3 months ago

LSB March 2018_Web


PRESIDENT’S MESSAGE Profession’s proud history of service reflects close relationship between law & military TIM MELLOR, PRESIDENT This week I looked again at the honour board above the main staircase at the Supreme Court building which records the names of members of the professional and law students who enlisted in the First World War. A close interrelationship between the law and the military is probably not sufficiently appreciated. The theme of this month’s Bulletin examines some aspects of that relationship. I use the term “military” in this context as including the operations of all three services (Navy, Army and Air Force) which make up the Australian Defence Force (ADF). Over the whole of the history of the colony and the State of South Australia, members of the legal profession have served in general military roles and have fought and died in the course of military service. The honour board in the Supreme Court lists 85 names, including 12 who died on active service. It includes Arthur Blackburn, a Victoria Cross recipient, and numbers of others who were decorated. Given the size of the profession and the population of the State at that time, this was a significant proportion of those eligible to enlist who volunteered for that service. The list has many names which remain familiar a century later - judges, politicians and statesmen, and names still incorporated in firms operating to this day. The honour roll for the Second World 4 THE BULLETIN March 2018 War is equally extensive. And so it has continued in other conflicts in Korea, Vietnam and, in this century, East Timor, Afghanistan and the Middle East. In all these conflict there have been lawyers serving in general military roles. Still others who might not have been able to undertake active military service, have taken on other wartime roles in support. The situation of military service by lawyers specifically in the role of lawyers has been a feature since after the Second World War. The ADF has increasingly required and valued the abilities and assistance of lawyers in the conduct of operations and in the maintenance of military discipline. In the immediate aftermath of the Second World War a number of South Australian lawyers were diverted from their other military duties to deal with war crimes. Consistent with the operation of the rule of law, and in that strained and emotive context, they undertook roles as judges, prosecutors and also as defence counsel. South Australian lawyers have held, and continue to hold positions on International Criminal Tribunals dealing with war crimes from more recent conflicts. The rights and obligations of States in the conduct of military operations are extensive and complex. They entail the application of international law, and numerous specific treaty and convention Military decisions about issues such as targeting, and operations which may directly affect noncombatants, involve assessments and judgments as to the law. obligations. Military commanders rely on lawyers to give them the advice that ensures that their conduct of warfare occurs within the bounds of those legal obligations. An important aspect of military training is the instruction which is provided by military lawyers to all rank levels in the ADF as to the laws of armed conflict, to which they are all subject. Military decisions about issues such as targeting, and operations which may directly affect non-combatants, involve assessments and judgments as to the law. There have been hundreds of members of the Law Society and the legal professional generally who have served or are still serving in these roles. In many instances, this has been in full time military service, but in the majority of cases this has been as reservists. In recent years there have been a number of reserve legal officers who have been deployed for active service in war zones. Away from that direct involvement, the legal profession provides advice and representation to members of the ADF as our clients. There are a number of legal issues which particularly affect members of the ADF. These include matters of military justice and discipline. In addition the pressures of service life entail a number of specific health and welfare concerns for ADF members and their families. These concerns often have legal consequences. Whilst we plainly practise in a vastly different world than that in which our First World War predecessors operated, I am confident that they would still recognise those qualities of service and professional concern which mark our profession. B

FROM THE EDITOR Responsibility of the profession to stand up to misinformation MICHAEL ESPOSITO, EDITOR Last year, the Judicial Conference of Australia (JCA) issued 10 statements in response to inaccurate or misleading mainstream media coverage of the courts. I suspect that that this noticeable increase in statements from the Justice Conference is due to both a deliberate decision to be more proactive in circumstances where the judiciary is unfairly attacked in the public domain, and a worrying trend towards undermining the integrity of the courts for political gain. In one particular lamentable case, the JCA released a statement highlighting the Herald Sun’s inaccurate reporting in an Administrative Appeals tribunal decision to grant Jadeep Singh a bridging visa. The following day, the JCA was compelled to issue another statement to correct the Herald Sun’s erroneous report on the JCA’s statement! Minister for Home Affairs Peter Dutton, a regular critic of the courts, recently suggested that the public should have a say in the election of judges. These comments were met with pointed rebukes from several quarters, including Law Council President (and former SA Law Society President) Morry Bailes, who said in a Daily Telegraph article: “To have a healthy, functioning democracy, we must ensure that there is never any blurring between the political and judicial spheres. If we create an environment where judges are forced to act like politicians, we all lose.” Our current President Tim Mellor echoed these concerns in a social media post that stated: “Minister Dutton’s comments suggesting the public assist in electing judges is plainly contrary to principles of judicial independence and impartiality which is a cornerstone of democracy. Administration of justice is not a popularity contest. It’s about legal skill and competence.” It is incumbent on the legal profession, particularly representative bodies such as the JCA, Law Council, and law societies, to speak up when powerful people and organisation spread misinformation about the justice system. Such unchecked criticism fans the flames of distrust and antipathy towards our legal institutions, weakening the pillars of an independent and impartial judicial system. It is not an easy task. Lawyers and judges are easy targets as politicians and media organisations have much to gain by taking calculated and deliberate shots at the justice system. The legal profession does not have the platform to debate these issues on an equal footing, but that just means we must work harder to make our voices heard. We must be ever vigilant and assiduous in promoting a better understanding of the role of the independent judiciary and its fundamental role in upholding democracy. B Update on Recovery by Solicitors of Legal Fees When Acting in Person BILL ERICSON, CHAIR, COSTS COMMITTEE The High Court will be hearing an appeal on the issue of whether a solicitor who is a litigant in person is able to recover an amount for legal fees under a costs order made in their favour . On 15 December 2017, the Court granted special leave for an appeal in Coshott v Spencer & Ors ([2017] HCA Trans 263). An issue in that appeal is the extent to which a self represented solicitor in litigation is able to recover costs on a “party-party” basis for their own time spent on the matter. The current position in South Australia is that where a costs order has been made in favour a solicitor acting as litigant in person, that party may recover pursuant to that order an amount for their own legal fees (notwithstanding that they have not, of course, invoiced and paid themselves for acting for themself) (see for example Steicke v Connolly [2017] SASC 99). In contrast, an unrepresented litigant who is not a solicitor will only be able to recover disbursement expenses under a costs order (such as filing fees, experts’ reports, and the like), and no amount for their own time spent in the matter. The High Court has previously made the observation in (Cachia v Hanes (1994) 179 CLR 403) that this position is something of an anomaly. While the Court did not resolve the issue in Cachia, it appears that it is now willing to do so in Coshott. Any solicitor acting in person in litigation (and for that matter any solicitors advising clients who are parties to litigation against a solicitor acting in person) should be aware that a decision in Coshott may render solicitors acting in person unable to recover any amount for legal costs under a costs order made in their favour. The Law Society Costs Committee will provide a further update when the High Court delivers its decision in Coshott. B March 2018 THE BULLETIN 5