say, 10 hectares, again with 1AE per hectare, the equation may be thus: 10AE x 1kg x $2.20 per kg x 180 days construction period x 50%.

Following the construction phase there also may be period of rehabilitation whereby pasture grasses will need to rehabilitate. In certain instances, the most appropriate means for allowing this rehabilitation to occur may be to destock or not use the relevant lands. In other cases, graduating production losses over the period of rehabilitation may be calculated, for example, graduating from the time when production is totally lost to a time when full production is regained. In the case of grazing lands, it is not unusual for such rehabilitation periods to be up to three years with production losses calculated on the basis of 100% for the first year, around 60% for the second and 20% for the third year.

As regards injurious affection, in the case of grazing lands, the following matters, inter alia, may give rise to injurious affection:

(a) the loss of ability to operate the property as a vertically integrated breeding, growing and fattening property;

(b) the loss of flexibility to a operation;

(c) reduction in breeding capacity;

(d) loss of all weather or improved access;

(e) loss of water reticulation resources;

(f) a need to re-establish stock water;

(g) loss of cattle yard;

(h) need to refigure fencing;

(i) impacts caused by noise, particularly from blasting, loading trucks, vehicle movements, unloading trucks, etc;

(j) a reduction in pasture grown;

(k) increased management time or expenses;

(l) over capitalisation of the property having regard to the loss of grazing areas.

Each case will depend on its own circumstances. Any injurious affection to the value of the balance lands caused by impacts of the above kind is recoverable. Usually this again is measured by percentage diminution in value of the balance lands.

An aspect often of some controversy is owner’s management time. The suggestion sometimes made by some resource companies that management time is not payable is ignorant. Owner’s management time has been long recognised as compensable either as disturbance or, alternatively, as a consequence of severance. The more legitimate issue relates to the quantum of the extra management time required and its value.

Date of Assessment/Valuation

The date of assessment of compensation liability for resource authority activities is different to that which occurs under the ALA in which case there is a specific date of resumption. In the case of a resource authority compensation liability, the assessment or determination of compensation is as at the date of negotiating the CCA or at trial but recognising that the activities may not occur for some time into the future.

In those cases, where there is a postponement of payment until after the issue of a construction notice or activities commence, there is an obvious need alos to recognise and ensure present day calculations of compensation are appropriately indexed for the delay in payment.

Liberal Estimate Principle

The High Court has on several occasions emphasised that in compensation cases a principle that requires doubts to be resolved in favour of a more liberal estimate in favour of a claimant. In Commissioner of Succession Duties (SA) v Executor Trustee and Agency Co of South Australia Ltd (1947) 74 CLR 358 Dixon J stated at 373-374:

“[T]here is some difference of purpose in valuing property for revenue cases and in compensation cases. In the second the purpose is to ensure that the person to be compensated is given a full money equivalent of his loss, while in the first it is to ascertain what money value is plainly contained in the asset so as to afford a property measure of liability to tax. While this difference cannot change the test of value, it is not without effect upon a court’s attitude in the application of the test. In a case of compensation doubts are resolved in favour of a more liberal estimate, in a revenue case, of a more conservative estimate.”

The above statement of Dixon J was later affirmed by the High Court in Gregory v Federal Commissioner of Taxation (1971) 123 CLR 547 at 565 and more recently in Boland v Yates Property Corporation Pty Ltd (1999) 74 ALJR 209 at 279-280. In Marshall v Director General Department of Transport (2001) 205 CLR 603 McHugh J simply stated (at 627) that “Such legislation should be construed with the presumption the legislature intended the claimant to be liberally compensated …”

In McBarnon v Traffic Authority New South Wales (1995) 87 LGERA 238 Talbot J stated at 244-5:

“… it is appropriate to seek to do justice by adopting a generous approach in favour of the resumee to ensure that just compensation is paid so far as the Act allows. Therefore, any discretion should be exercised in favour of the claimant where practicable in order to achieve a just result.”

Conclusion

There may be benefits in removing the determination of compensation liability from formal modes of adjudication such as those adopted by the Courts. However, in the absence of formalised procedures as to due process and fairness, the disadvantage is that landholders may potentially be mistreated in their dealings.

It is the responsibility of all who are involved to ensure that CCA negotiations occur fairly and through well informed and fair processes so as to provide legitimacy to outcomes. In the absence of that occurring, inevitably, one way or another, determinations of compensation liability will not be finalised and further issues will arise with the real risk of litigation occurring in any event.

EJ Morzone

 

Changes from the 1995 Workplace Health And Safety Act (“The Repealed Act”)

Duties

Under the Act, what is called the “primary duty of care” falls upon persons who conduct businesses or undertakings (PCBU). It is owed to their workers and other workers when at work in the business or undertaking. A less onerous duty is owed to others at the workplace (s.19). There are also duties cast on PCBUs conducting specific types of undertakings, for example designing plant, substances, or structures for use in workplaces; they have more specific duties for activities which may impinge on a workplace (s.20 — 26). Finally there are duties which are cast on those who work within the business/undertaking, namely officers of the PCBU, workers in the business or undertaking or others at the workplace (s.27 — 29).

Officers of PCBUs

“Officer” is more broadly defined than “executive officer” under the repealed legislation.

Under the repealed legislation, the executive officer was required to ensure a corporation complied with the repealed Act, and under the Act an officer of a PCBU must exercise due diligence (which is defined) to ensure that the PCBU complies with its obligations. In both cases, a failure to exercise reasonable diligence/due diligence to ensure compliance makes the officer liable for the breach. The major differences are:

1. That the onus now lies on the prosecution to prove an absence of due diligence, rather than on the defendant to prove reasonable diligence was exercised; and

2. That arguably, under the repealed Act, it was necessary to convict a corporation first, whereas the liability of an officer arises independently of the conviction of the PCBU, under the Act.

It is in the area of offences and their prosecution that particularly significant changes have been brought about by the Act.

The liability structure

Under the repealed Act there was a single offence of failing to perform an obligation. The level of penalty depended on whether there were health consequences of the breach, and varied according to the level of the consequence. Under the Act there are significant changes to:

(a) The offences;

(b) The way they are to be prosecuted or defended;

(c) The appellate structure.

The New Offences

There are three categories of offence, with different elements and different outcomes, dependent, not on consequence of conduct, but upon the seriousness of the conduct itself. There are other offences concerned with the administration of the Act — e.g. s.188 — 190 with respect to hindering, obstructing, impersonating, assaulting etc. of inspectors exercising their powers, but I don’t intend to refer further to these latter types of offences.

The maximum penalties are significantly greater, and the level of liability will vary according to the status of the offender.

The most serious offence is the Category 1 offence (s.31) which is designated as a crime, and pursuant to s.3 of the Criminal Code is an indictable offence and must be prosecuted on indictment, (that is before a judge and jury, or in rare cases, a judge alone).

Category 2 and Category 3 offences (s.32 and 33) are simple offences and must be prosecuted summarily under the Justices Act (s.230).

A common element for each category is that the person charged owes a health and safety duty.

For a Category 1 offence, the prosecution must also prove:-

(a) That the PCBU, without reasonable excuse, engaged in conduct that exposed an individual, to whom the duty is owed, to the risk of death or serious injury or illness;

and

(b) The PCBU was reckless as to the risk to an individual of death or serious injury or illness.

For a Category 2 offence, the prosecution must, additional to the health and safety duty, prove that the PCBU has failed to comply with the duty and further that the failure exposed an individual to a risk of death or serious injury or illness.

For a Category 3 offence, the prosecution must establish, in addition to the health and safety duty that the PCBU failed to comply with the duty.

In each case, the level of penalty in ascending order of seriousness is dependent upon whether the perpetrator is:

(a) An individual;

(b) An individual, either as a PCBU or as an officer of a PCBU; and

(c) A corporation.

For Category 1 offences, levels (a) and (b) each includes a maximum penalty of five years imprisonment. Corporate maximum penalties run up to $3,000,000.00. The duty imposed on a PCBU requires that the PCBU eliminate or minimise risks to health and safety insofar as is reasonably practicable.

For a Category 1 offence, the prosecution must also prove an absence of “reasonable excuse” for the impugned conduct, i.e. the liability is not absolute.

Sections 23 (unwilled act/accident) and 24 (mistake of fact) of the Criminal Code apply to Category 1 offences, but have limited, if any, application to Category 2 and Category 3 offences (s.33A).

Strict Liability

Of the above offence creating provisions, s.31 is clearly not one involving strict liability. Firstly, liability is limited by the words “without reasonable excuse” and by the requirement of recklessness. Further, liability is potentially limited by the possible application of ss.23 and 24 of the Criminal Code (see s.33A of the Act).

On the other hand, once a duty is established, the Category 2 and Category 3 offences seem to me to be fairly clearly strict liability provisions.

This also highlights the major structural change in the offences as compared to the repealed Act.

Under that Act there was an underlying offence, which was aggravated if identified consequences occurred.

The Category 1, 2 and 3 offences are not concerned with consequences, but with exposure to risk. Each is a discrete offence. The penalty levels are not dependent on circumstances of aggravation, but on the category of offence and the classification of the offender.

Health And Safety Duties

Section 19 of the Act identifies the primary duty of care which is to ensure the health and safety of workers engaged by, or whose activities are influenced, by a PCBU, and the health and safety of others whose health and safety may be affected by the conduct of the business or undertaking insofar as is reasonably practicable.

Other duty creating provisions (ss. 20 — 26) relate to PCBUs conducting specific undertakings and are also defined in terms of “reasonable practicability”.

Section 27, which establishes the duty of officers of PCBUs, requires the exercise of due diligence, and s.28 and 29, which deal with the duties of workers and other persons at workplaces are drafted in terms of requiring reasonable care to be exercised by those persons.

This tends to ameliorate the hardship of the strict liability created by ss.32 and 33 by establishing duties in terms of reasonable practicability or reasonable care, but once the duty is established, strict liability applies to a breach of the duty.

On the face of the Act this creates a harsh penalty regime, especially for Category 2 offences.

To summarise, duties are cast in terms of:

(a) Ensuring, so far is reasonably practicable, health and safety (for PCBUs);

(b) Exercising due diligence to ensure PCBUs comply with their duty (for officers of PCBUs);

(c) Taking reasonable care and complying so far as they are reasonably able (for workers, and others, at workplaces).

The phrases I have underlined have been analysed by courts in some circumstances, and in some cases will develop further, with judicially identified meanings.

The phrase “so far as is reasonably practicable” was considered by the High Court in Baiada Poultry Pty Ltd v. R (2012) HCA 14. At paragraph 15 of their judgment, the plurality said of this phrase:

“All elements of the statutory description of the duty were important. The words “so far as is reasonable practicable” direct attention to the extent of the duty. The words “reasonably practicable” indicate the duty does not require the employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s.21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.”

At paragraph 33 the plurality said this:

“The question presented by the statutory duty “so far as is reasonably practicable” to provide and maintain a safe working environment could not be determined by reference only to Baiada having a legal right to issue instructions to its subcontractors. Showing that Baiada had the legal right to issue instructions showed only that it was possible for Baiada to take that step. It did not show that this was a step that was reasonably practicable to achieve the relevant result of providing and maintaining a safe working environment. That question required consideration not only of what steps Baiada could have taken to secure compliance but also, and critically, whether Baiada’s obligation “so far as is reasonably practicable” to provide and maintain a safe working environment obliged it: (a) to give safety instructions to its (apparently skilled and experienced) subcontractors; (b) to check whether its instructions were followed; (c) to take some step to require compliance with its instructions; or (d) to do some combination of these things or even something altogether different. These were questions which the jury would have had to decide in light of all of the evidence that had been given at trial about how the work of catching, caging, loading and transporting the chickens was done.”

As to the requirement to exercise “due diligence” imposed upon officers, in ASIC v Healey and ors. 278 ALR 618 at para 165, Middleton J (in the Federal Court) said at page 180, dealing with entirely different legislation:

“In determining whether a director has exercised reasonable care and diligence, as s.180(1) expressly contemplates, the circumstances of the particular corporation concerned are relevant to the content of the duty. These circumstances include: the type of company, the provisions of its constitution, the size and nature of the company’s business … and the circumstances of the specific case.”

Whilst the issues to be looked at in the context of a Workplace Health and Safety prosecution will be different from the specific issues to be considered in Healey, it indicates the way a Court is likely to regard this issue. At paragraph 180 his Honour said:

“Section 180 requires that a director exercise due care and diligence. Making a mistake does not demonstrate that due care and diligence was wanting. The standard required of professionals, and directors, is a reasonable care and skill and does not require perfection.”

Finally, it should be said that the issues are of course questions of fact with the answers to whether or not the conduct fits the requirements varied according to the circumstances of the particular case.

Appeals

Section 668D of the Criminal Code permits an appeal to the Court of Appeal against a conviction or sentence for an indictable offence (Category 1 offences). Otherwise, an appeal lies to a judge of the District Court, and then on matters of law to the Court of Appeal, for Category 2 and Category 3 offences. This is a significant change from the previous appellate structure, which permitted an appeal as of right only to the Industrial Court, and then Judicial review if jurisdictional error could be established (Kirk v. IRCNSW)¹.

This short analysis of the offence-creating and appellate provisions shows that there have been substantial changes to the way such matters are to be litigated, many of which are to my mind positive.

Firstly, and most importantly, the legislature has done away with an offence structure which permitted the prosecution to simply prove an obligation, prove an incident (most prosecutions follow death or injury) and then in effect challenge the defendant to prove one of the narrow defences available pursuant to s.37 of the repealed Act, of operating within the regulatory framework, or that the commission of the offence was due to causes over which the defendant had no control. Proof of either, especially the first, was particularly difficult.

Now it will be necessary for the prosecution to prove the elements of the offence including, for a Category 1 offence, that the defendant engaged in the impugned conduct without reasonable excuse, and prove that ss. 23 and 24 of the Criminal Code, if raised on the evidence, have no application, if raised on the evidence.

The new provisions, it will be seen, are more focused on punishment of conduct, rather than consequence, although I expect that prosecutions will nonetheless continue to follow largely upon serious incidents.

The new structure brings about what, to my mind, is the desirable outcome of bringing these offences into the mainstream of the criminal justice system, and away from the industrial system. Appeals will be either direct to the Court of Appeal (Category 1 offences) or to a judge of the District Court (Category 2 and Category 3 offences). This gets away from the difficulties of the “specialist tribunal” referred to in both judgments of the High Court in Kirk² .

Particularisation

It is to be hoped that this will lead to a more open approach by the prosecution to their task — in particular to provide proper particularisation of offences, which will in turn lead to fewer pre-trial applications which currently need to be brought in almost every case. Most of us thought that the proper particularisation of charges would always be required by courts after the decision in Kirk.

Since the decision of the High Court in Kirk³ and more recently of that Court in Patel⁴, the need to request and to obtain particulars in criminal trials has been highlighted for practitioners. In my view, the effect of the decision in Kirk has been narrowed down by decisions of the Industrial Court and the Supreme Court in the matter of Collins^{5,6 and 7}.

However, we may see some significant change in the light of:

(a) The change in the jurisdiction in which these matters are litigated; and

(b) The effect of the decision of the High Court in Patel which has again emphasised the importance of both seeking and being given detailed particulars of any charge.

Investigative Powers

The heavy penalties contemplated by the Act are supported by strong powers granted to investigators. In addition to the usual powers to issue improvement notices and prohibition notices, the regulator and inspectors have wide powers to investigate suspected breaches of the Act:

(a) Powers of entry (without a warrant) to premises that are, or are reasonably suspected of being, a workplace. These powers are set out at ss.163 to 166;

(b) Pursuant to search warrant, an inspector may enter premises for the purposes of obtaining evidence within a specified time — see ss.167, 168 and 169;

(c) Significant powers are granted upon entry (see ss.171 to 181). It includes a power in certain circumstances to require the provision of name and residential address (see s.185).

What should be noted about these powers in particular is that pursuant to s.172 privilege against self-incrimination is abrogated. However, there are severe limitations placed upon the admissibility of evidence obtained pursuant to s.172. Pursuant however to s.269, legal professional privilege is specifically retained.

A particularly important section in this regard, at least for the first couple of years of the Act’s operation, is s.282. This is a transitional provision for investigative powers and is far from clear in its application. From my brief experience of the Act, it would appear that different inspectors have different interpretations of how the Act applies to their exercise of power.

My view of the provision is that s.282 means that the investigative powers which may be utilised in conducting investigations into offences said to have occurred under the repealed legislation are limited to the powers that existed under that legislation. The somewhat greater powers, (for example, s.172,) in my view do not apply to investigations of offences said to have occurred under the repealed legislation. However, I am unaware of any decision made by any Court on this issue. I certainly accept that a contrary view may prevail.

These investigative powers are further supported by obligations on PCBUs to immediately notify the Regulator of a notifiable incident (see ss. 35 — 39).

The person with management or control of a workplace, at which a notifiable incident has occurred, must ensure non disturbance of the site until an inspector arrives or directs otherwise.

Own Investigation

A most difficult issue confronting those with responsibility for workplaces is whether to conduct an investigation of a notifiable incident. In addition to the expense of such an investigation, the person runs the risk that the incident investigation report will be used against them. On the other hand, one hesitates to suggest that people shouldn’t carry out investigations as this will often help to prevent any further occurrence of notifiable incidents and may be necessary in some circumstances to fulfil one’s duties under the Act. It is of course relevant on prosecution, and in particular on punishment, that a PCBU has made enquiries and made changes to overcome a set of circumstances that created an exposure to risk. The best approach is, if a report is to be obtained to do so for the purpose of seeking advice from a lawyer as to rights and prospects and to have the report commissioned by the lawyer. In this way it’s likely to be protected by legal professional privilege.

Defending allegations of failure to ensure workplace health and safety usually relies upon the evidence of relevant experts, properly briefed as to the circumstances of the notifiable incident. Always remember however, that whatever is given to an expert in commissioning a report, will of necessity, be required to be given to the prosecution if you wish to rely upon the report and if the report puts any reliance on the material.

Identifying and defending “failures”

1. The first thing to ask is whether the prosecution is under the current Act or under the repealed legislation.

2. It is necessary to identify whether the offence charged is to be heard on indictment or summarily.

3. The next matter is to consider an approach to obtain the particulars upon which the prosecution rely in bringing the allegation. However, there will be times when such an approach is not wise.

4. When you have particulars you will then need to look at the evidence, both for the prosecution side, and from the point of view of the defence, that is available to support or negative the issues raised by the particulars. It is here that a significantly different approach is possible to defending prosecutions under the Act as against prosecutions under the repealed legislation. It is now possible to properly defend the allegations without calling evidence. Under the repealed legislation it was almost impossible to do so — I can’t think of a single case where that was a serious consideration. Circumstances may require the calling of evidence in prosecutions under the Act, but it will not be as often as was previously the case. It is a matter that needs to be considered very carefully because it affects the order of addresses which, particularly in jury cases, is an important matter.

Joinder of Charges

It is interesting to note that the old joinder provisions have been substantially changed. Section 164(2) of the repealed Act provided:

(2) More than 1 contravention of a workplace health and safety obligation under part 3 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and at the same workplace.

Section 233(1) of the Act provides:

“1. Two or more contraventions of a health and safety duty provision by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

2. This section does not authorise contraventions of two or more safety duty provisions to be charged as a single offence.”

In my view, s,164(2) did not authorise the charging of multiple breaches in a single count, but in separate counts in the one complaint (see s.43 and s.4 (definition of complaint) of the Justices Act). However, the new provision seems to authorise the charging of multiple breaches of the same duty in a single charge, if they arose out of the same factual circumstance. This is a narrower basis than s.164(2), but more clearly brings about the result that prosecutors claim s.164(2) brought about. However, the new legislation does not authorise the charging of breaches of multiple duties as a single count, which is a practice which now seems sometimes to be followed, although in my view, incorrectly. Neither authorises the charging of more than one person in a single count.

Time Limits

Time limits have, by and large, been significantly extended and there should in future be a reduction in litigation concerning the application of time limits. They should, however, be strictly enforced by the Courts, given their significant extension.

The effect of the new type of limitation based on coronial findings, means that prosecutions may now be brought many years after an event. It means that in cases where a death occurs in a workplace, it will be important for a PCBU to be represented at a coronial inquest, particularly if workplace health and safety charges have not been brought, or have not been finalised. The exact effect of the coronial extension is yet to be considered by a Court, although a similar extension was recently added to the repealed legislation, and has been added to other regulatory offence regimes.

However, a significant change is that the proceedings may be brought only by the regulator, or an inspector authorised in writing by the regulator. Thus, significantly, timeframes are fixed in terms of when a matter comes to the attention of the regulator rather than to the particular complainant for a charge.

Category 1 Offences

These represent a new chapter in workplace health and safety enforcement in Queensland.

Category 1 offences are to be prosecuted on indictment — see ss. 1, 3 and 560 of the Criminal Code.

Generally speaking, committal proceedings (such as they are in Queensland) are required, although in a very truncated form, since the so called “Moynihan Reforms”. Section 560 of the Criminal Code makes it plain that the conduct of the prosecution of these offences will be under the control of the Director of Public Prosecutions. In the absence of other provisions for the Court of trial, it seems likely that the matters will be tried in the District Court.

A number of provisions of the Criminal Code will have a significant effect on the conduct of these matters:

1. Section 590 requires the presentation of an indictment no later than six months after the date on which the person was committed for trial. Although s.590 also provides for circumstances in which the prosecution may overcome a failure to do that, this is nonetheless a significant control upon delay in bringing these prosecutions and is treated very seriously by the Courts.

2. Section 590AA provides for pre-trial directions and rulings.

3. Section 590AAA to 590AX provides for, and controls, prosecution disclosure obligations;

4. Section 590B to G identifies the disclosure obligations of those in control of the defence of a matter in the Supreme and District Courts;

5. Section 594A makes provision for the appearance and plea by a corporation;

6. Section 604 makes provision for the trial of these matters by a jury, subject always of course to an application pursuant to s.614 for an order that a trial be heard by a judge sitting alone. This is a matter which, in workplace health and safety prosecutions should not be ignored, as issues of prejudice may arise in respect of defendants in these types of proceedings;

7. Joinder of these offences will be controlled by s.567 and s.568 of the Criminal Code rather than s.233 of the Act.

Category 2 and 3 Offences

Section 230 of the Act requires that proceedings for an offence against the Act, other than a Category 1 offence, must be taken in a summary way under the Justices Act. For this reason it seems to be impossible both to indict a Category 1 offence and charge a Category 2 or Category 3 offence, in the alternative, on that indictment.

Section 233 of the Act might, at first glance, suggest that there could be such a joinder, but in my view, given the very specific directions in s.230(1AA), this doesn’t seem to be an appropriate interpretation of s.233.

Sentencing for Offences

Courts have been given significantly broader powers on sentencing offenders (see ss.234 to 242 of the Act). These powers may be used to impose other orders on offenders over and above the penalty in s.31 to 33). Some of them may have serious consequences for defendants, both in terms of cost and in terms of other consequences (e.g. adverse publicity).

Adverse publicity orders (s.236) are capable of being broad and onerous and may, in some cases, be quite expensive to comply with.

Restoration orders (s.238) seem to be more applicable to other types of offences e.g. breaches of the Environmental Protection Act.

Workplace Health and Safety project orders (s.238) may require an offender to undertake a stated project for the general improvement in work health and safety within a period stated in the Order. The extent of this provision will only be known after it has been litigated. I am unsure from a reading of the provision as to whether such orders would be limited to an improvement in work health and safety within an offender’s environment or whether they could be of more general application. They have the potential to be very financially burdensome if applied more widely.

Section 239 provides for a form of workplace, health and safety bond — my expectation is that this will only be used for offences at the minor end of the scale.

With the exception of the last matter, none of these orders is going to reduce the burden on an offender, although I think it will be open to argue that a penalty should be looked at globally, and the level of punishment across all orders should be appropriate to the offender’s conduct, so that a lesser fine might be imposed where there are other orders to be made. However, s.235 makes it plain that such orders may be made in addition to a fine or term of imprisonment imposed.

Prosecution of Category 1 offences

My expectation is that there will be few Category 1 charges brought:

(a) There should be few matters that qualify, as the evidentiary hurdle for the prosecution is a high one;

(b) Workplace health and safety will not want to lose control of their cases which they will do, if the Director of Public Prosecutions takes it over, as he will, if it is to be prosecuted on indictment.

Relationship with other safety statutes

(a) Mining Safety and related matters — Coal Mining Safety and Health Act —

Mining and Quarrying Safety Health Act — Petroleum and Gas (Production and Safety) Act — Geothermal Exploration Act — Greenhouse Gas Storage Act — Petroleum Act.

This topic is dealt with in Schedule 1 of the new legislation. It deals with a number of topics, including mining related matters, electrical safety, transport rail safety and recreational water activities. What I suggest is that whenever you are looking at an incident you check whether the Workplace Health and Safety Act is excluded, or limited, in its operation by another statute, by going to Schedule 1. An example of the types of limitations and exclusions that can arise are to be found in the Mining Safety and Related Acts.

The Workplace Health and Safety Act does not apply to mines or facilities to which the above acts apply, except for Regulations relating to hazardous chemicals or major hazard facilities.

(b) The Electrical Safety Act

There have long been issues about which Act applies in circumstances where there is an incident involving the supply of electricity. This was usually dealt with by a protocol between the two authorities which exercise powers under those Acts. The Schedule will now control that issue.

Pandora’s Box

Section 231 is an unusual and concerning provision. I will set it out in full

231 Procedure if prosecution is not brought

(1) If—

(a) a person reasonably considers that an act or omission constitutes a category 1 offence or a category 2 offence; and

(b) no prosecution has been brought in relation to the act or omission after 6 months but not later than 12 months after the act or omission happens;

the person may make a written request to the regulator that a prosecution be brought.

(2) Within 3 months after the regulator receives a request the regulator must—

(a) advise the person, in writing—

(i) whether the investigation is complete; and

(ii) if the investigation is complete, whether a prosecution has been or will be brought or give  reasons why a prosecution will not be brought; and

(b) advise the person who the applicant believes committed the offence of the application and of the matters set out in paragraph (a).

(3) If the regulator advises the person that a prosecution for a category 1 or category 2 offence will not be brought, the regulator must—

(a) advise the person that the person may ask the regulator to refer the matter to the director of public prosecutions for consideration; and

(b) if the person makes a written request to the regulator to do so, refer the matter to the director of public prosecutions within 1 month of the request.

(4) The director of public prosecutions must consider the matter and advise (in writing) the regulator within 1 month as to whether the director considers that a prosecution should be brought.

(5) The regulator must ensure a copy of the advice is given to—

(a) the person who made the request; and

(b) the person who the applicant believes committed the offence.

(6) If the regulator declines to follow the advice of the director of public prosecutions to bring proceedings, the regulator must give written reasons for the decision to any person to whom a copy of the advice is given under subsection (5).

What this provision appears to permit is a person (unlimited in any way) who considers that a Category 1 or Category 2 offence has been committed in some location (otherwise unlimited) and where no prosecution has been brought within six months (and not later than twelve months) after the alleged contravention, that person may request the regulator to bring a prosecution. Within three months the regulator must advise the person making the request whether the investigation is complete and, if it is, whether a prosecution will be brought, or give reasons why it will not, and advise the suspect of the application and provide him/her with the same information. If the regulator’s position is that a prosecution will not be brought, he must tell the requestor that he/she may ask the regulator to refer the matter to the DPP and if such a request is made the regulator must refer it within one month. Within a further month (I’m sure the Director will be delighted about that) the Director must consider the matter and advise whether he/she considers that the prosecution should be brought. The regulator then must give a copy of that advice to both the requestor and the suspect, and if the regulator declines to follow the advice of the Director to bring proceedings, he/she must give written reasons for the decision to any person to whom a copy of the advice is given under ss.5. If Lewis Carroll hadn’t written “Alice in Wonderland”, this provision would have sufficed. It is open to unlimited abuse. One or more obsessive people, or people with an agenda, could bring the regulator’s office to a halt and swamp the DPP with short turn around requirements for advice. To describe it as ridiculous is an understatement. However, forms have already been gazetted for use under this provision. Although it is referred to in the introductory passages of the explanatory notes to the Bill and in the body of those notes, there is no explanation of the need for such a provision, nor any suggestion as to how its abuse is to be controlled.

Conclusion

The new legislation brings about significant changes in the enforcement of workplace health and safety legislation. To some extent the full effect of those changes will depend on the course chosen by those who prosecute. It will be an interesting journey, although a potentially painful one for some defendants.

A. J. Glynn S.C.

 

Footnotes

1. (1) 2010 239 CLR 531

2. Ibid

3. Ibid

4. Patel v The Queen [2012] HCA 29

5. N. K. Collins Industries Pty Ltd v Twigg C/2009/56

6. N.K. Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373

7. N.K. Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2012] QSC 147

We join to welcome Justice Jackson as the 113^th Judge to be appointed to the Supreme Court in its 151 year history. There is added historical significance in this occasion, the first judicial swearing-in ceremony to take place in the Banco Court of the Queen Elizabeth II Courts of Law.

I note with pleasure the presence of the Honourable the Attorney-General, the Presidents, the Chief Judge and Judges of the District Court, the Chief Justice and Judges of the Federal Court, the Chief Magistrate and his colleagues, retired Judges and Tribunal members.

The President of the Court of Appeal, the Senior Judge Administrator and Justices Margaret Wilson and Philip McMurdo have asked me to record their regret that they cannot be present this morning, because overseas, and Justice Ann Lyons who is interstate. All Judges of the court would wish to be associated with my following remarks. So would Justice Dowsett of the Federal Court: the then Mr Jackson was the then Mr Dowsett’s pupil at the bar. Yesterday at the swearing in of Justice Gageler at the High Court in Canberra, the Shadow Attorney-General, Senator Brandis, asked me to record his apology as well today, for the reason that parliament is sitting in Canberra.

I also take the opportunity to welcome members of the practising profession. Space considerations limited the number of practitioners who could be accommodated at the official opening on 3 August. I know that large numbers of practitioners participated in the guided tours conducted subsequently, at least 545 and there may have been more. It is nevertheless important that I express a particular welcome to the profession to our new courthouse, at this the first judicial swearing-in, and in so doing I acknowledge with gratitude the productively close relationship between the profession and the Judges and Magistrates. That relationship, which serves to foster continuing monitoring and reassessment of our processes, is very much in the public interest.

In that context, I also make mention of the fact that last Saturday, during the Brisbane Open House Festival, in just over five hours, as many as 1,396 members of the public toured the courthouse, an unsurprisingly high level of public interest in this remarkable building.

Before speaking directly in relation to Justice Jackson, I record gratitude, Mr Attorney, that in difficult financial times the government has found a way to increase the complement of Supreme Court Judges from 26 to 27. This necessary additional appointment will greatly assist in ensuring more timely disposition of the unrelenting workload of the court.

Given his legal acuity and intellectual pre-eminence evident through substantial trial and appellate experience over many years, Justice Jackson is an outstanding addition to the ranks of the Supreme Court, and the quality of this appointment is self-evident.

Justice Jackson’s practice at the bar spanned 35 years, 22 of them as Queen’s Counsel. Substantial corporate commercial work was its focus, but its reach was broader, including for example appearing for the pastoralists in the Wik People’s case ((1996) 187 CLR 1).

There is no doubt as to His Honour’s capacity to deal with all of the wide range of cases this court’s plenary jurisdiction exposes.

We warmly welcome Justice Jackson to the Court, and his wife Janice to the court community.

Introduction

Commercial litigation after the global financial crisis¹ has brought into sharp focus ongoing controversies surrounding the law of ‘unconscionable conduct’.

In 2012, some significant judgments in the area have been delivered by Queensland courts² and elsewhere, including by the High Court.³ Those judgments were delivered in an economic environment tempered by increased market regulation — where the regulators seem to have an insatiable appetite for litigation notwithstanding some significant, well-publicised and embarrassing losses — tightening fiscal conditions and ongoing general market volatility.

The federal government and other institutions are taking their responsibility for ensuring that, insofar as legislative oversight and intervention allows, the commercial playing field is as fair as possible.

However the controversies surrounding ‘unconscionability’ (which date back to the birth of the Judicature system) continue to trouble lawyers, jurists and academics notwithstanding the attempts (by all arms of government) to impose order. In Muschinski v Dodds,⁴ Deane J said:

Long before Lord Seldon’s anachronism identifying the Chancellor’s foot as the measure of Chancery relief, undefined notions of “justice” and what was “fair” had given way in the law of equity to the rule of ordered principle which is of the essence of any coherent system of rational law.

With ‘justice’ and ‘fairness’ as reference points, it is unsurprising that so much controversy has ensued. Now, however, the ambition towards coherency, structure and doctrine in this area of the law has arguably manifested with clarity and purpose in the legislative reforms which are the subject of this paper.

At base, these developments should be applauded because they facilitate commerce and encourage prosperity because they provide commercial predictability. In 1775, Lord Mansfield said:

In all mercantile transactions the great object should be certainty: and therefore, it is of more consequence that a rule should be certain, than whether the rule is established one way or the other. Because speculators in trade then know what ground to go upon.⁵

Lord Mansfield’s observations surely must equally apply to modern trade and commerce, whatever the form.

More recently in Campbell Discount Co v Bridge⁶ Harman LJ said:

I do not think anyhow that the discrepancy can be healed by some rather loose conception of what are called equitable principles. Equitable principles are, I think, perhaps too often bandied about in common law courts as though the Chancellor still had only the length of his own foot to measure when coming to a conclusion. Since the time of Lord Eldon, anyhow the system of equity for good or evil has been a very precise one, and equitable jurisdiction is exercised only on well-known principles. There are some who would have it otherwise, and I think Lord Denning is one of them. He, it will be remembered, invented an equity called the ‘Equity of the deserted wife’. That distressful females condition has really not been improved at all now that the so-called equity has been analysed.

Similarly, I rather deprecate the attempt to urge the Court on what are called equitable principles to dissolve contracts which are thought to be harsh or which have turned out to be disadvantageous to one of the parties. It is pointed out in one of the cases cited to us yesterday (and Lord Nottingham’s observation in Maynard v. Moseley [(1676) 3 Swan 651 at 655] is still true, that: ‘The Chancery means no man’s bargain and I do not therefore see my way to call in aid equity to mend what may be an unfortunate situation and one which, if it calls for remedy, calls for aid by the legislature rather than by the justiciary.⁷

In 2012 the legislature seems to have picked up Lord Nottingham’s suggestion from Maynard v Moseley. This paper seeks to provide a brief overview of the legislature’s work which has principally culminated in amendments to the Competition and Consumer Act 2010 (Cth).

The significant developments in 2012 in this area of the law have been very recently addressed in a comprehensive and scholarly paper by the Dean of Monash Law School and member of the government’s expert panel for the inquiry into statutory unconscionability, Professor Bryan Horrigan.⁸

I highly recommend his paper and it is available on the Qld Bar website.⁹

Topics

My paper is narrower in scope and addresses two principle topics:

Topic 1 Update on Statutory unconscionable conduct; and

Topic 2 Summary of the ‘Unwritten Law’.

Background

Garcia, Amadio and other ‘categories’ or ‘doctrines’

Before going to the statutory changes, it is worth briefly referring to some familiar general law examples of unconscionable conduct such as Amadio type unconscionable conduct (involving ‘special disadvantage’¹⁰) and Garcia type unconscionable conduct (involving equities historical protection of wives as guarantors).¹¹

It will be shown that the updated forms of statutory unconscionability are significant extensions upon these well-understood and settled categories.

The authors of On Equity recognise that ‘unconscionable’ is a term which can mislead and confuse¹² but which is generally recognised as having two meanings.

The first meaning is equity’s recognition of a range of circumstances — the authors refer to, fraud, breach of fiduciary duty, undue influence and ‘other’ — in which ‘unconscionability’ may be understood as:

…the fundamental principle upon which equity acts, namely that a party having a legal right shall not be permitted to exercise it in such a way that the exercise amounts to unconscionable conduct.¹³

The second meaning is a reference to a specific equitable doctrine which includes Amadio and Garcia type unconscionable conduct and, as further examples, the categories referred to in part four of Meagher, Gummow and Lehane, Equity Doctrines & Remedies under the general umbrella of ‘unconscionable transactions’: ‘fraud in equity’, ‘innocent misrepresentation’, ‘mistake in equity’, [more general] ‘undue influence’, ‘catching bargains’, ‘estoppel’ and ‘penalties and forfeiture’.

Topic 1 — Statutory Unconscionability

The tripartite statutory sources which regulate commercial dealings by providing a general prohibition on unconscionable conduct are:

• • Competition and Consumer Act (CCA)
  • Australian Securities and Investment Commissions Act (ASIC Act)
• • Corporations Act (Corps Act)

Summary of relevant provisions

The relevant extracts from these Acts is Annexure A to this paper.

The sources for statutory unconscionability and the relevant context for application of the provisions are as follows:

Context	CCA	ASIC Act	Corps Act
General Prohibition	Section 20 (Schedule 2) Previously s 51AA TPA	Section 12CA (Financial Services)	Section 991A (Financial Services Licensee not to engage in unconscionable conduct)
Business-to- consumer	Sections 21 and 22 (Schedule 2) Previously s 51AB TPA	Sections 12CB and 12CC
Business-to- business	Sections 21 and 22 (Schedule 2) Previously s 51AB TPA	Sections 12Cb and 12CC	Use professional therapeutic techniques, before or during mediation, to diagnose and treat relationship problems

2012 Reforms

‘Statutory indicators’

Perhaps the most significant reform to commence from 6 June 2012 is the inclusion in s 22(1) of Part 2-2 of the second schedule to the CCA of a non-exhaustive list of statutory indicators of unconscionable conduct.

The statutory indicators harmonise some of the indicia of unconscionable conduct in relation to both business-to-consumer and business-to-business contexts. The new s 22 of the CCA replaces the old ss 22 and 23 which themselves superseded ss 51AB and 51AC of the Trade Practices Act.

The twelve indicators are as follows:¹⁴

(a) [relative bargaining positions] ‘the relative strengths of the bargaining positions of the supplier and the customer’;

(b) [beyond legitimate commercial interests] ‘whether, as a result of conduct engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier’;

(c) [understanding of documents] ‘whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services’;

(d) [undue influence, unfair tactics, and duress] ‘whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the customer by the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of the goods or services’;

(e) [equivalent pricing and circumstances] ‘the amount for which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier’;

(f) [equivalent treatment] ‘the extent to which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers’;

(g) [code compliance I] ‘the requirements of any applicable industry code’;

(h) [code compliance II] ‘the requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would comply with that code’;

(i) [non-disclosure] ‘the extent to which the supplier unreasonably failed to disclose to the customer:

(i) any intended conduct of the supplier that might affect the interests of the customer; and

(ii) any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer)’;

(j) [contractual terms, progress, and conduct] ‘if there is a contract between the supplier and the customer for the supply of the goods or services:

(i) the extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

(ii) the terms and conditions of the contract; and

(iii) the conduct of the supplier and the customer in complying with the terms and conditions of the contract; and

(iv) any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract’;

(k) [unilateral variation] ‘without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or condition of a contract between the supplier and the customer for the supply of the goods or services’; and

(l) [good faith] ‘the extent to which the supplier and the customer acted in good faith’.

The question which follows from the introduction of these statutory indicators is what do they mean? Time will tell. Professor Horrigan observes that ‘high-level judicial guidance’ on these provisions are still in the early stages of development however the High Court has so far clarified that:¹⁵

a. The statutory prohibition of unconscionable conduct includes the equitable doctrine relating to exploitation of a weaker parties ‘special disadvantage’ see Berbatis;

b. ‘The character of the statutory provisions governing business-to-business unconscionability relates to imposed norms of conduct, as distinct from establishing liabilities or causes of action, with failure to meet the statutorily prescribed norm of conduct attracting statutory consequences that are not to be limited necessarily by the nature of claims and remedies under the general law (see Master Education Services Pty Limited v Ketchell (2008) 235 CLR 101, a franchising case)’;

c. ‘An overly rigid translation of common law notions on causation to the broader purposes, forms of conduct, and remedial consequences covered by the Trade Practices Act (now the Competition and Consumer Act) is inappropriate, including in relation to statutory unconscionability (see I and L Securities v HTW Valuers (2002) 210 CLR 109 at [69] and [104]; and Henville v Walker (2001) 206 CLR 459 at [96])’; and

d. ‘The statutory indicators of [business-to-consumer] and [business-to-business] unconscionability relating to reasonableness and legitimate interests are one manifestation of the ways in which the law uses notions of ‘reasonable necessity’ ( Thomas v Mowbray (2007) 233 CLR 307 at [22]).

General Prohibition

Where the now harmonised statutory indicators of unconscionable conduct do not apply to a particular circumstance, recourse may be had to s 20 of the CCA (the general prohibition) which replaced s 51AA of the Trade Practices Act. Section 20(1) of the CCA, second schedule, provides:

20 Unconscionable conduct within the meaning of the unwritten law

(1) A person must not, in trade or commerce, engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

Note: A pecuniary penalty may be imposed for a contravention of this subsection.

(2) This section does not apply to conduct that is prohibited in section 21.

The reference to the ‘unwritten law’ stands out and is discussed in topic 2 below.

It is also noteworthy that s 20 empowers the regulators to impose pecuniary penalties for contraventions.

Interpretive Principles

The final significant reform from 2012 is the introduction of new principles of interpretation for statutory unconscionability in the business-to-business and business-to-consumer contexts which are expressed in s 21 of the CCA as follows:

…

(4) It is the intention of the Parliament that:

(a) this section is not limited by the unwritten law relating to unconscionable conduct; and

(b) this section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadvantaged by the conduct or behaviour; and

(c) in considering whether conduct to which a contract relates is unconscionable, a court’s consideration of the contract may include consideration of:

(i) the terms of the contract; and

(ii) the manner in which and the extent to which the contract is carried out;

and is not limited to consideration of the circumstances relating to formation of the contract.

Summary of legislative changes

What appears to be a significant attempt by Parliament to set the boundaries of the types of conduct which may be characterised as unconscionable should be cautiously reviewed. This is notwithstanding the effect of s 21(4) of the CCA which removes any constraints arising from the general law of unconscionable conduct and has the consequence that those constraints are not to be imported into an analysis of the statutory indicators of unconscionable conduct in s 22(1) of the CCA.

Practitioners are likely to gain only limited assistance from the legislative text because the High Court has not yet had an opportunity to clarify how the reforms are to be understood in practice and intermediate courts of appeal in Australia are constrained by the High Court’s edict in Farah Constructions v Say Dee (2007) 230 CLR 89.

There undoubtedly will be many test cases in the coming years as litigation funding becomes more established in Australia (see Bathurst Regional Council v Local Government Financial Services Pty Ltd (No 5) [2012] FCA 1200, delivered 5 November 2012 — litigation concerning local government councils purchasing financial products) and class actions continue to proliferate.

Topic 2 — the ‘Unwritten Law’

The controversies surrounding this area of the law were mentioned at the outset of this paper.

These controversies are intensified because equitable doctrines which either fall under the umbrella of ‘unconscionable transactions’ or, in some other way, have as their ‘fundamental principle’ a notion that equity will respond to conduct which is ‘unconscionable’ have developed independently.

In Tanwar Enterprises Pty Ltd v Cauchi,¹⁶ Gleeson CJ and McHugh, Gummow, Hayne and Heydon JJ said:

The terms ‘unconscientious’ and ‘unconscionable’ are, as was emphasised [by the High Court] in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd, used across a broad range of the equity jurisdictions. They describe in their various applications the formation and instruction of conscience by reference to well-developed principles. Thus, it may be said that breaches of trust and abuses of fiduciary position manifest unconscientious conduct; but whether a particular case amounts to a breach of trust or abuse of fiduciary duties determined by reference to well-developed principles, though specific and flexible in character. It is to those principles that the Court has first regard rather than entering into the case at that higher level of abstraction involved in notions of unconscientious conduct in some loose sense where all principles are at large.

The term ‘unconscionable conduct’ is used in authorities such as Legione and Stern. There is nothing new in this … Cases of alleged undue influence and catching bargains [show that] the governing equitable principle in this field is concerned with the production by maligned means of an intention to act. In that context, it is easy to speak to the conduct of the stronger party as unconscionable. But the phrase ‘unconscionable conduct’ tend to mislead in several respects.¹⁷

The imperative to organise and define the boundaries of the distinct categories of case falling under the umbrella of ‘unconscionable conduct’ and the general law’s reaction to that conduct was recognised by French CJ when his Honour was a judge of the Federal Court of Australia at first instance in ACCC v CG Berbatis Holdings Pty Ltd: ‘The boundary defined by union of these classes of cases are potentially unstable as the taxonomy of applications of unconscionable conduct may shift under the unwritten law to the level of a general unifying concept or be subsumed in the more accurate idea of ‘unconscientious’ conduct’.¹⁸

Furthermore, in Attorney-General (NSW) v World Best Holdings Ltd,¹⁹ Spigelman CJ warned:

Over recent decades, legislatures have authorised courts to rearrange the legal rights of persons on the basis of vague general standards which are clearly capable of misuse unless their application is carefully confined. Unconscionability is such a standard.

Unconscionability is a well-established but narrow principle in equitable doctrines. It has been applied over the centuries with considerable restraint and in a manner which is consistent with the maintenance of the basic principles of freedom of contract. It is not a principle of what ‘fairness’ or ‘justice’ or ‘good conscious’ requires in the particular circumstances of the case … Even if the concept of unconscionability [in the NSW Retail Lease Act] is not confined by equitable doctrine as the decisions under s 51AC of the Trade Practices Act suggests, restraint in decision-making remains appropriate. Unconscionability is a concept which requires a high level of moral obloquy. If it were to be applied as if it were equivalent to what was ‘fair’ or ‘just’, it could transform commercial relationships (emphasis added).

The natural consequence of allowing principles derived from the ‘unwritten law’ and the statutory incidents of unconscionable conduct to co-exist brings into focus the question whether standards of statutory unconscionable conduct are now more stringent than the standards of the ‘unwritten law’?

[Professor Horrigan addresses the question in his recent lecture²⁰ which is beyond the scope of this paper]

Discussion

The current environment in which such considerable legislative change was mentioned at the outset of this paper.

There is an overwhelming policy reason and social imperative for legislators not to set the bar too low when setting the legislative boundaries for conduct which the law considers should be condemned for its ‘moral obloquy’. At the same time, the challenges associated with having some freestanding or organising principal (‘the chancellor’s foot’) must be met and contained and be made relevant to modern commercial transactions.

Professor Horrigan observes that the present trend in the cases and commentary suggests that the statutory standard of unconscionable conduct goes beyond the meaning given by the ‘unwritten law’.²¹

But Professor Horrigan also points out that the new statutory indicators simply provide a framework in which conduct may be assessed.

He observes that the listed indicators of statutory unconscionability might apply, depending on the nature and circumstances of the case, either independently or in combination. Accordingly, it would be unlikely for a Court to be satisfied because of the presence of, say, one of the indicators or even more that a finding of unconscionable conduct should inevitably follow which reinenforces the significance of the ‘imposed norms of conduct’ analysis (see paragraph [24]b above).

What does this mean for practitioners and advisors?

It is dangerous for practitioners, either when advising or when pleading cases, to take a simplified ‘indicator-by-indicator’ approach and pleading towards the positive conclusion that the conduct, was in all the circumstances ‘unconscionable’.

Whilst the statutory indicators provide the relevant framework, context and circumstances as well as a flexible approach remain highly relevant as they always have been. Advice and pleadings should account for this.

Judges are no more constrained under the new legislative regime than previously. Plaintiffs must still plead and prove the relevant substratum of facts if they are to succeed in their claim. For example, in Astran Financial Services Pty Ltd v Bank of Queensland Ltd,²² Buchanan J of the Federal Court observed that a ‘conclusion that conduct is unconscionable requires the identification of a standard in behaviour which is not to be equated merely with a list of factors to which a Court may have regard’.

The result is that whilst the legislature has taken up and run with the obvious imperative to address concerns which have been expressed for many years that this area of the law needed to be more closely articulated which could only effectively occur by statute the expansive nature of the Court’s inquiry is still required.

Guidance is given by the statutory indicators and the ‘unwritten law’ which assist in setting the boundaries and applicable reference points to assess the conduct in question.

Conclusion

Whilst uncertainties in this area of the law may provide yet more work for lawyers, but more likely, in practice, academics, there can be little doubt that the recent statutory reforms will have, and have had, the general effect of improving protection for consumers and business.

There is a social imperative for these layers of protection, paticularly in the current economic and social environment and the legislatures efforts should be applauded.

The recent experience of the United States after the GFC and in failing (or failed) developed economies in Europe signals the importance of a reasonable level of economic regulation.

It must be a source of comfort for Australian consumers and businesses that the legislature is encouraging more responsible commercial practices.

Chris Tam

1. 1. Significant cases include Goodridge v Macquarie Bank Limited [2010] FCA 67 (on appeal, Leveraged Equitites Limited v Goodridge [2011] FCAFC 3); Imobiliari Pty Ltd v Opes Prime Stockbroking Ltd [2008] FCA 1920; ASIC v Bank of Queensland Ltd [2011] FCA 1361 (the ‘Storm Litigation’, presently being heard in the Federal Court); Oliver v CBA (No 1) [2011] FCA 1440, ASIC v Australian Lending Centre Ltd (No 3) [2012] FCA 43.
2. Eg Coronis v Jilt Pty Ltd [2012] QCA 66; Agripay Pty Ltd v Byrne [2011] QCA 85; Thomas v Balanced Securities Ltd [2011] QCA 258; Dowdle v Pay Now For Business Pty Ltd [2012] QSC 272; ACN 096 278 483 Pty Ltd v Vercorp Pty Ltd [2011] QCA 189; and NAB v McCall [2011] QSC 25.
3. Eg Andrews v Australia and New Zealand Group Ltd (2012) 290 ALR 595; [2012] HCA 30; Beerens v Bluescope Distribution Pty Ltd [2012] VSCA 209; Tenth Vandy Pty Ltd v Natwest Markets Australia Ltd [2012] VSCA 103; Kakavas v Crown Melbourne Ltd [2012] VSCA 95; Alstom Ltd v Yokogawa Australia Pty Ltd [2012] SASC 49; Technology Leasing Ltd v Lennmar Pty Ltd [2012] FCA 709; ASIC v Australian Lending Centre Ltd (No 3) [2012] FCA 43; and Westpac v Bell Group [2012] WASCA 157.
4. (1985) 160 CLR 583, 616.
5.  Vallejo v Wheeler (1774) 1 Cowp 143; 98 ER 1012 (KB) 1017. See also JD Heydon, How Far Can Trial Courts and Intermediate Appellate Courts Develop the Law, Summer 2009 OUCLJ 1, 10 and the reference to Aud v Magruder 10 Cal 282, 291 (1858) (‘if Courts establish new rules whenever they are dissatisfied with the reasons upon which the old ones rest, the standards of commercial transactions would be destroyed, and commercial business regulated by a mere guess at what the opinion of Judges for the time might be’).
6. [1961] 1 QB 445-458-9.
7. (emphasis added).
8. B Horrigan New Directions in How Legislators, Courts, and Legal Practitioners Approach Unconscionable Conduct in Good Faith, paper delivered as part of the University of Queensland current legal issues seminar series on 18 October 2012.
9. https://portal.barweb.com.au/news/view_news_item.aspx?id=43.
10.  Commercial Bank of Australia v. Amadio (1983) 151 CLR 447, 474. See also Bridgewater v Leahy (1998) 194 CLR 457, 479, Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (‘Berbatis’) (2003) 214 CLR 51, 76-7.
11. Garcia v. National Australia Bank Ltd (1998) 194 CLR 395.
12. Young, Croft and Smith, On Equity, [5.220], referring to the discussion in Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315, 324-6.
13. Amadio, (1983) 151 CLR 447, 461 (emphasis added); Also see Berbatis (2003) 214 CLR 51, 72-3 [42]-[43]; Stern v McArthur (1988) 165 CLR 489,526-7.
14. With Professor Horrigan’s characterisation in bold and square brackets. See p 9-10.
15. Pages 11-12.
16. (2003) 217 CLR 315.
17. Ibid [20] —[23] (emphasis added).
18. [2000] FCA 2, [23].
19. [2005] NSWCA 261, [119]-[121].
20. See from page 56 onwards.
21. He refers to ASIC v National Exchange Pty Ltd [2005] FCAFC 226; ANZ Banking Group v Karam [2005] NSWCA 344; and Tonto Home Loans Australia Pty Ltd v Tavares [2011] NSWCA 389.
22. [2010] FCA 1010, [355].

An exception to the rule of ademption identified by Thomas J (as he then was) in Re Viertel (1997) 1Qd.R. 110, (“the Re Viertel exception”) was regarded as good law in Queensland up until 29 June 2012. On that date, Mullins J¹ applied the dicta of Campbell JA in RL —v- NSW Trustee and Guardian [2012] NSWCA 39 and declined to follow Re Viertel² . The New South Wales Court of Appeal rejected Re Viertel and held that a specific gift disposed of by an attorney acting lawfully was adeemed. Campbell JA undertook a detailed and thorough analysis of the law relating to the ademption of specific gifts. His Honour relied upon the development of the law of ademption as it arose out of the law relating to lunatic’s estates.

Campbell JA found that the Re Viertel exception was based upon “an incorrect view of the law”³ and misapprehension of Jenkins v Jones (1866) LR 2 Eq 323⁴. Mullins J’s application of Campbell JA’s dicta might have been the end of the discussion had Campbell JA properly considered the judgement of Hargrave J in Simpson —v- Cunning [2011] VSC 466 where His Honour recognised the Re Viertel exception as “…a further exception to the ademption principle”.

However, I am nevertheless of the view that a further exception to the ademption principle, to the effect expressed in Re Viertel, constitutes a justified extension of the common law to reflect current circumstances. People are living longer than in the past and their physical health is outlasting their mental capacity. It is commonplace for properties owned by incapacitated persons to be sold under the authority of enduring powers of attorney, to fund accommodation bonds and other necessities and comforts for an ageing population⁵.

Ann Lyons J had previously adopted Hargrave J’s judgement when she applied the Re Viertel exception on 19 December 2011.⁶ Despite the controversy as to whether the Re Viertel exception continues to exist, the issue remains as to whether an executor can attempt to satisfy a testator’s intention by tracing the residue of a specific gift, which was lawfully disposed of by an attorney during the life of an incapable testator or whether the gift is adeemed.

In her reasons Mullins J recognised at paragraph [27]: “….it will be a matter for the Parliament in Queensland to address whether there should be any statutory response to the circumstances that resulted in the decision in Re Viertel”.

The purpose of this paper is to identify those circumstances and to examine whether a legislative response is required.

The Rule of Ademption

Ademption concerns the loss of a specific gift between the making of a will and the death of the testator. Professor Paisley of the University of Aberdeen identified the fundamental features of an adeemed gift in the following terms: “Ademption is a doctrine that causes special bequests to fail. …… it depends not on the intention of the testator but on the existence of the thing bequeathed.”⁷

Where a testator with capacity disposes of a specific gift it is accepted that such disposal was done intentionally with full knowledge of the consequences. It is accepted that the testator has capacity to either execute a fresh will or to provide for the beneficiary in another way.

In Re Blake (deceased) (2009) 25 VR 27 Forrest J set out the process which an executor must go through to ascertain whether ademption has occurred:

To determine whether the principle of ademption has application to the gift, two questions must be answered by the court. First, what is it that has been bequeathed by the specific gift and, secondly, having identified the nature of the gift, does the subject matter of the bequest exist as at the death of the testator.⁸

Upon the death of a testator all property (save that which the testator held as a trustee [9] ) immediately vests with the executors named in the deceased person’s last will. Devolution of the property is effected whether the executor has or seeks a grant of probate. [10] The property which devolves is that property which the deceased held at the time of death. “A will takes effect, in relation to the property disposed of by will as if it had been executed immediately before the testator’s death”¹¹ Some property is incapable of devolution e.g. an interest in an estate for the deceased’s life or real estate held as a joint tenant.

Where a testamentary gift has ceased to exist or had been disposed of prior to death it is said to have adeemed because it cannot devolve to the executor. Ademption may occur where the subject of the gift has substantially changed, whether such change results in the gift being adeemed is a question of fact. A change in name or form is less likely to result in ademption of the gift.

In Turner (Gordon’s executor) —v- Turner [2012] CSOH 41 Lord Tyre of the Scottish Outer House Court of Session described the history and development of the doctrine

“The doctrine of ademption has its origins in Roman law, but in one important respect Scots law has followed English law in departing from Roman law principles. In contrast to the doctrine of conversion, the intention of the testator is not regarded as relevant to ademption.”¹²

The authorities relied upon by Campbell JA in RL —v- NSW Trustee and Guardian, are predicated upon the notion that testamentary intent is irrelevant, because the attorney stands in the shoes of the principal. By contrast, Thomas J recognised the importance of testamentary intent in determining whether the product of the sale of a specific gift should be traced:

“It seems to me that when a testator’s asset is altered by a third party, the question whether the testator had notice or knowledge of the facts is a relevant factor on the question of ademption. This was the view of Neuberger QC in Re Dorman deceased [1994] 1 W.L.R 282 288 the reason mentioned by the learned Deputy judge being ”presumably because in the absence of such knowledge the testator would not have had an opportunity of altering his will”.¹³

In Mulhill —v- Kelly [2006] VSC 407, Kaye J recognised that “the rejection of inquiry into intention” had moderated and that “In recent times courts of first instance have recognised a wider exception to the rule than that expressed by Cozens-Hardy MR”(in Re Slater)” . Those view were supported by Hargraves J in Simpson —v- Cutting at paragraph [39].

It was contended for the defendant that an exception which depends on the Court’s assessment of a testator’s mental capacity and likely intent would involve the Court and the parties in wide-ranging factual enquiries on incomplete evidence. It was submitted that an identity based approach based on a strict application of the ademption principle was preferable, as it would lead to a certain result which would reduce costs to the estate and avoid the use of Court resources. I do not accept these submissions. As stated above, the exceptions for fraudulent, tortuous or unauthorised dispositions of the relevant property already require the Court to consider the likely wishes of the testator at relevant times. Further, the Court is routinely called upon to examine testamentary capacity in determining disputes about wills.

Exceptions to the rule of ademption

In Power v Power [2011] NSWSC 288 Gzell J indentified exceptions to the rule of ademption including:

1. Where the gift has been removed by fraud or by a tortuous act unknown to the testator as recognised in Earl of Shaftsbury —v- Countess of Shaftsbury [1716] 23 ER 1089.
2. Where an agent disposed of the gift the subject of the bequest outside of the terms of the agency and without the knowledge of the testator as in Basan —v- Brandon [1836] 59 ER 68
3. Where the gift is still in the estate in substance although changed in name and form as in Oakes —v-Oakes [1852] 68 ER 680

The factual background to Re Viertel

In Re Viertel  the Public Trustee brought a summons under section 134 of the Public Trustee Act 1978 seeking answers to questions concerning the administration of Mrs Viertel’s estate. The question centred upon whether Mrs Viertel’s gift of her house to Mr and Mrs McCallum (‘the McCallums”) had been adeemed. In Mrs Viertel’s last will¹⁴ the Public Trustee was named as executor and trustee. In 1987 Mrs Viertel was admitted to a care facility. On 19 April 1991 Mrs Viertel appointed the McCallums her attorneys “pursuant to an enduring power of attorney”. In June 1993 Mrs Viertel suffered a stroke and lost testamentary capacity.

After Mrs Viertel lost capacity the McCallums acting pursuant to the power of attorney sold the house.¹⁵ They invested the proceeds in debentures in Mrs Viertel’s name. Pertinently, Thomas J found:

“Prior to selling the property Mrs McCallum wrote to the Public Trustee seeking advice as to what should be done with the property. She was told that the Public Trustee was not at liberty to disclose the contents of the will and that the McCallums would have to decide for themselves whether or not they sold the residence”.¹⁶

The McCallums were unaware that they were the beneficiaries of the specific gift under the will. The sale was a lawful exercise of the power of attorney. It was done for the benefit of the deceased although as Thomas J observed she would probably have disapproved of the sale.

The Re Viertel exception

The question posed in Re Viertel was whether the Public Trustee could transfer the debentures to the McCallums or whether they should form part of the residuary estate. Those facts did not readily lend themselves to any of the recognised exceptions to the rule of ademption. Thomas J identified the issue in the following terms:

“…. whether or not an ademption is effected when a sale is lawfully made by an attorney who is ignorant of the terms of the will when the testatrix is likewise ignorant of the action of the attorney, and when the intention of the testatrix to benefit the devisee never alters.”

Thomas J relied upon what he regarded as a further and different exception to the rule of ademption recognised in Jenkins v Jones (1866) LR 2 Eq 323.

The testator in that case was a farmer who held a yearly tenancy. In his last will he appointed his wife and son as executors and left to his son“….the whole of my farming stock animate and inanimate including the whole of my implements of husbandry, which shall be in my possession at my decease’. Two years prior to his death the testator lost capacity. Consequently, his wife and son gave up possession of the farm and sold all his farming stock and implements. They deposited the proceeds into a bank account. The residual beneficiaries brought a motion for an account of those funds. Sir J Stuart V-C, held:

“I think that it was no act of the testator that the chattels were converted, for he never intended any conversion, but intended that the specific legatee should have his farming stock, I ought to refuse the motion to vary the certificate”.¹⁷

Jenkins—v-Jones does not sit comfortably with the established exceptions to the rule of ademption¹⁸, which is reflected in the note of caution, which Thomas J expressed in Re Viertel¹⁹:

“It would be preferable that a point of this importance be determined by a court of greater authority. That seems unlikely in the present case, as no adverse party is opposing the relief which Mr and Mrs McCallum seek. With some hesitation I express the view that the rule recognised by Stuart VC in Jenkins v. Jones above is an historical exception to the consequence of ademption and that the present circumstances fall within that exception .”

Young CJ in Eq discussed the difficulty with this interpretation of Jenkins v Jones in Johnston v Maclaren [2001] NSWSC 932 at [18-19] where he said :

[18] In Jenkins v Jones (1866) LR 2 Eq 323, 328 , Stuart VC considered that there was an exception to the ademption rule where the annihilation had taken place without the testator’s knowledge, even if it had occurred with implied authority. He based himself on Shaftsbury v Shaftsbury (1716) 2 Vern 747; 23 ER 1089 …

[19] Although, it is a tad difficult to reconcile these cases with principle, see In re Slater [1907] 1 Ch 665, 671, they remain good law. This was the conclusion reached by Thomas J in Re Viertel [1997] 1 Qd R 110 after reviewing all the authorities including American and Canadian cases and texts .

Young CJ in Eq’s acceptance that Jenkins —v- Jones “remain good law”²⁰, was recognised by Kaye J in Mulhall —v- Kelly [2006] VSC 407 who followed and applied Re Viertel. Mulhall —v- Kelly involved the sale of real estate, for the purpose of maintaining the testatrix after she had lost testamentary capacity. The plaintiff acting as attorney had sold the testatrix’s home unit (which had been specifically gifted to her under the will) in order to pay a bond of $327,000.00 to a nursing home. The balance of the sale proceeds were exhausted in the care of the testatrix and the plaintiff had “commenced to meet the deceased’s living costs out of her own resources”.²¹ When the testatrix died the nursing home bond was repaid to the executors. Kaye J expressed similar reservations as Thomas J, but applied the Re Viertel exception.²²

Re Viertel was not followed by Judge Rich QC in Banks v National Westminster Bank [2005] EWHC 3479 (Ch), but the point was not the subject of vigorous argument before the judge²³.

A more rigorous assessment of Re Viertel was undertaken by McMurdo J²⁴ in Ensor v Frisby [2010] 1 Qd R. 146.

[3] In factual circumstances indistinguishable from the present, Thomas J (as he then was) held in Re Viertel that there was no ademption. That judgment has been followed in the Supreme Court of Western Australia in Re Hartigan; Ex Parte The Public Trustee and the Supreme Court of Victoria in Mulhall v Kelly. In the Supreme Court of New South Wales, there is a contrary decision of Nicholas J in Orr v Slender; Estate of Godfrey Raymond Orr, in which Re Viertel and Re Hartigan were cited in argument but not in the judgment. However, for the view of Thomas J in Re Viertel there is some support in the judgment of Young CJ in Eq in Johnston v Maclarn.

[4] The applicants and the executors say that I should follow Re Viertel. The respondent Ms O’Loughlin argues that I should not, because the general law is said to be now affected by s 107 of the Powers of Attorney Act 1998,

The Powers of Attorney Act 1998 (Qld) was enacted after Thomas J delivered his judgement in Re Viertel and Section 107 of that Act pertinently provided:

107 Power to apply to court for compensation for loss of benefit in estate

(1) This section applies if a person’s benefit in a principal’s estate under the principal’s will, on intestacy, or by another disposition taking effect on the principal’s death, is lost because of a sale or other dealing with the principal’s property by an attorney of the principal.

(1A) This section applies even if the person whose benefit is lost is the attorney by whose dealing the benefit is lost.

(2) The person, or the person’s personal representative, may apply to the Supreme Court for compensation out of the principal’s estate.

(3) The court may order that the person, or the person’s estate, be compensated out of the principal’s estate as the court considers appropriate but the compensation must not exceed the value of the lost benefit.

In Ensor —v- Frisby the respondent did not pursue an argument that Re Viertel was decided wrongly but rather that it was supplanted by the enactment of section 107. McMurdo J followed Re Viertel after an analysis of the authorities.

[19] The main difficulty in all of this is in seeing any justification for ignoring the words used in the will. If they are incapable of meaning anything other than a gift of specific property and not also of its proceeds of sale, then as Young CJ in Eq has said, it is “a tad difficult” to reconcile any exception with the principle. But once an exception is recognised for an unauthorised act of which the testatrix was unaware, it is a relatively smaller step to recognise, as Thomas J did, an exception where the act was done under the authority of an enduring power of attorney. Ultimately I am persuaded to follow Re Viertel, followed as it has been in two other Australian jurisdictions.

McMurdo J held that section 107 could apply consistently with the Re Viertel exception, where the testator had capacity at the time of the disposition or where the proceeds were fully expended or could not be traced. However, Section 107 does not contemplate tracing the benefit. As any compensation must come out of the estate it is possible that other beneficiaries may suffer a reduction in their entitlements.

The law had recognised that where a gift had been adeemed there was no point in seeking to trace the gift unless a situation arose as recognised by Cozens-Hardy MR in Re Slater [1907] 1 Ch.665 at 672:

“…..you have to ask yourself , ‘Where is the thing that is given?’ If you cannot find it at the testator’s death, it is no use trying to trace it unless you can trace it in the sense, that you find something which has been changed in name and form only, but which is essentially the same thing”

Where a specific gift such as a house is sold for the purpose of providing a nursing home bond, and the bond is refundable on the testator’s death a tracing exercise is straight forward. Yet the traditional exemptions to ademption did not contemplate a conversion of an asset into a refundable fund.

The extension of the Re Viertel exception

In September 2010 in Moylan —v- Rickard [2010] QSC 327 Peter Lyons J applied and extended the Re Viertel exception in circumstances where there was no specific gift and the exceptions to the rules of ademption did not apply. His Honour considered that an analogy “may be made with the approach taken in Re Viertel to avoid the failure of the gift intended by the deceased in favour of her husband.”²⁵ Peter Lyons J held “The principle that an act taken during the testator’s incapacity does not affect a disposition of property is not, it would seem, limited to cases to which the doctrine of ademption applies”.²⁶

In Public Trustee of Qld as Administrator of the Estate of Ellen Olwen Richardson, deceased v Lee & Ors [2011] QSC 409 Ann Lyons J identified the prerequisites to the Re Viertel exception²⁷. However, in that case the attorney knew of contents of the will and therefore the previously accepted prerequisites could not be satisfied. Her Honour held at paragraph [31]:

I can see no valid reason why ignorance of the contents of the will should be an essential component before the exception to the rule can be invoked particularly when one of the duties of an attorney would always be to make decisions in the best interest of the principal. Furthermore the cases relied on by Thomas J in Re Viertel are not cases which made ignorance by the person disposing of the property an essential element .

Her Honour also specifically adopted the reasons of Hargrave J in Simpson —v- Canning²⁸ in accepting that knowledge of the contents of the will did not exclude the Re Viertel exception.

RL —v- NSW Trustee and Guardian [2012] NSWCA 39

Two features of RL —v- NSW Trustee and Guardian are worth noting; the special gift in the subject will was a life interest in a shed and Campbell JA recognised that Re Viertel had no application in New South Wales because Section 22 Power of Attorney Act (NSW) 2003²⁹, “covers the type of situation with which Re Viertel was concerned”. Campbell JA undertook a comprehensive and thorough examination of the cases and opined that “Re Viertel has come to an incorrect view of the Law”³⁰ Campbell JA held that Thomas J erred in failing to recognise that Jenkins —v- Jones was a case involving an unauthorised dealing in the estate prior to the testator’s death³¹.

[152] Jenkins v Jones, on which the decision in Re Viertal (sic) purported to be based, was a case where a farmer had made a will that appointed his wife and son as executors. The will gave a specific bequest to his son of certain of his farming stock. The farmer became incapable, following which his wife and son sold the farming stock. However, they did not have any authority to deal with his estate at that time. That lack of authority would have amply justified the court’s conclusion that the legacy had not been adeemed. By contrast, in Re Viertel the attorneys had full legal authority to sell the house.

In Re Viertel Thomas J accepted that the sale by the attorneys was lawful and that the executors were bound by the attorneys’ action. What concerned him was not whether the principal was bound by an attorney’s act but rather because of a lack of capacity the principal was incapable of making a provision for the beneficiary of the specific gift which had been adeemed.

Campbell JA’s views are set out at paragraph [183]:

Absent matters such as dishonest dealings, a principal is bound by the acts of his attorney within the scope of the authority conferred, even if the principal has no intention to carry out the specific act that the attorney has carried out. This is no different to the way in which an incapable person is bound by acts, performed with proper legal authority, of whoever is administering his or her affairs, whether that administration is occurring under a court or Guardianship Tribunal management order or an enduring power of attorney.

A defect in Campbell JA’s reasoning was his failure to properly recognise the development of the Re Viertel exception and the fact that at the time of his judgement the exception was no longer an extension of Jones —v Jenkins but was in fact a discrete exception to the rules of ademption.

Campbell JA addressed Simpson —v- Cunning, at paragraph [187] but His Honour did not address Hargrave J’s analysis of the authorities including the following:

“In my opinion, the statements in Jenkins v Jones were not intended to create a new exception to the ademption principle. Rather, as held in Banks v National Westminister Bank,³² Jenkins v Jones was an application of the existing exception for unauthorised dispositions of the relevant asset without the knowledge or consent of the testator.”

Nor did Campbell JA address Hargrave J’s recognition, that Re Viertel represented a discrete exception to the rules of ademption or Hargrave J’s dicta on testamentary intent:

In support of the third submission, that the further exception was inconsistent with the testator’s testamentary intent, counsel contended that the exception would require the Court to compare the testator’s asset position at the date of the will, the date of the disposition and the date of death; and to consider the testator’s likely wishes if competent to decide what course to follow at these times. I do not accept those submissions. The further exception requires the Court to give effect to the testator’s presumed wishes in circumstances where he or she no longer has the capacity to decide what should be done. That does not involve supplanting the testator’s wishes with those of the attorney or the Court. Rather, it involves the Court in an assessment of the testator’s likely wishes if given the choice, when mentally competent, to alter his or her will in circumstances where the relevant property must be sold to further his or her interests^33.

These are important matters which were not resolved by the judgement of the New South Wales Court of Appeal in RL —v- NSW Trustee and Guardian.

On 13 November 2012 Ann Lyons J delivered her judgement in Public Trustee of Queensland (as litigation guardian of Erhel May Brigg also known as Lucy Brigg) v Stibbe as executor of the Will of the late Winifred Deidre & Anor [2012] QSC 357 declined to follow Re Viertel:

I am also satisfied that I should not follow the decision of Re Viertel, which was for over a decade accepted as authority for the proposition that a specific gift was not adeemed if the property was disposed of by a third party without the knowledge of the deceased. In the recent decision of RL v New South Wales Trustee and Guardian, the New South Wales Court of Appeal held that Re Viertel was wrongly decided. The Court held that the sale during the deceased‘s lifetime of a ‘lock up garage’, which was specifically gifted under a will, resulted in an ademption of a specific gift of that asset even though it was sold in accordance with a court order after the testatrix lost capacity. The Court held that the real question is ―whether the testator possessed the property in the specific gift at the time of his death. If he did not, the legacy is adeemed by annihilation of the subject.

The vice which Re Viertel addressed was the situation where a specific gift was disposed by a third party acting lawfully for the benefit of the testator prior to the testator’s death in circumstances where the testator lacked the testamentary capacity to make a fresh arrangement for the beneficiary.

Conclusion

Thomas J recognised that although it was desirable that a court of higher authority should determine the issue before him, that was unlikely as: “ … as no adverse party is opposing the relief which Mr and Mrs McCallum seek.” Hargrave J also recognised that one of the difficulties in analysing the authorities was the lack of vigorous argument in opposition. Hargrave J recognised that at the core of the problem lay a fundamental injustice. The example he gave was telling:

Moreover, as rightly acknowledged by counsel for the defendant, there are many circumstances where the strict application of the ademption principle will lead to an unjust result which is obviously against the testator’s wishes. For example, a husband and wife have three children, a daughter and two sons. They jointly own three properties of approximately equal value — the family home and two investment properties. They make mutual wills providing that the surviving spouse leaves the family home to the daughter and one investment property to each son; with the residuary estate being left to a favourite niece. In circumstances such as the present, an attorney sells the family home to pay an accommodation bond. The daughter survives the parents. If the ademption principle is strictly applied, the niece receives the balance of the sale proceeds as part of the residuary estate; leaving the daughter to make a claim for further provision out of the estate under testator’s family maintenance provisions of applicable legislation if there are grounds to do so. Such a result is clearly unjust, and not in accordance with the parents’ obvious intent³⁴.

The decisions in Re Viertel and Simpson —v- Cunning are well reasoned and just and delivered in States where there was no legislative equivalent of Section 22 Power Of Attorney Act (NSW) 2003. Lord Tyre in Turner (Gordon’s executor) —v- Turner³⁵ analysed the approach of Judge Rich QC in Banks v National Westminster Bank PLC and the Australian authorities decided prior to RL —v- NSW Trustee and Guardian and commented.

[31] In re Viertel has been followed by judges in a number of other Australian states; the various decisions are summarised in the judgment of Gzell J in Power v Power [2011] NSWSC 288. For present purposes I wish only to refer to an observation by Hargrave J in the Supreme Court of Victoria in the case of Simpson v Cunning [2011] VSC 466 at paragraph 45 that Re Viertel “…constitutes a justified extension of the common law to reflect current circumstances”. My impression of the Australian case law is that at least some of the judges who have addressed the issue have been inclined to regard ademption as an unjust result, and have accordingly focused upon awareness of the testator, rather than authorisation, as the basis of the Jenkins v Jones exception to ademption. Power v Power also provides an interesting illustration of a sale by an attorney that was held not to be ademptive because it did not fall within the scope of the attorney’s authority.

[32] In the end, however, a choice between the English and Australian approaches is not before me, as Scots law has adopted neither authority nor awareness as the criterion for determining whether the act of a representative such as an attorney has ademptive effect. It is, though, of some reassurance that the approach which I consider that I am bound to adopt on the basis of the Scottish jurisprudence produces a result which has generally been regarded in the Australian cases as a reasonable one and not the result which was regarded as unfortunate in Banks v National Westminster Bank plc.  

Young JA conceded in his judgement in RL —v- NSW Trustee and Guardian “the line of cases of Queensland” were “well reasoned decisions.”³⁶

But Section 22 Power of Attorney Act (NSW) 2003, is the legislative equivalent of the Re Viertel exception. There is uncertainty as to whether the Re Viertel exception can be maintained. Hargrave J and Mullins J in their judgements both suggested that legislative intervention was required to “resolve doubt”. The alternative is an argument in the High Court, would seem unlikely as few estates could bear the costs of the litigation.

In his memoir “An almost forgotten world” when speaking of his early career as a Barrister James Thomas wrote of a comment by his colleague Octavius Joseph North:

“I often took my problems to him (O.J. North) and received quick and relevant replies. Among his pearls of wisdom were words along the following lines.

‘You can’t find a common law principle to cover your case? Well, ask yourself what the law ought to be on it. You will nearly always find that this is what the law is. And if there really is no law or case exists on the point, it will be the law if you get the message across to the Judge. And if you think about what the law ought to be instead of what you want it to be, you will usually come up with the right catchword. Then when you have another look at the textbooks and digests, you may actually find there is a relevant principle after all.”³⁷

The re Viertel exception is what the law ought to be. The New South Wales legislation recognises its virtue. To not legislate may very well result in what Lord Tyre identified as “unfortunate” outcomes for the victims of an unintended ademption. Section 107 Powers of Attorney Act 1998 is inadequate to properly address the situation where a property is sold to fund a nursing home bond and the bond is refunded. The Parliament of Queensland should amend the legislation to include a provision akin to Section 22 of the New South Wales Power of Attorney Act.

Anthony W. Collins

Footnotes

1.  Trust Company Limited —v- Gibson & Anor [2012] QSC 183
2. Para [27]
3. Paragraph [151] Campbell JA opined that Thomas J had “accepted the sort of argument rejected in Re Freer (1882) 22 Ch D 622
4. Paragraph [152-157] Ibid
5. Simpson —v- Cunning [2011] VSC 466 paragraph [45]
6. Public Trustee of Qld as Administrator of the Estate of Ellen Olwyn Richardson, deceased —v- Lee & Ors [2011] QSC 409
7. Roderick Paisley “Ademption and Powers of Attorney “The Journal of the Law Society of Scotland” 12 April 2012
8. Paragraph [45]
9. Section 45(4) Succession Act (Qld) 1981
10. Section 45 (1) and (2) Succession Act (Qld) 1981
11. Section 33E Succession Act (Qld) 1981
12. Paragraph 20
13. Re Viertel (1997) 1Qd.R.110
14. made on 2 November 1982
15. Date of sale 25 July 1994
16. At line 11-15 page 111
17. Jenkins v Jones (1866) LR 2 Eq 323 at 329
18. As is set out below Campbell JA took the view that the gift was not adeemed because the executors were not authorised to dispose of the assets .
19. Thomas J Re Viertel (1997) 1Qd.R.110 at page 116
20. Prior to Johnson v Maclaren; Re Viertel was adopted by the Western Australia Suprme Court in In the Matter of the affairs of Hartigan;Ex Parte The Public Trustee (unreported Western Australia Supreme Court CIV 2283 of 1997) ;
21.  Mulhall —v- Kelly [2006] VSC 407 Paragraph 2
22. It should be noted that there was no serious opposition to the orders proposed and any further legal action would see the estate diminished .
23. See Hargrave J Simpson v Cunning paragraph [32]
24. Judgement delivered 07 September 2009
25. Paragraph [58] ibid
26. Paragraph [55] ibid
27. Paragraph [22] Public Trustee of Qld as Administrator of the Estate of Ellen Olwyn Richardson, deceased —v- Lee & Ors [2011] QSC 409
28. Paragraphs [33]
29. Para[149] RL —v- NSW Trustee and Guardian [2012] NSWCA 39
30. Para [151] ibid
31. Para [152] RL —v- NSW Trustee and Guardian [2012] NSWCA 39
32. [2005] EWHC 3479 (Ch), [28].
33. Paragraph[37] Simpson —v- Cunning [2011] VSC 466
34. Para [40] Ibid
35. Turner (Gordon’s executor) —v- Turner [2012] CSOH 41
36. Para [190] RL —v- NSW Trustee and Guardian [2012] NSWCA 39
37. James Thomas “An Almost Forgotten World” SCQ Library 2011

BAQ 2013 Annual Conference

The changing face of practice — adapting to the new landscape

8—10 March 2013, Sheraton Mirage Gold Coast

10 CPD POINTS – Ethics, Advocacy & Practice Management strands

Program

Session 1

Chair: The Hon Paul de Jersey AC, Chief Justice, Supreme Court of Queensland

Keynote address: The modern Bar: accessible, adaptable and relevant – The Rt Hon Lady Justice Rafferty DBE

The speech will address these issues from the perspective of the judiciary and identify lessons to be learned from the past and present.

Preparing entrants for the modern Bar: tertiary legal education in the technological age

The presentation will consider:

• 
  
  Should entry into the profession be the focus of a law degree?
• How best to deliver legal education when lectures can be podcast?
• Should the practicing profession have a greater involvement and, if so, what?
• Was the Priestly 11 too minimalist?

  
  

Presenter: Professor Gerard Carney, Head of School & Academic Dean, TC Beirne School of Law, The University of Queensland

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Session 2

Practice and procedure – update 2013

Facilitator/commentator: The Hon Justice Jackson, Supreme Court of Queensland

Presenters:

The Hon Justice Dowsett, Federal Court of Australia

The Hon Justice Kent, Family Court of Australia

His Honour Judge Shanahan, District Court of Queensland

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Session 3

Don’t forget the constitution – Cases where the constitution arises and related practice and procedure

Chair: The Hon Justice White, Supreme Court of Queensland

Presenters:

Walter Sofronoff QC Solicitor-General of Queensland

Gim Del Villar

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Session 4 – Split session

CIVIL LAW

Class actions – Judicial and Bar perspectives

Chair: The Hon Justice Logan RFD, Federal Court of Australia

Presenters:

The Hon Justice Murphy, Federal Court of Australia

Prof Peter Cashman, University of Sydney

Misleading or deceptive conduct

Presenter: Patrick O’Shea S.C.

CRIMINAL LAW

The particulars game …

Presenters include:

The Hon Justice Fryberg, Supreme Court of Queensland

The Hon Justice Boddice, Supreme Court of Queensland

Robert Mulholland QC

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Session 5 – Split session

CIVIL LAW

Succession: emerging issues.

Chair: The Hon Justice Alan Wilson, President, QCAT

Presenter: Rebecca Treston

Tracing the proceeds of fraud

Presenter: Dominic O’Sullivan

CRIMINAL LAW

Hypothetical – “ From charge to sentence: working in the criminal law system in 2013“

Chair: Elizabeth Wilson S.C.

Presenters:

The Hon Justice Ann Lyons, Supreme Court of Queensland

His Honour Judge Butler AM S.C., Chief Magistrate of Queensland

Tony Glynn S.C.

Peter Davis S.C.

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Session 6 – Practice Management Strand

Future of legal services

Richard Susskind will speak about the drivers of change in the legal world — client demand for ‘more for less’, the growing impact of information technology, and the liberalisation of legal markets. He will explain the shift toward the commoditisation of legal service and will argue that one key to the future will be to decompose legal work into its constituent parts and to source each part in the most efficient way. He will speak about the growing impact of legal process outsourcing, virtual courts, online dispute resolution, the future of advocacy, the role of tomorrow’s judges, the systematisation of routine and repetitive legal work, and changing conceptions of access to justice. For lawyers who are willing to adapt, he will claim that the future holds exciting new professional and commercial opportunities but for lawyers who seek to hold on to old ways of working, he will suggest that their markets will shrink and new competitors will displace them. Above all, the future for entrepreneurial and innovative lawyers is rosy.

Presenter: Professor Richard Susskind OBE

Professor Richard Susskind OBE is an author, speaker, and independent adviser to major professional firms and to national governments. His main area of expertise is the future of professional service, with particular reference to information technology. He has worked on legal technology for over 30 years. He has written and edited numerous books and has written over 100 columns for The Times.

He has advised on numerous government inquiries and, since 1998, has been IT Adviser to the Lord Chief Justice of England. Richard is President of the Society for Computers and Law and is Chair of the Advisory Board of the Oxford Internet Institute where he is also a Visiting Professor. He also holds professorships at Gresham College, London, and the University of Strathclyde in Glasgow. Richard has a first class honours degree in law from the University of Glasgow and a doctorate in law and computers from Balliol College, Oxford.

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Session 7

Technology and the law — proliferation and diversity of computer devices and online storage. What does this mean for you?

Join Nigel Carson and Brendan Read who collectively have over 30 years of computer forensic law enforcement and corporate investigations experience as they guide you through the rapidly changing technology landscape and explain how to leverage these technologies in legal matters where a text, email or other digital footprint can provide pivotal evidence.

The discussion will be heavily case study focused including:

• Collection and presentation of evidence from the Cloud such as Dropbox, iCloud, Gmail and SkyDrive.
• Proliferation of mobile devices such as iPads, iPhones, Samsung Galaxy, Blackberry and challenges in collecting data from these.
• Digital Photo and GPS device examinations.
• Online platforms to enable web driven, point and click collaborative review of digital evidence and the recent use of predictive coding.
• Review of core computer forensics skills and tools.
• Case studies incorporating all of the above with examples varying from music piracy to murder.

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Session 8

New Developments in Criminal Practice and Procedure – “The Old Bailey: a judge’s perspective”

Chair: The Hon Justice Martin, Supreme Court of Queensland

His Honour Judge Brian Barker QC, Recorder of London

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Session 9 – Practice Management Strand

How practice building has changed – helpful strategies for barristers

• practice in light of the current economic circumstances
• the importance of personal brand
• common pitfalls in practice promotion
• marketing strategies
• principles of networking
• building awareness of where you may be limiting practice potential
• guiding pupils and others seeking advice on practice building

Chair: Roger Traves S.C.

Belinda Cohen, Director, Inspired Reality

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Session 10 – Ethics Strand

Debate: future of the Bar

Chair: Roger Traves S.C.

Panel:

Richard Douglas S.C.

Kerri Mellifont S.C.

Simon Lewis

Andrew Preston

Jacoba Brasch

 

The ABA Journal website can be accessed at http://www.abajournal.com/

A selection of recent items are listed below and members are invited to explore the vast array of articles that are continually posted.

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 Arbitration Nation

“Posts cover federal appellate court decisions (occasionally state court decisions as well) related to arbitration agreements and the Federal Arbitration Act.”

View blog

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 International Arbitration

“Covers the notable legal cases, trends and personalities in international arbitration and seeks to facilitate the development of alternative dispute resolution practices.”

View blog

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