Conveniently located on George Street, in the heart of Brisbane’s Legal and Financial Precinct, Tiktak Clothing Alterations and Dressmaking are the professional attire specialists. 

 

Issue of New National Practice Notes on 25 October 2016

The Federal Court of Australia is in the process of implementing its National Court Framework (NCF) reforms. Under the NCF, the Court’s practice documents have been consolidated and refined from 60 practice documents to 25 new national practice notes. The new national practice notes will be issued on Tuesday, 25 October 2016 . 

An update has been prepared that provides an outline of these reforms and a reference table of the new national practice notes: NCF Update.

By Richard Douglas QC

Those engaged in vocations affording specialised services would covet being characterised as a “professional”. The primary reason for that, no doubt, would be the cachet attracted by such mantle. In addition, perhaps cynically, such descriptor may serve to amplify the fee for service.

The attraction of that descriptor is also important for a number of legal reasons. Four come readily to mind.

First, the Competition and Consumer Act 2010 (Cth), albeit without defining “professional”, utilises the term in two respects:

• in s 4 concerning general interpretation of terms, and s 95A concerning interpretation pertaining to price surveillance, the definition of “services” includes those:

… provided, granted or conferred under … a contract for or in relation to … the performance of work (including work of a professional nature), whether with or without the supply of goods …

• in s 6, in extension of the application of the Act to persons who are not corporations, with some exceptions, it is provided:

… a reference in those provisions to a thing done by a corporation in trade or commerce included a reference to a thing done in the course of professional activities of a professional person.

Second, the Civil Liability Act 2003 (Qld) – while in s 20 defining “a professional” unhelpfully as meaning “a person practising a profession” – goes on in s 22 ¹ to provide, with some exceptions:

A professional does not breach a duty arising from the provision of a professional service if it is established that the professional acted in a way that (at the time the service was provided) was widely accepted by peer professional opinion by a significant number of respected practitioners in the field as competent professional practice.

This provision entails enactment of a qualified version of the standard of care prescribed in the seminal decision of Bolam v Friern Barnet Hospital Management Committee. ²

Third, the Civil Liability Act, in making provision for proportionate liability in Part 2 of Chapter 2 thereof, provides in s 28(3)(b) for an exception to application in the instance of “a claim … by a consumer”. Section 29 defines “consumer”, inter alia, as meaning:

… an individual whose claim is based on rights relating to goods or services, or both, in circumstances where the particular goods or services … relate to advice given by a professional to the individual for the individual’s use, other than for a business carried on by the individual whether solely or as a member of a business partnership.

Fourth, in the sphere of insurance, the subject matter of “professional services” arises for construction, whether in the context of a policy insuring or exclusion clause. ³

So much begs the question; just who is a “professional”?

“Professional” — the authorities

Close to a century ago, in Bradfield v Federal Commissioner of Taxation,⁴ Isaacs J observed that the term “is not one which is rigid or static in its signification; it is undoubtedly progressive with the general progress of the community”.

Modern mores have taken the status of a “professional” beyond the learned professions, namely medical practitioners, lawyers, architects, engineers. More recently, such status, quite properly, has been accorded dentists, accountants, valuers, naval architects, patent attorneys, pharmacists, surveyors, geologists, veterinarians, agricultural (and other) scientists, investment advisors, stockbrokers, psychologists, physiotherapists, speech therapists and occupational therapists.

In the sphere of health, the Health Practitioner National Law,⁵ in s 5 thereof, affords a wide definition of “Health Profession”:

health profession means the following professions, and includes a recognised specialty in any of the following professions—

(a) Aboriginal and Torres Strait Islander health practice;

(b) Chinese medicine;

(c) chiropractic;

(d) dental (including the profession of a dentist, dental therapist, dental hygienist, dental prosthetist and oral health therapist);

(e) medical;

(f) medical radiation practice;

(g) nursing and midwifery;

(h) occupational therapy;

(i) optometry;

(j) osteopathy;

(k) pharmacy;

(l) physiotherapy;

(m) podiatry;

(n) psychology.

This statutory prescription ought, at least, inform the “professional” character of such vocations.

In Durant v Greiner, ⁶ a politician was found to be a professional for the purpose of the Fair Trading Act 1987 (NSW). That finding, with respect, is surprising given that the only qualification is lawful election to office.

In Prestia v Aknar,⁷ Santow J⁸ considered a raft of authorities from the United Kingdom and Australia in the context of what constitutes a “professional activity” in state legislation bereft of any definition thereof:⁹

One might essay a working definition of these terms. This would embrace intellectual activity, or manual activity controlled by the intellectual skill of the operator, whereby services are offered to the public, usually though not inevitably for reward and requiring professional standards of competence, training and ethics, typically reinforced by some form of official accreditation accompanied by evidence of qualification.

The term “professional activity” refers at least to particular activity which a member of a profession would characteristically carry out in that capacity and which is in fact so carried out by that member as such a professional. It may be that it thus excludes someone who carries out that characteristic activity pretending to be a professional but which is not. However, I do not have to decide that question. An example of the later would be an unqualified person who sought to carry out, for example, medical procedures. Of course if excluded from being a professional activity, the activity may still be business activity, depending on the facts.

Santow J observed that taxation consultants, brokers, teachers and mediators may be professionals, depending on how they organised and conducted themselves. By parity of reasoning, one would have thought tertiary teaching staff would also garner the “professional” mantle.

Plainly self-employment is not a prerequisite of professional status. With the exception of barristers, the modern professional often is a private or public sector employee.

Extended meaning

Most “blue collar” specialist vocations – eg, builders, electricians, plumbers, mechanics, ship pilots and marine masters – in addition to “white collar” specialist vocations – eg teachers, nurses (and midwives), insurance brokers, optometrists, chiropractors, osteopaths and podiatrists – are hallmarked by an extensive course of study in a tertiary institution or technical college, coupled with compulsory statutory registration founded upon the ubiquitous “fit and proper person” touchstone to garner and maintain registered status. The latter often mandates ongoing technical re-education.

It is submitted that each such “tradesperson”, for some or all purposes, ought enjoy the general law mantle of “professional”. As the authors of Charlesworth and Percy observe,¹⁰ the standard of care owed by a “learned” tradesperson has long been virtually synonymous with that of each of the said “learned” professions.

Necessarily there are limits.

Spooner-Hart Prosthetics v Jones¹¹  is an example of an unsuccessful attempt to characterise a defendant as a professional advisor in circumstances where the apt character was no more than a “specialised technician”. That case turned on the precise content of the duty owed by that defendant where there were known necessary dealings with government authority for funding of the specialised service in question.

The same could be said of other quasi-specialised services, despite those in their ranks claiming their services to be, broadly speaking, “professional” in character.

Thus, for example, specialised equipment operators – eg crane drivers, long distance haulage drivers, heavy equipment operators – while undoubtedly highly skilled, requiring significant experience and assuming considerable responsibility for safety of person and property, are unlikely to attract the requisite characterisation. Similarly, the mantle is unlikely to extend to military, police or other public or private security personnel.

Further, in the sphere of insurance, a narrower approach is generally considered apt, apropos of the usual policy language of “professional services”. Subject to policy definition, that language is ordinarily confined to the mainstream modern professions, bereft of the abovementioned extended meaning.¹² Recently, in Chubb v Robinson,¹³ the Full Court of the Federal Court was not satisfied that the moving party had proved that, in or about 2011, building project management was a “profession”, or that provision of project management services constituted the rendering of “professional services” within an exclusion in a D & O policy.

The faux professional

There are instances of a person purporting to practise as a professional, or expressing professional opinion, while in truth bereft of qualification or experience, or registration where required. The applicable principles appear to dictate that such a person will be found to owe a duty of care to the standard of care of the adopted profession.

In Pickering v McArthur ¹⁴ the defendant, a massage therapist, advised the plaintiff, his trusting client, to leave his wife. The plaintiff suffered psychiatric injury in consequence. Approving the first instance judge’s view that the application to strike out the claim ought be refused, Keane JA¹⁵ wrote:

[13] In my opinion, if it be the fact that the respondent (plaintiff) was persuaded by the applicant’s (defendant’s) claims of competence in the field of relationship counselling to act in reliance upon his advice, and such reliance was reasonable, then, if that advice was given without the reasonable care that might be expected of a person holding themselves out as qualified to give that advice, the respondent may have a good claim for damages for negligence if he suffered psychiatric harm as a result of acting upon the applicant’s advice.

[14] The respondent’s case may be said to involve a claim to remarkable gullibility and susceptibility on his part. It may also be said that the respondent’s allegations of assumption of responsibility and reliance tend to strain credulity. But, of course, the law of negligence protects the gullible as well as those who are astute to conserve their own interest. And these are arguments about whether the respondent’s allegations are true as a matter of fact.

In Timbs v Shoalhaven City Council,¹⁶ a large tree on the deceased’s land blew over on to his residence, and in turn onto the deceased who was sleeping. He was killed. The tree was the subject of an earlier tree preservation order, such that it could only be removed or cut with the consent of the defendant council. The deceased applied to the council to remove the tree. A council officer conducted a perfunctory examination of the tree and declared it safe. The deceased was advised that if he made any attempt to remove or prune the tree a fine would be imposed. In truth, the tree was unhealthy and, in consequence, unstable. The fatal incident then ensued.

It was held on appeal, apropos of a dependency claim by the deceased’s widow, that actionable negligence was proved, notwithstanding that there was no obligation in the council to declare the tree safe, and even though the examination of the tree actually conducted reasonably did not reveal it to be unsafe. The New South Wales Court of Appeal wrote (at [55]):

When the Council officer took it upon himself to express a positive view as to the safety of the tree, he was representing a capacity to do so based upon his expertise and experience. In those circumstances, the requisite standard of care required of him was higher than that of a layman. The inspector was not warranting the safety of the tree, but it was reasonable in the circumstances to expect of him that he would have made more than a cursory visual inspection. Like a general practitioner he professed a sufficient level of expertise to require him to make a reasonably informed diagnosis or to admit the need for referral to a specialist (arborist) before pronouncing and repeating his firm and positive opinion as to the safety of the tree.

If, in truth, a person purporting to act as a professional, either as a matter of routine or on a single occasion, bears the same standard of care as a true professional in that field, the cautious dictum Santow J expressed in the second paragraph of the above extract from Prestia v Aknar may be erroneous. That is, the argument would go, with the burdens ought come any benefits, including immunities afforded at common law or by statute. That issue remains moot.

Conclusion

The concept of who is a “professional” in modern commerce is fluid. Undoubtedly, the courts will address the issue with some caution. In the absence of statutory definition, much depends upon the fabric of the legislation or commercial instrument (eg insurance policy) under consideration.

As in other areas of the law, an incremental approach is likely to be adopted in construing who is to be ordained with such vocational mantle.

R J Douglas QC

Footnote

[1] Analogues of this provision, with some variation, are to be found in each Australian state, but not the territories.

[2] Bolam v Friern Barnet Hospital Management Committee [1957] 2 All ER 118; [1957] 1 WLR 582; see also Bolitho v City and Hackney Health Authority [1998] AC 232.

[3] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300, where the case law is reviewed and exemplified in operation.

[4] Bradfield v Federal Commissioner of Taxation (1924) 34 CLR 1 at 7.

[5] in Queensland, adopted in the Health Practitioner Regulation National Law Act 2009 (Qld).

[6] Durant v Greiner (1990) 21 NSWLR 119 .

[7] Prestia v Aknar (1996) 40 NSWLR 165 ; see also Shahid v Australasian College of Dermatologists (2008) 168 FCR 46 at [192].

[8] Subsequently Santow JA of the New South Wales Court of Appeal.

[9] Prestia v Aknar op cit at 186.

[10] “Charlesworth and Percy on Negligence”, 12^th Ed, Sweet & Maxwell, London, 2010 at [9-02].

[11] Spooner-Hart Prosthetics v Jones [2005] NSWCA 2.

[12] Chubb Insurance Company of Australia Ltd v Robinson (2016) 239 FCR 300 at [162]-[166].

[13] Ibid at [162].

[14] Pickering v McArthur [2005] QCA 294.

[15] Now Keane J of the High Court of Australia.

[16] Timbs v Shoalhaven City Council [2004] NSWCA 81; High Court special leave refused 4 March 2005; see also Capital Weed Control Pty Ltd v Australian Capital Territory [2014] ACTCA 8.

CPJ17 v Minister for Immigration and Border Protection [2018] FCA 1241

In this case, Charlesworth J had before her for consideration whether Rule 4.03 of the Federal Court Rules 2011 required a barrister, acting on a direct access brief, to file a notice of acting.

Rule 4.03 provides:

4.03 Appointment of a lawyer—notice of acting

If a party is unrepresented when a proceeding starts and later appoints a lawyer to represent the party in the proceeding, the lawyer must file a notice of acting, in accordance with Form 4.

Note: File is defined in the Dictionary as meaning file and serve.

The question arose in migration proceedings in which the applicant was not represented by any lawyer when the proceeding commenced but subsequently came to be represented by a barrister acting on a direct access brief. The barrister had not filed a notice pursuant to Rule 4.03. The Bar Association of New South Wales intervened on an application by the barrister for a declaration that such a notice was not required.

The Association argued, inter alia, that Rule 13 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) gave rise to an inconsistency with Rule 4.03. The Barristers’ Rule provided:

13. A barrister must not …

…

(d) act as a person’s only representative in dealings with any court, otherwise than when actually appearing as an advocate;

(e) be the address for service of any document or accept service of any document;

(f) commence proceedings or file (other than file in court) or serve any process of any court;

…

Plainly enough, if Rule 4.03 did oblige a barrister in the circumstances to file a notice of acting, there was a potential inconsistency such as to invoke the operation of section 109 of the Constitution, with the effect that relevant section of the State delegated legislation (the Barristers Rules) would be invalidated.

Her Honour found, after detailed consideration of the context of the Rules and their purpose, that Rule 4.03 did not operate to require a barrister acting on a direct access brief basis to file such a notice.

That did not, her Honour observed, mean that where a document was prepared by a barrister acting in such a matter, the obligation in Rule 2.16 did not apply. That Rule provides:

2.16 Details at foot of each document

(1) A document filed in a proceeding must contain the following information under a horizontal line at the foot of the front page of the document:

(a) the name and role of the party on whose behalf the document is filed;

(b) the name of the person or lawyer responsible for preparation of the document;

(c) if the party is represented by a lawyer—the telephone number, fax number and email address of the lawyer;

(d) if the party is not represented by a lawyer—the telephone number, fax number and email address, if any, of the party;

(e) the address for service of the party.

Thus, where a barrister acting on a direct access brief prepares a document filed in a proceeding, there must be compliance with Rule 2.16 and the barrister’s name must appear accordingly.

Adrian Duffy QC

Edited by Justice Debra Mortimer , Federal Court of Australia

Publisher: The Federation Press

Reviewed by Kate Blackford Slack

Administrative Justice and its Availability is a collection of papers that were presented at a joint conference of the Federal Court of Australia and the Law Council of Australia held in Melbourne in August 2014.

The profundity of each of the papers demonstrates the important contribution to the practice of public law that this conference provides. A brief summary of each of the papers is outlined below.

First in the collection is an address titled ‘Administrative Law: The Challenges of the 21^st Century’ that was written and presented by Justice Dennis Davis, a judge of the Western Cape High Court and President of the Competition Appeal Court of South Africa.

In his paper, Davis J sought to address whether there are core values of judicial review that transcend national boundaries and constitutional frameworks. After acknowledging that ‘context is everything in law’, Davis J identified that the South African executive government and its administration are ‘neither well-resourced nor experienced’ which, he believed, placed the South African courts under increasing pressure to step in to make up for the administration’s shortcomings.

This expanded role for the courts means that there is not an equal distribution of what Davis J identified as being ‘critical to the process of review’, namely, participation and accountability.

A result of the administration bearing less than its fair share of the load is that government officials ‘make little effort to implement legal decisions or to adhere to the specific terms of court orders’.

While Davis J considered that his country’s experience was less than optimum, he was keen not to encourage a complete judicial withdrawal from regulating public life. Using the example of the Roberts court in the United States, His Honour concluded that extracting courts from their role in providing administrative remedies ignores the continuous tension between the ‘legitimate province of the legislature and the executive, and the framework of rights within which the democracy must operate.’

In his address titled, ‘Rationality and Reasonableness as Grounds of Review’, The Hon William Gummow AC discussed the principles of rationality and reasonableness and their implication for the scope of judicial review powers. His Honour conducted an analysis of applicable constitutional principles, considered the distinctions between public and private law and addressed the Australian systems of statutory review.

The address ends with an assessment of the current terrain. In doing so, His Honour provided a suitable introduction to the two addresses that follow, namely, those delivered by Justice Gleeson SC and Kristen Walker QC, respectively titled ‘Taking Stock after Li’and ‘Judicial Review for Unreasonableness or Irrationality: The Role of Proportionality’.

In his address, Gleeson J comprehensively analysed Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 and concluded that, as a result of the majority’s reasoning in Li, there is effectively an onus on administrative decision-makers to provide reasons that demonstrate how they have weighed the evidence to avoid both express and inferred error.

In her address, Kristen Walker QC discussed the role of proportionality post-Li and the distinction between power and discretion and the implications for rationality, reasonableness and proportionality.

Justice Alan Robertson, in his address, ‘The Contemporary Approach to Jurisdictional Error’ draws on the views of Sir Stephen Sedley to remind the reader that unreasonableness, in the Associated Provincial Picture Houses Ltd v Wednesday Corporation [1948] 1 KB 223 sense, was not a radical invention of 20^th century jurisprudence but was the result of a long line of authority ‘belonging to a depressing catalogue of abdication and as another example of failure to apply an elementary rule of public law (pursuant of a collateral purpose — text book ultra vires) …’

A comprehensive overview of the authorities that apply to the issue of whether a decision-maker’s failure to provide adequate reasons means that a decision is infected by jurisdictional error, is provided by Stephen McLeish SC in his contribution, ‘Reasons, Reasoning and Jurisdictional Error’.

Margaret Allars SC, in her address titled, ‘The Distinction between Jurisdictional and Non-jurisdictional Errors: Its Significance and Rationale’, examines the distinction between jurisdictional and non-jurisdictional errors in the seminal cases of Craig v South Australia (1995) 184 CLR 163 and Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

Using the no evidence ground as an example, Ms. Allars then evaluated how the distinction operates in practice and concluded that there is little support for the distinction.

In her address titled, ‘Accessibility, Merits Review and Self-represented Litigants’, Melinda Richards SC addressed the accessibility of merits review for self-represented litigants. She pondered the following four areas that bear on that question: practical measures to improve accessibility; the role of the model litigant; the obligation to afford a fair hearing; and inquisitorial versus adversarial justice.

In the final address titled ‘Constitutional Writ Review and the ADJR Act’, Neil Williams SC provided a concise synopsis of the scope of review under the Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) compared with constitutional writ review at common law. The reader is gently reminded that ‘each mechanism of review has its own complex limitations, and the prudent pleader would plead, or at least consider, all available avenues of relief’. That is especially so given, for example, the gradual elasticity of the test of unreasonableness at common law compared to the static statutory test provided in the ADJR Act.

The compilation ends with in-depth summaries of four panel sessions that contemplated: the contemporary approach to jurisdictional error; administrative review in other jurisdictions; federal administrative law and accessibility; and, constitutional writ review and the ADJR Act: ships in the night?

All contain insightful perspectives offered by practitioners and jurists, well qualified to comment.

This collection is highly recommended to those interested in the current state of public administrative law principles.

Kate Blackford Slack

Author: Jane Harper

Publisher: Macmillan

Reviewer: Stephen Keim

A phone call in March changed the course of my year in 2016. I accepted an item of work which took up the next five months. Its demands squeezed out many of the more pleasurable aspects of my normal routines and replaced them with an ascetic rhythm of their own. Among the things that received the flick was my participation in the Blokes’ Book Club.

It was with singular pleasure then that, one balmy night in late October, I was off to John’s Tuscan villa in Saint Lucia having read the designated book and prepared to take part in discussions.

The Dry uses a well-worked theme of mystery thrillers, namely, the return to the home town of the protagonist who has left and made a life in the city. The return unravels memories and brings back events and conflicts which have been forced below the concerns of day to day thought. The past and present rush towards one another until mysteries that haunt both are finally laid bare.

The returning child of the town, on this occasion, is Aaron Falk, an AFP investigator who specialises in fraud and money laundering. He is returning for a funeral. His childhood best friend, Luke Hadler, amid the desperation of a long drought, has used his shot gun to kill his wife, Karen, his son, Billy, and himself. Only his infant child has been spared.

Aaron intends to make the barest of social catch ups before his return to Melbourne. He does not feel comfortable in this town. Another scandal involving suspicion attaching to his father for another death had driven both father and son to the city when Aaron was in his late high school years. A lie told by Aaron at that time, at the behest of the now dead Luke, had heightened the suspicion that fell on father and son. Luke had urged Aaron to lie, purportedly, for Aaron’s benefit at the time but, in the light of recent events, Aaron is not now so sure.

Aaron runs into Gretchen, Luke’s high school sweetheart, in the grounds of the church. Along with the Ellie, whose drowning death had led to the departure of Aaron and his father, Gretchen, Luke and Aaron had made a close foursome in the years before the tragedy of Ellie’s death had brought everything apart.

A phone call from Luke’s Dad, Gerry, forces Aaron to do what he knew he had to do: visit Gerry and Luke’s Mum, Barb. Apart from being his best friend’s mother, Barb had been the closest thing to a mother that Aaron had ever experienced. His own mother had died before he had known her.

Barb and Gerry have a request. They think murder suicide is too pat an explanation for this tragedy. They want Aaron to make some inquiries to second guess the explanation which has been accepted by the police from the nearby regional centre who have conducted a cursory investigation. Reluctantly, pleading that this kind of investigation is not his thing, anyway, Aaron agrees to look at the books from Luke and Karen’s farm and make a few other inquiries to see what he can find out.

Gerry and Barb’s perhaps natural misgivings turn out to be shared by the local police constable, Greg Raco. There are aspects of the killings that do not quite add up to murder suicide, such as the positioning of Karen’s body (as if she had been answering the door to a visitor) and the shot gun cartridges, not the brand normally used by Luke for work around the property.

Aaron is unable to avoid other actors from his previous life in the town. Grant Dow, the school bully, from Aaron’s days in school has graduated to the role of town bully. In this regard, he has inherited the mantle from his uncle, Mal Deacon. Mal is still alive but, as Aaron observes, is losing aspects of his mental acuity. Mal’s part in Aaron’s past life is particularly acute since he is not only Ellie’s father but, in his role of aggrieved parent, was instrumental in driving Aaron and his father from town.

The Dry is a first novel. Ms. Harper won the Victorian Premier’s Literary Award for an Unpublished Manuscript. She brings to the task of her first novel, however, the skills of an accomplished journalist having worked as such both in Australia and the UK.

The Dry is narrated in the third person. The narrator, however, most of the time, is not omniscient but, rather, is restricted to the knowledge and feelings of Aaron Falk. Ms. Harper uses the additional device of a truly omniscient narrator, identified by italics, for flashbacks and other circumstances where the atmosphere of the novel requires a wider perspective. The technique proves very effective.

In any mystery piece of art, the reader is continually invited to ask whether a particular event or piece of information is key to the novel’s eventual resolution or whether it is mere detail designed to distract the reader. The Dry is remarkable for the extent to which everything contributes to the novel’s denouement. Even the extreme drought conditions are more than mere atmosphere and a false explanation for the deaths of Luke, Karen and Billy. The dry conditions play a key role in the dramatic scenes at the conclusion of the novel. The Dry is also remarkable for the way in which the involvement of the distant past influences the present mystery. The reader’s search for the solution will vary according to whether she thinks there is one mystery to be solved or two.

The blurb on the front cover quotes David Baldacci describing The Dry as one of the most stunning debuts that Mr. Baldacci has ever read. The members of the Blokes’ Book Club did not go that far in their praise (but they are a hard mob to please). They did think, however, that The Dry was a very well thought out and well-executed work. Ms. Harper obviously benefits from her experience as a journalist and the pre-honed skills this allows her to bring to the task.

As well as the handling of the mystery, the novel develops and works its characters well. The reader comes to identify with Aaron as his investigations reveal much about him. Most moving, however, is the pathos of the last weeks and days of Ellie Deacon’s life before her drowning death. Although the reader comes to the subject decades after the events and learns about Ellie in small dribs of information, the experience is, nonetheless, compelling. Of all the tragedy revealed in The Dry, this is what is most likely to move the reader to tears.

Stephen Keim

FINANCIAL ASSURANCE

The payment of a FA is a requirement either under the EP Act or as a condition of an environmental authority (EA). The DEHP is required to decide the amount and form of FA under s295 of the EP Act. Such decision must be made having regard to the prescribed guideline being the Guideline: Financial Assurance under the Environmental Protection Act 1994 (4 March 2016) (the Guideline).

DECISION HIGHLIGHTS

• It is not sufficient for the Department, or the Court, to merely consider the prescribed guideline in a cursory way. Rather the words “must have regard to” contained in section 295(3) of the EP Act, represent mandatory language which requires consideration that must involve an active, intellectual process.
• The Guideline: Rehabilitation requirements for mining resource activities (EM1122) is irrelevant to the assessment of the amount of financial assurance.
• The financial standing of the proponent is irrelevant to the assessment of the amount of financial assurance.
• The application of a contingency amount is contrary to the EP Act because the use of the expression total likely costs and expenses (found in section 295(4) of the EP Act) is diametrically opposed to the inclusion of a such amount, being an amount for unknown costs, and falls outside the scope and purpose of requiring FA to be given for an EA.
• The Precautionary Principle does not apply to the assessment of the amount of financial assurance pursuant to section 295 of the EP Act.
• The Guideline permits the parties to enter into agreements regarding the retention of infrastructure. The effect of this, is that the corresponding infrastructure can be removed from the assessment of the amount of financial assurance.
• In appeals such as these, each party will bear the onus of proving what they assert with respect to the rehabilitation plan and resulting FA calculations.

What you need to know …

• The Guideline: Rehabilitation requirements for mining resource activities does not apply to the assessment of FA
• Financial standing of an EA holder is irrelevant to the assessment of FA
• The application of a contingency amount is contrary to the provisions of the EP Act for the assessment of FA
• The precautionary principle does not apply to the assessment of FA
• The Guideline permits parties to enter into agreements regarding retention of infrastructure and in such circumstances, the corresponding amount does not need to be included in the FA

For more information please contact me at kmcintyre@qldbar.asn.au

On 4 May 2016, the High Court handed down its decision in Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16.

There were two main issues on the appeal. The first was whether the advocate’s immunity from suit extends to negligent advice which leads to an agreed settlement. The second was whether the Court should reconsider its previous decisions on the advocate’s immunity.

The Court unanimously declined to reconsider its previous decisions on the advocate’s immunity, but held, by majority (French CJ, Kiefel, Bell, Gageler and Keane JJ; Nettle and Gordon JJ dissenting), that the immunity does not extend to negligent advice which leads to an agreed settlement.

A detailed analysis of this important decision will be included in the next edition of Hearsay.

The Court’s decision, as well as links to the transcript of the hearing and the parties’ submissions, can be found here.

Josh Underwood

Welcome to the latest edition of Hearsay. Much has happened since the last edition and we have an interesting array of pieces for your reading pleasure.

Vale

Since the last edition, we have seen the passing of the Honourable James Patrick O’Hara Barry, a former Justice of the Family Court of Australia.

Justice Barry retired from the Family Court of Australia on 27 June 2011 after 27½ years of service. He was the first judge appointed to the Townsville registry of the Court and served there from 1983 until 2000 when he transferred to Brisbane. In 1988 his Honour was also appointed a Presidential Member of the Commonwealth Administrative Appeals Tribunal.
We also saw the passing after a short illness of one of our members, Guy Burridge who was called to the Bar on 8 November 1999. 

Valedictory Ceremony for The Honourable Paul de Jersey AC, Chief Justice of Queensland

Members are reminded that the Valedictory Ceremony in honour of the retiring Chief Justice, the Honourable Paul de Jersey AC, will be held on Friday 27 June 2014.  The ceremony will be held at 9.15am in the Banco Court, Level 3 Queen Elizabeth II Courts of Law, 415 George Street, Brisbane.
 
Queen’s Birthday Honours

Congratulations go to her Honour Chief Judge Patricia Mary Wolfe who was made Officer of the Order of Australia (AO) in the Queens’ Birthday Honours List. The citation read:

For distinguished service to the judiciary, to the law through legal education reform, and as a mentor and role model for women.

Her Honour was admitted as a barrister in 1978. She served as Deputy Commissioner in the Commission of Inquiry that became known as the Fitzgerald Inquiry. Her Honour was appointed to the District Court in 1995 and became Chief Judge in 1999.

New Chief Justice

The Honourable Judge Tim Carmody QC, the Chief Magistrate, has been appointed as the next Chief Justice of the Supreme Court of Queensland to succeed the Hon Paul de Jersey AC, on 8 July 2014.

Judge Carmody was admitted to the Bar in 1982 and took Silk in 1999. From 1987 to 1989, he was Counsel Assisting the Fitzgerald Inquiry into police corruption. From 1996 to 1997 he was Counsel Assisting the Inquiry into the Criminal Justice Commission and from 1998 to 2002 he was the Queensland Crime Commissioner. In 2003 he was appointed a judge of the Family Court of Australia, a position he held until 2008. Prior to his appointment as a District Court Judge and Chief Magistrate in September 2013 he served as Chairman of the Queensland Child Protection Commission of Inquiry.

Congratulations and best wishes go to his Honour for the challenge ahead.

Resignation of Davis QC

On a sad note for the bar, Davis QC recently tendered his resignation as President of the Bar.

Davis QC was called to the bar in 1990, having first practised as a solicitor since 1984. He took silk in 2005. He has been a member of the Bar Council since 2007 and has served as Chair of the Criminal Law Committee and Professional Conduct Committee and as Vice President prior to becoming President.

Members will no doubt join in expressing gratitude to him for his sterling service.

New Bar Office Holders

Doyle QC succeeds Davis QC as President of the Bar. Doyle QC has practiced as a barrister since 1987 and took silk in 1995. He had previously practised as a solicitor for some years. He has been a member of the Bar Council from 2002 to 2008 and from 2011 to date, and of course recently served as Vice President. He has been Chair of the Commercial Law Committee since 1996.

Diehm QC has become the new Vice President of the Bar. He was called to the Bar in 1991 and took silk in 2008.

Hunter QC has taken up the vacant position as member of Council. Hunter QC was called to the Bar in 1987 and took silk in 2008.

Congratulations and best wishes to each of them for the challenges ahead.

Happy reading.

Adrian Duffy

Author: Jock Serong

Publisher: Text Publishing, Melbourne

Reviewer: Stephen Keim

It was not a surprising thing that, for my birthday, I might receive a book called “The Rules of Backyard Cricket” from a family of granddaughters who had, along with their parents, each signed an inscription on the title page. Big Bash had been a big topic of conversation at Thursday night dinners during 2016. I had spent a fair bit of time during day time gatherings trying to get one or other child to improve some aspect of the skill set that would eventually allow them to play cricket. Indeed, although it was after my birthday and after I had received my copy of The Rules, I did achieve one of those influential occurrences where everyone plays: young and old, male and female, cousins, aunts and uncles.

At such events, the direction of young lives can be determined. At such events, role modelling is more than a theoretical concept.

I made a point of reading The Rules as my first book of the Christmas holidays. Indeed, I commenced it even before they had properly started. All those other books left over from my October birthday, and the avalanche of them that would arrive in a few days, would have to wait. Perhaps, the inscriptions suggesting that I knew a thing or two about the backyard form of the game were influential in that decision.

The Rules is not an esoteric discussion of the rules of backyard cricket. There is nothing therein about whether striking the tennis ball over the fence on the full should result in the batter receiving six runs credit while at the same time being forced to cease batting. It is not that sort of book at all.

The first chapter is about a man bound and gagged travelling in the boot of a motor vehicle between Geelong and the western suburbs of Melbourne. He has recently received a bullet wound to his knee. And he anticipates that the end of his journey will be closely followed by his death, also, by gunshot.

Cricket, indeed, backyard cricket, is introduced in the second chapter. The structure of the novel also becomes clear. The man in the boot, and narrator of The Rules, is Darren Keefe. His review of his life for the benefit of the reader commences in chapter 2. We meet him as a grade two-er, playing cricket against his older (by 19 months) brother, Wally, in their backyard in Fernley Road, Altona, in 1976.

As the novel unfolds, we return at the beginning of each chapter to Darren’s struggles, inside the boot, to obtain some freedom from his duct tape gag and the cable ties binding his hands and feet. The bulk of the narration, however, concerns the review of Darren’s life as, supported by their single mother, he and Wally graduate from the backyard to junior club, then through the various levels, to lives and careers in and around first class cricket.

A novel which commences with the main protagonist wounded and restrained in the boot of a car on a last journey to his certain death is always going to be a thriller and a whodunit.

The reader might be forgiven, however, for much of the novel’s progress to regard the book as a fictionalised but serious study of Australian sport and society in the decades either side of the turn of the twenty-first century. Darren and Wally are raised by their single mother who works long shifts as a bar worker for this purpose. That she is dedicated to enabling their lives as emerging cricketers means that the hours are longer to meet the expenses of club fees and equipment but punctuated by short visits to cricket grounds to watch the two boys play.

From the beginning, the games of backyard cricket are marked by fanatical rivalry that breaks out into childhood fights on a regular basis. The rivalry rising to antipathy continues through their lives into adulthood and beyond. The rivalry, forged in childhood battles, appears, most of the time, to be just the other side of family closeness and love.

Unlike most other backyard cricket alumni, Darren and Wally are brilliantly talented and their honed skills lead to stellar careers. Darren is the more brilliant of the two. His career is held back, somewhat, however, by his propensity for late nights and illicit substances; his lack of love for officialdom; and his lack of discretion in his choice of friends. The chief exhibit in respect of the last of these qualities is Darren’s housemate, friend and protector, Craigo, who had saved both Darren and Wally from a beating when the sledging in an early junior rep game had matured into an ambush by opposition players on the way out of the stadium. Craigo, however, while he is devoted and clings to Darren, has other parts to his life that Darren would rather ignore and deny than guess at.

Wally, on the other hand, scales the greatest heights of the game because his performances are backed by his knowledge of, and ability to comply with, the rules, written and unwritten, that accompany any human activity. The always restrained and composed appearance that Wally presents to the world shows none of the uncontrolled violence that had punctuated his part in the childhood backyard battles.

The close knit relationships of a single parent home are supplemented with the passage of time by the addition of Wally’s wife, Louise, their daughter, Hannah, and Darren’s partner, Honey, a publicity officer of a radio station in whose studio Darren had been making a guest appearance. The family dynamics are impacted upon by the demands of professional sporting lives. They help to ameliorate the worst of those impacts on individuals but the family, itself, suffers. This is a battle fit for titans.

Darren’s weakness for bad friends and the unsavoury aspects of life allows The Rules to pack in examples of all the worst things that have happened in modern Australian professional sport. The real life examples do not come just from cricket. Rugby League and Australian Rules Football are two other generous contributors. Contact with professional criminals; reckless drug taking; womanising; and involvement with gambling interests including the spot fixing of sporting events all find their way into Darren’s life and play a role in his course towards his unhappy situation in the boot of a travelling vehicle. The device of the bad boy sportsperson as narrator allows The Rules to provide an explanation as to how apparently admirable human beings can find themselves making repeated selfish and stupid decisions that harm themselves and those who surround them.

One of Jock Serong’s loveliest achievements in the pages of The Rules is his excoriation of the involvement of the communications industry in enabling famous people who have breached the norms of society to redeem themselves through a shallow public explanation and apology in profitable prime time, thereby, allowing them to resume their selfish and profitable lives. Darren is, himself, revolted by the process through which he is redeemed and the actors who facilitate it. Nonetheless, like many before him, he consents to go through it and is soon, again, resuming his life as an authoritative figure within media’s coverage of sporting events.

Gradually, as the progress of the biographical narrative inches closer to the dramatic crime scene opening of the novel, The Rules reinstates itself as a mystery thriller in the reader’s mind. The reader turns over the likely and less likely culprits for the likeable Darren’s present difficulties and attempts to resift the given information for clues.

Jock Serong, like many successful writers, has previously worked as a lawyer. He is the editor of a magazine publishing stories about the oceans called the Great Ocean Quarterly . He has contributed articles on sport to different journals including this excellent piece on world professional surfing champion, Tyler Wright.

The Rules of Backyard Cricket is an exciting read and works both as a mystery crime novel and as a welcome critique of those aspects of professional sport that gain headlines when they surface but which we all largely ignore. We gain so much satisfaction from watching and following sport. Like Darren and Wally, sport goes back to roots in our childhood. For these reasons, perhaps, it easier to assume that nothing is really wrong with its modern professional emanation and the industries that draw upon it.

Stephen Keim