LSB September 2019_Web

THE
BULLETIN
THE LAW SOCIETY OF SA JOURNAL
VOLUME 41 – ISSUE 8 – SEPTEMBER 2019
INSIDE
Heritage protection under new
planning laws
Proposed land tax aggregation laws
Complaints against builders
BUILDING & PROPERTY LAW

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This issue of The Law Society of South Australia: Bulletin is
cited as (2019) 41 (8) LSB(SA). ISSN 1038-6777
CONTENTS
BUILDING & PROPERTY LAW
FEATURES & NEWS
REGULAR COLUMNS
10 Making & handling complaints against
builders – By Consumer & Business
Services
12 Heritage protection under the
Planning, Development and
Infrastructure Act – By Paul Leadbeter
16 The worker’s Liens Act, statutory
charges & insolvency: Good security?
By Travis Shueard & Alice Lynch
18 Is there a need for reform to protect
owners and sub-contractors?
By Nicholas Graham
26 Examining proposed land tax
aggregation laws for SA
By Elias Farah
30 The non-jurisdictional error of law
on the face of the record & the cases
before the High Court
By Dr Auke Steensma
8 Event wrap-up: Legal Profession
Dinner
20 Prasad Direction abolished by the
High Court
By Kristie Molloy & David Stiles
34 Socia media, jurors & the right of an
accused to a fair trial
By Jemma Holt
36 Vale: Damon Ind
40 Does living apart preclude ‘living
with’ when applying for declarations
of domestic partnership?
By Mark Taylor
4 From the Editor
5 President’s Message
22 Young Lawyers: Survey sheds light on
wellbeing & salaries of young lawyers
39 Wellbeing & Resilience: Breaking the
stress cycle – By Toni Vozzo
38 Tax Files: No deductions for vacant
land – By Paul Tanti
42 Family Law Case Notes
43 Risk Watch: Details, details, details –
they matter – By Grant Feary
44 Bookshelf
45 Gazing in the Gazette
Executive Members
President:
A Nikolovski
President-Elect: T White
Vice President: R Sandford
Vice President: M Frayne SC
Treasurer:
F Bell
Immediate Past President: T Mellor
Council Member: E Shaw
Council Member: S Hooper
Metropolitan Council Members
T Dibden
M Tilmouth
M Janus
A Lazarevich
S Hooper
T Vozzo
V Gilliland F Bell
M Mackie
M Boyle
M Smith
E Shaw
R Shaw
J Stewart-Rattray
J Marsh
C Charles
Country Members
S Minney
(Northern and Western Region)
P Ryan
(Central Region)
J Kyrimis
(Southern Region)
Junior Members
R Piccolo
KEY LAW SOCIETY CONTACTS
Chief Executive
Stephen Hodder
stephen.hodder@lawsocietysa.asn.au
Executive Officer
Rosemary Pridmore
rosemary.pridmore@lawsocietysa.asn.au
Chief Operations Officer
Dale Weetman
dale.weetman@lawsocietysa.asn.au
Member Services Manager
Michelle King
michelle.king@lawsocietysa.asn.au
Director (Ethics and Practice)
Rosalind Burke
rosalind.burke@lawsocietysa.asn.au
Director (Law Claims)
Geoff Thomas
gthomas@lawguard.com.au
Manager (LAF)
Annie MacRae
annie.macrae@lawsocietysa.asn.au
Programme Manager (CPD)
Natalie Mackay
Natalie.Mackay@lawsocietysa.asn.au
THE BULLETIN
Editor
Michael Esposito
bulletin@lawsocietysa.asn.au
Editorial Committee
A Bradshaw P Wilkinson
S Errington T Shueard
D Sheldon J Arena
G Hagias
The Law Society Bulletin is published
monthly (except January) by:
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Level 10-11, 178 North Tce, Adelaide
Ph: (08) 8229 0200
Fax: (08) 8231 1929
Email: bulletin@lawsocietysa.asn.au
All contributions letters and enquiries
should be directed to
The Editor, The Law Society Bulletin,
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Adelaide 5001.
Views expressed in the Bulletin
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Desiree Holland
Desiree.Holland@lawsocietysa.asn.au

FROM THE EDITOR
From a baby to a
Master: A toast to our
high-achieving peers
MICHAEL ESPOSITO, EDITOR
This month’s message is replete with
congratulations.
Firstly, a huge congratulations to
President Amy Nikolovski and her husband
Tony, who welcomed their beautiful baby
boy on 14 August.
Nikola Morris Nikolovski came into the
world weighing 3.7kg and measuring 55cm.
Amy, who had been pregnant for the
entirety of her presidency before becoming
a mother for the first time, is the first
Law Society President to give birth during
the year of her presidency. This is hardly
surprising given she is only the fourth
woman in the Society’s 140-year history to
be president.
It goes without saying that this has been
a huge year for Amy, both professionally
and personally, and August has no doubt
been one of the momentous of her life. In
addition to giving birth, she also received
the Mary Kitson Award, presented at the
Legal Profession Dinner on 2 August, for
her contribution to gender equality.
Fellow award recipients announced at
the Dinner were Brittany Armstrong, who
was named Young Lawyer of the Year,
while Raffaele Piccolo and Her Honour
Judge Penelope Kari received the Bulletin
Article of the Year awards.
The Society warmly congratulates these
highly deserving award winners. We have a
full wrap-up with plenty of photos of the
event in this month’s edition.
Last but not least, a hearty
congratulations to Elizabeth Olsson who
was appointed as a Master of the District
Court.
Master Olsson has been on the Bulletin
Committee for almost 24 years, serving
as Chair for over 22. It was bittersweet
to receive her notice of resignation from
the Bulletin Committee last month, as she
really had been the driving force behind the
evolution of the Bulletin over the past two
decades.
On behalf of the Bulletin Committee,
I thank Elizabeth for her immeasurable
contribution to the Bulletin and wish her
well in her new role. B
IN THIS ISSUE
LEGAL PROFESSION DINNER
Wrap-up & photo gallery of the
profession’s night of nights
8
Landmark decision in asbestos case
An Adelaide man has been awarded a
record compensation payout of just
over $3 million after being diagnosed with
a rare form of mesothelioma caused by
exposure to asbestos dust, including during
renovations on his first home.
Mathew Werfel, 42, was diagnosed
with the terminal cancer after discovering a
lump in his groin in 2017.
Mr Werfel was first exposed to asbestos
as a teenager, while working for a fencing
contractor after leaving school. He was
subsequently exposed during home
renovations, including when he sanded and
painted the walls of his first home, which
he didn’t realise was constructed from
asbestos cement sheets.
In addition to awarding compensation
for pain and suffering, future economic
loss, medical expenses, and loss of life
expectancy, Judge Leonie Farrell imposed
exemplary damages on the company, saying
the court needed to issue a deterrent for
corporate actions that put commercial gain
ahead of people’s lives.
“Part of the conduct complained of
in this case … is still occurring, that is
the lack of warning to the general public
concerning the ongoing risk of the
dangers of [James Hardie’s] product in
thousands of Australian homes,” Judge
Farrell said.
Mr Werfel’s solicitor, Turner Freeman
Lawyers partner Annie Hoffman, said the
SAET decision has significant implications
for “third wave” asbestos victims — those
exposed to in-situ asbestos products in
homes, workplaces, and the community.
“This case confirms that James Hardie’s
duty of care didn’t end when it sold those
products, it continues even decades later as
tradespeople, homeowners, and others are
exposed to those building materials,” Ms
Hoffman said. B
PRASSAD DIRECTION ABOLISHED
High Court sets aside controversial
jury direction
VALE: DAMON IND
Beloved lawyer and animal rights
activist honoured
20
37
4 THE BULLETIN September 2019

PRESIDENT’S MESSAGE
Flexibility is key to
managing juggling act
AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SOUTH AUSTRALIA
It’s hard to believe that three quarters
of my presidency has already been
completed. As we head into the final
quarter there is still so much to be done!
As you’d no doubt be aware, I have
been pregnant for the entire term of my
presidency. I am happy to announce my
husband Tony and I welcomed our son
Nikola Morris Nikolovski on Wednesday
14 August. Little Niko weighed in at a
respectable 3.7kg (8 pound 3 ounces in the
old scale) and a rather long 55cm. We are
thinking we may have a future ruckman in
our hands!
I have taken six weeks off from my
official duties following the birth of Nikola.
Many thanks to Immediate Past President
Tim Mellor and President Elect Tim White
for attending, chairing and hosting various
events and meetings on my behalf while I
get settled in with a newborn.
I am still however happily writing
articles and settling submissions and will
be back from 23 September, when the real
juggling act will begin!
I am about to experience the life
of so many of our members; juggling
young children and a career in the legal
profession. I must say that during my
pregnancy I had nothing but support from
the profession, even when I got teary
during Judge Jo-Anne Deuter’s Special
Sitting (I was 23 weeks pregnant). I hope
the great support will continue upon my
return to work not just at the Society but to
practice.
The Bullying, Discrimination and
Harassment Survey results indicated that
a number of women and parents faced
discrimination while on maternity leave or
returning to work from parental leave, and
I am hopeful that we can stop this stigma
in the workplace and that flexibility will be
seen to be beneficial to all parties.
We also have some exciting celebratory
events coming up in which I hope you can
join me, including:
• a lunch celebrating 125 years of
women’s suffrage in South Australia
with guest speakers The Hon. Justice
Judith Hughes, her Honour Judge Mary-
Louise Hribal and Marie Shaw QC on
31 October at The Hilton Adelaide;
• a birthday party to celebrate 140 years
of the Law Society of South Australia
on 15 November at The Treasury.
I hope to see you there. B
Former Bulletin Committee Chair
appointed as District Court Master
Elizabeth Olsson has been appointed
as Master of the District Court,
replacing Master Mark Rice who resigned
his commission earlier this year.
Master Olsson commenced her role in
the District Court on 12 August.
Master Olsson has had a distinguished
career in the law spanning more than 30
years, including as Senior Associate for
Mellor Olsson since 2014.
She has practised extensively and with
distinction in a range of areas, including
employment law, civil litigation, personal
injury, consumer law, and family law. She
represented victims of the 1983 Ash
Wednesday bushfires in their personal
injury claims.
Master Olsson’s immense contribution
to the Law Society was recognised in 2017
when she was presented with the Society’s
most prestigious award, the Brian Withers
Award, for her service to the Society.
Master Olsson served as Chair of the
Bulletin Committee for almost 22 years,
and even after stepping down as Chair
continued as a Member of the Bulletin
Committee until her appointment as a
Master forced her to resign.
Master Olsson steered Society’s
flagship publication through a number of
iterations, overseeing a publication that is
widely respected and appreciated by the
profession for its informative, engaging
and relevant content.
She also served on the Civil Litigation
Committee for eight years, Industrial
Relations Committee for three, Accident
Compensation committee for two and
Legal Technology Committee for one.
She has also been a passionate and
tireless supporter of the arts, particularly
theatre, and is a long-serving member of
the Gilbert and Sullivan Society of SA.
Attorney General of SA, The Hon
Elizabeth Olsson
Vickie Chapman, said: “I have no doubt
her ability to think on her feet and keep
calm under pressure will be invaluable in
her new role.”
“I congratulate Ms Olsson on this new
opportunity and would like to thank Mr
Rice for his significant contribution to the
District Court over the last 18 years.” B
September 2019 THE BULLETIN 5

EVENTS
Chief Justice of Australia holds court
at profession’s night of nights
MICHAEL ESPOSITO
More than 300 people gathered to
celebrate the achievements of the
legal profession and hear guest speaker,
The Hon Chief Justice Susan Kiefel AC, at
the Law Society’s Legal Profession Dinner
on 2 August.
Society President Amy Nikolovski, in
welcoming guests, remarked that it was
fitting that the first female Chief Justice
of the High Court was the guest speaker
at an event where the State’s first female
Attorney General was in attendance and in
a year that marked the 125 th anniversary of
women’s suffrage in SA.
Ms Nikolovski herself is only the
fourth female president of the Society,
YOUNG LAWYER OF THE YEAR: BRITTANY ARMSTRONG
and, at 38 weeks pregnant at the Dinner,
was certainly the first president in the
Society’s 140-year history to be with child
during the course of her presidency.
Chief Justice Kiefel’s wryly humorous
speech detailed some particularly telling
interactions with colleagues and peers
that were indicative of some of the
more traditional attitudes that some male
practitioners had towards women in the
law.
While Her Honour’s speech made
some pointed observations about the
experience of being a woman in the law,
her timing and delivery was calibrated for
maximum comic impact, and the speech
MARY KITSON AWARD: AMY NIKOLOVSKI
PHOTOS: PAGES 8-9 >
was received with a rousing reception from
delighted guests.
Ensuring the laughter continued
throughout the night, Alex Ward
performed his MC role with his usual
panache and witty irreverence.
The Society is grateful to the City
of Adelaide’s Ten Gigabit Network and
Notable Imprint for being Major Sponsors
of the Dinner, Supporting Sponsor Peter
Shearer Menswear and Young Lawyer
of the Year Award Sponsor PEXA. The
Society would also like to thank its major
sponsor Bank SA, Imperial Measures
Distilling for sponsoring the Gin Bar on
the night and wine sponsor Wine Direct. B
Young Lawyers Committee Co-Chair Erica Panagakos (left), The Hon Justice Tim
Stanley, Young Lawyer of the Year winner Brittany Armstrong, PEXA representative
Daniel Roesler, and Young Lawyers Committee Co-Chair Georgia Hagias).
Brittany Armstrong was an Associate at the District Court
before joining Shaw & Henderson as a Criminal Lawyer.
Brittany has excelled in this role, working on complex criminal
trials and appeals with exceptional skill. Brittany is passionate
about equality before the law and regularly does pro bono work
to ensure that those who would otherwise not have access to
proper legal representation are afforded their rights. Brittany
is particularly interested in youth justice and the relationship
between disadvantaged youth and crime. She is a strong advocate
for a more effective child protection and child welfare system.
Brittany recently developed a CPD about doli incapax (the
presumption against age of criminal responsibility for children
aged 10-14), but has been a powerful voice for increasing the
age of criminal responsibility to 14. Brittany has been heavily
involved in the Ice Factor program founded by Marie Shaw QC.
She has coordinated numerous fundraisers, organised the Ice
Factor Spectacular (a charity dinner with more than 500 guests),
and organised for 200 teenagers to undergo modelling training.
Mary Kitson award winner Amy Nikolovski with her husband Tony Nikolovski
Amy Nikolovski is the youngest ever female President of
the Law Society and is also the youngest person to be made an
Equity Partner at Duncan Basheer Hannon (age 35). By sheer
example, Amy continues to advance the interests of women
lawyers. Amy was a Member of the Society’s Gender Equity
Working Group and was instrumental in garnering support
for the gender equity reforms undertaken by the Law Society
in 2015. In all her actions she reminds people of unconscious
bias and the challenges that women face. She is Chair of the
Society’s Bullying, Discrimination and Harassment Working
Group; and the Equality, Diversity and Inclusion Committee.
She is also a Member of the Society’s Council and Executive
and numerous other committees, in addition to being a Director
of the Law Council of Australia and the Society’s representative
on the Law Council’s Equal Opportunity in the Law Committee.
6
THE BULLETIN September 2019

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EVENTS
Law Society President Amy Nikolovski (left), The Hon
Chief Justice Kiefel AC, and the Hon Chief Justice of
SA Chris Kourakis
Daniel Pallaras (left), Stephen Pallaras QC, Genevieve
Lewis, and Arman Abrahimzadeh OAM
Raffaele Piccolo (right) with Bulletin Committee
Chair Alison Bradshaw
BULLETIN ARTICLE OF THE YEAR
AI in Criminal Sentencing: a risk to our
human rights?, By Raffaele Piccolo
In his award-winning article,
Raffaele Piccolo explores the prospect
of artificial intelligence machines being
used to deliver sentences to convicted
criminals, and the implications this
technology might have for human rights.
SPECIAL INTEREST BULLETIN ARTICLE
OF THE YEAR
Can women really have it all? A
perspective from a barrister & mother, By
Penelope Kari
Her Honour Penelope Kari, who
worked as a barrister, when her article
was published, struck a chord with her
honest account of life as a full-time
lawyer and mother.
Brooke Hall-Carney (left), Gavin Carney, Nick
Gormley (Notable Imprint), and Louisa Gormley
Henry Ringwood (left), Elizabeth Olsson, and Pamela
Wilkinson
Magistrate Anna Jackson (left), Kym Jackson, The
Hon Justice Judith Hughes
John Ward (left), Guy Biddle, and Amanda Trudgian
Emma Schulz-Boylan (left), Michael Rydon, Adam Hamilton, Margaret Cusenza,
Fumi Baughan, and Erin Puckridge
Samuel Leeson (left) Elizabeth Carroll-Shaw, Lucy Caruana, Anne Mignone, and
Rowan Tape
8
THE BULLETIN September 2019

EVENTS
Glen Pearce (left) and Shery Farbod
Amanda Ward (left) and Alex Ward Christine Hanna (left) and David Hanna Kerryn Hawkes (left) and Holly McCoy
Dami Sheldon (left), Michael Janus, and Franco
Camatta
Richard Wharldall (left), Peter Humphries, and
Dr Rachel Hurst
Rebecca Sandford and Sheena Riordan
Mussa Ahmadi (left), Michael Alder, and Matthew Sun Ellen Gordon (left), Jenny Paglia, and Paul Gordon NSW Law Society President Elizabeth Espinosa
(left), Member of the Law Council Executive Caroline
Counsel, and Amy Nikolovski.
Immediate Past President Tim Mellor (left), President Amy Nikolovski, The Hon
Judge Tony Rossi, and Dr Lillian Rossi
Charlie Belperio (left), Marisa Belperio, Mark Anderson, Erica Panagakos, Rachel
Jolly, Beverley Clarke, Madeline Porter, Alysia Panagakos, Steven Polyichanin, and
Brenton Drechsler.
September 2019 THE BULLETIN 9

BUILDING & PROPERTY LAW
Making & handling complaints
against builders
CONSUMER & BUSINESS SERVICES
As the State’s consumer watchdog,
Consumer and Business Services
(CBS) is responsible for regulating South
Australia’s building, plumbing, gas fitting
and electrical industries.
CBS administers the following
building-related laws, alongside a raft of
other legislation aimed at protecting South
Australian consumers:
• Building Work Contractors Act 1995
• Plumbers, Gas Fitters and Electricians Act
1995
• Australian Consumer Law (adopted under
the Fair Trading Act 1987)
There are over 55,000 registered
building, plumbing, gas fitting and
electrical licences in SA – and this
represents approximately 77% of CBS’
occupational licences.
The building industry is a key focus for
the agency as it has a significant effect on
South Australian consumers, both in terms
of dollars and emotional impact. Building
disputes can also be quite complex and
substandard work can pose a risk to public
safety.
TYPES OF ENQUIRIES AND COMPLAINTS
Unsurprisingly, building disputes are
consistently in the top three categories of
complaints received by CBS.
In the first six months of this year
alone, CBS has received more than 1940
enquiries, and 223 formal complaints. This
includes complaints relating to shoddy
work by plumbing, gas fitting and electrical
tradespeople, as well as other building
issues.
The most common complaint received
last year related to solar panel installations
with more than 130 complaints received
from unhappy customers.
Other complaints included grievances
around new home constructions, home
additions and renovations, concrete
foundations and other concrete services,
bathroom and laundry renovations, and
fencing.
AVOIDING ISSUES WITH BUILDERS
When building a home, it’s important
to understand the rights of consumers and
builder responsibilities.
Consumers are responsible for
paying for the building work stated in the
building contract and to communicate
any particular preferences, changes
or concerns. Builders are responsible
for building the home in line with the
approved plans and contract documents.
There are a number of key things to
consider before and during the building
process.
USING A LICENSED BUILDER
It’s crucial to ensure the builder holds
a current Building Work Contractor’s
Licence, and their supervisor holds a
Supervisor’s Registration.
If the builder is using subcontractors,
these tradespeople must also be licensed.
The Licensing Public Register on the
CBS website contains details of all licensed
builders in South Australia.
CONTRACTS
There must be a written contract for
any building work costing $12,000 or
more, which will usually contain a number
of documents including drawings and
specifications.
The contract must:
• be in writing
• be legible
• set out all of the agreed terms in full
• include the name and licence number
of the building work contractor and
contractor’s business partners
• be signed by both the consumer and
builder.
When signing a new home contract
in South Australia, there is a cooling-off
period of five clear business days. This
can be longer if the builder has failed to
supply a Form 1 notice outlining consumer
rights and obligations, or fails to take out
building indemnity insurance.
PROGRESS PAYMENTS
Builders are entitled to request
payments when work is complete and ready
for the next stage – these are known as
“progress payments”. This builder must
ask for these in writing (eg via invoice)
and they must be outlined in the building
contract. Consumers should never pay
for work in advance and builders can be
penalised for demanding money before
completing work.
VARIATIONS
There can still be changes made to the
plan once the contract is signed. These
variations need to be agreed between the
consumer and builder, and recorded as an
addendum to the building contract so the
builder can request payment for the work
once completed.
DEPOSITS
There is a maximum amount a builder
can take as a deposit:
• $1,000 maximum for a contract valued
between $12,000 up to $20,000
• 5% of the contract price for contracts
$20,000 or more.
Consumers should always be aware of
paying any deposits in excess of 10% of
the contract price.
10
THE BULLETIN September 2019

BUILDING & PROPERTY LAW
BUILDING INDEMNITY INSURANCE
If building work costs $12,000 or
more and requires local council approval,
building indemnity insurance is required.
This protects consumers if the builder
becomes bankrupt, disappears or dies
and cannot complete the work or fix
any defects under the five-year statutory
warranty.
WARRANTIES
Builders often speak of a threemonth
maintenance period and will ask
consumers to wait three months to either
bring defects to their attention or address
the issues.
This can work well as the builder
doesn’t have to go back and forth as new
problems are found, and the consumer
won’t be constantly contacting the builder.
Consumers don’t have to wait these 3
months however and can continue to raise
issues after.
There are certain warranties (known as
“statutory warranties”) included under any
building contract:
• The building work must be carried
out properly to meet all statutory
requirements, accepted trade standards
and agreed plans and specifications.
• Materials supplied will be good and
proper materials.
• Unless the contract states a time frame
that the work will be completed, the
work will be done with reasonable
diligence.
• The building will be reasonably fit to
live in.
• The work and materials used will be fit
for any purpose or result specified.
If the building project doesn’t comply
with these, consumers should discuss this
with the builder. The owner has up to
five years from the date of completion
to lodge an action for a breach of these
warranty conditions.
Consumers can also claim for up to 10
years under the Development Act 1993 for
any defective work that does not comply
with the Building Code.
MAKING A COMPLAINT ABOUT A BUILDER
Despite best intentions, consumers and
builders may find themselves in a dispute.
The first step in resolving any
disagreement is to speak directly to the
builder, outlining all concerns in writing.
If this fails to resolve the dispute, there are
several options for disgruntled consumers.
CONTACT CBS
The Advice and Conciliation team
within CBS provides free advice and
information to help consumers reach an
agreement with the trader.
There are some circumstances
where CBS is unable to provide further
assistance:
• if the matter relates to a builder or
project outside of South Australia
• if the matter is currently before Court.
CBS encourages concerned consumers
to contact them early so they can provide
the right advice about their rights, who to
contact and what to do next.
COMPULSORY CONCILIATION CONFERENCES
If the parties cannot agree on a
solution, the Commissioner for Consumer
Affairs can call for a conciliation
conference. This will happen where CBS
believes the trader has some responsibility
to provide redress and is usually the final
step before the consumer proceeds with
civil legal action.
Businesses must attend and can be
fined up to $10,000 if they do not attend
without a reasonable excuse.
Before calling a conference, the
Commissioner will consider:
• the nature of the problem and what
can be proven
• the number of complaints against the
business
• how the business handles customer
complaints
• any legal issues.
In these conferences, CBS will
work to ensure the outcome is as fair as
possible for both parties. CBS has no
power to force the parties to enter into
an agreement. If traders and consumers
do sign an Instrument of Agreement,
they must comply with all terms of the
agreement – if they do not, this can be
enforced in the Magistrates Court.
COMPLIANCE AND ENFORCEMENT
Even if the matter is resolved for
the consumer, the issue may be referred
for further investigation if a breach of
legislation is identified.
Sometimes the nature of the alleged
conduct, the number of consumers
affected or repeated incidents means
further action needs to be taken. The
Compliance and Enforcement team
will investigate and may end up taking
enforcement action.
The enforcement action will depend
on the level of harm and seriousness of
the breach. The Commissioner has a range
of options at his disposal when a breach is
identified including:
• formal warning letters
• expiation notices
• public warnings
• disciplinary action
• prosecution.
PROSECUTION
Over the past 12 months, 15 builders
and tradespeople have been prosecuted in
the Magistrates Court and ordered to pay
significant fines and legal costs.
In one case, an unlicensed builder
who failed to complete work and caused
additional damage to property was fined
$175,000 and ordered to pay back more
than $58,000 in compensation to clients.
While CBS does take businesses to
court, CBS cannot provide legal advice
to consumers about pursuing their own
civil case.
MORE INFORMATION
CBS encourages the public to report
any concerns about unlicensed operators
in the building and trades industry. Over
the past few years, a “Dob in an unlicensed
tradie” campaign has helped stamp out
numerous unlicensed tradespeople.
CBS also undertakes a proactive
monitoring program to help keep the
industry compliant. This includes inspectors
visiting building sites, as well as monitoring
advertisements in newspapers and online.
The CBS website has a range of
useful resources for consumers about
building and working with tradespeople.
The “Building, extending and renovating
a home consumer guide” provides
comprehensive details for those thinking
about building or renovating.
Consumers are also encouraged to
check the Licensing Public Register on the
CBS website: https://www.cbs.sa.gov.au/
find-a-licence-holder B
September 2019 THE BULLETIN 11

BUILDING & PROPERTY LAW
Heritage protection under the Planning,
Development and Infrastructure Act
PAUL LEADBETER, SENIOR LECTURER, ADELAIDE LAW SCHOOL
It seems that no one is ever completely
happy with the regulatory systems
put in place by government to regulate
the use and development of land 1 . To
some extent this reflects the fact that
planning of land use and its development
is a dynamic process with change to the
regulatory scheme and associated planning
policy being influenced to varying degrees
by changing demographics, technology
changes and different infrastructure needs
as well as the need to address economic 2
and environmental concerns 3 . Further
influencers of change include changing
trends in lifestyles and housing choice
and pressure from interest groups such
as the development industry and resident
action groups. There had been concerns
expressed over many years by both the
development industry and community
groups about the South Australian land
use planning system which operated under
the Development Act 1993. This led to an
extensive and lengthy review by an Expert
Panel on Planning Reform appointed by
the State Labor Government in February,
2013. In its final report delivered in late
2015 it concluded that:
“Our planning system should provide
communities with a clear understanding of
the policies that will guide development, while
ensuring that unnecessary costs and delays
for applicants and assessing authorities are
minimised. It is critical to the competitiveness
of the state, but our current planning system is
not up to this task.”
The then State Labor Government
took on the task of drafting new planning
legislation taking on board the majority of
the Expert Panel’s recommendations. On 1
April, 2017 4 a new Planning, Development and
Infrastructure Act 2016 (the PDI Act) came
into partial operation with the intention
being that the PDI Act, (which will
eventually repeal the Development Act 1993
and thereby end the 25 year old planning
system and policies implemented under
that legislation), would be fully operational
by the end of June, 2020. Provisions in the
PDI Act are being gradually implemented
along with key policy documents, the most
important of which is the Planning and
Design Code 5 . The Planning and Design
Code (the Code) effectively replaces the
old council area development plans and
sets out zones, policy areas, definitions
of land uses and land use classes, and
the specific rules and policies that will
govern the use and development of land
within particular zones 6 . The Code is
being developed by the State Planning
Commission and is to be released in three
phases. The first phase is that applying
to all land that is not within a council
area and it came into operation on 1 July,
2019. It is understood that drafts of the
second phase of the Code (dealing with
regional council areas) and the third phase
(dealing with Metropolitan Adelaide) will
be released for comment in October, 2019
with actual implementation of them some
months later. 7
This article looks at how the PDI
Act addresses the issue of development
control and heritage. In the first half
of 2019, concerned local councillors,
community action groups like the
Community Alliance and the National
Trust of SA have campaigned strongly
for better heritage protection under the
PDI Act believing that the new Planning
and Design Code is not going to offer the
same level of protection for places with
heritage value as the existing Development
Act 1993. 8 The State Planning
Commission, which has the responsibility
for developing the Code provisions that
address heritage disagrees 9 .
WHAT IS “HERITAGE”?
“Heritage” is basically all that one
generation inherits from another. It can
include (and is most commonly thought
of) as structures and objects but it also
extends to gardens and landscape (such
as reserve areas), and traditions. Susan
Tonkin has argued that each generation
decides what should and should not be
kept from earlier generations and what can
be discarded 10 . In the 1970’s when heritage
protection legislation first commenced
in Australia, much of the focus was
on protecting grand public buildings,
churches and the large grand homes of the
wealthy colonists in each state 11 . In more
recent times the dwellings of workers
in the colonies have been seen worthy
of protection, together with examples
of early industrial buildings and sites
and more recent buildings of significant
architectural merit or interest 12 or where
significant events occurred or a prominent
South Australian may once have resided 13 .
It should be noted that, disappointingly,
there is no direct reference to heritage or
the need or desirability of retaining or
protecting heritage places in the Objects
of the PDI Act. 14 The Principles of good
planning 15 which seek to further the
objects of the Act do refer to built form
being durable and designed to be adaptive
12
THE BULLETIN September 2019

BUILDING & PROPERTY LAW
The old Z Ward for the criminal insane (left); St Andrews Church in Walkerville (right). Photos: National Trust SA
in the sense of building reuse but that
provision essentially speaks to buildings
being constructed today. 16 There is also a
requirement that the Minister ensure that
a State Planning Policy be developed by
the Commission that specifies policies
and principles that are to be applied to
encourage and support the adaptive re-use
of buildings and places. 17
LISTING OF PLACES OF HERITAGE VALUE
South Australia has had legislation
providing for the listing of places of state
heritage value for 42 years 18 and since
the commencement of the Development
Act 1993, the listing of places of local
heritage value via amendments to council
development plans. Both state and
local heritage places will continue to be
recognised under the PDI Act with the
identification and listing of state heritage
places and areas remaining under the
Heritage Places Act 1993 and local heritage
places being able to be designated in the
Planning and Design Code following a
process set out in section 67 of the PDI
Act. The same criteria are applicable for
listing places of local heritage value in
both the PDI Act and the Development Act
1993.
The listing of places as state or local
heritage places means that any proposal
to undertake development in relation
to those places will undergo a level of
scrutiny not experienced by many other
forms of development. Under the PDI
Act, “development” in relation to a state
heritage place includes the demolition,
removal, conversion, alteration or painting
of, or addition to, the place, or any
other work that could materially affect
the heritage value of the place. 19 This
provision is identical to that contained in
the Development Act 1993. However, the
definition of development as it relates
to local heritage places varies from that
presently found in the Development Act.
Instead of listing a range of activities
that would comprise development in
relation to the local heritage place, (as it
does for state heritage places), it simply
refers to “any work (including painting)
that could materially affect the heritage
value of the place…” 20 . It then states
that the heritage value must be specified
by the Planning and Design Code either
generally in relation to local heritage
places or in relation to the particular local
heritage place. This definition makes the
provisions within the Code extremely
important. Unfortunately, as noted above,
Phases 2 and 3 of the Code are not yet
available. However, in May, 2019 the
Department of Planning, Transport and
Infrastructure released a Practitioner
Overview of Heritage and Character
in the New Planning System 21 (the
Practitioner Overview) which provides
some indication of the proposed approach
in the Code. It suggests that the Code will
provide that demolition of a local heritage
place will only be considered if a building
has little heritage value, is structurally
unsound or has public safety issues or is
economically unviable to repair. For some
of these criteria it notes that support
from a suitably qualified person would
be required, 22 as well as a heritage impact
assessment. 23 It also notes that adaptive
reuse policies will be strengthened to
make adaptive reuse easier. 24 Alterations
and additions will be code assessed
(performance assessed) and certain
alterations which do not affect heritage
values, such as the demolition of a modern
lean-to at the rear of a building will be
“deemed to satisfy” which will mean they
must be granted consent. 25 The defining
of the heritage values in the Planning and
Design Code is going to be of significance
in terms of determining how much
protection will continue to be accorded to
local heritage places under the PDI Act.
Arguably the protection accorded
to state heritage places under the PDI
Act will be less than under the current
Development Act. Both the demolition
and alterations or additions to a state
heritage place will be Code assessed
(Performance Assessed) 26 which means
the development proposal has to be
assessed against the Code, applying
flexible broad policies rather than more
prescriptive criteria. There will not be
any non-complying classification as there
is at present for development involving
state heritage places. Arguably, it leaves
state heritage places more vulnerable
to demolition. Note also that any
development that is “in the State Heritage
Place Overlay or State Heritage Area
Overlay” under the Code 27 and specified
in the Code as being in a class to which
the referral provision applies 28 must be
referred to the Minister responsible for
Heritage who has the power to direct the
planning authority to refuse consent or
attach specified conditions to any consent
given. 29
There are 17 state heritage areas,
around 2,300 state heritage places and
7,000 local heritage places currently
identified in South Australia and the
Practitioner Overview indicates that these
will all be carried across into the Code. 30
At present many council development
plans also have Historic (Conservation)
Zones and Historic (Conservation) Policy
Areas and there has been a Planning
Bulletin issued by Planning SA in 2001
which sets out the guidelines for the
establishment of such zones and areas. 31 It
would appear that these zones and policy
areas will be transitioned into the Code
and depicted as “Local Heritage Areas” 32 .
Of some concern is the requirement in
s67(4) of the PDI Act which requires
that the creation of any new heritage
character or preservation zone or subzone
must be approved by 51% of property
owners within that area. The Greens
have introduced a bill into the Legislative
Assembly seeking to repeal this provision.
September 2019 THE BULLETIN 13

BUILDING & PROPERTY LAW
CONTRIBUTORY ITEMS-WHAT WILL BE
THEIR STATUS?
Controversy exists in relation to those
items which are not to be transferred into
the Code, namely, “contributory items”.
Contributory items are not referred to
in the current Development Act and
there is no definition of them. They are
items that have been “designated for the
contribution they make to the historic
and architectural character of a particular
area and are located primarily in Historic
Conservation Zones”. 33 That designation
is made by local councils through the
identification of contributory items in
their development plans. Contributory
items are not the equivalent of local
heritage places but have heritage features
which contribute to the historic quality
of the Zone or Policy area. 34 There
are around 12,000 contributory items
identified in Development Plans at
present, the majority of which are
residential buildings and located in
existing Historic Conservation Zones.
The National Trust maintains that those
12,000 items represent just 1.8% of the
total 741,748 separate and medium density
dwellings in the state. 35 Further, until 2012
the Government was recognising and
not preventing the practice of including
contributory items in development plans.
The Practitioner Overview proposes
that within the proposed local heritage
areas overlay the existing Contributory
Items will be protected not by being
specifically listed but by appropriate code
provisions which recognise the importance
of keeping places which contribute to the
existing heritage or character values of
the area. There will be performance-based
provisions against which applications for
demolition and alterations and additions
to buildings must be assessed. The details
in the Practitioner Overview are vague
as to what considerations will be made
for demolition approval. It will include
consideration of the value the building
makes to the streetscape, the proposed
replacement building, contextual analysis
outcomes, (whatever that means) and
how well the theme is represented 36 . So
much depends on how these criteria are
set out in the Code, hence a lot of the
concern presently being expressed. For
example, it is not clear what is meant by
representation of “the theme”. Where
will the theme be described? Does it
mean that representation of that theme
must be assessed for the Local Heritage
Area where the building is located or
more broadly? If there is already one late
Victorian bluestone cottage in the area will
that be deemed sufficient enabling others
to be demolished and replaced with new
buildings?
CONCLUSION
Similar rules to those which presently
apply under the Development Act will
apply to state and local heritage listed
places under the PDI Act. While there
is less certainty about what will happen
with the proposed local heritage areas, and
more particularly those places previously
designated as contributory items situated
within them, it does appear on the
information presently available that there
will be less protection for those items. We
await the release of drafts of Phases 2 and
3 of the Code to confirm what the precise
new rules will be. Adelaide has a unique
built heritage. It would be disappointing
if the new planning legislation and its
Planning and Design Code undermines
that position.
Paul Leadbeter teaches law at the Adelaide
Law School and is a Consultant to Hilditch
Lawyers. He is also a Councillor of the National
Trust of South Australia. B
Endnotes
1 Since 1967 South Australia has had 4 different
systems of regulation, the Planning and
Development Act,1967, Planning Act ,1982,
Development Act,1993 and now the Planning,
Development and Infrastructure Act, 2016.
2 For example, the decline in South Australia’s
traditional industrial base of manufacturing motor
vehicles and white goods created a need for new
sources of work and employment with often
different land use requirements as well as the
release of large tracts of land for redevelopment.
3 Environmental concerns are many and varied but
the pressing need to try and prevent the further
decline in biodiversity, and to address the potential
impacts of climate change across the state are at
the forefront.
4 Some might say, an unfortunate choice of
proclamation date!
5 Planning Development and Infrastructure
Act,2016 s 65
6 Planning, Development and Infrastructure Act
2016 s66
7 SA Planning Portal, https://www.saplanningportal.
sa.gov.au/planning_reforms/implementation
8 National Trust South Australia, Heritage Living
Autumn `2019, ‘Headed for Disaster’ p5
9 See for example the material contained in the
Community Guide to Heritage and Character
in the New Planning System: https://www.
saplanningportal.sa.gov.au/__data/assets/pdf_
file/0006/545748/Community_guide_to_heritage_
and_character_in_the_new_planning_system.pdf
10 Susan Tonkin, ‘Essay: What is Heritage?’
Commonwealth Dept. of Environment and
Energy, undated, https://www.environment.gov.
au/system/files/pages/f4d5ba7d-e4eb-4ced-
9c0e-104471634fbb/files/essay-whatisheritagetonkin.pdf
11 Such as Ayers House, Home of Sir Henry Ayers
onetime SA Premier, and Beaumont House, built
for Augustus Short, the first Anglican Bishop of
Adelaide.
12 For example, the Former MLC Building at 185
Victoria Square and the home in more recent years
to a number of members of the legal profession
is on the State Heritage register, in part because it
was Adelaide’s first skyscraper(at 12 storeys) and
also the first example of a new building technique,
curtain wall construction.
13 Such as the humble dwelling in which Sir Hubert
Wilkins, Explorer and Aviator lived as a child at Mt
Bryan East.
14 Planning, Development and Infrastructure Act,
2016 s12
15 Planning, Development and Infrastructure Act,
2016 s14
16 Planning, Development and Infrastructure Act,
2016 s14(c)(ii)
17 Planning, Development and Infrastructure Act,
2016 s61
18 Currently this protection and the listing process is
found in the Heritage Places Act, 1993
19 Planning, Development and Infrastructure Act,
2016 s3
20 Planning, Development and Infrastructure Act,
2016 s3
21 Available at: SA Planning Portal https://www.
saplanningportal.sa.gov.au/__data/assets/
pdf_file/0007/545749/Practitioner_overview_of_
heritage_and_character_in_the_new_planning_
system.pdf
22 Ibid at p5
23 A heritage impact assessment is defined in
the Glossary to the guide as ‘An assessment
undertaken by a heritage expert which identifies
the impact of the proposed development on
heritage values’ see p9
24 Adaptive reuse is defined in the Glossary to the
guide as the process of repurposing buildings for
viable new uses and modern functions, other than
those originally intended, to address present-day
needs, action and sustainable investment. See p9
25 Planning, Development and Infrastructure Act,
2016 s106
26 Planning, Development and Infrastructure Act,
2016 s107
27 This will presumably be a list of all State heritage
places and areas.
28 It is unclear exactly to what this requirement
relates. Until the Code is available, we will not
know.
29 Planning, Development and Infrastructure
(General) Regulations 2017 Schedule 9 Table 3
Clause 3
30 SA Planning Portal, Practitioner Overview n21 at
p3,4,5.
31 SA Planning Portal, Practitioner Overview n21 at 6
32 SA Planning Portal, Practitioner Overview n21 at 6
33 National Trust South Australia, Heritage Living,
Autumn 2019,’What are Contributory Items and
Historic Conservation Zones?’ p.6
34 Botten, Jamie, ‘Heritage and the Law’, a paper
presented at the Heritage and Planning SÁ Styletraining
Seminar 18 July 2011, p 4
35 National Trust South Australia, n33 p6
36 SA Planning Portal, Practitioner Overview n21 at 7
14
THE BULLETIN September 2019

PROMOTION
Managing the Financial
Settlement Schedule
South Australian legal practitioners
continue to embrace digital settlements,
having now processed over 10,000 transfer
transactions through PEXA.
Key to PEXA’s functionality is the
Financial Settlement Schedule (FSS). This
contains electronic financial transaction
directions for all source and destination
line items. All payments are disbursed
automatically at settlement, meaning you’ll
no longer spend time waiting for cheques
to clear.
These guidelines will assist you when
completing the FSS, otherwise known as
calculating your cheque directions in the
“old” language.
1. The Purchaser’s representative
(Incoming Proprietor) needs to ensure
they account for all lodgement fees
for which they are responsible. This
includes the lodgement fees for the
new mortgage.
2. Both parties need to ensure that one
of their payments (you can think of it
as one of your cheques) is the PEXA
fee, which generates automatically.
Think of it as one of the cheques
you’re requesting to hand over to
PEXA at settlement.
Further, these steps will help you check
your FSS balances and ensure you’re not
collecting or providing too much money.
• Stamp early – two days prior to
settlement.
• Sign off on your figures when you
have completed them, don’t wait until
they balance with the other side.
• In the days leading up to settlement,
check whether all parties have accepted
the settlement date and time, especially
if banks are involved.
WHAT’S AHEAD FOR THE FSS
PEXA has received feedback from its
members requesting more guidance when
completing inter-dependent tasks in time
for settlement. In response to this, PEXA
is developing an enhanced FSS summary
that will assist in the calculation and
confirmation of the financial components
of settlement.
This will guide practitioners through
the calculation of the Total Funds
Required to Settle and prompt Mortgagees
to provide loan proceeds and indicative
loan payout figures. Closer to the day of
settlement, fees and charges will be added,
allowing for confirmation of final figures
and auto calculation of shortfall and
surpluses amounts.
You can learn more about using
the FSS in PEXA by watching our free
instructional webinar at your leisure -
https://community.pexa.com.au/t5/
Webinars/bg-p/Webinars

BUILDING & PROPERTY LAW
THE WORKER’S LIENS ACT,
STATUTORY CHARGES &
INSOLVENCY: GOOD SECURITY?
TRAVIS SHUEARD, ASSOCIATE & ALICE LYNCH, LAW GRADUATE, CHARLTON ROWLEY
As is well known among South
Australian building and construction
lawyers, the Worker’s Liens Act 1893 (SA)
(the Act) provides avenues for contractors
and sub-contractors to recover monies
owing for work undertaken. The Act
allows a contractor to place a lien over
real property which was the subject of the
work. This lien prevents the registration
of dealings on that property until the lien
has been discharged through the payment
of an amount equal to the contract price
owing to the Court or Lands Titles Office. 1
Worker’s liens are the more regularly used
method of recovery under the Act.
What is less well-known (or used) is
that the Act also allows for the attaching
of a charge over monies owed to
subcontractors. This, in effect, allows a
subcontractor to circumvent the usual
contractual hierarchy of creditors. It also
confers the benefits of a subcontractor
becoming a secured creditor in the
event of insolvency, providing a level of
certainty in recovery for subcontractors
who often bear the financial brunt of any
fallout between the principal and main
contractors.
PURPOSE OF THE ACT
Before delving into the mechanisms
of the statutory charge, it is worth briefly
revisiting the Act’s purpose and being clear
that the Act has two individual methods of
recovery: liens and charges.
The purpose of the Act is ostensibly
to allow workers and contractors relatively
straightforward pathways to recovering
monies owed for work performed. This
is similar to the Building and Construction
Industry Security of Payment Act 2009 (SA),
though the Security of Payment Act is
more commonly used in South Australia
due to its streamlined process and “pay
now, argue later” method of recovery.
The Act is clear that there are two
different mechanisms of recovery
available to the worker/contractor; liens
and statutory charges. Each mechanism
has its own method of enforcement
and remedy. These two remedies do not
conflate because a party has either a lien
or a charge South Australian case law has
made clear that a worker’s lien-holder
cannot “arrogate” to himself the rights of
a charge-holder unless he/she also holds
the statutory security of a charge given by
the Act (or vice versa). 2
In In Re RGP Constructions Pty Ltd
(In Liquidation); Ewing v Hallett Brick
Industries, 3 Walters J stated that the separate
mechanisms of enforcement (being
charges and liens) also lends itself to the
“priorities and pro-rata distribution of
payment” 4 system set out in section 8 of
the Act. 5 Conflating the two remedies
would undermine this priority payment
system.
STATUTORY CHARGE OVER MONIES
The operation of the statutory charge
is set out in section 7 of the Act. Section
7(2) of the Act stipulates that a subcontractor
may have a charge:
“…on any money payable to the contractor
or subcontractor with whom he shall have
contracted for that portion of the contract price
payable to the first mentioned sub-contractor in
respect of work done or materials furnished or
manufactured…”. 6
In practical terms, if the contractor
has been paid an amount by the principal
for amounts carried out by the subsubcontractor,
but the main contractor
has not yet paid that amount to the
subcontractor, the sub-subcontractor
can claim a charge over those monies
pursuant to section 7 of the Act. The main
contractor must then pay those monies
straight to the sub-subcontractor.
As a result, a sub-subcontractor with
a statutory charge under the Act has the
benefit of “leapfrogging” over the typical
contractual hierarchy to claim monies
from the main contractor. This avoids the
sub-subcontractor from having to waiting
on payments “flowing down” from the
subcontractor.
Once this statutory charge has
been attached to the monies by the
sub-contractor, proceedings must be
commenced within 28 days after the wages
or contract price would become due. 7
This is a strict timeframe – the charge will
lapse if proceedings are not commenced
within this time. Once commenced, the
proceedings cannot be discontinued
without an order by the Court, consent
from the defendant or an order that the
claimant has an extension of time to bring
a fresh action. 8
16
THE BULLETIN September 2019

BUILDING & PROPERTY LAW
Just as with the imposition of a lien,
the requirement to commence proceedings
in order to recover the monies owed
means that attaching a charge under
the Act will lead to further significant
costs for the claimant. This should be
a consideration for practitioners when
acting for subcontractors who often face
cashflow problems.
STATUTORY CHARGES AND SECURED
CREDITORS
As mentioned, a claimant to a statutory
charge over monies under the Act is also
a secured creditor in the event that the
subcontractor goes insolvent. Case law
explains how this security arises.
In the High Court decision of Stapleton
v F. T. S. O’Donnell, Griffin and Co. (Q)
Pty Ltd, 9 the sub-contractor in question
had provided written notice (within the
meaning of the Queensland equivalent
legislation) of a charge upon moneys
payable under the contract by the building
owner to the contractors. Proceedings had
been commenced, as required, to enforce
the claim of a charge. Therefore, the
charge to which the subcontractor became
entitled to had attached to the moneys
payable to the contractors once the owner
had received notice of the charge from the
subcontractor. This created a security in
favour of the subcontractor. 10
In explaining the mechanisms of
secured creditorship through a statutory
charge, McTiernan J stated that the Act
creates rights over such moneys in the
hands of the employer as well as in personam
rights. In doing so, the Act does more than
just preserve the property in medio until the
rights of the claimant are determined. The
Act requires the contractor or employer to
retain an amount payable to the contractor
to meet a claim – this, in effect, ensures
that such money is kept separate for the
benefit of the sub-contractor. 11
It should be noted that while the
money is kept separate for the benefit
of the sub-contractor as security, section
8’s priority and pro-rata payment system
negatives the idea that “a workman,
contractor or sub-contractor can reap advantage by
prompt payment subsequent to attachment of the
charge”. 12 It is not for the charge-holder to
enforce, or to accept, payment, otherwise
than under and in accordance with the
provisions of the Act. 13
It is important to note that this security
ceases if the claimant does not commence
proceedings within 28 days – a charge
should not be issued without the client
being prepared to commence proceedings
soon thereafter to enforce their claim to
the charge.
PREFERENTIAL PAYMENTS
Finally, another added benefit of the
statutory charge is that in the event of
insolvency, due to the contractor being
a secured creditor, any payment made
in satisfaction of this charge cannot be
classified as a preferential payment within
the meaning of section 588FA of the
Corporations Act 2001 (Cth).
This benefit is of course only if the
claimant has complied with the Act in
respect of the charge: in Ewing v Hallett,
the appellant did not issue proceedings
under section 7(3) of the Act in order to
enforce a charge. As a result, the payments
which had been made to the appellant
were found to be preferential payments
under the (then) Companies Act. 14 B
Endnotes
1 Worker’s Liens Act 1893 (SA) s 16.
2 See, for example, In Re RGP Constructions Pty Ltd
(In Liquidation); Ewing v Hallett Brick Industries Ltd
[1982] 31 SASR 170, 174; Cladding and Roofing
Contractors Pty Ltd v Canetti Constructions Pty Ltd
[2013] SASC 102.
3 In Re RGP Constructions Pty Ltd (In Liquidation);
Ewing v Hallett Brick Industries Ltd [1982] 31 SASR
170, 174.
4 Ibid 175. See also Metropolitan Brick Co v Hayward
[1938] SASR 462 (Cleland J).
5 Priority of payments being the liens/charges
of workers for wages, the liens/charge of
subcontractors and then the liens contractors.
6 Worker’s Liens Act 1893 (SA) s 7(2) (emphasis
added).
7 Ibid s 7(3).
8 Ibid.
9 Stapleton v F. T. S. O’Donnell, Griffin and Co. (Q) Pty
Ltd (1961) 108 CLR 106.
10 Ibid.
11 Ibid 118-119.
12 Metropolitan Brick Company v Hayward [1938]
SASR 462, 476.
13 Ibid.
14 In Re RGP Constructions Pty Ltd (In Liquidation);
Ewing v Hallett Brick Industries Ltd [1982] 31 SASR
170, 176.
September 2019 THE BULLETIN 17

BUILDING & PROPERTY LAW
Industry Turmoil causing concern:
is there a need for reform to protect
owners and sub-contractors?
NICHOLAS GRAHAM, PARTNER, COMMERCIAL & LEGAL
The building and construction industry
has recently been thrust into the
spotlight with the defects of Mascot and
Opal Tower garnering attention on a
national level, while closer to home the
ever increasing number of failed builders
continue to dominate headlines.
The consequences of these issues can
affect not only the builders in question,
but may also leave owners or developers
with incomplete or defective homes or
apartments and sub-contractors ailing
and unable to recover their own costs and
expenses.
It ought to be considered whether
current legislative protections for home
and apartment owners are sufficient to
safeguard against defective or incomplete
building works. Yet any legislative reform
must be balanced against the genuine
commercial interests of builders in an
already challenging industry.
PROTECTIONS FOR OWNERS
The main source of protection in the
statutory framework in South Australia for
home owners is the statutory warranties in
the Building Work Contractors Act 1995 (SA)
(the Act). These warranties imply into all
domestic work contracts that:
• The building work will be performed
in a proper manner to accepted trade
standards and in accordance with the
plans and specifications agreed to by
the parties;
• All materials to be supplied by the
contractor for use in the building work
will be good and proper;
• The building work will be performed
in accordance with all statutory
requirements;
• The work will be performed with
‘reasonable diligence’ unless the
contract stipulates a period within
18 THE BULLETIN September 2019
which the building work must be
completed;
• The house will be reasonably fit for
human habitation where the work
consists of the construction of a
house; and
• If a particular purpose for the dwelling
is made known to the builder, that the
work and materials will be reasonably
fit for that purpose or could be
reasonably expected to achieve that
purpose.
Where statutory warranties are
breached, orders can be made ranging
from the builder performing work to
remedy the breach, the payment of
compensation or even the engagement
of another builder at the builder’s cost to
remedy the breach where it is found that
the builder is unlikely or unable to perform
the remedial work to a necessary quality.
Proceedings must be commenced
within five years after completion of the
building work with no possibility of an
extension. 1 There are, however, other
avenues that can be pursued by an owner
if outside of the statutory warranty
period and common questions asked
relate to whether the building work was
ever complete, or if it was, when it was
actually completed. If there is defective
building work that does not comply with
the Building Code, then a claim may be
considered under the Development Act 1993
(SA) after the expiry of warranty period in
the Act or by the exercise of rights under
the Australian Consumer Law.
Where the builder dies, disappears
or becomes insolvent, the statutory
warranties and any contractual relief
generally may not be available. Given the
present concern with builders falling over,
it is evident why the statutory warranties
may not offer sufficient protection to
owners when it is needed most, leaving
affected owners to seek relief through
the builder’s building indemnity insurance
policy. But if a builder did not obtain
that policy in compliance with the Act,
an owner is exposed to the cost of the
repairs.
Owners of apartments have recourse
under the statutory warranties for certain
work, however it is for the body corporate
to initiate action to address any defects in
the common property.
BUILDING INDEMNITY INSURANCE
Under section 34 of the Act, a building
work contractor must not perform
domestic building work unless covered by
a valid insurance policy and a certificate
evidencing the taking out of that insurance
policy is shown to the owner in a form
that complies with the Building Work
Contractors Regulations 2011 (SA) (the
Regulations). Building work is broadly
defined and encompasses anything from
excavation to demolition and, of course,
construction and renovations.
A valid insurance policy protects the
current and future building owner for the
statutory warranty period if:
• Faulty work has not been rectified or
work has not been completed; and
• The builder disappears, dies or is
insolvent.
The insurance policy must insure any
person who is or may become entitled to
the benefit of a statutory warranty under
the Act against the risk of being unable
to enforce or recover under that statutory
warranty due to the insolvency, death or
disappearance of the builder.
However, not all owners are protected
by the requirement for the builder to
obtain an insurance policy. For example,
minor domestic building works as defined in the

BUILDING & PROPERTY LAW
Regulations as work costing under $12,000
and domestic building works which do
not require approval under the Development
Act 1993 (SA) are expressly excluded from
this requirement. This leaves an obvious
category of home owners unprotected.
Regulation 18 specifies that the lowest
amount that the insurance policy is to
cover is $80,000 which meant that insurers
or the underwriting State Government do
not cover affected homeowners for losses
exceeding this amount. In mid-2017, the
South Australian Government announced
that QBE Insurance would become the
sole provider of building indemnity
insurance in South Australia and that the
insurance indemnity limit would rise to
$150,000, presumably as the result of an
agreement between QBE and the State
Government. 2 Although this increase was
much needed, it nevertheless remains the
case that this cover may not be sufficient
to meet financial losses given that industry
data indicates that the average cost of
building a new home was $317,389 in
2018. 3 Furthermore, builders are only
required to obtain an insurance policy prior
to the commencement of work, yet are
legally entitled to a deposit of $1,000 for
work costing under $20,000 and up to 5%
of the total build price for work exceeding
$20,000 following the execution of a
building contract.
As illustrated by the recent collapse
of Coast to Coast Homes, the delay
between the payment of the deposit
and the commencement of works leaves
owners particularly vulnerable to losing
their deposit from any insolvency event or
disappearance of the builder before the
insurance was in place.
REFORM TO THE PUBLIC REGISTER?
It is often said that prevention is better
than a cure and so due diligence remains
the best strategy for home owners and
sub-contractors to identify and avoid
suspect builders with a history of defective
or incomplete work.
Under the Act, all building work
contractors must be licensed to undertake
building work and must have that building
work supervised by a registered and
approved supervisor. A list of registered
builders, their directors (if a corporate
entity) and nominated building work
supervisors, along with any building
conditions, disciplinary action and
suspensions against them are publicly
searchable through Consumer and Business
Services’ Occupational Public Register.
Yet it would appear that the public
has little knowledge of the existence of
the Public Register which also catalogues
various other registered license holders,
such as security and investigation agents
and second-hand motor vehicle dealers.
Across other jurisdictions, Western
Australia has taken significant steps to
regulate builders with the establishment
of a Building Services Board. A function
of the Board is its responsibility to
maintain a separate Register of Builders
which must be available for inspection
by members of the public at the Office
of the Building Commissioner during
normal business hours and online from
a website maintained by the Building
Commissioner. 4 Although WA’s Register
of Builders currently does not contain
information that is not otherwise provided
in South Australia’s Public Register it is
interesting to note that under Division 6
of the WA legislation, building services
providers are already obliged to provide
written notice to the Board of any changes
in address, eligibility, financial difficulty,
disciplinary action or criminal offending.
Naturally, the inclusion of these
notices in the Register of Builders there
would be a sensible amalgamation which
could significantly increase an owner’s
ability to properly assess the risks and
liabilities associated with certain builders
during the due diligence process. Perhaps
changes to allow sub-contractors to better
assess the financial capacity of the builder
to make payments and complete works
prior to commencing any sub-contract
work should be made.
Similar proposals were outlined in
an October 2018 report to the Minister
of Commerce in WA, including the
establishment of a “demerit point” system
to be included on the Register of Builders
specifying instances of builders who
“demonstrate poor payment practices and
contractual deficiencies”. The report went
on to say that the State Administrative
Tribunal should be empowered with the
ability to suspend or cancel the registration
of any builder who accrues three demerit
points within three years.
Although implementing WA’s existing
and proposed regulatory frameworks may
be a sensible basis for reform here in South
Australia, it is crucial that any changes are
balanced against the builder’s legitimate cash
flow management policies and commercial
interests and do not unreasonably increase
the regulatory red-tape burden.
Nevertheless, with the significant
current public interest in the building
industry, we will watch with interest
as to whether the State Government
turns to reform its regulation of the
industry to better protect the interests
of owners and subcontractors. Owners
and subcontractors should proceed with
caution but that wariness in the market is
causing pressure on an already under fire
industry. Well considered and measured
policies could greatly increase transparency
in the building and construction industry
providing a much needed increase in public
confidence during these challenging times,
potentially leading to better outcomes for
industry participants. B
Endnotes
1 Building Work Contractors Act 1995 (SA) s 32(5)-(6)
2 QBE Insurance (Australia) Limited, Domestic
Construction Residential Builders SA - Building
Indemnity Insurance Policy (29 November 2016,
effective 1 July 2017)
3 ‘Window into Housing 2019’ document
published by the Housing Industry Association
4 Building Services (Registration) Act 2011 (WA) s 30.
September 2019 THE BULLETIN 19

CRIMINAL LAW
Prasad Direction abolished by the
High Court of Australia
KRISTIE MOLLOY, BARRISTER, LEGOE CHAMBERS & LAW LECTURER, FLINDERS UNIVERSITY AND DAVID
STILES, ACADEMIC, FLINDERS UNIVERSITY
INTRODUCTION
On 20 March, 2019 the Full Bench of
the High Court of Australia in a joint
judgment unanimously held: 1
“The direction commonly referred to as the
‘Prasad direction’ is contrary to law and should
not be administered to a jury determining
a criminal trial between the Crown and an
accused person.”
A Prasad direction is “directing a jury
in a criminal trial that it is open at any time
after the close of the prosecution case to
acquit the accused if the jury considers
the evidence is insufficient to support a
conviction.” 2 Defence counsel makes an
application to the judge (in the absence
of the jury) at the end of the prosecution
case that, whilst the prosecution has
technically satisfied the evidential burden,
the evidence is so weak, tenuous, vague or
inconsistent that (even taken at its highest)
a trier of fact or jury could not properly
convict upon it. If the Court grants the
application, the trial judge will give a Prasad
direction to the jury. This usually results in
the jury handing down an acquittal shortly
thereafter.
The High Court makes it clear that
a “no case to answer” application is still
valid and available in all matters. Defence
can make this application at the close of
the prosecution case. If the trial judge
agrees that there is no evidence to prove
an element of the offence then the trial
judge will direct the jury to return a “Not
Guilty” verdict.
THE JUDGMENT
Background
The defendant was charged with
the murder of her de-facto partner. At
20 THE BULLETIN September 2019
the close of the prosecution case in the
Supreme Court of Victoria, defence
counsel sought the Prasad application
on the grounds that the prosecutor was
unable to negate the defendant was acting
in self-defence. The Court agreed over
the prosecutor’s objection and issued the
Prasad direction. The jury advised they
wished to hear more evidence. At the
close of the defence case (but prior to
addresses) the trial judge again reminded
the jury of the continuing operation of
the Prasad direction. At this time, the jury
returned with “Not Guilty” verdicts of
both murder and manslaughter.
The Director of Public Prosecutions
(Vic) appealed on the question of law as to
whether the Prasad direction was contrary
to law and should not be administered.
The Director acknowledged Chief Justice
King’s obiter dictum comments in R v
Prasad that “[i]t is within the discretion of
the judge to inform the jury of this right”,
challenging only the discretion rather
than the existence of the right itself. 3 The
majority of the Court of Appeal held that
it was not contrary to law, rhetorically
asking “why would it be unlawful for a
judge to inform the jury of a right which
it was conceded they could legitimately
exercise?” 4
Issue in the Appeal
Special leave to appeal to the High
Court was granted to the Director of Public
Prosecutions on the grounds that the Prasad
direction was contrary to law. The Director
also successfully withdrew her concession
as to the existence of the right.
The High Court accepted that the
practice of giving such a direction when
a trial judge considered the evidence was
tenuous had existed “since at least the
middle of the last century”. 5 However, the
Court also held that the “recognition of the
practice does not carry with it the acceptance
that the jury in a criminal trial possess a
“long-standing right under common law” to
return a verdict of not guilty of their own
motion at any time following the close of the
prosecution case.” 6
After considering the authorities, the
Court held that “the origin of the right,
as distinct from the development of the
practice, is obscure”. 7 It considered the
recognition of the practice by the Courts
in Australia and England demonstrated
that the right was only exercisable at the
invitation of the trial judge and the jury
had no right to return a “not guilty” verdict
of their own motion after the close of the
prosecution case. As such, the Court stated
the Prasad direction was an invitation only
rather than a long standing common law
right possessed by the jury. 8
The High Court cited the dangers of
giving a jury a Prasad direction, including
risks the jury will react adversely to the
perceived pressure to acquit or influenced by
the perception that the trial judge considers
the verdict should be an acquittal. 9
Rationale for the Decision
The High Court held that:-
1. “The exercise of the discretion to give
a Prasad direction based upon the trial
judge’s estimate of the cogency of
the evidence to support conviction
is inconsistent with the division of
functions between judge and jury and,
when given over objection, with the
essential features of an adversarial trial.” 10
2. “The prosecution is entitled to have a
full opportunity to explain the way its
case is put, and to have a verdict from
the jury that is based on the application
of the law as explained by the judge to
their factual determinations.” 11

CRIMINAL LAW
3. Inviting a jury to stop a trial without
hearing final addresses “and without
the understanding of the law and its
application to the facts that only the
judge’s summing-up at the end of the
trial can give them, is to invite the jury
to decide the matter from a basis of
ignorance which may be profound. If
evidence taken at its highest is capable
of sustaining a conviction, it is for the
jury as the constitutional tribunal of
fact to decide whether the evidence
establishes guilt beyond reasonable
doubt. A jury is not fully equipped to
make that decision until and unless
they have heard all of the evidence,
counsel’s addresses and the judge’s
summing-up. Anything less falls short
of the trial according to law to which
both the accused and the Crown are
entitled.” 12
CONCLUSION
Defence counsel can still make a “no
case to answer” application if prosecution
fail to provide any evidence for all the
required elements. However, defence
will no longer be able to make a Prasad
application at the end of the prosecution
case if the evidence raised is tenuous,
weak or vague. The High Court has
made it clear that if there is any evidence
“capable of supporting a verdict of guilty,
the matter must be left to the jury.” 13
Juries must not be invited to return a
“Not Guilty” verdict without hearing the
entirety of the case. B
Endnotes
1 Director of Public Prosecutions Reference No 1 of 2017
[2019] HCA 9 (20 March 2019) at [58].
2 Ibid, at [1].
3 (1979) 23 SASR 161 at 163.
4 Director of Public Prosecutions Reference No 1 of 2017
[2019] HCA 9 (20 March 2019) at [15].
5 Ibid, at [16].
6 Ibid, at [17].
7 Ibid, at [18].
8 Ibid, at [32].
9 Ibid, at [52].
10 Ibid, at [56].
11 Ibid, at [53].
12 Ibid, at [57].
13 Ibid, at [56].

YOUNG LAWYERS
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Young Lawyers Survey sheds light
on wellbeing & salary trends
YOUNG LAWYERS COMMITTEE
In March 2018 the Young Lawyers’
Committee invited members of the
legal profession under the age of 35, or
within the first five years of practice, or a
student of a South Australian University
Law School, to participate in the inaugural
Wellbeing and Salary Survey. The survey
was designed to provide young lawyers
with a greater understanding of their
position in the profession, and to highlight
issues associated with health and wellbeing.
In particular, the survey was conducted to
gain a greater insight into:
• Remuneration and salary;
• Workplace arrangements;
• Job seeking behaviours;
• Rates of workplace bullying;
• Stress levels.
COMPOSITION OF RESPONSES
The survey attracted valid responses
from 402 members. Of the responses,
64% came from female practitioners
and 34% were from male practitioners.
Approximately 37% of responders had
been admitted between 1 and 3 years, and
approximately 37% of responders had
been admitted between 4 and 10 years.
A majority, 85%, were admitted
practitioners, while the remainder were
either not admitted, students or employed
as law clerks. Twenty-nine per cent of
responders were employed at law firms
with 20-plus practitioners, and 26% of
responders were employed at law firms
with 2-5 practitioners. Approximately 15%
were government employed, while the
remainder were either in house counsel
or sole practitioners. Seventy-four per
cent of responders were based in the
Adelaide CBD, while 17% were based in
metropolitan Adelaide and 8% were based
in regional SA.
REMUNERATION
A key aim of the survey was to provide
young lawyers, and the profession, with
an insight into average salaries based
on practice areas, gender, and years of
experience. The survey broke salaries
down into bands of pay (in $10,000
increments).
While salaries were generally between
$50,000 and $80,000 per year, some
practitioners reported working full time
and receiving salaries between $30,000
and $40,000. Some of these practitioners
reported having not received a salary
increase since commencing practice, and in
some cases had been in practice for more
than three years.
Fortunately, these results comprised
a minority of responses. Most employees
80,000
70,000
60,000
50,000
40,000
30,000
20,000
10,000
0
LARGE FIRM
MEDIUM FIRM
BOUTIQUE
GRADUATE SALARIES
MEN
SUBURBAN
received salaries in line with the average
across the sector.
Some differences were seen in
remuneration between types of firms and
areas of practice.
The greatest gender equality in pay was
seen in the public sector.
While starting salaries at Criminal
and Family law firms were comparable to
commercial firms, as practitioners increased
in experience in criminal and family law
their salaries became less competitive
with those received by practitioners with
comparable experience in areas including
commercial, in-house, and public sector.
The following tables indicate the peak
pay bracket that average salaries fell within
(and so the average salary may be up to
$10,000 beneath that shown). Where no
result is shown insufficient responses were
received to provide useful data.
Salary satisfaction was mixed amongst
Young Lawyers, as shown below.
REGIONAL
IN-HOUSE
WOMEN
PUBLIC SECTOR
CRIMINAL
FAMILY
22
THE BULLETIN September 2019

FISHER BRENNAN CONSULTING
Building Consultants
Project Managers
LITIGATION AND PRE-LITIGATION ADVICE AND EXPERT REPORTS
EXPERT WITNESS SERVICES - CONSTRUCTION
Magistrates Court
District Court
Supreme Court
COMMERCIAL AND RESIDENTIAL PROPERTY DISPUTES
ALTERNATIVE DISPUTE RESOLUTION:
Facilitated Negotiation
Mediation
Expert Determination
FISHER BRENNAN
CONSULTING
PO Box 690
Unley SA 5052
Guy Fisher
guy@fisherbrennan.com.au
0427 303 811
Fisherbrennan.com.au
PROPERTY CONDITION REPORTS:
Practical Completion
End of Lease – Defects And Making Good
Dilapidation Surveys
Guy Fisher, Principal, Fisher Brennan Consulting
With over 30 years’ experience in the construction industry, Guy has procured and
delivered multiple commercial and industrial facilities up to $100m both as a consultant
and an award winning contractor.
His professional background includes extensive tier one experience in the Defence,
Laboratory and Education sectors. Having worked on both sides of residential and
commercial construction, he brings a unique insight into both the risk and opportunity
inherent in construction projects. Additionally, Guy has direct experience in facilities
management, delivering services both in-house and as a consultant.
Guy has a thorough understanding of the process of property development and whole
of life considerations in facility ownership.
Qualifications
• Bachelor of Construction Management
• Member of the Australian Institute
of Building (MAIB)
• Master Builders Association - Certified
Construction Professional (CCP)
• Member of The Society of Construction
Law Australia
• Member of the Association of
Building Consultants
Significant Projects
• Air7000 2B (SA)
• Flinders University at Tonsley (SA)
• Aquatic Centre Rectification (SA)
• Hardened and Networked Army (SA)
• QUT Medical Engineering Research Facility (QLD)
• QUT Z Block Expansion (QLD)
• Brisbane Immigration Transit Accommodation
Centre (QLD)
• Associate Member - Resolution Institute

YOUNG LAWYERS
facebook.com/YLCSA
120,000
100,000
80,000
60,000
40,000
20,000
0
120,000
100,000
80,000
60,000
40,000
20,000
0
41%
LARGE FIRM
LARGE FIRM
MEDIUM FIRM
MEDIUM FIRM
1-3 PQE
BOUTIQUE
SUBURBAN
REGIONAL
IN-HOUSE
MEN
WOMEN
4-10 YEARS PQE
BOUTIQUE
SUBURBAN
REGIONAL
IN-HOUSE
MEN
WOMEN
24%
12%
PUBLIC SECTOR
PUBLIC SECTOR
CRIMINAL
CRIMINAL
22%
FAMILY
FAMILY
PERFORMANCE REVIEW
The survey asked responders whether
they had an annual performance appraisal
process. Two out of three young lawyers
who responded have had a performance
review (66%). Those working in
larger firms were most likely to have a
performance appraisal process, with a 95%
yes response rate. Those working within
the public sector were also highly likely
to have an annual performance appraisal
process, with an 85% yes response rate.
Less than half of young lawyers working
in small law firms had a performance
appraisal. Full time workers (74%) were
more likely than part time workers (49%)
to have a performance appraisal. Young
lawyers that have an annual salary review
process, were more likely to have received
a salary increase within the last 12 months
(78%).
SALARY REVIEW PROCESS
Young lawyers were asked whether
their firm had a salary review process,
of which 42% indicated that they did.
Interestingly, responders with a higher
salary were more likely to take part in
an annual salary review, which suggests
that young lawyers who are employed at
firms with a formal salary review process
in place are more likely to receive salary
increases. 62% of young lawyers had
received a salary increase in the last 12
months and 12% say that they have never
received a salary increase.
Of those that did have a salary review
process, 50% were dissatisfied with the
review process, and 30% were satisfied
with the process.
DISSATISFIED
NETURAL SATISFIED EXTREMELY SATISFIED
Q: HOW SATISFIED ARE YOU WITH YOUR REMUNERATION?
BASE: RESPONDENTS WHO PROVIDED A VALID RESPONSE, N/A INCLUDED BUT NOT SHOWN (N=397)
OVERTIME
Of those that participated in the
survey, 13% were expected to undertake
substantial out of hours or weekend
work. Twenty-five per cent saw this as a
24
THE BULLETIN September 2019

YOUNG LAWYERS
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regular occurrence and 38% stated that
they were occasionally required to perform
such work. Twenty-three percent of
respondents did not undertake such work.
By comparison, 7.95% of respondents
in the Western Australian survey always
undertook three or more hours of work
over a weekend, whilst 28.41% never did.
PARENTAL LEAVE
Whilst 40% of respondents
understood that their employer offered
parental leave in line with government
minimum standards, one in five employers
offered parental leave above the minimum
government requirements. Thirty-six per
cent of respondents were unsure about
the parental leave offered at their place of
employment.
FLEXIBLE LEAVE
Of the one in four respondents that
have sought flexible arrangements, 80%
believe that their request was appropriately
addressed. Almost three quarters of
respondents have never sought flexible
working arrangements.
STRESS & BULLYING
Only four percent of respondents
were not stressed at all, whilst 32% were
reasonably stressed and nine per cent were
very stressed.
The results demonstrated that sole
practitioners had the highest levels of
stress. Factors contributing to higher
stress levels were workplace bullying and
working in a regional area. Ten per cent of
respondents who conduct weekend work
consider themselves stressed.
Whilst just over half of respondents
have personally experienced bullying,
almost two thirds have observed bullying,
either in their current, or previous
workplace. Six out of ten female
practitioners experienced bullying, as
4%
50%
DISSATISFIED
NOT STRESSED
AT ALL
28%
SLIGHTLY
STRESSED
20%
Q: HOW SATISFIED ARE YOU WITH THE SALARY REVIEW PROCESS?
BASE: RESPONDENTS WHO PROVIDED A VALID RESPONSE (N=391. UNSURE AND N/A INCLUDED BUT
NOT SHOWN)
Q: ON AN AVERAGE DAY, HOW STRESSED DOES YOUR JOB/STUDY MAKE YOU FEEL?
BASE: RESPONDENTS WHO PROVIDED A VALID RESPONSE, N/A INCLUDED BUT NOT SHOWN (N=399)
have four out of ten males. Fourteen
per cent of those that were bullied, or
observed bullying stated that it was a daily
occurrence. Almost half of those bullied
stated that it occurred rarely, whilst one
third of those that observe bullying stated
that it was a rare occurrence. Those on
lower incomes tended to experience more
bullying, whilst those working in firms
of over 20 employees were less likely to
experience bullying. Fifty-nine per cent
32%
REASONABLY
STRESSED
13%
27%
QUITE
STRESSED
17%
NETURAL SATISFIED EXTREMELY SATISFIED
9%
VERY
STRESSED
of respondents experiencing bullying in
their current workplace are either quite,
or very stressed as compared to 27% not
experiencing bullying.
The Young Lawyers’ Committee
will be releasing a more detailed report
with respect to the findings of the
Survey, which will include a number of
recommendations to the Law Society with
respect to supporting young lawyers in
South Australia.
September 2019 THE BULLETIN
25

PROPERTY LAW
EXAMINING THE PROPOSED LAND
TAX AGGREGATION LAWS FOR SA
ELIAS FARAH, PRINCIPAL PARTNER, COMMERCIAL & LEGAL
The South Australian State
Government announced on 18 June
2019 that measures would be taken to
help close and prevent “loopholes” that
exist which enable owners of multiple
properties to pay less land tax.
Put simply, the intention of the
State Government is to aggregate (i.e.
group) land held by common owners and
beneficiaries regardless of who actually
owns the land (i.e. the legal entity).
This article is intended to assist
readers to better understand the proposed
measures, will consider what the pending
draft legislation may look like, and how
such a change may affect the South
Australian real estate market.
WHY THE HYPE?
For the past two months, there has
been much discussion, speculation and,
in some cases, resentment in our local
real estate market in relation to the State
Government’s proposal.
At the present point, land tax is assessed
for the most part based on the concept that
each legal entity is assessed separately from
other land that may be owned by the same
or related entities or persons.
So for example, that means land wholly
owned in your name is assessed separately
to land owned in the joint names of you
and your partner (or another person), and
again is assessed separately to land owned
in a company that you may control or be
a shareholder in, and again is assessed
separately to a family trust or unit trust
that you may hold a beneficial or fixed
interest in.
The reason why separate assessment
is important, as opposed to grouped
assessments (better known as “multiple
holdings”), is because the rate of land tax
26 THE BULLETIN September 2019
applied varies and increases substantially
the higher the value of total land holdings
you have in an assessment. This is
illustrated later within the article.
It should be noted that utilising these
separate assessments, disregarding antiavoidance
laws for the time being, is not
illegal and is in fact clearly outlined by
RevenueSA on their website. Naturally this
creates incentive for landowners to utilise
different entities (and mixes of entities)
when deciding to buy new properties, and
this has developed as a common practice
for some time now, to reduce one’s land
tax assessments and increase net cashflows
from property ownership.
This is essentially the “loophole” that
the State Government now wish to close,
and concern of stakeholders revolves
around a real estate market which fears it
will be stung by an uncommercial rise in
land tax costs.
WHY THE CHANGE?
The State Government says that it wants
to facilitate competitiveness within the tax
system, ensuring equity amongst taxpayers,
intending to supplement, correct, and
control the law by being fair and impartial.
They consider that closing these
“loopholes” in land tax does just that.
Importantly, the State Government’s
land tax reform proposal is part of a wider
State Budget proposal responding to an
estimated loss of $2.1 billion in GST
revenues.
They estimate that the aggregation
measures will raise approximately $120
million over the first three years, with some
$40 million of additional revenue expected
to go directly into the State Government
coffers in the first year.
In considering these figures, it
has been widely speculated that the
State Government has significantly
underestimated the additional land tax
revenue, some saying it could actually be in
excess of $100 million per year.
FURTHER DETAIL ON THE PROPOSAL
The proposed changes are detailed
in the 2019-20 South Australian Budget
that was recently released on 18 June
2019. The State Budget papers are
available at https://statebudget.sa.gov.
au/#Budget_Papers
For those who wish to obtain greater
insight and detail on the proposed
measures, we direct you to pages 8-9 of
the Budget Speech, pages 42-43 and page
168 of the Budget Statement, and pages
4-6 of the Budget Measures Statement.
WHAT ARE THE PROPOSED CHANGES?
Outside of the State Budget papers,
there has not been a great deal of
information provided regarding how
exactly the aggregation and surcharge
measures will be implemented. At the time
of writing this article, the draft legislation
had not yet been distributed for comment
by industry stakeholders.
On the current available information,
the changes are likely to cover the following:
• Legal changes that allow various
related entities to be grouped together
for land tax purposes;
• Properties will be aggregated based on
a land owner’s interest in every piece
of land they hold rather than only
aggregating properties held in the same
ownership structure;
• RevenueSA will receive further
authority and standards to determine
the “true owner” of every parcel of
land regardless of whether they are

PROPERTY LAW
acting together or have a controlling
interest; and
• An additional surcharge rate will be
charged on land owned in trusts where
the trust beneficiaries are not disclosed
or identified.
Aggregation standards will identify
the “true” multiple holdings for each
individual owner, be it land held in sole
name, joint names, in companies or in
fixed interest trusts.
In those cases where individual owners
cannot be effectively identified, such as a
discretionary family trust, it is proposed
that they would have to pay a “surcharge”,
being an additional rate of land tax,
effectively dissuading anyone from trying
to avoid grouping.
These reforms will effectively group
properties to the extent a common
ownership can be identified, and will
diminish incentives to own properties in
other entities (such as trusts) if there is no
other substantive benefit other than the
minimisation of land tax.
Although the draft legislation remains
a work-in-progress, the proposed measures
COMPANIES VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA
HOW WILL RELATED
COMPANIES BE
GROUPED?
• The Commissioner of State Revenue, at its
own discretion, may treat two or more related
corporations as a single corporation and group
corporations.
• Each claim is on a case-by-case basis and will
apply the following factors:
ÆÆ
ÆÆ
ÆÆ
ÆÆ
ÆÆ
Intention to avoid land tax;
Degree of relatedness within the company;
The degree of control by the Directors of
the day-to-day operations of each related
corporation;
Use of the land; and
Other relevant factors that will support the
determination to group in any given case.
• The Chief Commissioner may
assess:
ÆÆ
ÆÆ
ÆÆ
All companies separately;
Companies jointly; and
Any 2 or more companies
jointly and the remainder
separately.
• There is no guiding criteria
or factors for the Chief
Commissioner to consider.
• It is likely that RevenueSA will be
given similar discretion as both
VIC and NSW have, but with
guiding standards similar toVIC.
HOW ARE ‘RELATED
COMPANIES’
IDENTIFIED?
DOES A ‘CONTROLLING
INTEREST’ EXIST IF A
PERSON OR TWO OR
MORE PERSONS ‘ACTING
TOGETHER’ CAN CONTROL
THE COMPOSITION OF A
BOARD OF DIRECTORS OF
THE COMPANY?
• Controls the composition of the Board of
Directors.
• Holds or controls 50% or more of issued share
capital.
• Does not limit the circumstances in which the
composition of a company’s board is taken to be
controlled by a person or persons.
• As per Victoria. • Likely to be same as VIC and
NSW.
• As per Victoria. • Likely that a similar broad
authority will be provided to
RevenueSA.
UNIT TRUSTS VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA
HOW WILL TRUSTEES
OF UNIT TRUSTS BE
SUBJECT TO LAND TAX?
WHAT OCCURS WHEN
A COMMISSIONER HAS
BEEN NOTIFIED OF THE
UNIT HOLDERS?
IS THE UNIT HOLDER
ENTITLED TO A
REDUCTION?
• Trustees of unit trusts are subject to higher rates of
land tax. This is distinguished as surcharge rates.
• However, a trustee will be assessed at general rates
if the Commissioner is notified of the unit holders.
• The unit holders will be assessed on their interests
in the land, which is held in the unit trust.
• The unit holder’s interests are aggregated with all
other interests on other taxable land they hold.
• The trustee of the unit trust remains assessed for
land tax.
• To avoid double taxation, the unit holder may
qualify for a reduction of their land tax liability
to the extent land tax is paid by the trustee of the
relevant unit trust.
• However, if the unit holder’s land tax assessment
is greater than the portion paid by the trustee (i.e.
due to the individual’s multiple holdings being in
a higher band of land tax), the unit holder will
remain liable to pay the balance.
• As per Victoria. • Likely to be same as VIC and
NSW.
• As per Victoria. • Likely to be same as VIC and
NSW.
• As per Victoria.
September 2019 THE BULLETIN 27

PROPERTY LAW
DISCRETIONARY
TRUSTS
VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA
HOW IS THE TRUSTEE
OF A DISCRETIONARY
TRUST ASSESSED?
• Trustees of discretionary trusts are subject to
higher rates of land tax, being the surcharge rate.
• As per Victoria. • Likely to be same as VIC and
NSW.
CAN THE HIGHER
SURCHARGE RATE BE
REDUCED TO A GENERAL
RATE IF A NOMINATED
BENEFICIARY IS
IDENTIFIED FOR THE
TRUST?
• At the time of introducing the land tax reforms
(1 July 2005), trustees of discretionary trusts
were afforded a period of 6 months to nominate
a specified beneficiary for land held by the trust.
• Where so nominated, the trustee is assessed at
general rates only.
• That nominated beneficiary is deemed to be the
owner of the land, and that trust land is added
to the beneficiary’s other land holdings for a
grouped assessment.
• There is no scope to nominate
a beneficiary as recipient of
the land tax assessment for
discretionary trusts in NSW.
• All discretionary trusts in NSW
will be assessed at the surcharge
rates.
• It is unknown but likely that
S.A legislation will afford
discretionary trusts a similar
period to VIC to nominate a
beneficiary and avoid surcharge
rates.
IS THE NOMINATED
BENEFICIARY
ENTITLED TO A
REDUCTION?
WHAT ABOUT
FUTURE LAND
ACQUIRED BY A
TRUST (NEW OR
EXISTING)?
• To avoid double taxation, the nominated
beneficiary may qualify for a reduction of their
land tax liability to the extent land tax is paid by
the trustee of the trust.
• However, if the beneficiary’s land tax assessment
is greater than the portion paid by the trustee, the
beneficiary will remain liable to pay the balance.
• Any land acquired by a trust after the 6-month
period (1 January 2006) cannot nominate a
beneficiary and will be subject to surcharge duty.
• This includes land acquired after 1 January 2006
by a trust which has a nominated beneficiary
prior to 1 January 2006.
• Commissioner may permit a beneficiary
nominated after 1 January 2006 if such
nomination replaces a prior beneficiary who has
either died or otherwise revoked their nomination.
The Commissioner has discretion to determine if
a subsequent nomination is just and reasonable.
• N/A. • S.A likely to match that of VIC.
• Surcharge rates apply. • S.A likely to match that of VIC.
LAND TAX RATES VICTORIA NEW SOUTH WALES SOUTH AUSTRALIA
WHAT IS THE TOP
MARGINAL LAND TAX
RATE?
• 2.25% plus a fixed charge of $24,975, being for
land holdings above $3,000,000.
• 2%, being for land holdings
above $3,846,000.
• 3.7% (at present), being for land
holdings above $5,000,000.
• Note: It is proposed that top
marginal rate may reduce by
0.1% annually from FY2021
onwards until it reaches 2.9%
from 1 July 2027.
WHAT IS THE
SURCHARGE RATE
PAYABLE FOR CERTAIN
TRUSTS?
• Trusts pay the general rate applicable for their
land holding, PLUS a surcharge rate.
• The surcharge rate is a higher fixed charge plus an
additional 0.375% up to $1.8m.
• The surcharge begins to phase out from $1.8m,
and from $3m it is the same as the general rate
(which is a fixed charge plus 2.15%).
• It is simply a 1.6% flat rate up to
the premium land tax threshold
of $3,846,000.
• 2% for land value thereafter.
• It is difficult to predict whether
they will propose a flat surcharge
rate (as per NSW) or an
additional surcharge rate above
the general rate (as per VIC).
COMPARISON OF
ANNUAL LAND TAX
PAYABLE, BASED ON
A COMBINED LAND
HOLDING OF SAY
$5,000,000.
• $69,975 (noting at this level land tax is same
regardless if trust or otherwise).
• $72,104 (assuming no surcharge).
• $84,616 (assuming surcharge for
trusts).
• $150,070 (based on current rates
and excluding surcharge rates).
• Note: land tax rates for holdings
valued $1.3m to $5m will reduce
from 3.7% to 2.9% from 1 July
2020. Estimate of land tax
payable will drop to $120,544
(again excluding surcharge rates).
28 THE BULLETIN September 2019

PROPERTY LAW
are likely to be like those reforms
previously introduced in New South Wales
and Victoria (Victoria being the first State
to introduce land tax aggregation laws).
ANALYSIS OF THE PROPOSED FRAMEWORK
Below is a comparison between the
relevant aggregation land tax laws of New
South Wales and Victoria, and the writer’s
impression on what may be introduced in
South Australia.
IMPACT OF THE FRAMEWORK AND
CONSIDERATIONS
As illustrated above, assuming the State
Government does not introduce additional
surcharge land tax for land values of say
$5 million, the land tax payable by a South
Australian landowner from 1 July 2020 will
be some $35,928 and $50,569 higher than
the equivalent landowner in Victoria or
NSW respectively.
These calculations already factor in the
approved reduction that commences from
1 July 2020, whereas now the difference
is much higher, being some $65,454 to
$80,454.
The existing framework and
significantly higher land tax payable by
South Australian landowners explains
why many have strived to separate their
landholdings as separate assessments
where possible.
With a national average top marginal
land tax rate of 1.92% across all States
and Territories (excluding NT which
has none), our current top rate of 3.7%
provides a significant issue for the State
Government and landowners to overcome.
Needless to say, the proposed reduction to
2.9% by 2027 is not likely to be enough.
Of further importance is the State’s
current “Revaluation Initiative” whereby
the Valuer-General has been provided with
funding and mandate to comprehensively
review the market value of all land in SA
for rating purposes. The first cycle of this
revaluation commenced in FY2020 across
three Council areas (Walkerville, Unley
and Adelaide Plains) and will continue to
expand into other Council areas over the
coming 1-2 years.
This revaluation towards market rates
presents its own issue for landowners, as
it will doubtless lead to higher valuations
and rate assessments as well as disputes
around true market values. The proposed
land tax aggregation laws overlapping with
this revaluation initiative presents further
challenges and costs for landowners to
grasp.
PASSING THE LEGISLATION
To effect the proposed changes, the
State Government will make amendments
to the Land Tax Act 1936 (Act), which if
passed, will come into effect on 1 July 2020.
There is no draft legislation in circulation yet.
It has been said that the draft legislation
is likely to be circulated at some point in
September 2019, and that it will be provided
to key industry stakeholders for comment.
There is no indication of how long this
consultation period may be or when the Bill
is expected to be introduced to Parliament.
The measures are not universally
popular even within the State Government
MPs. The Parliamentary Opposition has
not taken an official position to support or
oppose the proposed land tax aggregation
measures.
CONCLUDING COMMENTS
For the time being, it is clear that the
proposed land tax aggregation measures
present significant concern to the South
Australian real estate industry. B
MEMBERS ON
THE MOVE
Grope Hamilton Lawyers have
appointed Tiffany Irving as
a solicitor practising principally in
commercial litigation. Grope Hamilton
Lawyers’ managing partner, Mark
Hamilton, said: “Tiffany will be assisting
the firm’s partners, but will play a special
role assisting the firm’s property and
construction disputes partner, Rino
Marrone, with his practice.” Grope
Hamilton has also appointed law graduate,
Jim Coffey, as a paralegal assisting partner,
Tony Kerin, with his civil litigation
practice. Jim is shortly to be admitted as a
solicitor in South Australia.
Sam Ure has recently taken a room
in Hanson Chambers for six months
TIFFANY IRVING
JAMES COFFEY
whilst Anna Wells is on maternity
leave. Sam is a barrister of 10 years
call at the Victorian Bar and returned
to South Australia in early 2019. Sam
practises in commercial litigation, tax and
administrative law. Sam can be contacted
at Hanson Chambers on 8212 6022 or by
email on ure@hansonchambers.com.au
September 2019 THE BULLETIN
29

BUILDING & PROPERTY LAW
THE NON-JURISDICTIONAL ERROR
OF LAW ON THE FACE OF THE
RECORD AND THE CASES BEFORE
THE HIGH COURT OF AUSTRALIA
DR AUKE STEENSMA, BARRISTER AND SOLICITOR, STEENSMA LAWYERS
In January, 2017, Robert Fenwick Elliott,
and the author of the seminal work,
10 Days in Utopia, 3 stated that the state
Supreme Courts did not have jurisdiction to
review the determinations of adjudicators
under security of payment (SOP)
legislation 4 , relating to non-jurisdictional
error of law on the face of the record.
The statement has created considerable
controversy for counsel and legal
practitioners.
The Lexus Nexus Concise Australian
Legal Dictionary, defines “error of law
on the face of the record” as; “a ground
of judicial review available where a nonjurisdictional
error appears on the face of
the record of an inferior court.” 5
As Fenwick Elliot noted, two cases
considered by the High Court of Australia
(HCA) to determine if the security of
payment (SOP) legislation would bar
judicial review on the grounds of an error
of law on the face of the record.
On 14 February, 2018, Kiefel CJ,
Bell, Gageler, Keane, Nettle, Gordon and
Edelman JJ of the HCA, dismissed two
appeals that came from the enjoined cases
from NSW; Probuild Constructions (Aust) Pty
Ltd v Shade Systems Pty Ltd & Anor, 6 and the
30 THE BULLETIN September 2019
other; Maxcon Constructions Pty Ltd v Vadasz
(No 2), 7 from South Australia.
Probuild concerned a payment claim
submitted by Shade. After rejection
by Probuild the claim progressed to
adjudication. The adjudicator determined
in favour of Shade. Probuild later alleged
a denial of procedural fairness, and that an
error of law in the determination was made
by the adjudicator.
At first instance primary Judge, Emmett
J, held that “the Court’s supervisory
jurisdiction permitted a review of nonjurisdictional
errors of law on the face of
the record” 8 and the determination. Shade
appealed. They argued “that there was no
power to intervene in a case where the only
errors identified were non-jurisdictional
errors of law.” 9
On 23 December, 2016, Bathurst CJ,
Beazley P, Basten, Macfarlan & Leeming
JJA, of the NSW Supreme Court Court
of Appeal handed down their judgement.
They held unanimously that “the Security
of Payment Act did not permit a review
of an adjudicator’s decision other than for
jurisdictional error.” 10
Probuild then sought leave to appeal in
the HCA claiming:
The NSW Court of Appeal erred in holding
that the NSW Supreme Court’s power to
make orders in the nature of certiorari for error
of law on the face of the record is ousted in
relation to determinations under the Security of
Payment Act. 11
Two months later, the Full Court of the
Supreme Court of South Australia, dismissed
an appeal sought by Maxcon Constructions Pty
Ltd v Vadasz (No 2) (2017) 127 SASR 193.
The case related to a payment claim
against Maxcon, determined in favour,
of one Vadasz. The contract was for
the “design and construct piling for
an apartment building.” 12 However,
unbeknown to Maxcon, at the time of the
contract agreement, Mr Vadasz was an
undischarged bankrupt.
The adjudicator concluded that the
contract between Maxcon and Vadasz
included retention provisions that the
adjudicator determined were “pay when
pay provisions”. The adjudicator found
that the retention provisions were
prohibited pursuant to s 12(1) and s 12(2)
(c) of the Building and Construction Industry
Security of Payment Act 2009 (SA). 13 The
adjudicator held the provisions as void,

BUILDING & PROPERTY LAW
There is no real immediate prospect of non-jurisdictional
error of law sufficing as a ground for challenge under the
West Coast model any more than the East Coast model.
Construction Law Barrister Robert Fenwick Elliott
3 January 2017 1
Being an adjudicator under the Building and
Construction Industry Security of Payment Act 2009 (SA)
is like walking around with a target on your back.
Construction Law Barrister Martin Frayne SC
9 February 2017 2
and therefore, Maxcon did not have an
entitlement to the retention sum.
Maxcon initiated proceedings in the
Supreme Court of South Australia. Stanley
J held “that there was no jurisdictional
error (or other error of law) made by the
adjudicator.” 14 Maxcon then commenced
an Appeal before the Full Court of the
South Australian Supreme Court.
The Full Court quorum consisting of;
Blue J, Lovell JJ and Hinton J, dismissed
the appeal (with Hinton J dissenting).
The Full Court held that there was no
jurisdictional error. It held that there had
been an error, but that error was an error
of law on the face of the record. They
held that the authority for “proposition
that the remedy of certiorari 15 was
impliedly excluded under the Act”. 16
Maxcon then appealed. The appeal was
made on the following ground: that the
• Mediation
• Conciliation
• Dispute Representation
• Mediation Advocacy
• Collaborative Law
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E stephen@ansr.com.au
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Or visit ansr.com.au for all
matter and client enquiries

BUILDING & PROPERTY LAW
Full Court had made an error by applying
the NSW case of Shade Systems Pty Ltd v
Probuild Constructions (Aust) Pty Ltd (No.2).
They concluded that the Building and
Construction Industry Security of Payment Act
1999 (NSW) prevented judicial review on
the ground of error of law on the face of
the record. Vadasz “contended that the
adjudicator had made no error of law”. 17
The determination as to whether the
Acts allowed the issue of judicial review
on the ground of error of law on the face
of the record, would move to the HCA.
Both cases were granted special leave
by the HCA. They were enjoined on 12
May, 2017. The hearing was held on 9
November, 2017, adjourned until Tuesday,
14 November, 2017. The HCA handed
down the decision on 14 February, 2018.
The HCA held in Probuild Constructions
(Aust) Pty Ltd v Shade Systems Pty Ltd 18 :
The only question in this appeal is whether
the scheme established by the Security of
Payment Act for claims for, and payment of,
progress payments ousts the jurisdiction of
the Supreme Court of New South Wales to
make an order in the nature of certiorari to
quash a determination by an adjudicator for
error of law on the face of the record that is
not a jurisdictional error. The answer is yes:
the Security of Payment Act does oust that
jurisdiction. 19
The HCA further added in Maxcon
Constructions Pty Ltd v Vadasz 20 :
However, it is important to add that, for the
reasons explained in Probuild, the Supreme
Court of South Australia may grant
relief (whether in the nature of certiorari
or otherwise) for jurisdictional error by an
adjudicator appointed under the Security of
Payment Act; but the provisions of the Security
of Payment Act, like the provisions of the
New South Wales Act, oust the Supreme
Court’s jurisdiction to make an order in the
nature of certiorari to quash an adjudicator’s
determination for error of law on the face of
the record that is not a jurisdictional error. 21
CONCLUSION
The decision appears to have been
well received by adjudicators. Adjudicators
32 THE BULLETIN September 2019
operate in an environment in which
Andrew Wallace termed; “decision is an
interim one and given that it is often made
in a “pressure cooker” environment under
extremely tight timeframes, 22 trying to
achieve what Lord Ackner coined in the
House of Lords, the ‘quick and dirty fix”. 23
Adjudication requires independence
and involves analysis of copious quantities
of documentation that make up the
application and the response, 24 and has, in
most states, 10 business days to make often
challenging determinations. To make the
issue more complicated, most adjudicators
come from the building and construction
industry, not lawyers. They usually have
backgrounds as civil engineers, project
managers, architects, and builders.
For example in WA in 2017-18, there
were 84 registered adjudicators of which
57 (or 68%) were non-lawyers, and 27
(32%) lawyers. 25 In the NT in 2017-18,
there were 42 registered adjudicators of
which 25 (or 60%) were non-lawyers, and
17 (40%) lawyers. 26
The HCA rightly recognises that
non-lawyer adjudicators may apply
the incorrect law, or make incorrect
conclusions of the facts presented to
them. The HCA concluded in Probuild: 27
The Security of Payment Act did not
authorise adjudicators to take unlawful steps
by making errors of law. What it did do, by
implication based upon a background legislative
assumption, was to immunise from judicial
review any non-jurisdictional error of law on
the face of the record.
It is unlikely that those who initially
championed security of payment
legislation saw adjudication in terms of
legal purity as opposed to what Lord
Ackner coined in the House of Lords,
the “quick and dirty fix”. 28 The former
Building Commissioner of Western
Australia, Mr Peter Gow affirmed; “The
adjudicator may have much more freedom
to balance cost and time against legal
purity”. 29 Non-jurisdictional error of law
on the face of the record “would imply
an expectation from the Judiciary that
an adjudicator would have the same legal
qualifications as a lawyer has.” 30
Had the HCA held differently, Frayne
SC would have been further vindicated by
his assertion. However, common sense
prevailed. The HCA decision confirmed
that Fenwick Elliott, was correct; “there
is no real immediate prospect of nonjurisdictional
error of law sufficing as a
ground for challenge under the West Coast
model any more than under the East Coast
model”. 31
Dr Steensma specialises in Construction
Law and ADR. He is an Arbitrator (Gde 3),
Adjudicator (WA & NT), Mediator (NMAS),
and Expert Determination Practitioner. He has
been a member of the Society’s ADR committee
since 2017.
The Author would also like to thank Professor
Philip Evans for his guidance in this paper. B
Endnotes
1 Robert Fenwick Elliott, Maxcon in The Shade,
(03 Jan 2017), https://feconslaw.wordpress.
com/2017/01/03/maxcon-in-the-shade/#_
ftnref2
2 Resolution Institute - SA Chapter CPD - Recent
case law affecting adjudication Security of
Payment (SOP) Acts in SA and other states,
9 February 2017 in Adelaide. Guest presenter
Martin Frayne SC.
3 Robert Fenwick Elliott, ‘10 Days in Utopia’
(Proceedings of the Institute of Arbitrators &
Mediators Australia, Glenelg, South Australia, 02
June 2007), 5.
4 Building and Construction Industry Security of Payment
Act 1999 (NSW); Building and Construction Industry
Security of Payment Act 2002 (Vic); Building and
Construction Industry Payments Act 2004 (Qld)
(later Building IndustryFairness (Security of Payment)
Act 2017 (Qld); Construction Contracts (Security of
Payments) Act 2004 (NT); Building and Construction
Industry (Security of Payment) Act 2009 (SA);
Building and Construction Industry Security of Payment
Act 2009 (ACT); Building and Construction Industry
Security of Payment Act 2009 (Tas).
5 Peter Butt, et al, LexisNexis – Concise Australian
Legal Dictionary, (LexisNexis Butterworths,
Chatswood NSW, 4th Ed, 2011), 34.
6 [2016] NSWCA 379.
7 [2017] SASCFC 2.
8 High Court of Australia, ‘Short particulars,
Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd & Anor (S145/2017), http://www.
hcourt.gov.au/assets/cases/08-Sydney/s145-
2017/Probuild_SP.pdf, 1.
9 Ibid.
10 High Court of Australia, ‘Short particulars,
Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd & Anor (S145/2017), http://www.
hcourt.gov.au/assets/cases/08-Sydney/s145-
2017/Probuild_SP.pdf, 1.
11 Ibid.
12 High Court of Australia, ‘Short particulars,
Maxcon Constructions Pty Ltd v Michael Christian

BUILDING & PROPERTY LAW
Vadasz (Trading As Australasian Piling Company)
& Ors (A17/2017), http://www.hcourt.gov.au/
assets/cases/01-Adelaide/A17-2017/Maxcon_
SP.pdf, 1.
13 Building and Construction Industry Security of Payment
Act 2009 (SA), s 12 which states:
12—Effect of “pay when paid” provisions
(1) A pay when paid provision of a construction
contract has no effect in relation to any
payment for construction work carried out or
undertaken to be carried out (or for related
goods and services supplied or undertaken to
be supplied) under the contract.
(2) In this section—
money owing, in relation to a construction
contract, means money owing for
construction work carried out or undertaken
to be carried out (or for related goods
and services supplied or undertaken to be
supplied) under the contract;
pay when paid provision of a construction
contract means a provision of the contract—
(a) that makes the liability of 1 party
(the first party) to pay money owing
to another party (the second party)
contingent on payment to the first party
by a further party (the third party) of
the whole or a part of that money; or
(b) that makes the due date for payment of
money owing by the first party to the
second party dependent on the date on
which payment of the whole or a part of
that money is made to the first party by
the third party; or
(c) that otherwise makes the liability to
pay money owing, or the due date for
payment of money owing, contingent or
dependent on the operation of another
contract.
14 High Court of Australia, ‘Short particulars,
Maxcon Constructions Pty Ltd v Michael Christian
Vadasz (Trading As Australasian Piling Company)
& Ors (A17/2017), http://www.hcourt.gov.au/
assets/cases/01-Adelaide/A17-2017/Maxcon_
SP.pdf, 1.
15 the Lexus Nexus Concise Australian Legal
Dictionary, fourth edition defines ‘certiorari’ as;
‘a type of prerogative remedy issued by a court
to bring before it the decision or determination
of a tribunal or inferior court to quash it on the
ground of nonjurisdictional error of law on the
face of the record, or for jurisdictional error or
denial of procedural fairness. (p 83).
16 High Court of Australia, ‘Short particulars,
Maxcon Constructions Pty Ltd v Michael Christian
Vadasz (Trading As Australasian Piling Company)
& Ors (A17/2017), http://www.hcourt.gov.au/
assets/cases/01-Adelaide/A17-2017/Maxcon_
SP.pdf, 1.
17 Maxcon Constructions Pty Ltd v Vadasz [2018]
HCA 5 A17/2017, [4].
18 [2018] HCA 4 (14 February 2018) S145/2017.
19 Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd [2018] HCA 4, [2].
20 HCA 5 (14 February 2018) A17/2017.
21 Maxcon Constructions Pty Ltd v Vadasz [2018]
HCA 5 , A17/2017, [5].
22 Andrew Wallace, Final Report of the Review of
the Discussion Paper – Payment Dispute Resolution
in the Queensland Building and Construction Industry
(Building Services Authority, 2013), 221.
23 Becky Davey, Upcoming changes to the law applying to
construction contracts, (2011), website:
24 In 2014, the author, as an adjudicator to a
payment claim dispute, received an application
for adjudication that was encumbered by some
23 lever arch folders of A4 and A3 documents.
It contained 7977 pages. The total quantum of
the submissions by both parties was 34, A4 & A3
size folders, and contained 11906 pages. This is
still a record in Western Australia.
25 Government of Western Austrlia, Department
of Mines and Industry Regulation and Safety
(Building Commission), (2019), Find an
adjudicator, website.
26 Government of the Northern Territory -
Construction Contracts Registrar, (2019), List of
registered adjudicators, website
27 Probuild Constructions (Aust) Pty Ltd v Shade Systems
Pty Ltd [2018] HCA 4, [108].
28 Becky Davey, Upcoming changes to the law applying to
construction contracts, (2011), website:
29 Peter Gow, ‘The Construction Contracts Act
in Western Australia’, (2008) The Arbitrator
& Mediator, The Institute of Arbitrators &
Mediators Australia Vol 27. Number: 2 (Date:
Dec 2008), 33.
30 Auke Steensma, ‘A statutory review of
adjudicators’ determinations under the
Construction Contracts Act 2004 (WA) by the
State Administrative Tribunal and the Courts
of Western Australia’ (PhD Thesis, Curtin
University, 2018), p 291.
31 Robert Fenwick Elliott, Maxcon in The Shade,
(03 Jan 2017), https://feconslaw.wordpress.
com/2017/01/03/maxcon-in-the-shade/#_
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SOCIAL MEDIA
Social Media, Jurors and the
Right of an Accused to a Fair Trial
JEMMA HOLT, RESEARCH FELLOW, TASMANIAN LAW REFORM INSTITUTE
The right to a fair trial is a central
pillar of our criminal justice system.
An accused is entitled to a trial before an
impartial jury that makes its determination
in accordance with evidence that has been
properly admitted and tested during the
course of the trial.
A current concern is how to preserve an
accused’s right to a fair trial at a time when
social media and other internet platforms
are omnipresent in our everyday lives.
USE OF SOCIAL MEDIA AND OTHER
INTERNET PLATFORMS
The majority of Australians are
continuously online and engaged; at
home, at work and in-between on our
smartphones.
If individuals continue this behaviour
when they are jurors sitting in a criminal
trial they thereby risk adversely affecting
the accused’s right to a fair trial.
GETTING A ‘HANDLE’ ON THE PROBLEM
Commentators have coined many
terms which refer to the phenomena of
jurors inappropriately using social media
or internet platforms during a criminal trial
and the consequences for the accused’s
right to a fair trial: googling jurors; internetsurfing
jurors; trial by google; google mistrials;
E-jurors; do-it-yourself or DIY jurors; the twitter
effect; internet-tainted jurors; digital injustice; wired
jurors; and rogue jurors. There is no single
expression that encapsulates the full range
of possible juror misconduct of this kind.
In 2013, a juror in New South Wales
Googled “murder” and “manslaughter”,
admitting to her fellow jurors, whilst
reading material from her iPhone: “I’m
having trouble determining the difference
between murder and manslaughter”. 1 It
is solely for the trial judge to direct jurors
on matters of law. When jurors go online
to conduct enquiries on legal terms and
concepts, the reliability and accuracy of
the source is unknown. There is also
the risk of obtaining information from
another jurisdiction on a jurisdictionspecific
matter. Further, it relies on the
34 THE BULLETIN September 2019
juror correctly identifying the legal term/
concept in the first place and, thereafter,
not straying once online.
Jurors have also been found to
conduct internet searches on “expert”
topics, regardless of whether an expert
witness had given evidence in the trial:
e.g. on retention of body heat in an infant
(NSW, 2007) 2 , and methylamphetamine
production (WA, 2016) 3 . Obvious issues
arise as to the accuracy and reliability of
such technical information that is sourced
by jurors from unknown online sources.
Moreover, the use that an unskilled and
unassisted juror makes of such information
in the context of the trial is completely
unknown, including whether the juror
disseminates the information to fellow
jurors as an in-house jury room “expert”.
Jurors have also, on occasion,
conducted online investigations into
defendants and witnesses. In South
Australia in 2016, two jurors sitting in a
blackmail trial against multiple defendants
were discovered to have conducted online
searches on the accused which disclosed
past outlaw motorcycle gang affiliations. 4
Such information was legally irrelevant,
inadmissible and highly prejudicial to the
case being tried. Similarly, jurors have
also obtained information via the internet
on an accused’s prior convictions and
previous allegations against an accused,
including those for which the accused was
acquitted. For example, in New South
Wales in 2002, multiple jurors in a murder
trial, alleging the accused had murdered
his first wife, were discovered to have
conducted internet searches to obtain
information about previous allegations
that the same accused had murdered his
second wife (for which he was previously
tried and acquitted). 5 This information
could significantly prejudice the accused
in the eyes of the jurors so that they
could not decide guilt or innocence in a
dispassionate manner.
Jurors’ online searches have also
located information about the history of
the particular prosecution, including the
fact that the present trial is a retrial and the
reasons behind this, such as a hung jury or
a successful appeal against conviction. For
example, in a 2014 murder trial in Western
Australia, a juror’s girlfriend conducted
online searches in relation to the accused
and located information about the history
of two previous trials, which she then
passed onto her partner, who, in turn,
shared the information with his fellow

SOCIAL MEDIA
jurors. 6 Such information can mislead
jurors and affect their ability decide the
case on a proper basis.
Online communications between
sitting jurors is potentially problematic
for many reasons, including simply
because such online ‘banter’ is capable of
distracting jurors from the trial itself. For
example, in New South Wales in 2013,
multiple jurors on a long-running fraud
trial became Facebook friends. Their
online communications included posts
such as a digitally altered photo of one of
the jurors wearing a judge’s wig. 7
Jurors have also been found to publish
material on the internet and social media
platforms which suggests that they may
have already made their mind up about
the guilt of the accused, including in
circumstances where they are yet to be
empanelled on a particular trial. In 2010,
a potential juror in Victoria posted on his
Facebook page, ‘everyone’s guilty,’ 8 and in
2016 a juror who had been empanelled
in a West Australian murder trial posted
on Facebook the day the trial was due to
commence, ‘At Perth District Court, guilty!’ 9
Jurors have also published material that
discloses prejudice in relation to certain
types of offending. For example, in 2016,
a juror sitting in a sexual offending trial in
Broken Hill, posted on Facebook the day
before the guilty verdict was returned:
‘When a dog attacks a child it is put
down. Shouldn’t we do the same with sex
predators?’ This post was accompanied
with a photograph that showed images of
rooms and implements by which lawful
executions are carried out. 10 The same
concerns apply to jurors with apparent
sympathetic biases. In 2014, a juror
in a murder trial in New South Wales
conducted online research to locate a
photograph of the victim. The juror
viewed a media photograph depicting the
victim’s parents holding a photograph
of the victim. The juror explained: ‘I just
wanted to see his [the deceased’s] face …
that poor boy and I just wanted to see his
face without any injuries, anything, just see
him … put a face to the name.’ 11
Senior School
Tuesday 29 October, 9.30am
Junior School and
Ignatius Early Years
Thursday 7 November, 9.30am
Book online at ignatius.sa.edu.au
CRICOS no: 00603F

SOCIAL MEDIA
Posts like these potentially bring the
justice system into disrepute because they
suggest that justice is not being done
and similarly it is not seen to be being
done. Whether or not a juror’s use of the
internet/social media is representative
of genuine bias, prejudice, and/or
predetermination is not the entirety of the
matter. The requirement of impartiality on
the part of jurors may be adversely affected
by both actual and perceived irregularities.
Significantly, when jurors publish
material about jury service on the internet
or social media, they have no control over
what material they may receive by way of
a response. Even apparently innocuous
material posted by jurors, or the simple
act of a juror ‘tagging’ their location as
the courthouse, may elicit unsolicited and
inordinate replies capable of interfering
with the juror’s impartiality (or being
perceived as capable of doing so).
GOING VIRAL?
There has been some limited research
conducted in this area in Australia and
overseas, however, the prevalence of juror
misconduct of this kind remains largely
unknown and unknowable.
Whilst the detection of juror misconduct
of this kind may be rare, this does not
necessarily mean that such misconduct
is, in fact, rare. Rather, all indications are
that juror misconduct of this kind is under
reported, at least to some extent, and
that the reported cases represent the bare
minimum of cases of misconduct of this
kind.
It is not a phenomenon that is peculiar
to larger jurisdictions and high-profile
criminal trials.
‘DROPPING THE PIN’: WHERE TO FROM
HERE?
The Tasmania Law Reform Institute is
currently researching jurors’ use of social
media and other internet platforms during
criminal trials. The Institute released an
Issues Paper on 21 August, which seeks to:
• assess, as far as is possible, the nature
and gravity of this phenomenon;
36 THE BULLETIN September 2019
• explore how and why juror misconduct
of this kind occurs and the causes
and/or motivations that underlie juror
misconduct of this kind;
• canvas the laws and practices which
currently exist to safeguard against
juror misconduct of this kind as well
as those that exist to remedy and/or
otherwise deal with such misconduct
after it occurs; and
• examine the operation and efficacy of
these measures as well as the possible
alternatives.
The TLRI invites submissions on this
topic until 4 October 2019.
All submissions will inform the
Institute’s final report which will ultimately
consider whether reform of the current
laws and practices is justified and, if so,
what form that should take.
The Issues Paper is available at:
https://www.utas.edu.au/lawreform/publications/ongoing-lawreform-projects2
Jemma Holt is currently working as a Research
Fellow at the Tasmania Law Reform Institute
and prepared the Issues Paper jurors’ use of
digital media during criminal trials. The Paper
is the result of joint research and collaboration
between the Tasmania Law Reform Institute
and South Australian Law Reform Institute.
Jemma also works part time as a Prosecutor at
the Office of the Director of Public Prosecutions
in Hobart. She has previously worked as a
Prosecutor at the Office of the Director of
Public Prosecutions in Adelaide and the Crown
Solicitor’s Office in Adelaide. She is returning
to practice in Adelaide in 2020. B
Endnotes
1 The juror later told fellow jurors that, based on
her research, the difference between the two
involved ‘malice’: R v JP (No 1) [2013] NSWSC
1678; R v JP (No 2) [2013] NSWSC 1679. The
juror was discharged, and the trial proceeded to
verdict.
2 R v Folbigg [2007] NSWCCA 371. The
misconduct was discovered after the jury had
been discharged. On appeal, it was held that
irregularities had occurred, but the appeal was
dismissed.
3 In Western Australia in 2016, a juror in a drugrelated
trial researched methylamphetamine
production online. See Heather McNeill, ‘Calls to
Overhaul WA Jury System After Juror Dismissed
for Facebook Post’. WA Today (online, 13
October 2016) .
4 Registrar of the Supreme Court of South Australia v S;
Registrar of the Supreme Court of South Australia v C
[2016] SASC 93. Both jurors were dismissed and
the balance of then jury discharged. Both jurors
were subsequently convicted of contempt, had
convictions recorded and were fined $3000 each.
5 R v K (2003) 59 NSWLR 431.
6 See Joanne Menagh, ‘Judge “almost speechless
with rage” after third Ronald Pennington trial for
1992 murder aborted’, ABC News (online, 31 July
2014) .
See also R v K
(2003) 59 NSWLR 431.
7 Brenden Hills, ‘Jury Getting off Their
Facebooks’, The Daily Telegraph (online, 12 May
2013) . The
judge became aware of this conduct two months
into the trial after being alerted by the trial
prosecutor. The judge ordered a court officer
to examine the material to see if it included any
prejudicial material. It was ultimately concluded
that the material was not such so as to warrant
the jury being discharged.
8 Andrea Petrie, ‘No-show juror in hot water
over “stupid” action’, The Sydney Morning Herald
(online, 17 April 2010) .
The juror
was referred for potential prosecution.
9 See Heather McNeill, ‘Calls to Overhaul WA
Jury System After Juror Dismissed for Facebook
Post’. WA Today (online, 13 October 2016)
.
10 Michaela Whitcourne, ‘Social media post sparks
probe into jury conduct in sex crime trial’ The
Sydney Morning Herald (online, 15 April 2019)
.
See
also Agelakis v R [2019] NSWCCA 71: On 29
March 2019, the NSW Court of Criminal Appeal
ordered an investigation into the alleged juror
misconduct, pursuant to s 73A of the Jury Act
1977 (NSW).
11 R v JH (No 3) 2014 NSWSC 1966, [8]. Juror
dismissed, trial proceeded to verdict.

IN HONOUR
Vale Damon Ind: A passionate
lawyer & animal rights champion
Empathy for the underdog and an
unwavering commitment to fair play
underpinned Damon Ind’s approach to law.
He has been widely described by colleagues
and magistrates as a compassionate man,
going out of his way to help defendants
who were trying to represent themselves
and showing mercy to people facing
allegations of terrible crimes.
Driven by the belief that our legal
system is weighted against people who are
already oppressed, Damon had ambitions
to become a magistrate. He felt that was
the role in which he could make the most
positive impact on his community. Sadly,
he did not live to fulfil this ambition.
The much-loved lawyer, known equally
for his larrikin nature and deep respect for
the law, suffered a fatal heart attack outside
the Stepney offices of his employer,
RSPCA South Australia, in June. He was
47 years old.
Damon launched his 14-year legal
career after graduating with a law degree
from Flinders University in 2005,
commencing practise at the Salisbury
offices of Nicholls Gervasi Lawyers.
His employment in Adelaide’s northern
suburbs continued with a move to Dixon
Gallasch Barristers and Solicitors at
Elizabeth South in 2007. It was here
that Damon cut his teeth in the area
of criminal defence, working under the
mentorship of Brett Dixon, who Damon
referred to fondly as his Atticus Finch.
During these two years Damon became a
familiar face at the Elizabeth Magistrate’s
Court, managing client files and acting as
defence counsel in summary, minor and
major indictable matters.
It was inside the Magistrate’s Court that
Damon met and fell in love with fellow
lawyer Jessica Kurtzer. Friends and family
have described the couple as soulmates.
A reputation for preparing thorough,
accurate briefs and establishing solid
rapport with diverse clients helped
Damon secure employment in Adelaide
firms Michael Woods and Co Barristers
& Solicitors and Tindall Gask Bentley
Lawyers, before he moved into the role of
Prosecutor for SA Police.
This switch to the other side of the
bench was not all smooth sailing for
Damon, whose empathy and compassion
for some defendants at times ran counter
to the expectations of him in the
prosecution role. After nearly two years
with SA Police’s Special Prosecution
Unit, Damon left the complexities and
constraints of law to work as a tiler at a
friend’s business.
It was the opportunity to take on a
position that united two of his life’s great
passions – animals and the law – that lured
Damon back into legal practice in 2016.
As RSPCA South Australia’s sole legal
counsel, he fronted court to give voice to
the voiceless animal victims of cruelty and
neglect. Disappointed that the law didn’t
appear to take animal welfare as seriously as
he believed it should, he was determined to
raise the bar for RSPCA to be considered a
significant prosecuting authority. Like many
people, he struggled to understand the cruel
treatment some people inflicted on animals
that they owned and claimed to love.
Colleagues who on occasion attended
court with Damon recall he brought
both kindness and a sense of calm to
proceedings, irrespective of what the
allegation against a defendant was, or who
was on the other side. Despite the often
heavy nature of the animal cruelty cases he
prosecuted, outside of Court Damon has
also been remembered as an immensely
positive thinker with a contagious passion
for life and “the ultimate practical joker”.
Always generous with his time, Damon
provided pro-bono legal advice on many
occasions to colleagues and friends
and also gained a reputation for multiskilling
as RSPCA South Australia’s office
handyman and removalist.
Damon and Scooby
Outside of work, Damon’s priority
was spending time with Jessica and his two
sons from a previous marriage, Harrison
and Samuel. Weekends away with Jessica
and his sons, fishing and camping, were a
favourite escape from the demands of the
courts and the cases he dealt with.
Football was another of Damon’s
enduring passions. He played 189 games
for Hectorville football club and was
heavily involved in the club community,
filling coaching and mentoring roles.
He was proud to be named Best and
Fairest in the over 35s division in 2016.
Harrison’s membership of the “Heccies”
junior football team was a source of much
spoken pride, as he watched his eldest son
play with both determination and fairness.
Damon is survived by his partner
Jessica, sons Harrison and Samuel, mother
Pam, brother Travis, sister-in-law Joanna
and his rescue dog, Scooby, who regularly
came to work with him at the RSPCA. B
September 2019 THE BULLETIN 37

TAX FILES
No deductions for vacant land
PAUL TANTI, PARTNER, THOMSONS GREER
The Federal Government has
introduced a bill which denies tax
deductions for some taxpayers who own
vacant land.
Treasury Laws Amendment (2019 Tax
Integrity and Other Measures No. 1) Bill
2019 (Bill) was introduced into Parliament
on 24 July, 2019. If passed in its current
form, the new measures will apply from
1 July, 2019, regardless of when taxpayers
acquired the land.
The Bill denies some taxpayers
deductions for the cost of holding vacant
land. These costs will include interest,
other borrowing costs and other holding
costs such as rates and taxes.
The Explanatory Memorandum to the
Bill states that the purpose of the new
measures is to deny “taxpayers who have been
claiming deductions for the costs associated with
holding vacant land when it is not genuinely held
for the purpose of gaining or producing assessable
income” (EM paragraph 3.4).
The Bill does not apply to all taxpayers.
Those taxpayers which are exempt are:
• corporate entities;
• superannuation funds which are not
self-managed superannuation funds;
• managed investment trusts; and
• public unit trusts.
Therefore, the provisions effectively
apply to individuals, self-managed
superannuation funds and closely held
trusts (both discretionary trusts and unit
trusts). These entities will be subject to
the new provisions even if they have a
corporate trustee,
Proposed section 26-102 will deny
losses or outgoings relating to holding
land if “there is no substantial and permanent
structure in use or available for use on the land,
having a purpose that is independent of, and not
incidental to, the purpose of any other structure or
proposed structure”.
If this provision denies the taxpayer
a deduction, the deductions will only be
available to the extent that the land is in
use or available for use in carrying on
a business conducted by the taxpayer,
persons related to the taxpayer or an entity
that is connected with the taxpayer. For
these purposes, related persons include
affiliates of the taxpayer, the spouse of the
taxpayer and any of the taxpayer’s children
who are under the age of 18.
38 THE BULLETIN September 2019
The “affiliate” and “connected with”
provisions are similar to those which are
contained in the active asset requirement
in the Capital Gains Tax Small Business
Concessions.
The new provisions apply to land on
a “Certificate of Title basis”. Therefore,
land comprised in one title may meet
the requirements whereas an adjoining
property, which is intended for the same
use but may not contain a substantial
and permanent structure, may result in
deductions being denied for that property.
For example, if a house is situated
on one title and a shed or garage is
being constructed on an adjoining title,
the land on which the shed or garage is
situated will not satisfy the “independent
purpose” requirement. Garages and sheds
and the like do not have an independent
purpose, but rather have a purpose which
is incidental to or related to the residential
premises (EM paragraph 3.23).
If the buildings on the land are
residential premises which are being
constructed or substantially renovated,
deductions will not be allowed until the
premises are available for use. This means
they must be lawfully able to be occupied
and are actually leased, hired or licenced
or available for lease, hire or licence. This
will effectively deny deductions during
the planning, construction and renovation
phases of building or renovating
residential premises.
The buildings on the land must be
substantial. The term “substantial” refers
not only to the size of the structure but
can also include value or some other
criteria of importance to the relevant
property (EM paragraph 3.18).
The substantial characteristic must be a
feature of the building on the land and not
of another structure which is situated on
other land.
If deductions are denied for a
particular property on the basis there is
no substantial and permanent structure in
use or available for use on the land with
an independent purpose, deductions will
only be available to the extent the land is
in use or available for use in carrying on a
business.
Whether a business is being carried
on will always be a question of fact. In
determining this issue, the treatment
of the land for other tax purposes will
be relevant. Therefore, the taxpayer’s
treatment of the gains from the
proposed property as income or capital,
its registration for GST purposes and
whether it considers itself to be carrying
on a business will all be relevant to the
question of whether the taxpayer (or its
affiliates or connected entities) is carrying
on a business.
Taxpayers who are subject to
these provisions should review their
landholdings to ensure that, to the extent
possible, they satisfy the requirements for
deductibility for holding costs in the 2020
financial year. B

WELLBEING & SUPPORT
Breaking the stress cycle
TONI VOZZO, CHAIR, WELLBEING & RESILIENCE COMMITTEE
At its core, “legal work is mental work” 1 .
Good mental health is therefore an
essential part of lawyering as it affects a
lawyer’s ability to be productive and make
responsible decisions for their clients. It is
part of a lawyer’s ethical duty of competence.
Studies suggest that having at least two
weeks off and taking two good breaks a
year is optimal for breaking the stress cycle.
In 2009, Canadian researchers reported
that taking vacations helped to buffer the
detrimental effects of excessive job demands
among a sample of almost 900 law firm
lawyers renowned for working in highly
stressful work settings. They also found
that participating in active and social leisure
activities or taking a vacation are important
in reducing the prevalence of depression. 2
Yet for many lawyers it can seem difficult to
get away, to leave the team and your matters
behind.
“Vacations have the potential to break into the
stress cycle. We emerge from a successful
vacation feeling ready to take on the world again.
We gain perspective on our problems, get to relax
with our families and friends, and get a break
from our usual routines.” 3 (Added emphasis.)
I was fortunate to escape the miserable
cold winter to spend two weeks this July on
Rhodes, the largest of Greece’s Dodecanese
islands. Rhodes is known for its spectacular
beaches, ancient ruins and medieval Old
Town. Was it a successful vacation? Ναί
(actually means “yes” in Greek).
I emerged from the vacation in a
positive state of wellness, slightly heavier
and suntanned with lots of photos of great
scenery and capturing good times. I did
a number of my favourite things: I spent
quality time with family and friends; I walked
around a foreign city and immersed myself
in the culture and history; I ate good food
(I consumed calamari many ways including
grilled, stuffed, fried and crumbed…all
delicious); I shopped ‘til I dropped; I swam
in the clear, calm and warm Aegean; I read
fiction. I generally did nothing that required
much brain power. I re-energised.
But like many lawyers on vacation, I
continued to closely monitor what was
happening on my matters on the other
side of the world. I did not completely
disconnect. How could I?
My two children were more than 13,000
kilometres away so I was therefore always
going to have my iPhone close to hand. But
apart from the kids, I intended to monitor
my work emails because despite my best
efforts to plan and put in place appropriate
arrangements to deal with my matters during
the vacation, things just happen beyond my
control – Judges seem to have a sixth sense
for when solicitors go on leave and relist
cases unexpectedly!
To be clear, I had no intention of
spending any substantive time reading or
replying to emails. I also limited the time I
spent checking emails – being in a different
time zone where half the Australian working
day is over before you wake up helps too!
I did NOT feel guilty about
“monitoring” my work emails. Some people
can turn off the mobile data and suspend all
contact with work. I’m just not one of those
people. Knowing what was happening (at a
high level) allowed me to relax and enjoy the
down time.
Nevertheless, when you take a decent
break from your usual routines, whether it’s
somewhere as beautiful as Rhodes, closer to
home, or even at home, it can make a positive
difference to your state of wellbeing. So if
you want to be a better lawyer, do things that
you enjoy. Spend time with your friends and
family, get away from the office, and don’t
feel guilty for taking regular vacations or
staycations. It’s ok to check emails, but try
limiting this to a short time during the day
that fits in with your holiday plans or routines.
Endnotes
1 Taking a Summer Vacation Will Make You a Better
Lawyer (Yes, Really) by Allison Wolf http://www.
slaw.ca/2011/08/03/taking-a-summer-vacationwill-make-you-a-better-lawyer-yes-really/
2 Joudrey A, Wallace JE: Leisure as a coping
resource: a test of the job demand- control
-support model. Hum Relat. 2009
3 https://www.psychologytoday.com/au/blog/
fulfillment-any-age/201006/the-importancevacations-our-physical-and-mental-health
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FAMILY LAW
Does living apart preclude ‘living
with’ when applying for declarations
of domestic partnership?
MARK TAYLOR, EDMUND BARTON CHAMBERS
The answer to the question posed in
the headline turns, unsurprisingly,
on the facts and circumstances of each
case. This article focuses primarily upon
the court’s interpretation of “living with/
living together.” The factual and temporal
requirements of domestic partnership
declarations will not be addressed but
remain crucial considerations for a
practitioner applying for declaratory relief.
Section 11A Family Relationships Act
1975 (FRA) states that:
“A person is, on a certain date, the
domestic partner of another if—
…
(b) the person is, on that date, living with
the other in a close personal relationship
and [the temporal requirement- not
discussed in this article.]”
A close personal relationship means:
“… the relationship between 2 adult persons
… who live together as a couple on a genuine
domestic basis…”
INTRODUCTORY POINTS
• A court is not relieved of its obligation
to assess an application even if all
affected parties are unanimous in their
view of the purported relationship. 1
• Interstate authority demonstrates
the interpretive approach of other
Australian courts.
• The common judicial interpretation of
a de-facto spouse has been used by way
of analogy in South Australia. 2
• Though interstate and analogous
authority may be useful in assessing the
method by which the judiciary interpret
such applications, practitioners must
be aware of the varying definitions and
eligibility criteria.
• A court will analyse the relationship in
the round to identify the true nature
of the relationship by weighing up
the various non-exhaustive statutory
40 THE BULLETIN September 2019
factors 3 to determine that the applicant
was “living with the other in a close
personal relationship” 4 on a certain date.
• The Briginshaw 5 principle applies
to such applications: a court must
be convinced “…on the balance of
probabilities but with due regard to the
gravity of the consequences of making
the declaration sought.” 6
• In Simonis v Perpetual Trustee, it
was held that“the expression
under consideration constitutes a
single composite expression of a
comprehensive notion or concept,
and therefore has to be approached by
considering the expression as a whole
and not in several parts.” 7
To account for the infinite scope
of relationships, “living with” has been
interpreted widely. In 1919, the English
Court of Criminal Appeal held that a
husband and wife were “… living together,
not only when they are residing together
in the same house, but also when they are
living in difference places… provided the
consortium has not been determined.” 8 In
Australia, the High Court required both a
physical separation and the destruction of
the consortium vitae of the relationship
to demonstrate that a couple was living
“separately and apart.” 9 In an earlier
case, the House of Lords contrasted
partners being located in different places
with situations where there has been a
“rupture” 10 in matrimonial relations.
More recently, the South Australian
Supreme Court held that cohabitation (as
it was defined then) “does not necessarily
imply that they are always living together
under the same roof, and there may be
states of cohabitation where they see as
much of each other as they can, and yet
are not separated because there has not
been any real suspension of their ordinary
conjugal relation.” 11
It is contended that the above
considerations provide a sensible starting
point as to how a court might interpret one
person living with another. Whilst living
apart does not necessarily preclude living
together, the central question is whether
there has been a determination, rupture or
destruction of the relationship in question.
An attempt to rely upon a narrow
interpretation of “living with” was
expressly rejected in Victoria, the phrase
“… should not be construed on narrow,
formal, pedantic or merely geographical
criteria but should be considered taking into
account the human reality of the personal,
emotional and cultural complex.” 12 Partners
may be physically separated for a range
of reasons whilst still maintaining a close
personal relationship; it would be wholly

FAMILY LAW
improper to preclude declarations in such
circumstances and would “place people
claiming under [the Domestic Partnership]
provisions at the very disadvantage which
the provision is designed to remove.” 13
Recently “living together” was
considered in the light of the “peripatetic
lifestyle” of an airline pilot 14 and his partner.
The couple spent their limited contact time
at a wide range of locations. In making the
declaration, the court considered the longterm
plan of sharing a house and the public
presentation of the couple to be important.
It was held that although the test of “living
together” is not primarily locational, it has
an important locational element.
SITUATIONS TO CONSIDER
In practice, there are numerous issues
that one might encounter in regard to one
person “living with…” another. The writer
has encountered the following situations in
various contexts:
Two partners took a “break” in their
relationship. Was the applicant “living
with…” the deceased in a close
personal relationship?
Like Ross and Rachel, applicants must
be conscious if they took a “break” in their
relationship: “Where one partner determines
not to live together with the other and in that sense
keeps apart, the … relationship ceases even if the
separation is merely to enable one party or the other
to decide whether the relationship should continue.” 15
There is evidence that a couple
separates but hours before the death of
a partner. Are they “domestic partners”
at the date of death?
The answer would depend on when the
couple separated. If separation took place
on the same calendar day, the declaration
could still be made as the legislation
requires the declaration to relate to a “certain
date.” 16 If, however, the separation occurred
before or at 23:59.59, and the deceased
died at, or after, 00:00.00 (so technically the
next day), the court would technically be
unable to make the declaration at the date
of death.
What if one partner spent time in
hospital due to health issues or moved
away to work?
As long as the applicant could convince
the court that they have satisfied the
factual and temporal basis for a domestic
partnership, it is unlikely that the above
situations would preclude a declaration.
Both the applicant and the deceased
own separate residential properties.
Would this affect the merits of a
declaration application?
This is a common issue and one that is
frequently targeted in cross-examination.
Whilst not a determinative factor, multiple
residences might dilute the contention
that the relevant persons were “living
together.” Conversely, it has been held
that “the maintenance of separate residences is
necessarily inconsistent with parties having a de
facto relationship.” 17 If such issues are live
in a contested application, it is imperative
that they are carefully considered and
addressed before trial.
The applicant and the deceased only
live together in the same residence
for a small part of each week. Is an
application for a declaration likely to
fail?
There are several cases that consider
this question; it is “clearly established …
that the fact that, for example, the parties live
in the same residence, for only a small part of
each week does not exclude the possibility that
they are “living together as a couple on a genuine
domestic basis...” 18 Addressing this issue will
be specific to the facts of each case. For
example, repeated visits by an applicant to
the residence of a deceased for a “singular
purpose, without more…” was deemed
insufficient to satisfy the court of the
existence of domestic partnership.
The couple was forced apart by
circumstance such as drug addiction,
child protection intervention or fear
for the safety of a person. Could those
parties still be deemed to live together?
This question is very much determined
by the unique circumstances of a particular
case. The court would consider the nonexhaustive
statutory factors carefully.
Evidence to support such a declaration
could include:
• Written evidence of the reasons for
separation;
• Telephone records showing frequent
calls;
• Receipts for purchases or taxis near to
the other partner;
• Text and email messages;
• Photographs;
• Oral evidence of other witnesses.
The applicant maintained “singlestatus”
for Centrelink or other meansrelated
benefits during the lifetime of
the deceased. Does this mean that a
declaratory application will fail?
Evidence of lies within, or
inconsistency with, official documents
such as Centrelink applications are
not uncommon; nor are they strictly
determinative. 19 Practically, proving
a propensity to deliberately mislead
government agencies would reflect poorly
upon the misleading party. Evidence of
such conduct may create more serious
problems for an applicant.
FINAL REMARKS
Though it may appear at first blush
that an Applicant did not “live with” their
partner, there might be circumstances that
explain the separation without determining
the relationship. Living apart does not
necessarily preclude living with and
practitioners must carefully consider the
unique circumstances of each case. B
Endnotes
1 R v Bong [2013] SASC 39
2 M, S v Public Trustee [2017] SASC 71
3 Section 11B(3) FRA 1975
4 Section 11A(B) FRA 1975
5 Briginshaw v Briginshaw (1938) 60 CLR 336
6 Re Fagan (1980) 23 SASR 454 amongst others
7 (1987) 21 NSWLR 677
8 R v Creamer [1919] 1KB 564, 569
9 Main v Main [1949] 78 CLR 636
10 Nugent-head v Jacob [1948] AC 321, HL
11 Re Fagan (dec’d) (1980) 23 SASR 454, 464
12 Re Estate of Sigg (dec’d) [2009] VSC 47
13 Re Estate of Sigg (dec’d) [2009] VSC 47
14 Re Hawkins [2018] NSWSC 174
15 Hibbertson v George (1989) 12 Fam.L.R. 725
16 Section 11A FRA 1975
17 Jonah v White [2011] FamCA 221
18 Jonah v White [2011] FamCA 221
19 Aranas v Berry [2002] NSWSC 355
September 2019 THE BULLETIN 41

FAMILY LAW CASE NOTES
Family Law Case Notes
ROB GLADE-WRIGHT, THE FAMILY LAW BOOK
CHILDREN – THRESHOLD HEARING ON RICE
& ASPLUND – APPLICATION DISMISSED
In Mahoney & Dieter [2019] FamCAFC
39 (7 March 2019) the Full Court
(Alstergren DCJ, Ryan & Kent JJ)
dismissed the mother’s appeal against
dismissal of her application for variation of
a final parenting order made by the Family
Court Division of the District Court of
New Zealand (NZ) and registered in 2018
in Australia where the father lived with
the parties’ child pursuant to that order.
The order, made after a finding that the
mother posed a risk of harm, removed the
child from the mother’s care and permitted
the father to relocate with the child from
NZ to Australia, the mother to spend
supervised time with the child during
school holidays in NZ.
The mother later obtained a medical
report that she was mentally stable, and
applied to the Family Court of Australia
for the child to spend unsupervised time
with her (and ultimately live with her in
NZ). Austin J dismissed the application
as the mother had failed to establish a
sufficient change in circumstances to
warrant reconsideration of the order.
On appeal, the Full Court said ([10]):
“In describing the reason for the child’s
removal from the mother’s care … the
[NZ] court explained that:
‘ … The transfer was necessary for
the welfare and safety of [the child]
because of the mother’s intense fixed
and wrong beliefs about the father’s
behaviour … These beliefs are not
related to his parenting … If [the child]
learns about these beliefs the damage to
her will be adverse and lifelong.’”
The Court continued ([12]):
“At the final parenting hearing the
mother attributed the cause of her
42 THE BULLETIN September 2019
parental difficulties … to … a brain
injury and hypothyroidism, which she
had addressed. However, the evidence
before the [NZ] court revealed that
the mother continued to hold fixed
and wrong beliefs about the father’s
behaviour … (including that the child
was conceived through rape). ( … )”
The Court concluded ([39]):
“A proper reading of the [NZ] judgment
demonstrates that … the decision turned
not on whether or not the mother had a
mental illness, but that [her] fixed beliefs
… whatever their genesis or label, posed
a risk of harm to the child. … ”
CHILDREN – MOTHER’S SECRETLY TAKEN
VIDEO OF HAND OVERS ADMISSIBLE
– HER AUDIO OF FATHER’S PRIVATE
CONVERSATIONS WITH THE CHILDREN
INADMISSIBLE
In Coulter & Coulter (No. 2) [2019]
FCCA 1290 (15 May, 2019) Judge
Heffernan heard the father’s application to
exclude the mother’s secretly made video
recordings of the father’s attendance at
her home for hand overs and two audio
recordings of conversations between him
and the children.
After referring to a court’s discretion
(under s 135 the Evidence Act 1995 (Cth))
to exclude evidence if its probative value
is substantially outweighed by the risk of
prejudice, being misleading or wasting time
or (s 138) exclude improperly or illegally
obtained evidence unless the desirability of
admitting it outweighs the undesirability of
doing so, the Court said ([10]):
“I am satisfied that it was not improper
for the mother to make the video
recordings of the two hand overs. …
Hand overs occur in circumstances
where the mother has a legitimate
interest in her personal safety … and
in preventing the children from being
exposed to conflict and unpleasantness
between the parties. At the time that
the mother made the video recording,
it is her evidence that she had been
having ongoing difficulties of that
sort with the father. The mother had
an ongoing concern about the father’s
apparent obsessiveness with matters
personal to her and his abusive, coercive
and controlling behaviours and past
episodes of violence. She was in the
process of seeking an intervention
order against him to deal with those
issues. … Recording his behaviour
was not improper in that context, even
allowing for the secrecy with which it
was done. In considering the question
of impropriety, I also give weight to
the conclusion … that the conduct
in recording the hand over was not
contrary to a relevant Australian law.
[11] In my view, it was improper of the
mother to make secret audio recordings
of private conversations between the
father and the children. It involved a
significant breach of trust with respect
to the children, who were entitled to
privacy in their conversations with
their father irrespective of any motives
he may have had to enlist them in his
dispute with the mother.
The Court found ([12]-[23]) that the
video was not illegal but that the audio
contravened the Listening and Surveillance
Devices Act 1972 (SA) and that ([24]-
[25]) discretion should be exercised to
exclude the audio recordings because the
desirability of admitting that evidence
(as relevant to the mother’s case of
parental alienation) was outweighed by the
undesirability of doing so, having regard
to the children’s right to have private
conversations with their father. B

RISK WATCH
Details, details, details – they matter
GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
Checking the details are
correct is vitally important
for all practitioners. Not
doing could land your
client, and you in hot water.
This month we take a look at another
recent case from the South Australian
Supreme Court which contains important
Risk Management lessons. The case –
Monsere Pty Ltd v RDM Nominees Pty Ltd
[2019] SASC 126 – shows the critical
importance of taking care to ensure that
all details are correct and the potentially
serious consequences of not doing so.
The defendant (RDM) sent a Statutory
Demand to the plaintiff (Monsere) on 19
March 2019 in relation to a debt RDM
claimed was owed by Monsere. Monsere
asserted that there was a genuine dispute
and an off-setting claim in relation to the
debt claimed by RDM. Monsere instructed
its solicitors to make an application
pursuant to s.459G of the Corporations Act
2001 (Cth) for the Statutory Demand to
be set aside. Such an application must be
made within 21 days of the service of the
Statutory Demand, otherwise the company
to which the Demand is directed will be
deemed to be insolvent.
The Corporations Rules 2003 (SA)
provide that an application to set aside a
Statutory Demand “must be in accordance with
Form 2”. Form 2 is used for a number of
different types of applicants and contains
a number of parts. One part (Part B)
provided for the details of the return
date of the application to be filled in and
another part (Part C) was a section to be
completed if the originating process was
seeking an order that the company be
wound up in insolvency on the ground
that the company had failed to comply
with a Statutory Demand.
The Court noted that it was common
for the wording under Part C to be deleted
if it was not applicable. Part C – which
contained spaces for the insertion of the
details of the service of the Statutory
Demand (i.e. something which had already
occurred) – was not applicable in this
instance because the relief sought was
to set aside a Statutory Demand and not
wind-up a company.
Upon filing of a Form 2 the Registrar
must fix a time, date and place for hearing
and endorse those details on the document
at Part B. What occurred in this case is
that on 5 April 2019 (four days before
the 21 day period expired) the solicitor
for Monsere attended at the Registry
himself to file the set-aside application.
The Registry Staff filled in the date, time
and place of the hearing at Part C of the
Form 2, not at Part B. The solicitor did not
notice that the Registry Staff had written
the return date (“30 April 2019 at 2:15pm”)
in the wrong part of the document and did
not check that the document was correctly
filled out. After attending at the Registry
Monsere’s solicitor served the documents
himself on RDM’s solicitor.
RDM then disputed that an application
to set aside the Statutory Demand had
been filed because the application did
not comply with Form 2 and s.459G by
reason of the fact that it did not bear
the return date at Part B. RDM said that
because the matter was not one to which
Part C applied, the date written in Part C
could not be read as the return date for
the hearing, and that strict compliance was
required.
Monsere submitted that in the
circumstances of this matter, where Part
C of the Form was not engaged, and
where the date at Part C was a future date,
it should have been obvious to RDM
that the Registry had made a mistake and
that the date in Part C was actually the
return date. Monsere submitted that there
was therefore substantial and sufficient
compliance with the requirements of the
Act.
Judge Bochner examined a number
of the authorities on s.459G, although
she acknowledged that none of them
specifically related to a situation where
the date was on the wrong section of
the Form. It was clear from previous
cases that it was fatal to the validity of
the application if no return date at all
appeared on the document, whether or
not it was fault of the applicant – see for
example Bache Business and Printing Services
Pty Ltd v SA Hub Productions [2009] SASC
369 and Cooloola Dairys Pty Ltd v National
Foods Milk Ltd [2004] 211 ALR 293.
Judge Bochner concluded that:
“It was not for the defendant [RDM] to
attempt to ascertain the true meaning of
Part C; the time and date for the hearing
must be evident on the face of the document,
without requiring the defendant to make any
assumptions. In my view, this case cannot be
distinguished from Cooloola Dairies, despite
the factual differences both cases required the
defendant to guess, make an assumption or take
some other step to ensure that it was aware of
the hearing date for the application”.
Monsere’s application to set aside
the Statutory Demand was therefore
dismissed thereby exposing Monsere
to being wound up. It is understood
that Monsere may be appealing this
decision. Even if an appeal is lodged and
is successful it is abundantly clear that
it would have been better for Monsere
and its solicitor had the proper details
of the return date been checked and the
document corrected before service on
RDM.
Much of what practitioners do
depends greatly on getting the details
correct. This case shows that not doing
so can cause significant problems. In
cases where the solicitor is not primarily
responsible for the error the “buck” will
often stop with the solicitor. Even when
things are busy (perhaps especially
when things are busy) stop, take a
moment to check and double-check
that you have the details correct.
September 2019 THE BULLETIN 43

BOOKSHELF
MILITARY LAW IN AUSTRALIA
Abstract from Federation Press
Military Law in Australia covers
contemporary legal practice in a military
context. It is written by a stable of experts
drawn from the profession, including a judicial
officer, barristers, legal practitioners within
Defence, legal academics, and public lawyers
in government and the private sector. This is
the first comprehensive book on military law in
Australia for nearly a century, filling a hitherto
neglected area of jurisprudence.
R Creyke, D Stephens and
P Sutherland (eds)
The Federation Press 2019
PB $130.00
J Tarrant
The Federation Press 2019
HB $130.00
LEGAL AND EQUITABLE PROPERTY RIGHTS
Abstract from Federation Press
This book provides a precise understanding
of legal and equitable property. John Tarrant
sets out a unifying theory of legal and equitable
property rights and shows how property rights
fit within private law. Tarrant shows how legal
and equitable property rights fit within private
law by demonstrating that private law only has
two purposes: first, to protect personal integrity;
and second, to protect private property (our
things) through the availability of a range of
private law remedies. In simple terms, private
law provides remedies for people and for their
tangible and intangible things in interactions
with other legal persons.
J Carter & L Chang
The Federation Press 2019
PB $69.95
CONTRACT AND THE AUSTRALIAN CONSUMER LAW
Abstract from Federation Press
Contract and the Australian Consumer
Law analyses the way the Australian Consumer
Law has modified contract law. In particular,
provisions in the Australian Consumer Law in
relation to consumer guarantees for goods and
services, unfair contract terms, misleading or
deceptive conduct and unconscionable conduct
are considered and analysed. The book discusses
recent cases on these topics and extracts guiding
principles from the legislation and the cases.
The text is intended to be read from cover
to cover so as to present a birdseye view on the
operation of the legislation in the context of
contract law.
S Graw, D Parker, K Whitford,
E Sangkuhi & C Do
9th ed LexisNexis
Butterworths 2019
PB $155.00
UNDERSTANDING BUSINESS LAW
Abstract from LexisNexis
Understanding Business Law covers a range
of business law topics including contract law,
sale of goods, employment law, consumer
law, business structures, property (including
intellectual property), civil wrongs, debt recovery
and financial transactions. The authors use case
examples and real-life scenarios to illustrate
how legal principles are applied in a business
context. This ninth edition has been extensively
updated and new content includes discussion
on statutory interpretation, security interests
in property, payment systems, corporate social
responsibility, the new ‘safe harbour rules for
company directors…
44
THE BULLETIN September 2019

GAZING IN THE GAZETTE
3 JUL 2019 – 2 AUG 2019
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS
AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.
ACTS PROCLAIMED
Residential Parks (Miscellaneous) Amendment
Act 2019 (No 1 of 2019)
Commencement ss 6-19; 21; 22; 26;
Sch 1 clauses 3-6: 12 August 2019
Gazetted: 4 July 2019, Gazette
No. 31 of 2019
Statutes Amendment (Domestic Violence) Act
2018 (No 38 of 2018)
Commencement ss 7; 11; 12:
1 September 2019
Gazetted: 18 July 2019, Gazette
No. 33 of 2019
ACTS ASSENTED TO
Statutes Amendment (Child Exploitation and
Encrypted Material) Act 2019, No. 13 of
2019 (amends Child Sex Offenders Registration
Act 2006, Criminal Law Consolidation Act
1935, Evidence Act 1929 and Summary
Offences Act 1953
Gazetted:
11 July 2019, Gazette
No. 32 of 2019
Statutes Amendment (SACAT) Act 2019,
No. 14 of 2019
(amends Mines and Works Inspection Act
1920, Pastoral Land Management and
Conservation Act 1989, Residential Parks Act
2007, Retirement Villages Act 2016 and South
Australian Civil and Administrative Tribunal
Act 2013)
Gazetted:
11 July 2019, Gazette
No. 32 of 2019
Victims of Crime (Offender Service and Joinder)
Amendment Act 2019, No. 15 of 2019
Gazetted: 11 July 2019, Gazette
No. 32 of 2019
Parliamentary Committees (Petitions)
Amendment Act 2019, No. 16 of 2019
Gazetted: 11 July 2019, Gazette
No. 32 of 2019
Criminal Law Consolidation (Assaults on
Prescribed Emergency Workers) Amendment Act
2019, No. 17 of 2019
(amends Criminal Law Consolidation Act
1935, Criminal Law (Forensic Procedures) Act
2007 and Summary Offences Act 1953)
Gazetted: 1 August 2019, Gazette
No. 37 of 2019
APPOINTMENTS
Judge of the Industrial Relations Court
of South Australia
Peter Dennis Hannon
Gazetted:
25 July 2019, Gazette
No. 34 of 2019
Chairman of the Electoral Districts
Boundaries Commission
(from 19 July 2019)
The Honourable Justice Patricia Kelly, a
Judge of the Supreme Court of South
Australia
Gazetted:
26 July 2019, Gazette
No. 36 of 2019
Adelaide Cemeteries Authority Board
Director:
from 2 August 2019 until 1 August 2023
Joanna Louise Andrew
Gazetted: 2 August 2019, Gazette
No. 38 of 2019
RULES
Magistrates Court Rules 1992
Amendment 75
Gazetted: 4 July 2019, Gazette
No. 31 of 2019
Magistrates Court Rules 1992—
Corrigendum
Amendment 74
Gazetted:
25 July 2019, Gazette
No. 34 of 2019
REGULATIONS PROMULGATED (3 JULY 2019 – 2 AUGUST 2019)
REGULATION NAME REGULATION NO. DATE GAZETTED
Associations Incorporation Act 1985 185 of 2019 4 July 2019, Gazette No. 31 of 2019
Advance Care Directives Act 2013 186 of 2019 11 July 2019, Gazette No. 32 of 2019
Teachers Registration and Standards Act 2004 187 of 2019 18 July 2019, Gazette No. 33 of 2019
Evidence Act 1929 188 of 2019 18 July 2019, Gazette No. 33 of 2019
Intervention Orders (Prevention of Abuse) Act 2009 189 of 2019 18 July 2019, Gazette No. 33 of 2019
National Parks and Wildlife Act 1972 190 of 2019 18 July 2019, Gazette No. 33 of 2019
Maralinga Tjarutja Land Rights Act 1984 191 of 2019 18 July 2019, Gazette No. 33 of 2019
Land Acquisition Act 1969 192 of 2019 25 July 2019, Gazette No. 34 of 2019
Victims of Crime Act 2001 193 of 2019 25 July 2019, Gazette No. 34 of 2019
South Australian Museum Act 1976 194 of 2019 1 August 2019, Gazette No. 37 of 2019
Essential Services Commission Act 2002 195 of 2019 1 August 2019, Gazette No. 37 of 2019
Fisheries Management Act 2007 196 of 2019 1 August 2019, Gazette No. 37 of 2019
Highways Act 1926 197 of 2019 1 August 2019, Gazette No. 37 of 2019
Associations Incorporation Act 1985 198 of 2019 1 August 2019, Gazette No. 37 of 2019
September 2019 THE BULLETIN 45

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PORT AUGUSTA. 5700
P: 0418 838 807
info@outbackbusinessservices.com.au
LITIGATION ASSISTANCE
FUND
The Litigation Assistance Fund (LAF) is a
non-profit charitable trust for which the
Law Society acts as trustee. Since 1992
it has provided funding assistance to
approximately 1,500 civil claimants.
LAF receives applications for funding
assistance from solicitors on behalf of
civil claimants seeking compensation/
damages who are unable to meet the
fees and/or disbursements of prosecuting
their claim. The applications are
subjected to a means test and a merits
test. Two different forms of funding exist –
Disbursements Only Funding (DOF) and
Full Funding.
LAF funds itself by receiving a relatively
small portion of the monetary proceeds
(usually damages) achieved by the
claimants whom it assists. Claimants who
received DOF funding repay the amount
received, plus an uplift of 100% on that
amount. Claimants who received Full
Funding repay the amount received, plus
15% of their damages. This ensures LAF’s
ability to continue to provide assistance
to claimants.
LAF recommends considering whether
applying to LAF is the best course in the
circumstances of the claim. There may be
better methods of obtaining funding/
representation. For example, all Funding
Agreements with LAF give LAF certain
rights including that funding can be
withdrawn and/or varied.
For further information, please visit
the Law Society’s website or contact
Annie MacRae on 8229 0263.
LawCare
The LawCare Counselling
Service is for members of
the profession or members
of their immediate family
whose lives may be adversely
affected by personal or
professional problems.
If you have a problem, speak
to the LawCare counsellor Dr
Jill before it overwhelms you. Dr
Jill is a medical practitioner
highly qualified to treat social
and psychological problems.
The Law Society is pleased to
be able to cover the gap
payments for two consultations
with Dr Jill per patient per
financial year.
All information divulged to the
LawCare counsellor is totally
confidential. Participation by
the legal practitioner or family
member is voluntary.
To contact Dr Jill 08 8110 5279
8am-8pm, 7 days a week
LawCare is a member service
made possible by the generous
support of Arthur J. Gallagher
Family Law - Melbourne
Marita Bajinskis
formerly of
Howe Martin & Associates
is a Principal at
Blackwood Family Lawyers
in Melbourne
Marita is an Accredited Family
Law Specialist and can assist with
all family law matters including:
• matrimonial and de facto
• property settlements
• superannuation
• children’s issues
3/224 Queen Street
Melbourne VIC 3000
T: 03 8672 5222
Marita.Bajinskis@
blackwoodfamilylawyers.com.au
www.blackwoodfamilylawyers.com.au
CONSULTING
ACTUARIES
FOR PROFESSIONAL
ACTUARIAL ADVICE ON
- Personal Injury -
- Workers Compensation -
- Value Of Superannuation -
Contact
Geoff Keen or Bruce Watson
08 8232 1333
contact@brettandwatson.com.au
Ground Floor
157 Grenfell Street
Adelaide SA 5000
46 THE BULLETIN September 2019

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