So you want an expert witness

The Question of what qualifications must an expert witness have arose in Doyle v Hornsby Shire Council [2018] NSWLEC 45 ‘Doyle[1] where it was held that the qualification for a person to give expert evidence does not necessarily require that they have a university-based qualification.

What an expert witness must demonstrate to the Court is their specialised training, knowledge or experience that they have obtained to be considered as being qualified to speak authoritatively about the subject matter in question with the necessary degree of specialised knowledge or skill expected of an expert witness.

In the Doyle case a council witness had significant relevant experience and formal academic qualifications in engineering surveying but not in engineering he was still considered qualified to give expert evidence on the technical aspects of the proposed driveway design. His Honour commented (at [72]) that:

Indeed, to hold that the absence of a university-based qualification would disentitle Mr Clare from being accepted as an expert for the purposes of assessing Mr Doyle’s application would be intellectual arrogance of the highest order. It would also be bad at law!

Therefore the absence of a degree is not a limiting factor for a person to be an expert witness so long as they can demonstrate the relevant experience and knowledge that would see a person considered as an expert in their field.

What is required is that you procedurally meet certain requirements as the duty of an expert witness is not to the party that hired them but to the Court, the overriding duty of an expert is to assist the Court on matters relevant to the experts expertise, an expert is not an advocate for a party to a proceeding and if the Court suspected bias or advocacy then the expert testimony is likely to be given little weight.

For example, in Cubillo v Commonwealth of Australia (unreported, Federal Court, Foster J, 14 December 1995)[2] at pp98-119, Foster J said of an expert witness: He tended to be abrasive, partisan and dogmatic. He not infrequently appeared to assume the role of an advocate rather than of an impartial expert … Dr K’s Theorising was shallow, unsubstantial and unacceptable’

What must be included in the report of an expert witness are :

  • (a) the full name and address of the expert witness;
  • (b) the expert’s qualifications, experience and area of expertise;
  • (c) a statement setting out the expert’s expertise to make the report;
  • (d) reference to any private or business relationship between the expert witness and the party for whom the report is prepared;
  • (e) all instructions that define the scope of the report (original and supplementary and whether in writing or oral);
  • (f) the facts, matters and all assumptions upon which the report proceeds;
  • (g) reference to those documents and other materials the expert has been instructed to consider or take into account in preparing his or her report and the literature or other material used in making the report;
  • (h) the identity and qualifications of the person who carried out any tests or experiments upon which the expert relied in making the report;
  • (i) a statement:
    summarising the opinion of the expert;
    • identifying any provisional opinions that are not fully researched for any reason (including the reasons why such opinions have not been or cannot be fully researched);
    • setting out any questions falling outside the expert’s expertise; and
    • indicating whether the report is incomplete or inaccurate in any respect.
  • (j) A signed declaration by the expert that:

“I have made all the inquiries that I believe are desirable and appropriate and that no matters of significance which I regard as relevant have to my knowledge been withheld from the Tribunal.”

 

[1] Doyle v Hornsby Shire Council [2018] NSWLEC 45.

[2] Cubillo v Commonwealth of Australia (unreported, Federal Court, Foster J, 14 December 1995).





COULD THE AUSTRALIAN PARLIAMENT PASS A CONSTITUTIONALLY VALID LAW CAUSING CITIZENS TO BE DETAINED ON CENSUS NIGHT?

He is supposed to be home to fill in the form on Census night

Justice Gummow pointed out in the High Court case of Al-Kateb v Godwin [2004] HCA 37 that:

… it could not seriously be doubted that a law providing for the administrative detention of bankrupts in order to protect the community would be a law with respect to bankruptcy and insolvency[1] … or that a law providing for the involuntary detention of all persons within their homes on census night would be a law with respect to census and statistics.[2]

The fact that Parliament under section 51 of the Constitution has power to make legislation on these subjects does not by itself make such laws valid.[3]

You might argue Human Rights,   that this would amount to arbitrary detention, a breach of Article 9 of the International Covenant on Civil and Political Rights which states :

Article 9

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

You might argue :

“that the intent of Parliament should be interpreted by this Court in a manner that is consistent with Australia’s “international obligations”: that is, Parliament should be assumed to have intended that any provisions for detention in the Act comply with Art 9 of the International Covenant on Civil and Political Rights which admonishes against “arbitrary detention”.[4]

However the High Court has held:

These submissions cannot be accepted. [IF the] statutory language is clear and unambiguous. It leaves no room for any implications of the kind found by the House of Lords and the Privy Council. It requires the detention of aliens until such time as they are granted a visa or removed from Australia.

There is certainly no basis, in my view, for an implication to the effect that the ability to detain aliens in accordance with the Migration Act is limited to detention for a “reasonable” period.

Nor is a presumption, assuming it should be made, against legislation that is contrary to an international obligation, sufficient to displace the clear and unambiguous words of Parliament.

It is a matter for the Australian Parliament to determine the basis on which illegal entrants are to be detained. So long as the purpose of detention has not been abandoned, a statutory purpose it may be observed that is clearly within a constitutional head of power, it is the obligation of the courts to ensure that any detention for that purpose is neither obstructed nor frustrated.[5]

In conclusion the answer to the question

COULD THE AUSTRALIAN PARLIAMENT PASS A CONSTITUTIONALLY VALID LAW CAUSING CITIZENS TO BE DETAINED ON CENSUS NIGHT?

Is Yes.

First they came for the communists, and I did not speak out – because I was not a communist;

Then they came for the socialists, and I did not speak out – because I was not a socialist;

Then they came for the trade unionists, and I did not speak out – because I was not a trade unionist;

Then they came for the Jews, and I did not speak out – because I was not a Jew;

Then they came for the boat people, refugees, asylum seekers and I did not speak out – because I was an Australian.

Then they came for me – and there was no one left to speak out for me.

~ Martin Niemoller with the addition of one lines by the author.

 

Foot Notes

 

[1] Section 51(17) Constitution.

[2] Section 51(11) Constitution, Al-Kateb v Godwin [2004] HCA 37 at 133.

[3] Ibid.

[4] Ibid at 297.

[5] Ibid at 298.





A Family Court judge has rebuked the federal government for its “inordinate delay” in replacing retiring judges in an extraordinary speech calling for an urgent injection of funds to deal with a growing caseload.

Justice Stephen Thackray, who resigned as a judge of the Family Court’s appeals division amid a controversial shakeup of court administration, said judges worked “very much harder” than was reasonable and court staff had not received a pay rise in “four years and eight months”.

He said inefficiencies in the Family Court were caused by a range of factors, including a shortage of judges and registrars. Retiring judges were “either not replaced or replaced with inordinate delay”, he said.

Justice Thackray took aim at the “bizarre” family law structure in which jurisdiction is shared between the Family Court and the Federal Circuit Court, saying it “[confused] the hell out of everyone” because different rules and procedures applied in each court.

Attorney-General Christian Porter said on Friday: “Both the Family Court and Federal Circuit Court have a full complement of judges, with the most recent appointment to the Family Court announced on 15 March.”

He said he was “convinced that significant efficiencies and improved outcomes can be achieved by a range of reforms inside existing resources”.

Mr Porter said “decisions of substantive internal court management” were ultimately a matter for Chief Justice Pascoe and Chief Judge Alstergren and “my observation is they are bringing an unprecedented energy to making a more efficient family court system”.

Source : Sydney Morning Herald





After being quick to condemn police this week in the wake of a scathing report into the tasering of a driver in Fremantle, Western Australia’s Attorney-General has given an assurance the McGowan Government will pay two other taser victims more than $1 million in compensation.

The assurance from John Quigley comes despite his Government’s continuing legal action against the couple which, if successful, could leave them financially ruined.

Robert Cunningham and Catherine Atoms were awarded more than $1.1 million in damages — to be paid by the police officers and the WA Government — by District Court Judge Felicity Davis in December 2016.

They have spent hundreds of thousands of dollars on legal fees and medical bills since they were tasered after a night out in Fremantle in November 2008.

Their legal struggles over the past decade have left the couple suffering post-traumatic stress disorder and physical injuries, but they are still waiting for their damages payments.

One reason for the delay is that the WA Government is appealing against the damages decision of Justice Davis, which will be heard by the WA Supreme Court of Appeal next month.

But in an attack on how police investigate misconduct within the police force, Attorney-General John Quigley told the WA Parliament that he would ask the State Solicitor to consider whether criminal or disciplinary offences were committed by the three police officers.

He also suggested that taxpayers would pay Mr Cunningham and Ms Atoms’ damages.

“When that finding came out with a $1.1 million damages award that the taxpayers will ultimately have to pick up — I note it is under appeal, but the taxpayers are obviously going to have to foot the bill — the Police Department’s response on that occasion was that those people had been fully investigated and that, despite the judge’s findings against them, had been cleared,” he said.

A spokeswoman for the Attorney-General told the ABC his statements in Parliament constituted an assurance on behalf of the Government that compensation would be paid in full.

In the District Court case, the police officers and the WA Government took the position that they acted lawfully and fairly.

But Justice Davis found the three officers — Glenn Caldwell, Peter Clark and Simon Traynor — each acted maliciously and, along with the WA Government, were liable to pay damages.

Appeal argues Government’s liability

It could be difficult for the couple to receive damages from the police officers involved.

Court documents from last year said the three police officers were impecunious — meaning they had little or no money — while their appeal fell apart after they failed to pay security for their costs.

At the same time, the WA Government has appealed Justice Davis’s finding on the basis that it is not liable to pay the damages because, in a change from its earlier position, the officers acted maliciously.

Under section 137 of the Police Act, if officers have been malicious or corrupt, they are personally liable.

There is also discretion within the Act for the Treasurer to pay the damages if Mr Cunningham and Ms Atoms are unlikely to receive them.

But the couple could miss out if the WA Government is successful in its appeal and the Treasurer chooses not to exercise their discretion.

In a written response, Mr Quigley said the Government had not appealed Dr Cunningham or Ms Atom’s entitlement to damages or the amount of damages awarded.

Source : https://www.msn.com/en-au/news/australia/couple-tasered-by-police-in-fremantle-will-get-dollar11-million-in-damages-wa-attorney-general/ar-BBKAOKl?ocid=spartanntp

 





FAMILY LAW : S.121

Restriction on publication of court proceedings.

 

I have been having an ongoing debate as to whether S.121 applies to cases afoot in the Family Law Courts or does it extend indefinitely for the rest of the natural lives of the parties including the children when they become adults?

 

I, argue, that it only applies whilst cases are afoot, there is no blanket prohibition for all of eternity, as to have such a thing would require the wording of the Legislation to be crystal clear and unambiguous if there was such a prohibition, it would need to be written in express and clear terms, anything less than that from Parliament would not be enforceable for breach of the principle of legality.

There are a few formulations of the principle of legality, with relatively minor variations. In Re Bolton; Ex parte Beane (1987), Brennan J set out the principle in these terms:

 

Unless the Parliament makes unmistakably clear its intention to abrogate or suspend a fundamental freedom, the courts will not construe a statute as having that operation.[1]

In Attorney-General (SA) v Corporation of the City of Adelaide, Heydon J said:

The ‘principle of legality’ holds that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. For that principle there are many authorities, ancient and modern, Australian and non-Australian.[2]

 

In Lee v New South Wales Crime Commission (2013), Gageler and Keane JJ said that the application of the principle is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values.[3]

Having said that, in  practice, it seems abundantly clear, that there is an eternal prohibition and this post should not be considered as legal advice, nor even a legal position, but just a matter of curiosity….

FAMILY LAW ACT 1975 – SECT 121

Restriction on publication of court proceedings[4]

[1] Re Bolton; Ex parte Beane (1987) 162 CLR 514, 523. This was quoted with approval in Coco v The Queen (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

[2] Attorney-General for South Australia v Corporation of the City of Adelaide (2013) 249 CLR 1, 66 [148] (Heydon J).

[3] Lee v New South Wales Crime Commission (2013) 302 ALR 363.

[4] FAMILY LAW ACT 1975 – SECT 121 Restriction on publication of court proceedings accessed here http://classic.austlii.edu.au/au/legis/cth/consol_act/fla1975114/s121.html 14/02/2018 at 7.39pm.





Introduction

This paper examines ‘Phil’ the hypothetical lawyer who didn’t study international commercial law, which is not necessary to complete a law degree.  Phil didn’t know the United Nations Convention on Contracts for the International Sale of Goods ‘CISG[1] applied to a contract of sale based on Victorian law.

The CISG[2] has been adopted worldwide by 84 States[3] becoming the governing law globally, covering international sales of goods since the 1st of January 1988 and adopted in Australia, in all states and territories, since April 1st 1989[4].

Autonomous Application.

The CISG is autonomously applicable to all Australian transactions involving the sale of goods internationally by virtue of Article 1 (1) as a result of Australia being a contracting State.  The Convention, which is now part of the municipal law of Australia, is not to be treated as foreign law which requires proof as a fact[5], the Provisions of the Convention have the force of law in Victoria[6] and prevail over any other law in Victoria to the extent of any inconsistency[7].

Despite three decades of operation few cases have considered CISG in Australia.  According to the Pace Law School, Institute of International Commercial Law, that maintain a CISG database of cases, their Country Case Schedule (last updated on the 25th of January 2016) contains links to some 3,152 cases where Courts in Member states have considered CISG, of those only 26 cases from Australia get a mention[8], similarly searches on Australian Legal Databases produce few results.

Australian application of the CISG has been criticized as still in the Australian legal outback[9], with criticism extending to suggest Australian lawyers have paid the CISG inadequate attention to their clients detriment[10].

The criticism has been savage, “the CISG has not been fully understood”[11] and “it is fair to say that the CISG is scarcely known in Australia.”[12] One has to wonder what chance would an Australian client have with an Australian lawyer who is not well versed in CISG?

The Lawyer Who Doesn’t know Part I – Does CISG apply?

If Phil relied on his knowledge of Australian Contract Law when drafting, choosing Victorian Law as the agreed law that governs the contract and thus invoking the Goods Act 1958 (Vic) ‘GAV’,     he may unwittingly have put his client into a position where the contract is subject to the CISG first and foremost, with Australian law only filling any gaps.

This is because the GAV provides that the CISG has force of law in Victoria, and prevails over any inconsistencies[13]. Even if a lawyer tries to avoid the CISG in the pleadings the Court may still apply the CISG due to the lawyer pleading incorrectly inapplicable domestic laws.

This was evident in Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2001] QCA 433[14] where the contract stated any dispute to “be settled by the laws prevailing in Brisbane”[15] yet it was held that the CISG applied, stating

“As the respondent was in Australia and the appellant in Malaysia it was held that The United Nations Convention on Contracts for the International Sale of Goods, made relevant by the Sale of Goods (Vienna Convention) Act l986, applied to the transaction. The learned trial judge held on the evidence that the appellant had fundamentally breached the contract and assessed damages pursuant to Articles 74 and 75 of the Convention.”[16]

Then in Perry Eng P/L (Rec And Man Appt’d) V Bernold AG No. SCGRG-99-1063 [2001] SASC 15 (1 February 2001) ‘Perry[17] where Perry already entered default judgement and the hearing turned to damages, the contract provided:

“The Contract shall be deemed to have been made in the State of South Australia and all matters relating directly or indirectly thereto or arising directly or indirectly there from shall be governed in all respect by the Laws of the State of South Australia and the parties submit to the exclusive jurisdiction of the State of South Australia Courts.”[18]

The Court however took a different view, stating “However, there is a further complication that the Sale of Goods (Vienna Convention) Act 1986 (SA) applies to the dealings between the parties but the relevant provisions have not been pleaded in the plaintiff’s statement of claim. The statement of claim has been drawn up on the assumption that the South Australian Sale of Goods Act applies. This seems to me to be fatal to the plaintiff’s ability to proceed to judgment based on damages for breach of contract.”[19]

In response Perry contended “that it was not necessary to plead the specific provisions of the Sale of Goods (Vienna Convention) Act”[20].  Reliance was placed on Roder Zelt v Rosedown Park[21] but, Burley J did not accept this and distinguished the cases stating “in my view that case is not authority for the proposition contended for by the plaintiff. The trial Judge, von Doussa J, did not complete the hearing of the matter and did not then indicate that it was unnecessary to plead the statute.”[22]

Therefore it is clear that Roder Zelt can be easily distinguished, as held by Brumby J above.[23]  Ultimately it was held “That being the case, the Court cannot proceed to an assessment of damages based on the provisions of an Act of Parliament which the plaintiff acknowledges do not apply to the claim pursued by the plaintiff.[24]  Phil just lost his client damages.

The Lawyer who doesn’t know Part II – Domestic Pleadings.

In the case of Ginza Pty Ltd v Vista Corp Pty Ltd[25]Ginza[26] ordered contact lens solution from Vista subject to compliance with the Australian Therapeutic Goods Administration (‘TGA’) regulatory requirements including that the goods were sterile.

The TGA discovered bacterial contamination in its random testing and ordered the goods recalled.

A dispute between the Seller and Buyer ensued with Vista suing for full contract price and Ginza countered that no payment should be due with claims for breach due to non-conformity, negligence[27] and claimed damages for lost profits and lost goodwill as well as costs of recall[28].

Merchantable Quality.

Ginza argued express terms of compliance with TGA regulatory requirements and sterility were a condition of the contract and in the alternative implied terms of “merchantable quality and fitness for purpose” applied pursuant to the Sale of Goods Act 1895 (WA) or the CISG[29].

The problem with such an argument is that “merchantable quality” is not a CISG term[30], it comes from Common Law and Domestic Legislation, which the CISG is above autonomously and any interpretation of the Contract, as it is covered by CISG, ought to be read in light of CISG Article 35(2)(a) and global case law.

In this case the appropriate standard is “fitness for purpose” which requires the goods to be of specific standards[31] and non-conformity under Article 35(1) which requires compliance with “quality, quantity and description”.

If it was not so clear cut and the distinction was drawn between merchantable quality in reliance upon domestic law as opposed to fitness for specific purpose which is a narrower standard under the CISG, Phil’s client could face a controversial matter.

Phil might erroneously find in Ginza a reason to cite a non-CISG case in support of an argument of contamination[32] however, as Barker J considered, any pleadings ought to be made in light of the CISG on cases of non-conformity[33] and with CISG case law available which specifically deals with the issue of contamination, non-conformity and whether there was an obligation to take the goods,[34] Phil would be in trouble if he doesn’t know this.

Reasonable Time

Another issue Phil needs to consider, is notification under the CISG, even if the item does not conform with the specifications in the contract, the CISG requires that the Seller be notified within reasonable time or the right to claim is forfeited[35].

The CISG has been adopted into domestic legislation and because domestic law forms part of the agreement and applies CISG to a transaction even if the opposing party is not a CISG country so long as the choice of law is Australia, CISG applies, as held in  Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 ‘Playcorp’[36].

It has been held that CISG applies unless expressly excluded as noted by Bridge, “[t]here seems to be hardening in favour of the view that choice of law clauses in favor of the law of a Contracting State do not exclude the CISG”[37].

The trend in Australia in Commercial contracts for international sale of goods has been to opt-out of the CISG which in many cases may not be in the best interests of the client, who would be better served had CISG been the operative law[38].

Services can be captured by the CISG

The CISG can apply to services, not just goods, a client represented by Phil may be surprised to find that they may be liable for breach of a service contract pursuant to the CISG in certain circumstances[39], this is provided for in Article 3.
If an Australian Client supplied substantial materials to the Seller to transform and sell back to the Buyer, this might attract the CISG as it may be held the buyer is liable for the transformative process to the degree the quality of the materials supplied affects the quality of the product.  Where the value of the goods exceeds a 50% maximum threshold for transformation services[40], under CISG the seller may avoid responsibility.

When the service component is completed in Australia, Phil didn’t know that Arbitration clauses can be avoided in service contracts in certain circumstances, pursuant to S.106 of the Industrial Relations Act 1996 (NSW) on the grounds of being an unfair contract in terms of the effect the contract has on the Industry norms[41].

Australian Consumer Law may not apply

Goods bought for personal use are excluded under the CISG, as are stocks, shares, negotiable instruments and money, also ships, aircraft and the supply of electricity are excluded, as are auctioned goods and goods sold on execution of authority of law under Article 2.2.3.

Phil faces another problem with Article 2.2.4, he may not think the Convention applies and find himself captured by it regardless, because it was not explicitly excluded.[42] His arguments on common law contract validity and the effect which the contract may have on property if the goods sold, are excluded by the CISG[43].

If Phil relies upon such Australian cases when ultimately the CISG is the prevailing law, he may be applying precedents that globally have been criticized and have valid International precedents[44] from CISG cases and other external sources[45] used against him.  Much of Phil’s argument could be struck out[46] of court.

Phil didn’t know that the Interpretation of Legislation Act (1984) s.35 is in conflict with the CISG and to the extent of the conflict the CISG prevails, for start, the CISG has it’s own interpretive provisions in Article 7 that require it to be interpreted in light of its international character and the need to promote uniformity and good faith in international trade.

Article 7(1) CISG “excludes recourse to methodological theories of interpretation of domestic texts”[47] meaning use of domestic law in resolving interpretation of text covered by the CISG is explicitly excluded.  You can’t use domestic law to interpret CISG.

Phil is thrust into the CISG world where autonomous[48] interpretation[49] as seen in Playcorp where even if the other contracting party is from a Country that is not a member state of the CISG it still applies as Part of Australian Law which governs the Contract.  In doing so CISG is lifted autonomously above the domestic law and prevails in the event of inconsistencies.  It is to be interpreted under three CISG directives.  Having regard to the CISG’s International Character, promoting uniformity in application, and promoting good faith in International Trade[50].

Good Faith

Australian contract law has struggled to come to terms with “good faith” as a contract term[51], yet the CISG requires it in International Trade.

As Australia’s contract law values freedom of contract and economic independence, the High Court recently cast doubt upon whether good faith is an automatic term in contract law.[52]

However, in Australia, such an implied term appears to conflict with fundamental notions of caveat emptor that are inherent (statute and equitable intervention apart) in common law conceptions of economic freedom. It also appears to be inconsistent with the law as it has developed in this country in respect of the introduction of implied terms into written contracts which the parties have omitted to include.”[53]

“Good Faith” is not implied into a contract in Australia as it is with CISG, Phil might argue that good faith is not part of the contract as it is too vague and uncertain[54] as is the Australian position and that his client’s legitimate interests were being protected, which is not in breach of an express contractual term. Which in Australian contract law, he may be right, but here with CISG being the dominant law, that argument would fail.

Phil may find acting in good faith, in CISG terms, involves both parties acting in good faith, to each other, to the point of minimizing damages of the other party as much as favoring the party acting in its own “legitimate interests”,[55] to be seen as good faith.  To do an act that knowingly a party ought to realise is foreseeable to cause harm would be considered a breach of that good faith.

It would be easy to fall into the trap of relying on the Queensland decision of Downs Investments Pty Ltd (in liq) v Perwaja Steel SDN BHD [2002] 2 Qd R 462 ‘Downs’, which itself misinterpreted the application of the CISG in common law terms citing erroneously non-CISG cases of Robinson v Harman (1848) 1 Ex 850 and Hadley v Baxendale (1854) 9 Ex 341 ‘Hadley’ instead of focusing on Article 74 and International cases.  It’s a published decision that forms part of our Common Law after all.

However, CISG can be distinguished from our Common law in that Article 74 focuses on damages, and limits to it, to actual damages and lost profits for breach, and then limits it further to foreseeable damages which ought to have been known, the CISG views things from the perspective of the breaching party unlike our Common law and the cases cited in Downs which examines the ‘contemplation’ of both parties[56] this would not assist in a CISG argument.

To make things worse now for Phil, CISG Article 73 defines foreseeability as a ‘possibility’ whereas he relies on Common law in Hadley requiring ‘probability’. A significantly different standard of foreseeability, with ‘probability’ requiring the additional level of an objective reasonable person test of whether or not on the balance of probabilities it was more likely to happen, than not, that it is ‘probable’ that the event would occur.

Phil is in difficulty if his client is the one doing the breaching, the plaintiff just needs to prove that is was foreseeable, that it was possible, while Phil may argue to the wrong standard and cost his client avoidable damages.  Had Phil known the Court was obligated to determine the matter on CISG Jurisdiction, he may have submitted additional evidence to counter the foreseeability to a possibility standard.

Phil sees a case based on Victorian Law and relies upon the Goods Act (Vic) 1958 which requires that the goods be of a merchantable quality, where as now he finds himself in CISG Jurisdiction which requires fitness for intended purpose.

The higher standard of specific purpose requires that the seller disclosed to the buyer the specific purpose that the goods would be used for and required that the Seller confirm that the goods could meet that specific purpose as opposed to a merchantability standard, which just requires that the goods are fit for the general purpose they are intended for.

So while Phil argues that the goods the seller supplied were of merchantable quality, the buyer doesn’t care.  If the buyer asked can I use your microwave oven to melt glass safely? If the seller said yes, then it matters not that the microwave works perfectly for its general purpose it was intended for, if it can’t melt glass, it is not fit for the purpose.

In Conclusion;

Phil has a lot to learn.  A Corporate client with Phil as a lawyer would certainly be disadvantaged, a lawyer who has not studied CISG and International Commercial Law would be ill-equipped to advise a client on even drafting a contract, let alone litigating a dispute based on one.   Any commercial transactions in Australia involving the sale of goods internationally would need an experienced International Commercial Lawyer who is well versed in CISG.   As Australian Courts play catch up, they may entertain Phil and his arguments for a while, but if the dispute turned on application of the letter of the law, the Australian Courts will be obligated to follow the CISG and its application as a higher law when it comes to international contracts for the sale of goods.

Postscript

You can begin to appreciate the value in having a lawyer trained in CISG, similarly so, you ought to ensure, if you have a problem, that your Mediator is also experienced and trained in CISG and International Commercial Law.

What does your mediation clause state in your contract?  Does it provide for mediation by a Nationally Accredited  CISG Mediator?  How can you mediate what you don’t understand?

Footnotes:
[1] United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 ‘CISG’.

[2] Ibid.

[3] CISG: Table of Contracting States, accessed at http://cisg.law.pace.edu/cisg/countries/cntries.html on 02/01/2018 at 1.27pm.

[4] Sale of Goods (Vienna Convention) Act 1987 (Vic) (repealed) now found in the Goods Act (Vic) ‘GAV’ S.85, Sale of Goods (Vienna Convention) Act has also been incorporated into all other States and Territories and the Trade Practices Act 1974(Cth) S.66a, now found in Competition and Consumer Act (Cth) 2010 – Schedule 2 The Australian Consumer Law, s.68.

[5] Roder Zelt and Hallenkonstruktionen GMBH v Rosedown Park Pty Ltd. (1995) ACSR 153, op cit.

[6] GAV S.86.

[7] Ibid S.87.

[8] CISG Database Country Case Schedule accessed at http://cisg.pace.edu/cisg/text/casecit.html on 02/01/2018 at 1.35pm.

[9] Spagnolo, L., “The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the  Vienna  Sales  Convention  for  Australian  Lawyers” (2009)  10 Melbourne  Journal  of  International Law 141, at p.142.

[10] Ibid, David Fairlie, ‘A Commentary on Issues Arising under Articles 1 to 6 of the CISG’ (Paper presented at the United Nations Commission on International Trade Law (‘UNCITRAL’) and Singapore International Abitration Centre Joint Conference, ‘Celebrating Success: 25 Years United Nations Convention on Contracts for the International Sale of Goods’, Singapore, 22–3 September 2005).

[11] Benjamin Hayward, “The CISG in Australia–The Jigsaw Puzzle Missing a Piece” ‘Benjamin’, citing Zeller,

B., “Traversing International Waters” (2004) 78(9) Law Institute Journal 52, at p352.

[12] Ibid citing Finn, Justice P., “National Contract Law”, supra fn 7, at p.9.

[13] GAV S.85-87.

[14] Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2001] QCA 433.

[15] Ibid at 21.

[16] Ibid at 2.

[17] Perry Eng P/L (Rec And Man Appt’d) V Bernold AG No. SCGRG-99-1063 [2001] SASC 15 (1 February 2001) ‘Perry’.

[18] Ibid at 15.

[19] Perry at 16.

[20] Ibid at 17.

[21] Roder Zelt-und Hallenkonstruktionen gmbh v Rosedown Park Pty Ltd & Anor [1995] FCA 275; 13 ACLC 776.

[22] Perry at 17.

[23] Ibid.

[24] Perry at 18.

[25] Ginza Pty Ltd v Vista Corp Pty Ltd  [2003] WASC 11 (Unreported, Barker J, 11 January 2003) ‘Ginza’.

[26] Ibid.

[27] Ginza at [12]–[13], [16]–[18]. A related action between Ginza and a corporation related to Vista, Kontack Pty Ltd was consolidated with this action. Counterclaimed commission fees were admitted and are not relevant to the current discussion: see ibid [20].

[28] Ibid at [21], [214]. On damages for loss of goodwill under art 74.

[29] Ibid at [13], [16].

[30] Ibid at [190].

[31] Ibid at [124], [153].

[32] Ginza at [131], [152].

[33] ICC Award No 6653 of 1993 (1993) (22 per cent of steel bars outside specified weight tolerances); Engines for Hydraulic Presses and Welding Machines Case (Landgericht Düsseldorf, Germany, 23 June 1994) and ICC Award No 8740 of 1996 (coal contained 20 per cent rather than specified 32 per cent dry matter).

[34] International Flavors & International Flavors & Fragrances Inc.  IFF & Fragrances (Netherland) B.V. v Ramon Sabater SA heard in the Spanish Court of Appeal Audiencias Provinciales May 24, 2012.

[35] Spagnolo, Lisa — “The Last Outpost: Automatic CISG Opt Outs, Misapplications and the Costs of Ignoring the Vienna Sales Convention For Australian Lawyers” [2009] MelbJlIntLaw 10; (2009) 10(1) Melbourne Journal of International Law 141, A maximum time of two years for notice is imposed by art 39(2) of the CISG. However, normally a much shorter period is imposed by the requirement that notice be given within a ‘reasonable’ time: see  Model Locomotives Case (Kantonsgericht Schaffhausen, Switzerland, 27 January 2004) §3c (reasonable time in art 39 depends on the type of goods); Person of Greece v Ed Fruit and Vegetables BV (Rechtbank Breda, Netherlands, 16 January 2009) [3.12] (watermelons subject to decay, inadequate notification if not within days).

[36] Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 ‘Playcorp’.

[37] Benjamin at 201, Footnote [63]-[65].

[38] Lisa Spagnolo, The last Outpost: Automatic CISG Opt outs, misapplications and the costs of ignoring the Vienna Sales Convention for Australian Lawyers, Melbourne Journal of International Law, Vol.10, ‘Spagnolo’.

[39] Ibid, Footnote [82].

[40] Ibid, Footnote [83]-[90].

[41] Metrocall Inc v Electronic Tracking Systems P/L (2000) 52 NSWLR 1.

[42] Olivaylle Pty Ltd v Flottweg GMBH & Co KGAA (No 4),  [2009] FCA 522; (2009) 255 ALR 632,  “CISG was excluded by the words ‘Australian law applicable under exclusion of UNCITRAL law’ at [28].

[43] CISG Article 2.2.4(b).

[44] Benjamin Hayward, The CISG’s place in Australian Law – An incomplete jigsaw puzzle, The jigsaw puzzle missing a piece (2010) 14 VJ 193 – 222 at 211, ‘Benjamin’ at 222.

[45] Ibid.

[46] Spagnolo Pg.55, 57.

[47] Spagnolo at 211., Schlechtriem, P.,  “Article  7” in  Schlechtriem,  P.and  Schwenzer,  I.(eds),Commentary  on  the  UN Convention on the International Sale of Goods (CISG), 2ndEnglish ed, 2005, Oxford University Press, New York, p.93, at p.96, para.12.

[48] Benjamin at 211.

[49] Playcorp Pty Ltd v Taiyo Kogyo Ltd [2003] VSC 108 (Unreported, Hansen J, 24 April 2003) at 235.

[50] Ibid.

[51] Marcus S. Jacobs QC, Professor Katrin Cutbush-Sabine, Philip Bambagiotti The CISG in Australia-to-date: An illusive quest for global harmonisation?” at 9.2, accessed at https://www.cisg.law.pace.edu/cisg/biblio/jacobs2.html#35 on 01/09/2018 at 8.58pm, ‘Marcus’.

[52] Ibid at 9.4.2 citing Royal Botanic Gardens & Domain Trust, v South Sydney City Council,[41] Kirby J.

[53] Ibid.

[54] Aiton v Transfield [1999] NSWSC 996 (1 October 1999).

[55] South Sydney District Rugby League Football Club Ltd v News Ltd & Ors [2000] FCA 1541 (3 November 2000) at [393, 394].

[56] Benhamin citing Spagnolo, L., “The Last Outpost”, supra note 6, at p.178.





Domestic Violence Statistics & Family Law ~ By Mishka Hudson

Mishka Hudson – The Legend.

As the recent chief justice Bryant stated in the Australian published Oct, 2017, I agree the Family Court should be scrapped[1], but despite her reasoning being delays, my views are that the system is simply not fit for purpose as the majority of Australian cases (72%), involve some level of family violence[2]. This court is not equipped to adequately investigate complex matters involving family violence[3].

 

Issues and Statistics re women losing custody after raising family violence and abuse

In the Leadership Council’s report[4];

Mothers alleging domestic violence only received primary physical custody 35% of the time[5] as detailed in Saccuzzo, D. P., & Johnson, N. E. (2004). The leadership Council also agreed that this research supported that lawyers may well be justified in informing victims not to disclose abuse to mediators or they are more likely to receive less favourable custody arrangements.

The leadership council also referenced Chesler, P. ,(1991, 1986)[6], involving a study of 60 cases where fathers were more likely to gain custody, (p.65) and more than 59% of these fathers were found to have abused their ex-patners.

Faller & DeVoe, (1995), conducted research at a uni-based clinic where they analysed 214 cases where sexual assault was alleged. They found that the more substantiated the claims were, the more likely negative sanctions, ( such as jail, loss of custody to the alleged offender, ‘gag orders’,  and prohibitions against taking the child to an external specialist, because of concerns about sexual abuse), were applied by the court on the protective parent[7], Faller, K. C., & DeVoe, E. (1995).

Polikoff, (1992), Found that judges evidence a strong “paternal preference” in contested custody cases. Sole custody was awarded to the father in 50-63% of cases.

The American Psychological Association. (1996), found that fathers are often awarded sole custody even when their sexual and physical abuse of the children is substantiated. The American Judges Association, state that 70% of the time the abuser convinces the court to give him custody[8].

………………………………………………………………………………………………………………………………..

As the AIFS noted in their July 2013 report “Violence, abuse & the limits of shared parental responsibility”, the adversarial approach has “too much policy-based evidence and too little evidence-based policy”… and the most pertinent issue is neatly summed up through their observation of the advocate stance; A major argument has been that the involvement of both parents in children’s lives increases the risk of violence against women. That is an issue of great importance. But the middle ground is to be found in articulating more clearly the circumstances when parenthood ought to be dissoluble, rather than resisting the historic transformation in the law of parenting after separation”.

Let us remember that the 2006 amendments creating a presumption of equal shared parental responsibility, does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse of the child or family violence (Family Law Act 1975, s 61DA). The family court appears to disregard or at least inadequately attend to this potentially protective piece of legislation.

Primary considerations

The benefit of meaningful contact with both parents should be consistent with the need to protect from harm, (s.60B (1)(b)). Greater weight should be given to protecting children over contact.

In addition 60CG provides that:

In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order … does not expose a person to an unacceptable risk of family violence[9].

Despite the above, the history of violence and child’s fears, views, voice and risk are consistently, not adequately recognised or managed. My view is this is largely due to the lack of impartial, empathetic and adequately qualified family violence and abuse experts. It is poor practice to assume that legal professionals have a clue about how to manage these issues. Court report writers have similar issues and the need for improved training and expertise has been noted in the recent parliamentary final report into a better family law system to support and protect victims of family violence[10] However, let’s not kid ourselves with any improvement in this area, this inquiries verbal submissions exposed that out of the 10.7 million allocated to introduce more report writers to the family court this year, a pathetic 180K has been set aside for training.

Dismissal of family violence reports as reported in the parliamentary inquiry final report[11]

The parliamentary inquiry final report noted that reports are either dismissed or viewed with suspicion and quoted the DV crisis service, (Submission. 29, p. 3);

“We are still being told by women that their lawyers warn them about raising

abuse allegations and are pressured to sign consent orders they fear will

endanger their children. Victims are still finding that both their disclosures

and those of their children are diminished or disbelieved”.

 

Jannawi Family Centre were quite insightful in the same report in their submission, (no.51, p.4-5), and highlighted that the family law system ‘fails to listen’ to reports of family violence, especially by children, and most significantly fails to identify how trauma impacts this disclosure…”The lack of recognition of the way complex trauma impacts on brain functioning, particularly memory and the ability to provide significant recall is a barrier to disclosing. This is then further exacerbated by a system which may not believe, or discredits disclosures. It appears that disclosures are viewed as a tactic to prevent contact

or that children have been coached and this is a dangerous starting point”.

The neuropsychological and verification process required to identify this was highlighted thorough the Australian Paralegal Foundation’s submission (no. 8).

 

Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih presented research to this inquiry which concluded that family reports can re-frame and re-name family violence and perpetrator coercive control as inconsequential to contact, and attack the credibility of protective women labelling them as manipulators. They also noted the selective silencing and reconstruction of the child’s views. I strongly state that his false paradigm obviously has repercussions on how the court views parental capacity and harms a protective parents request for contact. This was also noted by the National Child Protection Alliance, (Sub.5, pg 4), the Women’s Legal Service Queensland, (Sub. 81, p. 19).

 

Victim respondents to this inquiry included observations that their claims were ‘dismissed’, ‘ignored’, minimised without due consideration to risk, deemed to have no bearing on the outcome, and were managed without empathy or due consideration.

 

Do stakeholders seriously believe that protective parents would endure the emotional and financial cost of family court just to vexatiously make up claims against their ex for no valid reason? Parents are losing thousands, their homes, often experiencing ptsd due to secondary system abuse. Some are put in prison or psych wards for their convictions. Children in Australia and abroad have been put in psych care and medicated, rather than consent to unacceptable risk. This is not okay. It is absurd to consider that a significant proportion of protective parents are anything but seriously concerned about the risk presented to their children.

 

The small minority that do waste the courts time with fabrications should feel the force of contempt laws which are apparently, in my view, currently reserved for protective parents. Any parent that denies their child the benefit of a meaningful relationship with the other parent, for reasons other than genuine protection, needs to understand that they are harming their child’s development and sense of self to their core, and the impact of this will be lifelong. This is absolutely not acceptable; the child deserves the best of both parents, in a safe, nurturing environment.

 

That said, for those that still feel ALL protective parents manipulate for contact consider this…

Opinions such as Judge Colliers minimising the claims made by protective parents are part of the reason many violent parents are able to commit further family violence through access. His view is not aligned to research done by the Leadership Council in the USA which has consistently shown that false allegations of sexual abuse are rare and that children tend to understate rather than overstate the extent of any abuse experienced.
Gardner’s (1999) theory of ‘parental alienation syndrome’ , is not supported by  sound research and has been used to support the concept that this type of alienation is used through methods such as fabricating allegations for advantage in disputes. This is NOT supported by the reality in most cases.
The Australian Institute of Family Studies highlights an analysis of 10 years of reports of sexual assault, (Lisak et al)., and found the actual figure of false reports to be around 2%-10%. The higher percentage included inconsistencies in data collection, including police reports where crime was detected but not proceeded with.
Current practice in the Family Court which does not adequately identify or protectively manage family violence and abuse, often encourages the SILENCING of GENUINE PROTECTIVE PARENTS. This puts the safety of children at risk by promoting access arrangements which favour an abuser.

The parliamentary report discussed highlighted, (pg 90/91), that a number of submissions noted that families are frequently advised by lawyers and barristers, not to raise issues involving family violence, as it may harm their case. This is common knowledge among many in the legal profession[12] and is often noted by victims and reported to many advocates[13].

The Safe Steps Family Violence Response Centre, (sub. 34, p.8)., quoted Emeritus Professor Rosalind Croucher AM[14], who described the legal, ethical and risk issues involved with disclosure involving the interconnected systems of child protection and family court. She explained how child protection services required the mother to act protectively, or risk losing custody/parental authority of the child. Family law proceedings conflict with this paradigm in practice, when the mother is not viewed as a friendly co-parent where she makes claims of abuse, withholds protectively or attempts to have supportive independent reports admitted to file.

(This is often despite providing evidence meeting the balance of probabilities supporting past abuse, current and future risk, or even a historic criminal standard of evidence, contrary to the FLA, principles which actually don’t hold this minimal probabilities standard).

The consequence of this is often coerced consent. The mum is forced to support a ‘meaningful relationship’ with the perpetrator of abuse, or risk losing custody. The Australia’s National Research Organisation for Women’s Safety, (ANROWS), (Sub.73, p.11)., informed that many women are coerced onto high risk ‘consent’ orders to minimise the risk of full residency with the unsafe parent. The concession is that at least the protective mum may prevent risk for ‘some’ of the time as opposed to not at all.

It is therefore not surprising that sexual assault is rarely raised in Family Court, as noted by the Sexual Assault Support Service, (Sub. 32, p. 5) who referenced the Australian Law Reform Commission, (ALRC), finding that legal representatives may be ‘reluctant’ to inform the Court of sexual assault[15].

 

If there is any doubt re the credibility of the family court’s investigative process , I invite you to read the following article showing strong views from a paediatrician and psychologist;

`Never again’: Paediatrician David Wood and psychologist Susan Aydon, in Brisbane yesterday, discuss problems with the Family Court

The Australian, Edition 1 –

All-round Country MON 29 AUG 2005, Page 001

Family Court `Putting Children Last’  By: Tony Koch

Some of Queensland’s most respected medical experts have joined the growing list of specialists refusing to become involved in Family Court litigation, warning that their evidence is being ignored. They have written to Family Court of Australia Chief Justice Diana Bryant, saying they will no longer be involved in an adversarial system that they say fails to have the best interests of children at heart.

Last April, David Wood, chairman of the College of Physicians in Queensland, wrote to Justice Bryant detailing his long held concerns about the Family Court. Those concerns were confirmed by the court’s treatment of him and other specialists at a custody hearing where an eight-year old girl alleged sexual abuse by her father, before he successfully obtained custody of her and her 12 year old brother.

The case was also a defining moment for Sue Aydon, a clinical psychologist with 29 years’ experience working with children, and child psychiatrist Brian Ross, both of whom were involved as experts. Dr Wood, who is also chairman of the Abused Child Trust in Queensland and chairman of its national body, Kids First Foundation, said the bullying he received at the hearing had left him refusing to see patients whose case could end up in the Family Court. He also refused requests by lawyers to provide second opinions for the court. “I know a number of medical experts who have adopted this approach –that they are not prepared to be part of an adversarial game that seeks just to discredit them so the parent with the most aggressive and expensive lawyer wins,” said Dr Wood, who is also director of paediatric health services at Brisbane’s Mater Hospital. This is a Family Court that should be looking at the best things for children. This is not about the parents. It is about children, and I do not believe the current system cares about, or seeks, that outcome.” Dr Wood also questioned lawyers’ aggression and tactics in the court. “In a recent matter in which I was involved I actually fainted in the witness box and they had to call an ambulance,” he said. Dr Wood also said that copies of file notes he had taken concerning two children “were destroyed by the solicitors acting for the father the day after I handed them over to them, so they were never presented to the court and the judge had no idea what was contained in them”. Ms Aydon said she would “never again” appear in the Family Court. “I have actually said I would not see any child patients anymore because so many of those cases end up in the Family Court,” Ms Aydon said. “We get totally vilified in court, get no chance to explain why we have used certain techniques with the kids, and there is no understanding in the court of what we are trying to do.’

For two years, Ms Aydon treated the two children involved in the case about which Dr Wood wrote to Justice Bryant, and she said she was astounded that nobody involved spoke to the children -not the court -appointed children’s representative, nor counsel for either parent, and they were not called to give evidence. ` `Children have no rights in the Family Court despite the rhetoric that they operate in the interests of the child,” Ms Aydon said. Dr Ross said the legal system sought to “dismantle any kind of medical credibility”. “The result is that sometimes kids end up in places where they should not. I deliberately avoid and do not see cases I think will end up in the judicial system because I don’t trust it,” he said. In the case in question, the mother involved in the litigation spent nearly $600,000 in her unsuccessful attempt to keep custody of her two children and restrict her former husband’s unsupervised access. She gave evidence for three days, and on the morning of the second day of her testimony was approached by her solicitor who demanded she sign a document mortgaging her home to the legal firm or they would withdraw from the case. The Child Support Agency has since notified the mother, a dentist, that she must pay her former husband $1700 a month in child maintenance. However, when she had the children until last June, the husband, who told the court his computer business earned more than $2 million a year, paid $20 a month to her for child support. On June 27, Justice Bryant’s chief of staff responded to Dr Wood’s letter, saying the Family court was ` `working towards developing new policies and programs to give children a greater voice in family law processes and to reduce the impact of disputation on children”. A spokeswoman for the Family Court said last night the Chief Justice was not in a position to comment.

http://www.kidsindistress.org.au/never%20again.pdf

So in 2005, the now retired Justice Bryant’s chief of staff said they were going to give children a greater voice….the final inquiry report, discussed through this paper supports that they are still waiting.

Further media response;

Paper: Weekend Australian (Australia), page 10

Title: Doctors’ anger at Family Court. Author: Tony Koch

Date: September 10, 2005

MEDICAL experts who accused the Family Court last week of not caring about children yesterday blasted Chief Justice Diana Bryant for releasing a judgment critical of their evidence. Brisbane psychiatrist Brian Ross said the court’s reaction “highlighted the perversity of a system that didn’t get the truth”. Dr Ross said the mother involved in a custody battle over two young children had been a patient of his for three years, and for the court to accuse her of being vindictive against her former husband was “a blatant misrepresentation of the truth”. “She had no agenda. Her issue was to be protective of her children,” Dr Ross said. “She would not have risked the care of her children to get back at her husband, and to alienate her is an abuse.” Justice Bryant made the unusual order to allow publication of the judgment, with the names of the parties excised, but the expert witnesses -three of whom criticised the Family Court –named “to enable some sense to be made of the judgment as a whole”. Justice Bryant said an article quoting the medical experts, published in The Australian last week, allowed readers to form the view that the Family Court failed to have regard for the best interests of children and allowed medical witnesses to be bullied and discredited by aggressive lawyers. In an 81-page judgment on June 10, judge Neil Buckley decided that a girl,8, and a boy, 12, should be taken from their mother and live with their father .Justice Buckley was not satisfied that allegations the father had sexually abused his daughter were proven, or that there was an unacceptable risk for the children in living with or having unsupervised contact with the father ,Justice Bryant said. “He rejected the opinions of these issues expressed by Dr Wood and Ms Aydon. On this issue, it is fair to say, however, that his honour’s rejection of their evidence had more to do with the rejection of the mother’s evidence and its underpinning of the experts’ views than the expertise of the expert witnesses themselves,” she said. Justice Bryant said public confidence in the Family Court, as in all courts, was vital. “It is in the interests of public confidence in the court for the public to be made aware, if that is possible, of the judgment, and in response to the main thrust of the article, namely that the Family Court puts children last.” The witnesses included David Wood, Queensland chairman of the Australian College of Paediatrics and the Abused Child Trust, and clinical psychologist Sue Aydon. Dr Wood said assertions by the court that he and other medical experts were biased in favour of the mother were absurd. “Our role and whole history of our careers is to represent the children, our patients,” Dr Wood said. “The court was not interested in getting information on the children. They were interested in discrediting me, and there was no attempt to right the balance by counsel including the children’s representative, the mother’s or father’s lawyer or the judge. “This treatment is precisely the reason why so many medical experts refuse to have anything to do with the Family Court.”

I have documented numerous lists of cases where custody was awarded to an undisputed violent or predator perpetrator. The family court has identified that risk factors in these cases are low enough to permit contact. This certainly is not consistent with the reasonable man test or basic community standards.

I also have lists of dozens of children murdered post proceedings after, in my view, inadequate attention to risk and safety precautions. A list the family court has not bothered to review to inform and improve practice. (I am grateful and give thanks to a brilliant barrister who has diligently provided these records).

In my view, the family court is an industry that grossly misrepresents itself, as having adequate capacity to determine and manage risk factors, post separation. Let us stop pretending that mistakes made are due to poor legal representation. It is my view that the discretion afforded to the application of law, denial of due process[16], adversarial culture, inadequate report writer expertise and ignorance of safety, which is absolutely destroying children. This I believe, festers a toxic environment of misfeasance, malfeasance and unacceptable risk. The rising calls from united advocacy groups for a Royal Commission, indicates that this is a broken system of epic proportions.

 

It may be useful to replicate the New York Chief Justice Judith S. Kaye’s 1997 announcement where he stated that; “Sunshine is good for children” when he opened the State’s court doors to scrutiny and media. This transparency facilitated much accountability, review and reform[17].

Footnotes:

[1] Outgoing family chief justice Bryant in push to reform sourced at http://www.theaustralian.com.au/business/legal-affairs/outgoing-family-court-chief-justice-bryant-in-push-to-reform/news-story/19bdab6d02808550ae3a8f4cadc6c5b1 as published on 06/10/2017, sourced online on 08/01/2017
[2] Domestic violence a factor in 72pc of family law cases, the lowest in the country, new figures reveal, ABC news Mon 18 Apr 2016, 10:47 AM AEST, sourced at http://mobile.abc.net.au/news/2016-04-18/domestic-violence-a-factor-in-72pc-of-family-law-cases/7334150 on 08/01/2017
[3] Diana Bryant’s funding plea, The Australian, on 30/03/2016 at https://www.google.com.au/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwia_OnLssbYAhWIx7wKHcJsDDsQFggtMAE&url=http%3A%2F%2Fwww.theaustralian.com.au%2Fbusiness%2Flegal-affairs%2Ffamily-court-chief-justice-diana-bryants-funding-plea%2Fnews-story%2Fc9d5d6b8128f4e4010a12f56fd1dac85&usg=AOvVaw1n_45I9DYn46rrEFL7-4XP as sourced on 08/01/2017
[4] Are "Good Enough" Parents Losing Custody to Abusive x-Partners? By Stephanie Dallam ,for the Leadership Council on Child Abuse & Interpersonal Violence. Sourced at http://www.leadershipcouncil.org/1/pas/dv.html on 08/01/2018
[5] Saccuzzo, D. P., & Johnson, N. E. (2004). Child custody mediation’s failure to protect: Why should the criminal justice system care? National Institute of Justice Journal, 251, 21-23.
 Available at http://ncjrs.org/pdffiles1/jr000251.pdf[6] Chesler, P. ,(1991, 1986)[6]., Mothers on Trial: The Battle for Children and Custody. NY: Harcourt Brace Jovanovich, Publishers.
[7] Faller, K. C., & DeVoe, E. (1995). Allegations of sexual abuse in divorce, Journal of Child Sexual Abuse, 4(4), 1-25.
[8] Report of the American Psychological Association presidential task force on violence and the family. American Psychological Association., (1996) . Washington, DC : Author.  Available at http://www.apa.org/pi/pii/familyvio/issue5.html [9] Australian Institute of Family Studies sourced at https://aifs.gov.au/publications/family-matters/issue-92/violence-abuse-and-limits-shared-parental-responsibility on 07/01/2017
[10] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[11] A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[12] As described in the AIFS study; Bagshaw et al.,(2011), The effect of family violence on post-separation parenting arrangements. The experiences and views of children and adults from families who separated post-1995 and post-2006, Family Matters No. 86 - March subtitle; Disclosing violence, sourced at https://aifs.gov.au/publications/family-matters/issue-86/effect-family-violence-post-separation-parenting-arrangements on 08/01/2017[13] National Child Protection Alliance,Submission 5, (p. 3); Women’s Legal Services Queensland, Submission 81, (p. 19)., and victims statements in box 3.2, page 91, in the parliamentary report; A better family law system to support and protect those affected by family violence Recommendations for an accessible, equitable and responsive family law system which better prioritises safety of those affected by family violence, pages 90-92/411, House of Representatives Standing Committee on Social Policy and Legal Affairs, © Commonwealth of Australia ISBN 978-1-74366-727-9 (Printed Version) sourced at http://parlinfo.aph.gov.au/parlInfo/download/committees/reportrep/024109/toc_pdf/Abetterfamilylawsystemtosupportandprotectthoseaffectedbyfamilyviolence.pdf;fileType=application%2Fpdf on 07/01/2017
[14] Emeritus Professor Rosalind Croucher AM, ‘Family Law: Challenges for responding to family violence in a federal system’, 
Families, policy and the law: Selected essays on contemporary issues for Australia, Australian Institute of Family Studies, May 2014, <https://aifs.gov.au/publications/families-policy-and-law/21-family-law-challenges-
responding-family-violence-federal>.
[15] Sexual Assault Support Service, Submission 32, p. 4; see also Australian Law Reform Commission and New South Wales Law Reform Commission, Family violence – A national legal response, ALRC Report 114/ NSWLRC Report 128, 2010, p. 1124.
[16] Bemiller, Michelle. (2008). When Battered Mothers Lose Custody: A Qualitative Study of Abuse at Home and in the Courts. Journal of Child Custody, 5(3/4), 228-255.
[17] Women’s credibility doubted in many family courts, author; Victoria Graham, 28/10/2001, Women’s news.

Sourced at http://womensenews.org/2001/10/womens-credibility-doubted-many-family-courts/ on 08/01/2018




ARE YOU AN INDEPENDENT CONTRACTOR OR AN EMPLOYEE?  SOMETIMES EVEN THE COURTS SEEM TO STRUGGLE TO ANSWER THIS QUESTION.

Fair Work Ombudsman ‘FWO’ v Quest South Perth Holdings Pty Ltd, ‘Quest[1]

AS COMPARED WITH

Tattsbet Limited v Morrow, ‘Tattsbet[2]

Introduction

This case note examines the cases of Quest and Tattsbet which were resolved by the Full Court of the Federal Court a few months apart pertaining to controversies about the question of whether a person was an employee or an independent contractor, the outcome of which caused some confusion regarding the legal principles involved.

 

This analysis seeks to clarify the legal principles and approach the Courts will take in the wake of these two cases, by examining the facts and issues in each case, analyzing the reasoning in reaching the decisions, the goal is to assist in answering the question who is an employee at common law?

Quest Case Background

The case involved Quest South Perth Holdings Ptd Ltd, who carried on a business of 40 serviced apartments and employed housekeepers as casuals to clean them.  Management of Quest contacted a company called Contracting Solutions ‘CS’ who were a “contract labor hire business”.  Quest engaged CS to implement its contracting system providing Quest a fixed hourly rate for its housekeepers and receptionists to eliminate obligations that would normally be found under an Employee-Employer relationship.

Facts

As part of the agreement CS would “convert all the current staff[3], (into independent contractors), and the benefit to Quest would be that they “are not bound by industrial relations legislation[4], with a “key difference” that Quest would not need to pay penalty rates to its employees”.[5]

 

The conversion would take place by CS under licence of “The ODCO System”,  which was developed by Odco P/L who promoted itself from successes with “workers engaged as  ODCO independent contractors operating outside state and federal industrial relations systems and [would] gain validity through the Independent Contractors Act 2007 and Federal and High Court decisions.[6]”  This strong marketing statement cited the High Court judgement Accident Compensation Commission v Odco Pty Ltd F.C. 90/040 of 22nd October 1990 and Odco P/L v Building Workers Union of Australia (1989) No VG 151 of 1988).

With CS concluding that “these judgments have been challenged on occasion, however, when administered correctly have always been found to be a legal method of contractor engagement.  CS has a 100% success rate in this area.”[7]
Having been reassured by such bold promises, Quest engaged CS who then proceeded to “convert” two Quest housekeepers into Independent Contractors, for the two employees, nothing much changed, they did the same work, in the same way, they just got paid by CS instead of Quest.  Ultimately it is these converted employee’s that brought action against Quest through the Fair Work Ombudsman ‘FWO’ who claimed this conversion was a breach of the Fair Work Act 2009 (Cth)[8]FWA’ sham contracting provisions.

Issues & Analysis

Sham contracting under the FWA s.357 provides that:

A person that employs, or proposes to employ, an individual must not represent to the individual that the contract of employment […] is a contract for services under which the individual performs, or would perform work as an independent contractor.’

The first issue is whether in a triangular arrangement such as this, where the employees voluntarily resigned and then applied to become independent contractors of CS, could Quest be characterized as “employing or proposing to employ” in the first instance and then whether that proposal misrepresented a contract of employment as a contract for services as an independent contractor.

The Court resolved this holding “There is no issue that the representation was made by Quest through CS acting as its agent.[9]”  However the Court in this case stated it did not rely on this[10] despite reaffirming its significance, stating “CS must be regarded as having performed those functions as the agent of Quest[11] and again “CS made those payments (of wages) as Quests agent.”[12]

The second issue was to answer whether there was a breach of the FWA S.357, the question had to be answered whether the housekeepers were employees and not independent contractors, and then whether the provision for ‘the contract of employment’ in the FWA S.357 could be characterized as including third party contractors like CS.

The process the Court adopted was to refer to previous decisions[13] and examine the “real substance of the relationship[14] to determine whether the person was an employee or an independent contractor. To do this the Court held “The pursuit of profit is at the core of entrepreneurship and to be regarded as one of the primary hallmarks if not the primary hallmark, of a business[15] and that “In pursuit of a profit, the independent contractor will not merely seek remuneration commensurate with the value of the personal services provided, the entrepreneur providing commercial services will want to be remunerated by making a profit[16]

The Court went on to analyse the triangular arrangement and held that “Given our view that, in relation to Best and Roden, the Hiring Agreement, (between CS and Best and Roden), was inoperative and that CS did not, either via that agreement or at all, provide the labor of Best and Roden to Quest”.[17] This was so despite the agreement being signed, CS paying Best and Roden and having them pay their own indemnity insurance, holding that “Those three factors are, in our opinion, substantially and decisively outweighed by factors to which we have already referred and which tend in favour of the conclusion that Best and Roden were employees (of Quest)”[18].

Despite the above findings the FWO’s case against Quest was dismissed because S.357 did not cover a representation by an employer about a contract, or future contract, with another party.   As Quest did not make the representations and there was no dispute in relation to S.357 and CS, there could be no breach.  The FWO appealed to the High Court.

High Court Decision

The High Court held[19] s.357(1) prohibits an employer from misrepresenting to an employee that the employee performs work as an independent contractor under a contract for services with a third party, finding that the misrepresentation could be attributed to Quest as it falls ‘squarely within the scope of the mischief to which the prohibition in s.357(1) was directed and is caught by its terms[20]’.

The Court considered that the reference to ‘contract of employment’ in s.357 should be construed as the object of the prohibition.  Therefore “an employer would be liable to pecuniary penalty if the employer said to an employee “you are employed by me as an Independent contractor.[21] Moreover the HCA considered the triangular relationship and held that “who might be the counterparty to the represented contract for services, and whether the counterparty might be real or fictional entity, is correspondingly immaterial to the operation of the provision.[22]

In other words, the prohibited representation need not be directly between the employee and employer, but includes any third party acting as an agent of the employer.

The High Court considered the view that the legislations intent was to prohibit sham contracts and use of third parties to defeat that intent would be “doing little to achieve its evident purpose within the scheme of Pt. 3-1. That purpose is to protect an individual who in truth is an employee from being misled by his or her employer about his or her employment status.  It is the status of an employee which attracts the existence of workplace rights”.[23]

Tattsbet Case Background

The case of Tattsbet Limited v Morrow [2015] FCAFC 62 ‘Tattsbet[24] involved a decision of the Federal Circuit Court that a person who ran a Tattsbet outlet as an independent agent was in fact an employee, Tattsbet appealed that decision.

Facts

In 2004, Morrow entered into the first of four agency agreements with Tattsbet initially to operate a store in Moorooka. She later applied unsuccessfully for an agency in Brisbane and from that application she was offered and took control of an agency in Logan Central, from time to time she was offered and accepted opportunities to operate other agencies while still running the Logan Central agency, this was during the period from 2005 until termination in 2011[25].

 

The primary judge held Morrow was not merely doing a clerical role, her role extended “to ensuring smooth operation of the agency and making sure it was open at relevant times and was adequately staffed.[26] Morrow did this, she employed staff[27] and was not only an “active” member but became Vice-President of the UNiTab Agents Association[28] it was also noted that she completed her own BAS Statements, was registered for GST[29] and of significance her income was related to the takings of the agency rather than her hours and the difference between her total business income and her net income, indicating the hallmarks of running a business were present.[30]

Issues & Analysis

The two main issues in this case are whether Morrow was an Employee or an Independent Contractor and whether Tattsbet breached s.340 of the FWA when it terminated Morrow’s agency, regardless of whether it is found that Morrow is an Independent Contractor or Employee.[31]

To answer the first part, the question was whether the primary judged erred in finding that Morrow was an employee.  Jessup J was critical of the primary judge’s focus on examining “a dichotomy between a situation in which the putative employee works in the business of another and a situation in which he or she conducts his or her business as an “entrepreneur[32] citing Buchanan J in ACE Insurance Ltd v Trifunovski (2011) 200 FCR 532, “working in the business of another is not inconsistent with working in a business of one’s own[33] adding “The question is not whether the person is an entrepreneur : it is whether he or she is an employee[34].

In examining Jessup’s reasoning in finding the worker was an independent contractor, the following indicia were highlighted in the decision:

Firstly the agency agreement itself provided that Morrow was an Independent contractor and this was held to be an “acknowledgement[35] rather than a provision of the contract, and although any attempt to place a “label” on the relationship would be of little importance, in this case it was significant as it reflected the reality of the relationship.[36]

Secondly Morrow was paid not for the hours worked but in reference to the value of the business transacted, she was not required to perform all the work herself, but was free to employ others to assist her or on occasion work in place of her.[37]

Thirdly her net income was about a third of the total revenues earned and she ran her agency as a business, paying GST, claiming deductions in BAS statements and forwarding to the ATO the GST amounts due.[38]

 

It was held that “the situation before his Honour involved a number of features that, in combination, compel the conclusion that Morrow was not the employee of Tattsbet[39] holding that “I take the view that the primary Judge’s conclusion that the agency agreement established a relationship of employer and employee cannot be sustained.[40]

 

Difference in Reasoning in Quest cf Morrow

In the case of Quest, North and Bromberg JJ (with agreement of Barker J) gave detailed attention to the question whether the cleaners were employees or independent contractors, the in course of which their Honors held that the answer to any such question would be yielded by first answering the question whether the workers in question were engaged in the conduct of their own businesses.[41]

 

Firstly, it is worthy to note that, Tattsbet, on the facts, is very different from Quest.[42]  In Tattsbet it was accepted that Morrow was working “in the business” of Tattsbet, using their premises, equipment, systems and had little scope to vary the way she worked, and insofar as the work there would be little to distinguish her from an employee, such as a store manager.   Using these indicia alone would suggest it was an employee and employer relationship[43].

 

The judgment text of Alsop CJ in Tattsbett considered the case of Quest and held it “does not require any different conclusion in this particular case.  The place of Morrow as an employer of workers in the agency, her means of remuneration, and the other factors pointed to in the reasons of Jessup J lead to the factual conclusion of a sufficient “enterprise” being undertaken by her to warrant the conclusion reached here by Jessup J, with which I agree.”[44]

Alsop CJ then dismissed the need to conduct further enquiry (as was held in Quest at [179]) in search for the “hallmarks of a business[45] such as whether a commercial enterprise is a going concern with employed capital and undertaking risk as there was already sufficient evidence in Tattsbet to indicate that Morrow was not and employee but an Independent Contractor.

 

Why it has caused confusion

The Tattsbet case caused some confusion as “at least since Hollis[46], it may be accepted that the distinction between an employee and an Independent Contractor is “rooted fundamentally in the difference between a person who serves his employer in his, the employer’s business, and a person who carries on a trade or business of his own[47]”, and then to further look that the hallmarks of a business which include acquisition of tangible and intangible assets in pursuit of profits, business aspiration to have goodwill or saleable assets beyond its physical assets, holding that these are all indicia of the hallmarks of a business[48].

With the Tattsbet decision, Morrow was working in the business of another and would not meet much of the hallmarks of a business set out in Quest, the Court resolved these differences and held Morrow to be an Independent contractor using a multi-factor test instead of the entrepreneurial test of Quest.

Conclusion.

In answering the question of determining the status of a worker, the Courts have adopted a colorful approach stating that; “the parties cannot create something which has every feature of a rooster, but call it a duck and insist that everybody call it a duck.”[49]

The mere use of a label, in an agreement, that a person is an “Independent Contractor” is insufficient to determine the true nature of the relationship.  A multi-factorial approach is required to assess whether the person is the victim of a sham contract arrangement which was noted in Quest as being :

an arrangement through which an employer seeks to cloak a work relationship to falsely appear as an independent contracting arrangement in order to avoid responsibility for legal entitlements due to employees[50]

 

Despite the apparent confusion in the approaches the Court has adopted in answering this question, in each case the Court has examined every facet of the relationship to determine its true nature, in Quest the employer relied on promises of CS that their “system” could convert its employees to independent contractors, relying on previous Court decisions, however, ultimately it was obvious that their system relied on a distinct set of facts and could not be applied universally.

 

The employees could not be labelled as independent contractors and expect that label to withstand the scrutiny of the Court.  The court considered the fact that they performed exactly the same work, in the same way and was not swayed by the attempt to use a contract that cloaked the employer – employee relationship.  CS acting as an agent of Quest to pay the wages of the employees (and having them contribute 1% to indemnity insurance) was an insufficient a cloak to satisfy the Court.

 

 

There is scope for an Independent Contractor to legitimately exist as we see in Tattsbet, where the person was running an Agency, she had the ability to delegate responsibility, hire staff, prepare BAS statements and in every aspect was operating her own business within a business and the Court held they cannot now invoke employee workplace rights and insist on Superannuation to be paid.

 

In both instances, the Court made the right decision, a decision after careful analysis of all the facts determined the true nature of the relationship, the Court exercised flexibility in the tests it applied based on the facts before it in each case, in Quest, the question was whether the workers were employees and it was answered by the fact that little of what they did had the hallmarks of a business.

 

In Tattsbet, despite many of the same hallmarks being missing, it was already evident through the multi-factorial analysis conducted by the Court that she was an Independent Contractor running her own business, with her net income being a third of total income, and all the other factors that made it clear she was not an employee.

 

In conclusion if it quacks like a duck, waddles like a duck, it’s a duck! That is to say, if it has all the hallmarks of a business or a multi-factorial approach can objectively conclude that the true nature of the relationship is one of a person engaged in their own business, then it is safe to conclude that the relationship involves one of a legitimate independent contractor.

 

 

If it crows a “cock-a-doodle-do” like it always used to, it’s a still Rooster, no matter what cloak you give it to appear that  it’s not, even the use of third party intermediaries to disguise that relationship will not assist when the activities of the person do not exhibit the hallmarks of a business and when a multi-factorial analysis of the facts cannot lead to a conclusion that the person is operating their own business, then the person must be characterized as an employee.

 

 

[1] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd [2015] FCAFC 37 (17 March 2015), ‘Quest’.

[2] Tattsbet Limited v Morrow [2015] FCAFC 62 (11 May 2015), ‘Tattsbet’.

[3] Quest at [11].

[4] Ibid.

[5] Ibid at [12].

[6] Ibid at [13].

[7] Quest at [13].

[8] Fair Work Act 2009 (Cth)[8] ‘FWA’.

[9] Quest at [28].

[10] Quest at [131].

[11] Quest at [226].

[12] Ibid at [239]

[13] Damevski v Giudice [2003] FCAFC 252

[14] Quest at [317].

[15] Ibid at [181].

[16] Ibid.

[17] Ibid at [256].

[18] Ibid at [257].

[19] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 15.

[20] Ibid at [22].

[21] Ibid at [17].

[22] Ibid at [15].

[23] Fair Work Ombudsman v Quest South Perth Holdings Pty Ltd & Ors [2015] HCA 15 at [15].

[24] Tattsbet Limited v Morrow [2015] FCAFC 62 ‘Tattsbet’.

[25] Ibid at [10].

[26] Tattsbet at [38].

[27] Ibid at {45].

[28] Ibid at [47].

[29] Ibid at [48].

[30] Ibid at [49]-[50].

[31] Ibid at [7].

[32] Ibid at [61].

[33] Ibid.

[34] Ibid.

[35] Tattsbet at [65].

[36] Ibid.

[37] Ibid at [67]-[68].

[38] Ibid at [69]-[71].

[39] Ibid at [64].

[40] Ibid at [72].

[41] Tattsbet at [62].

[42] Tattsbet at [62].

[43] Ibid at [63].

[44] Ibid at [3].

[45] Quest at [179].

[46] Hollis v Vabu Pty Ltd (2001) 207 CLR 21.

[47] Quest at [177].

[48] Quest at [179].

[49] Re Porter (1989) 34 IR 179, 184.

[50] Quest at [89].





Abstract

Alternative Dispute Resolution ‘ADR’ has been evolving with social and legal reforms associated with access to justice.  To provide an expressly defined role of a lawyer in ADR is as difficult as limiting ADR itself. The contemporary climate of ADR evolving and expanding throughout the legal system with emphasis shifting from position driven adversarial litigation to incorporating and adopting an interest driven approach in encouraging dispute resolution requires a dynamic approach by lawyers.

Introduction

This research paper examines the traditional and contemporary role of lawyers in ADR including consideration of the Australian National Mediator Standards[1] regulated by the Mediator Standards Board[2] through the National Mediator Accreditation System ‘NMAS[3] and how it applies to Lawyers today.

This issue is significant for the legal profession with the emerging growth of ADR in distinguishing the role of the lawyer in comparison with the accredited mediator as well as from the perspective of the lawyer as a mediator.

 

The legal profession has always had as one of its functions a role of engaging in negotiations with the other party in seeking to resolve disputes and achieving out of court settlements.

 

This position has advanced with the profession appropriating the role of mediator by default without necessarily being part of NMAS.

 

The author contends that whilst all practicing lawyers may be mediators and accredited mediators may not necessarily have legal qualifications, the legal profession ought to consider with the expanding role of ADR in the legal system that lawyers and law students alike obtain appropriate industry accreditation.

Literature review

The Appropriation of ADR by the Legal Profession

As late as 21 May 2015 an article titled, “Proposed uniform r 15 — definition of barristers’ work” appeared in the Australian Dispute Resolution Bulletin[4] discussing whether ADR was part of the role of a barrister.

This discussion was pertaining to the Australian Bar Association ‘ABA’ examining the Legal Profession Uniform Law ‘UL[5] and in particular the proposed Uniform Bar Rules[6] not expressly recognizing as “barristers’ work” that they act as mediators, arbitrators, referees, etc, in ADR.

The rule adopted by the ABA omitting express recognition of a barrister acting as an ADR provider meant that ADR wasn’t a barristers’ role, unless it was “other work as is from time to time commonly carried out by barristers”.

 

To complicate matters it would appear for a barrister to engage in ADR could have placed them in breach of r 14. which stated:

  1. A barrister may not use or permit the use of the professional qualification as a barrister for the advancement of any other occupation or activity in which he or she is directly or indirectly engaged, or for private advantage, save where that use is usual or reasonable in the circumstances.

Ultimately a recommendation was made to amend “The work of a barrister” under Legal Profession Uniform Conduct (Barristers) Rules 2015[7] r 11(d) from reading as:

(d) representing a client in a mediation or arbitration or other method of alternative dispute resolution;

to

(d) representing a client in or conducting a mediation or arbitration, reference or other method of alternative dispute resolution[8];

With this change the ABA formally shifted their position from distancing itself from the role of conducting ADR to appropriating the role.[9]

Traditional Roles of Lawyer Integrating with ADR

Creating Certainty with ADR in Contracts

Joachim Delaney in his paper “Dispute Resolution Clauses: Risks, Options and Drafting Tips”[10] identifies the challenges contemporary contract law faces when it comes to accommodating ADR highlighting the dangers of poorly drafted agreements and enforceability. A mediation clause must include certain elements for it to be enforceable[11].

 

Agreements to agree or to negotiate in good faith have been found to be unenforceable[12] however they could be enforceable in the frame of reference of a dispute resolution clause providing the clause is sufficiently certain.

 

For example, a clause to “meet and undertake genuine and good faith negotiations with a view to resolving the dispute or difference” has been upheld by the courts[13]

 

Whereas the clause can’t provide for negotiations on the method of resolving a dispute[14], for instance a clause stating “in the event the parties have not resolved the dispute then within a further 7 days a senior executive representing each of the parties must meet to attempt to resolve the dispute or agree on methods of doing so”[15] has been held to be unenforceable.

 Climate Change

With ADR becoming embodied in State and Commonwealth legislation, Regulations and Court Rules it means there is an accelerated shift from litigation to ADR being imposed upon the legal profession, which must adjust to this dynamic legal climate[16].

Legislation such as the Federal Court of Australia Act[17] and the Victorian Civil Procedure Act[18] have ‘Overarching purpose’ and ‘pre-action’ provisions that require parties to facilitate the timely and efficient resolution of civil disputes. For example, s 7(1)[19] states that the ‘overarching purpose is to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’.

Use of an ADR process, which includes mediation, is explicitly referred to as one method of achieving the overarching purpose[20].

Liability of Lawyers to Advise on ADR Options

Lawyers who fail in their duty to advise clients have faced various sanctions.  It is a duty that must be considered by Federal Court judges when awarding costs[21] and both parties must file ‘genuine steps’ statements prior to litigating[22] with participation in ADR considered as ‘genuine steps’ that can be taken to resolve a civil dispute[23].

 

Personal Costs Orders Against Lawyers

There is a statutory duty for lawyers to advise and assist clients with genuine steps statements[24], and failure may result in lawyers not only subjected personally to costs orders[25] but the lawyer must not recover the costs from the client[26].

Misconduct Sanctions Foreseeable

It was argued by David Spencer, Senior Lecturer at Sydney University[27] that at the nexus of ADR and the legal profession the governing bodies dealing with growing regulations and rules of professional conduct faced position where ADR was not part of substantive law yet part of the legal profession.

Whilst encouraging ADR absent substantive law regulating it, there may be other heads of liability, such as negligence, where if a Lawyer fails to advise their client it could breach Rules of Professional Conduct.  It is foreseeable that Australian legal practitioners may find themselves liable if they do not advise their clients of ADR options.

In Adamson v Queensland Law Society Inc[28], the test for professional misconduct was: –

“…whether the conduct violates or falls short of, to a substantial degree, the standard of professional conduct observed or approved by members of the profession of good repute and competency”

This was dealing with matters of “Unprofessional conduct or practice” considering a standard of professional conduct expected of the profession.

It is foreseeable as Legislation, Regulations and Rules provide for ADR processes and they become part of the standard of professional conduct expected of lawyers, one who fails to adequately advise their client on ADR may well find themselves liable in a tort of negligence or disciplinary proceedings for malpractice.

As held in Adamson[29]:-

The lawyer should put the client’s interests first and treat the client fairly and in good faith, giving due regard to a client’s position of dependence upon the practitioner, and the clients dependence on the lawyer’s training and experience and the high degree of trust clients are entitled to place in lawyers …particularly with respect to compromise.”

This would suggest there is a duty of care to the client to advise of ADR.

Costs Penalty in Success

There are risks of lawyers getting adverse cost orders imposed by the Courts for failing to negotiate even if they succeed at trial[30], as Mansfield J of the Federal Court of Australia, warned:

“To decline to negotiate in relation to an informal offer when it might have been reasonable to have done so might have

adverse costs consequences to the successful party.”[31]

Collaborative practice — “a new wrinkle”[32]

Collaborative law refers to a process of bringing together the parties and their lawyers in mediation with a desire to resolve the dispute in an open round-table forum recognizing that civil disputes can be resolved between the parties amicably and lawyers can play a role in giving their client confidence that they are getting an equitable result or at least understanding the legal implications of what they are conceding.

 

The negotiations are interest-based and the lawyers are retained purely for collaboration only, if negotiations fail the lawyers involved do not participate in litigation.

 

This sets the scene for open and frank ‘without prejudice’ negotiations and discussions, whilst giving the parties confidence that they are acting upon legal advice, if they should agree, their interests are protected.

 

In collaborative law during mediation, if required, experts are brought in such as financial specialists, auditors, medical experts, child psychologists etc, so all aspects of the dispute are considered.

 

The term “collaborative lawyers” is significant as the legal representatives will be asked to work in unfamiliar ways, in a group environment, giving legal advice in a collaborative as part of the team working to resolve the dispute, so the parties hear the legal advice given to each other as part of an interest-based process that can explore issues and options outside the limited parameters of the legislative framework.

 

Ultimately if talks break down, nothing is held against the parties and they would need to find alternate legal representation for the litigation process.

Discussion

It can be gleaned that the traditional role of a lawyer to advise and represent a client has been complicated by and is evolving with the development of ADR in the Australian legal framework.

 

The Alternative Dispute Resolution Advisory Council ‘NADRAC’ suggests that ‘it may be desirable for legal professional bodies to amend their codes of conduct or issue guidelines to define standards of practice for lawyers participating in ADR.’[33]

 

Legal professional bodies appear to have taken note, for example the Guidelines for Legal Practitioners who act as Mediators[34] issued by the Law Society of New South Wales ‘LSNSW’ and the Guidelines for Lawyers in Mediations issued by the Law Council of Australia ‘LCA[35] address those NADRAC concerns.

LCA Guideline 1 deals with the role of the lawyer in mediation and states that ‘[a] lawyer’s role in mediation is to assist clients, provide practical and legal advice on the process and on issues raised and offers made, and to assist in drafting terms and conditions of settlement as agreed’[36] continuing to say a lawyer’s role will vary greatly from merely advising the client before mediation to representing the client at mediation, but omitting conducting mediation.[37]

 

Worthy to note is the Comment in Guideline 4 on Selecting a mediator:

first look to a mediator’s skill and experience as a mediator, and then to any additional qualifications that may be helpful, such as accreditation or expertise in the subject matter of the dispute or law;”

From this commentary, there is a startling position of the LCA, in that a mediator need not necessarily have qualifications or be accredited and the primary consideration is experience.

In contrast looking to the LSNSW Guidelines it starts with ‘the responsibilities of legal practitioners when acting as mediators in the ordinary course of providing legal services’[38], meaning conducting mediation is an ordinary part of the role and they go on to confirm that it is covered by the Professional Indemnity Insurance.

 

The LSNSW Guidelines qualify that by adding Legal practitioners who intend to practice as mediators in alternative dispute resolution should inform themselves of the licensing provisions of any relevant legislative requirements, including any requirements for national accreditation or alternative insurance arrangements.’

 

Most significant is LSNSW Guideline 3 which goes on to cover the issue of Qualifications of a Mediator, stating in 3.1 ‘No legal practitioner shall act as a sole mediator unless he/she has satisfactorily completed an approved course and has obtained national mediator accreditation or has such appropriate mediation experience as may be approved by the Dispute Resolution Committee of The Law Society of New South Wales.

This position contrasts with that of the LCA where the LSNSW requires a lawyer to have completed an approved course and obtained accreditation, whereas the LCA doesn’t even consider accreditation or completion of an approved course a primary consideration in selecting a mediator.

 

Reviewing the LSNSW Guidelines further in Schedule one[39], it goes further to explicitly define in Section 2 what is an “an approved course”, which happens to be the “gap” identified in the Deakin University MLL328 – Alternative Dispute Resolution: Principles and Practice subject and what is required under NMAS for a student to become an accredited mediator.

 

This “approved course” under LSNSW Guidelines requires that it be conducted by suitably qualified instructors[40] and have coached simulation mediations[41]during a program of a minimum of 38 hours in duration[42] and consists of at least nine simulated mediation sessions, where in at least three, the participant performs the role of mediator[43] and provides written debriefing coaching feedback to two simulated mediations[44] and a written skills assessment reflecting core competencies in the Australian National Mediator Standards ‘ANMS[45] to comply with the National Mediator Accreditation System.

 

The LSNSW Guidelines are issued by the Law Society of NSW, in application of and in compliance with the Legal Profession Uniform Law[46], this law has been adopted in Victoria with the Legal Profession Uniform Law Application Act ‘Application Act,’[47] and confirms in Schedule 1 that the Victorian adoption of the UL includes NSW Rules and Regulations.

 

Thus, LSNSW Guidelines developed in application of and compliance with UL ought to apply in Victoria.  This position is supported by the fact that the Law Institute of Victoria ‘LIV’ has become a Registered Mediator Accreditation Body under NMAS, Registered Mediator Accreditation Bodies ‘RMAB’s have the role of accrediting mediators in accordance with the Australian National Mediator Standards.

Conclusion

In examining the question of the Role of a Lawyer in ADR, the traditional view of the lawyer being there to advise and represent is being challenged by a rapidly evolving legal environment.

 

The lawyer now needs to consider the legislation, regulations and rules that encourage ADR in civil litigation matters and how it affects enforceability of contracts and clauses that invoke ADR in the event of disputes.  The pre-trial processes and ADR being invoked or Court ordered, after trial has commenced, complicate traditional adversarial roles, alter practices of prelitigation discovery and provide pitfalls and costs sanctions for those that are not staying abreast of changes with continuing professional development.

 

The LCA refers to the lawyer’s role in ADR in a traditional perspective of advising and representing the client, conducting mediation is omitted as part of that role.

 

In contrast the ABA has adopted a position of appropriating the “work of a barrister” to include the “conduct of mediation”.  Whereas the LSNSW considering the UL has moved towards the position of the ABA with the role of Lawyers including the conduct of mediation whilst recognizing shortfalls in traditional legal training suggesting additional licensing and accreditation may be required.

 

The position outlined in the LSNSW Guidelines ought to apply in Victoria under the UL however as these are guidelines, there is no compulsory requirement for a lawyer to undergo such training and accreditation to represent a client in or conduct mediation or other forms of ADR but as discussed LIV are a RMAB provider and as such they also endorse the position of continuing professional development in this field, the author contends that the “gap” in the training at Law School compared to the NMAS requirements ought to be filled to ensure law students as they complete their degrees and obtain practicing certificates are properly prepared for ADR.

 

Evolving trends that challenge traditional roles and shift the position based adversarial lawyer to consider interest based collaborative team work in ADR to resolve the dispute without the need to go to Court other than to register the agreement reached provide sufficient foresight that the role of the lawyer in ADR will continue to be dynamic reinforcing the need to have adequate training in this growing field of alternative dispute resolution.

[1] Australian National Mediator Standards, Practice Standards, For Mediators Operating Under the National Accreditation System, September 2007, http://www.fedcourt.gov.au/services/ADR/mediation/mediation_standards.pdf accessed 23/8/2017 at 11.45am.

[2] Mediator Standards Board https://www.msb.org.au/ accessed 23/8/2017 at 11.17am.

[3] National Mediator Accreditation System, https://www.msb.org.au/mediator-standards/standards accessed 23/8/2017 at 11.46am.

[4] Australian Dispute Resolution Bulletin, Proposed uniform r 15 — definition of barristers, Nigel Cotman SC 9 Wentworth Chambers. May 2015.

[5] Legal Profession Uniform Law (NSW) 2014.

[6] Australian Bar Association Proposed Legal Profession Conduct Rules: Barristers (November 2014).

[7] Legal Profession Uniform Conduct (Barristers) Rules 2015 r 11(d) (Published on VicBar accessed here https://www.vicbar.com.au/sites/default/files/Legal%20Profession%20Uniform%20Conduct%20%28Barristers%29%20Rules%202015.pdf on 28/08/2017 at 9.54pm.)

[8] Ibid cf Current version of Legal Profession Uniform Conduct (Barristers) Rules 2015 (Published on Austlii accessed here http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/lpucr2015509/s11.html on 28/008/2017 at 9.55pm.).

[9] Australian Dispute Resolution Bulletin, Conducting an ADR process and the Legal

Profession Uniform Conduct (Barristers) Rules — recent developments, Nigel Cotman and Mary Walker SC 9 Wentworth Chambers. September 2015.

[10] Dispute resolution clauses: Risks, options and drafting tips, Joachim Delaney, Australian Dispute Resolution Bulletin, July 2014.

[11] Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236; 16 BCL 70; [1999] NSWSC 996.

[12] Baldwin & Anor v Icon Energy Ltd & Anor [2015] QSC 12 (3 February 2015).

[13] United Group Rail Services Ltd v Rail Corp (NSW) (2009) 74  NSW LR618; [2009] NSWCA177; Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217; BC201312046.

[14] WTE Co-Generation  & Anor v RCR Energy Pty Ltd & Anor [2013] VSC 314 (21 June 2013).

[15] Plenary Research Pty Ltd v Biosciences Research Centre Pty Ltd [2013] VSCA 217 at [12].

[16] The Role of Lawyers in Mediation: Insights from Mediators at Victoria’s Civil and Administrative Tribunal, Kathy Douglas and Becky Batagol, Monash University Law Review 2014 (Vol 40, No 3).

[17] Federal Court of Australia Act  1976 (Cth) s.37M

[18] Civil Procedure Act 2010 (Vic)

[19] Ibid s 7(1).

[20] Ibid s 7(2)(c).

[21] Federal Court of Australia Act  1976 (Cth) s 37N(4).

[22] Civil Dispute Resolution Act 2011 (Cth) ss 6–7.

[23] Ibid s 4.

[24] Ibid s 9.

[25] Ibid s 12. See, e.g., Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys

[2012] FCA282 (23 March 2012), where no genuine steps had been undertaken, and the Federal Court

ordered the legal representatives of the parties be joined for the purposes of costs.

[26] Ibid s 12(3).

[27] Spencer, David L., Liability of Lawyers to Advise on Alternative Dispute Resolution Options (November 2, 1998). Australian Dispute Resolution Journal, Vol. 9, No. 292, 1998.

[28] Adamson v Queensland Law Society Inc [1990] 1 Qd R 498.

[29] Adamson v Queensland Law Society Inc [1990] 1 Qd R 498.

[30] Are you being too bullish in settlement negotiations and refusing to mediate? Be warned, Michael Hollingdale,  Australian Dispute Resolution Bulletin September 2015.

[31] Australian Competition and Consumer Commission v Harris Scarfe Australia Pty Ltd (No 2) [2009] FCA433 at [33].

[32] Collaborative practice — “a new wrinkle”, Nigel Nicholls, Australian Alternative Dispute Resolution Law Bulletin, June 2017.

[33] National Alternative Dispute Resolution Advisory Council, Maintaining and Enhancing the Integrity of

ADR Processes (2011) 38.

[34] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[35] Law Council of Australia, Guidelines for Lawyers in Mediations (2011).

[36] Ibid Guideline 1.

[37] Ibid.

[38] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[39] Law Society of New South Wales, Guidelines for Legal Practitioners who act as Mediators 2012.

[40] Ibid Schedule 1, S.2(a).

[41] Ibid S.2(b).

[42] Ibid S.2(c).

[43] Ibid S.2(d).

[44] Ibid S.2(e).

[45] Ibid.

[46] Legal Profession Uniform Law (NSW) 2014.

[47] Legal Profession Uniform Law Application Act 2014 (Vic).





When a relationship breaks down and there are children and property involved the complex web known as family law for the parent who doesn’t have the money to hire a lawyer and doesn’t qualify for legal aid can be a heart breaking and soul destroying process where people lose faith in the entire system of justice when the only reason they are experiencing injustice is money.

The first place to start to look at for help is the Family Court Web Site which is an excellent resource for self represented litigants.

Family Law Court Menu

Family Law Court Menu

As you can see above the Family Law Court  provides a step by step menu covering all aspects of Family law for self represented litigants to read and learn.

If you are at the stage of separation and need to know about the process of divorce the Federal Circuit Court has step-by-step guides to the process of divorce here.

Once you have read through the above the Family Law Court has an online application for divorce  which you can register your details and initiate the Divorce process yourself with guided by the Family Law Court.

The Federal Circuit Court has step-by-step guides and forms for applying for parenting orders  and for property orders.

The FCC also has information to help you with how to deal with breaches of court orders by a party.

There are videos available for children to watch to help them understand what’s going on between mum and dad.

When it comes to the various Court Forms there is a comprehensive list of forms available to the public for you to browse to see if there are relevant forms that apply to you.

There is further information for various groups.

Each menu opens up new sections with further details and information in the

category you select.

Once you have read all of the above and have a fundamental understanding of family law processes you can delve deeper.

Here is the Law Society’s “Practitioner’s Guide to Family Law” so you can delve into how a lawyer goes about helping a client with family law matters and deciphers the Family Law Act sections providing guidance to lawyers how to help their clients.

You can then sign up for online law resources that have free trials (use this time wisely to screen cap and save all the relevant information).

The CCH online resource and the Family Law Handbook are the two top online resources for lawyers, which go through all of the above plus cite precedents and provide templates and examples to work off.

Aside from that you may consider jumping onto Gumtree or Ebay or other online resources that deal with second hand books and doing a search for Family Law, you can pick up some great buys of current edition law books being sold by students who have completed the subject.  These books will teach you what law students learn about Family law.

So once you have read all of that, you might not yet have the experience of a lawyer to self represent yourself but at least you are armed with all the information and knowledge about the subject of Family Law, you will be aware of all the pitfalls and be able to use the sword and shield of the law with the new found knowledge you have.

If you do have a lawyer by going through the above it will help your communication with your lawyer and assist you in reducing costs, the more work you put in the less work the lawyer needs to.

 



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