LSB October 2019_LR_Web

THE
BULLETIN
THE LAW SOCIETY OF SA JOURNAL
VOLUME 41 – ISSUE 9 – OCTOBER 2019
INSIDE
Do proposed foreign fighter laws violate
human rights?
Why SA should recognise foreign lawyers
Protecting international lawyers from
state-sanctioned harm
INTERNATIONAL RELATIONS

This issue of The Law Society of South Australia: Bulletin is
cited as (2019) 41 (9) LSB(SA). ISSN 1038-6777
CONTENTS
INTERNATIONAL RELATIONS
REGULAR COLUMNS
6 Do we need to fight for human rights
in light of the Foreign Fighters Bill?
By Sangeeta Sharmin & Alexandra Lontos
10 The importance of international
participation by lawyers in SA
By Arthur Moses SC
12 Giving human rights law meaning in
SA: Why language matters
By Dr Sarah Moulds
16 International Wills, Succession and
Inheritance – By Roy Hasda
18 Endangered Lawyers need
international protection
By Professor Yasushi Higashizawa
32 The foreign influence transparency
scheme: What’s it all about?
By Laura Giaretto
34 The ‘clearly inappropriate forum’ test
for international disputes
By Dr Ricky J Lee
FEATURES & NEWS
22 Max Basheer calls time on famous
career
23 Long-serving Magistrate Michael
Ardlie retires
31 Vale: Amanda Tsouondarou
36 “Liquidated” and “Unliquidated”
Claims: Default judgments in the
Supreme, District & Magistrates
Courts – By Nick Anderson
4 From the Editor
5 President’s Message
21 Young Lawyers: Golden Gavel wrap-up
24 Risk Watch: Another important case
about solicitors’ file notes
By Grant Feary
25 Wellbeing & Resilience: Seven secrets
to a healthy mind
By Sarah El Sayed
26 Tax Files: Discretionary Trusts:
Distributions in specie – By Paul Ingram
41 Bookshelf
42 Family Law Case Notes
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 G Mottillo
The Law Society Bulletin is published
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FROM THE EDITOR
As the world gets
smaller, international
relations becomes
more important
MICHAEL ESPOSITO, EDITOR
At the time of writing, Federal Member
for Chisolm Gladys Liu still has
her job. This is despite a number of
reports suggesting she has had long-term
associations with agencies that have direct
links to the ruling Communist party in
China.
While PM Scott Morrison has assured
us that Ms Liu’s loyalties lie firmly with
Australia’s interests, this episode does raise
issues about the potential for foreign actors
to have a significant influence on national
policy.
The Federal Government, in an effort
to curb undue foreign influence, introduced
the Foreign Influence Transparency Scheme
last year. The introduction of the scheme
followed the demise of former Labor
senator Sam Dastyari’s political career
after it was revealed he accepted financial
benefits from a Chinese billionaire.
The scheme aims to make transparent
any activities from foreign entities which
could influence governmental or policy
decision-making.
Laura Giaretto, writing for the Bulletin
in this internationally themed edition,
explains how the scheme works.
As we have seen with States using
foreign nationals to help spread influence
and propaganda, the globalisation of
industry poses serious challenges for
democracy.
But is clearly in Australia’s interests to
interact and transact with foreign nations,
particularly with major trading partner
China. It is one reason why Law Council
President Arthur Moses SC writes in this
month’s Bulletin that the South Australian
legal profession would benefit from
joining the rest of Australia in formally
recognising foreign lawyers.
Mr Moses says: “Australia’s experience
is that the internationalisation of the
Australian legal profession benefitted from
a regulatory framework that provides the
flexibility for local and foreign lawyers
and law firms to enter into commercial
association on terms that suit their
business needs.”
Elsewhere in this very topical
edition of the Bulletin, the Australian
Lawyers for Human Rights scrutinises
the controversial Foreign Fighters Bill
with reference to Australia’s international
obligations.
Tokyo-based Professor Yasushi
Higashizawa, Human Rights Chair for of
LAWASIA, highlights the dangers that
lawyers face across the world just for doing
their job, and calls for greater international
protection for at-risk lawyers.
There’s plenty more to digest in this
edition which explores the dynamics
between global relations and local interests.
Enjoy! B
IN THIS ISSUE
INTERNATIONAL SUCCESSION
Claiming inheritances across
international borders
16
22
MAX BASHEER RETIRES
SA's longest-serving lawyer calls time
on remarkable career
FOREIGN INFLUENCE
Explaining the Foreign Influence
Transparency Scheme
26
4
THE BULLETIN October 2019

PRESIDENT’S MESSAGE
Reflecting on the legacy
of the Society
AMY NIKOLOVSKI, PRESIDENT, LAW SOCIETY OF SOUTH AUSTRALIA
Next month we celebrate the 140th
anniversary of the Law Society. I hope
that you can join me on 15 November at the
Treasury.
The Law Society was first established as
an unincorporated association on 13 October
1879, the first committee (the equivalent to
our current Council) was made up of Messrs
Bundey (Chair), Ayers, Moulden, Labatte,
Barlow, Bakewell, Sheridan and Hardy.
Although South Australia gave women
the vote and the ability to stand for
parliament in 1894, it wasn’t until 1911
that the Female Law Practitioners Act was
passed, allowing women to practice law in
our State for the first time.
Mary Kitson took up this opportunity
and was the first woman to be admitted to
the Bar in SA in 1917. By this time the Law
Society had approximately 120 members.
Despite South Australia’s progressive
history with regards to women’s rights
it took almost 120 years before we had
a female president, the first being Lindy
Powell QC in 1998.
The Honourable Dame Roma Mitchell
QC had in fact been elected to Vice
President in 1963, however she was unable
to take on the role of President because of
her appointment to the bench.
Over the course of the Society’s 140-year
history, there has been many prominent
lawyers to hold the role as President, many
of whom have been appointed to the Bench,
Silk and taken up parliamentary positions.
In 2012, former President Christopher
Kourakis SC was appointed to the role of
Chief Justice of the Supreme Court of
Australia, 10 years after his Presidential term
at the Society.
This year is also one for the history
books. Not only am I the youngest female
to hold the role of President, but the first
to give birth during her term - an Australian
first.
As time goes on one would hope that
women in positions of power within the
legal profession will be so common that the
birth of a baby isn’t uncommon. Following
the gender equity reforms voted in at the
2015 Law Society AGM, we should expect
to see more women in the role of President
over time.
It has been a privilege to serve as
President and to be included in the Society’s
history. I’m looking forward to celebrating
the 140th anniversary - we have so much to
be proud of. B
A roundup of recent Society meetings & conferences
ROSEMARY PRIDMORE, EXECUTIVE OFFICER
24 JULY 2019
SA ACouncil of Community Legal Services
my Nikolovski, President, Dr
Anna Finizio, Policy Lawyer and
Communications Manager, Michael Esposito
met with Catherine McMorrine, Chair,
and Ippei Okazak, Sector Development
Manager of the SA Council of Community
Legal Services. Matters discussed included
the Federal Government’s proposal for
a National Legal Assistance Partnership,
in particular the need for it to include
funding for interpreters; the Legal Services
Commission’s provision of legal aid and
of domestic violence services; the need for
continued advocacy for State-based funding;
and the impact on the homeless of the
closure of the Housing Legal Clinic.
12 AUGUST 2019
The Honourable Justice President
Dolphin
Co- Chairs of the Accident
Compensation Committee, Paul Black and
Guy Biddle and Chair of the Industrial
Relations Committee, Brian Austin met with
the Honourable Justice President Dolphin
of the SA Employment Tribunal. The status
of listings and judgments; and a variety of
matters relating to the operation of the
Tribunal were discussed with his Honour.
2 SEPTEMBER 2019
Major Indictable Reform Review Meeting
Craig Caldicott, Co-Chair of the
Criminal Law Committee represented
the Society at a meeting convened by
the Honourable Brian Martin AO QC in
relation to his review of Major Indictable
Reform. The Chair and representatives of
the Victorian Law Reform Commission
(VLRC) were in attendance to learn about
the South Australian experience and
share their findings to date in the VLRC’s
reference on Committals, to the mutual
advantage of both reviews.
5 SEPTEMBER 2019
Joint Rules Advisory Committee
President-Elect, Tim White, the
Chair of the Civil Litigation Committee,
Alexander Lazarevich and Mr Philip
Adams were joined by the Deputy Chair of
the Costs Committee, Mr Graeme Arnold
at a meeting of the Joint Rules Advisory
Committee. A proposal by the Society
for a tiered approach to the Supreme
Court Scale was discussed; and the JRAC
commenced its work of drafting a set of
Uniform Civil Rules to apply (across the
Supreme, District and Magistrates Court)
at the commencement of the Electronic
Court Management System in the civil
jurisdiction (scheduled to occur in late
February 2020). The Society will receive
a consultation draft of the Uniform Civil
Rules in due course, for provision to
Members and relevant Committees for
comment. B
October 2019 THE BULLETIN 5

INTERNATIONAL LAW
DO WE NEED TO FIGHT FOR
HUMAN RIGHTS IN LIGHT OF
THE FOREIGN FIGHTERS BILL?
SANGEETA SHARMIN, SECRETARY, AUSTRALIAN LAWYERS FOR HUMAN RIGHTS, AND ALEXANDRA LONTOS,
SOUTH AUSTRALIAN CONVENOR, AUSTRALIAN LAWYERS FOR HUMAN RIGHTS
This article explores the implications
of Australia’s “Foreign Fighters Bill”
on Australian citizens and their family
members (particularly children) in the
context of Australia’s obligations under
international law. In particular, the right
to enter your own country and the rights
of the child. It demonstrates how the
Bill raised various human rights concerns
which now present potential human rights
violations as it was passed in July 2019 and
now forms enshrined law.
In February 2019, the Minister for
Home Affairs introduced the Counter
Terrorism (Temporary Exclusion Orders) Bill
2019 (the Bill). The Bill effectively enabled
authorities to delay and then control the
return and re-entry of Australian citizens
thought to be foreign fighters back into
the Australian community. The Bill
created a regime of ‘temporary exclusion
orders’ (TEOs) that prevented the return
of Australian citizens to Australia and
‘return permits’ that enabled pre-entry and
post-entry conditions to be imposed on
returning individuals.
THE RIGHT TO ENTER YOUR OWN COUNTRY
Article 12(4) of the International
Covenant on Civil and Political Rights
(ICCPR) provides that “no one shall be
arbitrarily deprived of the right to enter
his own country”. The Bill’s Statement of
Compatibility with Human Rights used the
return permit scheme to justify the regime
and its non-arbitrary nature. However, this
justification was weak.
The Bill created a scheme whereby
the TEOs could temporarily exclude an
Australian citizen from entering Australia
for up to two years with conditions on
their re-entry into Australia capable of
being imposed for up to 12 months.
Effectively, a TEO may be issued if the
Minister ‘suspects on reasonable grounds’
that a TEO would prevent support or
assistance to a terrorist organisation or if
ASIO has assessed such a person as a risk
to security.
No independent decision-maker
is involved in the decision-making
process. After the TEO has been issued
a reviewing authority can overturn the
Minister’s decision if it is ‘legally flawed’.
The Minister is not required to give
consideration to procedural fairness
requirements and there is no merits review
mechanism. Whilst a TEO applies for a
two-year maximum period, there is no
limit to the number of successive orders
that may be issued to the same person.
The Minister is able to attach a broad
range of conditions on a return permit
if granted. For example, if an affected
person intends to use ‘specified forms of
telecommunication or other technology’
they must notify a specific person of the
intended use and provide information to
identify the telecommunication, account
or device to be identified. This could apply
to phone numbers, emails, social media
accounts and computers.
The Bill has the effect of prohibiting
an Australian citizen from legally entering
Australia for longer than two years. It may
also prohibit such a person from entering
any other country if they do not have dual
citizenship, rendering them stateless.
Any limitation on a human right
must be lawful, necessary to achieve a
legitimate objective and proportionate. It
remains unclear how the Bill’s objective
satisfies an existing gap in Australia’s
national security regime, which currently
includes the operation of approximately
75 anti-terrorism legislative pieces. The
threshold test for the imposition of a
TEO is dangerously low and the decisionmaking
process appears to lack procedural
fairness and adequate judicial oversight
in circumstances where a TEO candidate
does not have to been proven to have
engaged in any illegal behaviour.
We must question whether prohibiting
an Australian citizen to re-enter their
country of origin for up to two-years
or longer, even if they have no right to
remain elsewhere, and then imposing
conditions on a return permit for up to
a year with those conditions involving
significant curtailments on their liberty,
is proportionate to the objective of
excluding citizens from Australia who are
merely “suspected” of aiding terrorist
activity overseas.
It has been stated that “there are few,
if any, circumstances in which deprivation
of the right to enter one’s own country
could be reasonable” (CCPR General
Comment No. 27). The Bill’s arbitrary
nature is not only a contravention of
6
THE BULLETIN October 2019

INTERNATIONAL LAW
WE FULLY RECOGNISE THAT SUCH
RIGHTS MUST BE BALANCED WITH
NATIONAL INTERESTS SUCH AS THE
PROTECTION OF NATIONAL SECURITY.
October 2019 THE BULLETIN
7

INTERNATIONAL LAW
Article 12(4) of the ICCPR but also a
limitation on the well-known right to leave
and return to your own country (Article 13
of the UDHR). Such a contravention must
be lawful and proportionate.
THE RIGHTS OF THE CHILD
Children enjoy all rights guaranteed by
the ICCPR in addition to particular and
special protections under the Convention
on the Rights of the Child (CRC). The Bill
presents two particular concerns for the
rights that children are to be afforded
under international law. The first of these
is that children as young as fourteen years
old could be subject to a TEO in largely
the same way as adults are.
The Bill states that before making a
TEO or imposing a condition on a return
permit, the Minister must have regard
to the protection of the community as
the “paramount consideration” and the
best interests of the person as a “primary
consideration”. Accordingly, the protection
of the community supersedes the best
interests of the child as a consideration. It
is questionable whether this complies with
Article 3 of the CRC which emphasises
the best interests of the child.
The impact of the CRC was illustrated
in the High Court case of Minister of State
for Immigration & Ethnic Affairs v Ah Hin
Teoh [1995] HCA 20 which concerned the
impact that a father’s deportation from
Australia would have on his children. The
High Court held that Mr Teoh should have
been invited to make submissions with
respect to the deportation order.
It is concerning that the Bill does
not provide any protections, or obvious
distinctions, for how children are to be
treated. This is contrary to the nature of
our own Criminal Code which provides
special rules and safeguards for children
such as preventative control orders and the
power to appoint a lawyer.
The Bill also provides no mechanism
for a child to be heard in the decisionmaking
process to issue a TEO. Therefore,
a child of a parent who is a TEO candidate
could be excluded from any investigation
process. This is contrary to Article 12
of the CRC which provides the right for
a child who is capable of forming and
expressing their own view to participate in
the decision-making process.
Secondly, a child’s family unit will
likely be divided geographically if their
parent/s are the subject of a TEO. Having
a family member prohibited from residing
in Australia for two years or longer and
returning with stringent conditions which
likely curtail the family’s right to privacy,
impinges on the rights of the child to
family relations and family life.
The only protection afforded to
children is that certain factors are to be
considered for TEO candidates aged
14-17 years old such as their age, health,
having a meaningful relationship with their
family and their right to education and
religion. However, these protections are
limited by provisions only requiring them
to considered to the extent that they are
known by the Minister (who appears to
have no obligation to investigate them) and
to the extent ‘relevant’.
Given that these protections are
superseded by the protection of the
community as the paramount consideration,
there is a risk that these factors will not
be afforded the consideration required
under international law. The Bill presents
potential violations of the rights of children
including those reflected under Articles
8(1), 9(1), 16(1) and 20(1) of the CRC.
MOVING FORWARD
The content of the Bill, and newly
enacted legislation, is likely to have a
significant impact upon the fundamental
human rights of affected Australian
citizens. Such rights are recognised by
international human rights instruments
and include the right to enter your own
country, the right to family, the rights of
children, the right to liberty, the right to a
fair trial and the freedoms of association
and movement.
We fully recognise that such rights
must be balanced with national interests
such as the protection of national security.
However, such a balancing act must be
undertaken where it is demonstrated that
the curtailment of such rights is lawful,
necessary and proportionate to respond to
the threat of terrorism.
The regime created by the Bill affords
far reaching discretionary power to the
Executive and raises various issues. These
include constitutional validity, the absence
of judicial authorisation, accountability
and oversight mechanisms, the specific
prohibition of procedural fairness and
the lack of criminal jurisdiction exercised
over persons suspected of engaging in
terrorism.
This highlights the need for a federal
human rights Act and demonstrates why
legislative protection for our common law
freedoms has now become a matter of
urgency. Australia is the only developed
Western democracy without a human
rights Act or bill of rights. There are
an increasing number of examples of
legislative overreach in Australia including
the Data Retention Act, the Espionage and
Foreign Interference Act, laws expanding
detention for questioning and secrecy
laws applicable to offshore detention
and security operations. A federal human
rights Act would give greater power
to the courts to ensure common law
freedoms are protected and Australia’s
international human rights law obligations
are incorporated into domestic law. It
is the next vital step to contemporary
democracy. B
8
THE BULLETIN October 2019

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INTERNATIONAL LAW
THE IMPORTANCE
OF INTERNATIONAL
PARTICIPATION BY LAWYERS
IN SOUTH AUSTRALIA
ARTHUR MOSES SC, PRESIDENT, LAW COUNCIL OF AUSTRALIA
There is an enormous, and growing,
international appetite for Australian
goods and services. The majority of
Australia’s export goods are produced in
regional areas. Services, especially those
related to tourism, are also exported from
regional areas. Australian brands and
products, particularly food and agriculture
products, are known for their reliable quality
and attract high prices in foreign markets.
The potential value of goods and
services produced here by clients of
Australian law firms can only be assessed
in the context of global trade in goods
and services, which is characterised by
global value chains and increasingly
interdependent national economies.
In all states and territories except South
Australia, Australia’s arrangements for
foreign lawyers encourage and facilitate the
internationalisation of legal services and
the legal services sector by acknowledging
the practice of foreign law by foreign
lawyers as an important and formally
recognised aspect of legal practice in
Australia.
The strength of international demand
for Australian goods and services presents
an important market opportunity for small
and medium businesses in South Australia
and regional areas throughout Australia to
expand.
Exporters also receive a range of other
important benefits that improve their
competitiveness. According to Austrade,
“Exporting companies have better growth
prospects, highly skilled, highly productive
staff and tend to adapt technology and
best practice techniques faster.”
For the legal profession, increased
international participation by clients in
Australia’s regions is a growth opportunity
for lawyers in those regions.
There are opportunities for regional
lawyers to succeed by expanding their
service offering to meet the increasing
range and complexity of services that
their regionally-based clients require to
successfully compete in global markets.
The ability to provide these services is
crucial given the range of laws, regulations,
standards and procedures that exporters
need to navigate to successfully do
business in the Asia-Pacific region. Layered
on top of these formal requirements is a
diverse range of languages, cultures and
social values. These present incredible
opportunities for the well-informed and
well-advised, but will quickly defeat the
unprepared.
In this complex transnational setting,
trade and investment cannot take place in
a legal vacuum.
The starting point must be to ensure
that regulations allow both local and foreign
lawyers to work together, flexibly and in
the interests of sophisticated international
clients, to deliver comprehensive crossjurisdictional
legal advice.
For example, the Legal Profession
Uniform Law contains the following
objective:
“to encourage and facilitate the
internationalisation of legal services by
providing a framework for the regulation of the
practice of foreign law in this jurisdiction by
foreign lawyers as a recognised aspect of legal
practice in this jurisdiction.” 1
Australia’s experience is that the
internationalisation of the Australian legal
profession benefitted from a regulatory
framework that provides the flexibility for
local and foreign lawyers and law firms
to enter into commercial association
on terms that suit their business needs.
Implementing a non-restrictive and
flexible regulatory regime has allowed local
law firms to begin to work jointly with
foreign law firms in serving Australian
corporations and other clients in their
export-import or foreign investment
initiatives in the region and beyond.
However, South Australia does not
have a detailed legislative scheme such as
10
THE BULLETIN October 2019

INTERNATIONAL LAW
exists in the other States and Territories
for registration and regulation of the
provision of legal advice and services in
relation to foreign law, by foreign legal
practitioners.
In South Australia, section 3A of the
Legal Practitioners Act 1981 (SA) (the Act)
provides that “A person will not be taken
to be practising the profession of the law
by reason only of the fact that the person
provides legal advice or legal services
relating to the law of a place outside
Australia”. Although the Act does not
prevent a foreign legal practitioner from
being an employee of, or a consultant
to, a law practice, that person cannot be
held out to be a legal practitioner. This is
because a foreign legal practitioner is not
a “legal practitioner” within the definition
provided by the Act.
A corollary of foreign lawyers not
being considered legal practitioners under
South Australian law is that local and
foreign lawyers cannot form partnerships.
Overseas, the lack of availability of
fully integrated legal services is commonly
caused by regulatory systems that ban
or restrict foreign legal services. These
systems often either fail to account for
foreign lawyers entirely (for example by
requiring nationality as a precondition to
practicing law in a jurisdiction) or impose
severe restrictions on the running of
legal businesses. Restrictions can include
lengthy minimum residency requirements,
equity limits, creation of a limited range
of special business structures for use
by foreign lawyers, rules to prevent or
limit joint work with local lawyers, heavy
registration fees.
In addition to regulatory restrictions,
legal services often face a range of
“behind the border” barriers. These can
include bureaucratic and non-transparent
application and approval processes, lengthy
processing times and incidental issues such
as availability of appropriate visas.
In the absence of domestically
available and fully integrated legal services,
clients are forced to look elsewhere for
legal services or take the risk of not being
adequately advised before entering into
international transactions. Both of these
factors add unnecessary transaction costs
to international trade and investment.
Unfortunately, much effort on behalf
of foreign lawyers focusses too closely
on what foreign lawyers want, and what
foreign lawyers stand to gain from newly
opened legal services markets. While profit
from trade in legal services is important
to individual lawyers and firms, this is not
sufficient to ensure that foreign lawyer
regulations support the availability of fully
integrated legal services (i.e. legal services
that integrate advice on local, foreign and
international law).
Gains made by foreign lawyers may be
perceived as being at the expense of the
local profession. This in turn causes local
regulators to adopt a restrictive approach
to foreign legal practice which aims to
protect the local profession and limit the
benefits of legal services liberalisation to
local lawyers.
We must ensure the conversation also
includes the mutual benefits of liberalising
legal services and provide balanced and
practical guidance on how regulations
about foreign lawyers should be framed.
This was the approach adopted in the
Law Council’s 2016 Best Practice Principles
for the Regulation of Foreign Lawyers and
Transnational Law Practice.
Clients engaged in transnational
business are best served when local and
foreign lawyers are able to work together
to deliver consolidated legal advice. This
advice enables clients to appropriately
manage risks and seize opportunities
presented by international trade with
confidence. Services of this kind should be
available locally, in the region where goods
and services for export are produced.
Endnotes
1 Legal Profession Uniform Law s 58.
October 2019 THE BULLETIN 11

INTERNATIONAL LAW
Giving Human Rights Law meaning in SA:
why language matters
DR SARAH MOULDS, LECTURER IN LAW, UNIVERSITY OF SOUTH AUSTRALIA
On many accounts, South Australia has
a strong track record of upholding
international human rights law obligations
including those contained in the Convention
Against Torture 1 and the Convention on the
Rights of the Child. 2 The South Australian
courts and Parliament often go about this
work without reference to international
conventions to which Australia is a party,
or to decisions or recommendations of
international human rights bodies. Instead
they more commonly refer to concepts
drawn from our common law tradition –
such as the idea of a ‘fair trial’ or access
to judicial review of decision – or from
our deep commitment to the sometimes
competing ideas of parliamentary
sovereignty and the separation of powers.
Often, particularly in Parliament, the
discussion centres on the concept of giving
everyone a ‘fair go’ or the opportunity
to share equally in the benefits of our
society. For South Australians, it seems,
the statements being made and complaints
being heard in Geneva and New York
are generally not part of our lawmaking
discourse. Our ‘community’ is local, our
rights come from the common law and if
there’s a gap, it’s up to our Parliament to fill
it – keeping a close eye on how this will play
out in the pubs and footy fields in Adelaide
rather than on the world stage.
For many rights advocates, these
observations give rise to despair and
become a powerful justification for
structural change in terms of the way
human rights are protected in our
State. Calls are made for a statutory or
even constitutional Charter of Human
Rights based on international human
rights instruments that would require
Parliament, the Executive and the Courts
to engage directly with the language of
international human rights law, with varying
suggestions for what the consequences
should be for transgressions of those
rights. 3 These calls have been backed up
by examples of individual cases of rights
abrogation that could have been avoided or
mitigated should such reforms have been
implemented. 4 Compelling and persuasive
as these claims are, the political reality is
that they are unlikely to be heeded anytime
soon in South Australia. So what do we do
in the meantime? Forget about international
human rights concepts in South Australia,
or find another way to achieve the
protective end rights advocates seek?
This article suggests that they might
be another way. It argues that there
may be benefit in developing our own
distinctly South Australian discourse
on rights as an alternative pathway to
achieving substantive legal protection for
the rights of vulnerable South Australians.
This approach can readily coexist with a
commitment to the normative significance
of internationally recognised human rights.
It does not advocate rejecting human
rights discourse, but rather suggests
embracing and building upon the language
and values that our Parliaments already
feel comfortable with has the potential to
have rights-enhancing outcomes for South
Australians.
During 2015-2018 I studied
Commonwealth parliamentary debates and
committee deliberations in some detail
for my PhD research, looking to see how
parliamentarians from all political stripes
discussed and engaged with rights-related
ideas and principles. 5 During the same
period I worked at the South Australian
Law Reform Institute and was engaged in
an audit of South Australian laws with a
view to uncovering deficiencies in rights
compliance. 6 These two experiences
revealed something important to me that
changed my perspective on the extent
to which international human rights law
language is capable of infiltrating and
influencing legislative decision making at
the Federal and State level.
By examining the way the
Commonwealth Parliament undertakes
it rights scrutiny task in the form of
committee work, and by reflecting on
the way the Parliament discusses its
rights scrutiny functions when debating
proposed laws, I discovered that that the
Federal Parliament may already be in the
process of developing its own set of rights
scrutiny principles that – when coupled
with other parliamentary processes such
as committee review – were having
important rights enhancing impacts on
the content of legislation. 7 These rights
scrutiny principles centre around the
doctrine of parliamentary sovereignty
and parliamentary oversight of executive
action. They include principles relating to:
• the need for new executive powers to
be clearly drafted so their precise scope
and policy aim is clear to Parliament;
• the requirement to accompany the
expansion of executive power with
procedural fairness guarantees such
as access to legal representation,
preservation of common law privileges
and access to judicial review;
• the need to ensure Parliament has
access to information about how
executive officers and agencies are
using their powers.;
• the inclusion of mandated
Parliamentary review of powers
introduced to respond to extraordinary
circumstances to determine ongoing
necessity and so that any unintended
consequences can be readily identified;
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INTERNATIONAL LAW
• adherence to basic criminal law
principles when introducing new
offences, including clearly defined
physical and mental elements, allocation
of the burden of proof to the
prosecution and non- retrospectivity;
• the requirement to accompany
any restriction on free speech with
exceptions or safeguards, with a view
to enabling debate on matters of public
interest;
• the requirement to accompany any
restrictions on freedom of association
and the right to privacy with safeguards
relating to information sharing and use
immunity, and independent reporting
and oversight; and
• a general acceptance that the rights of
children require special protection. 8
These scrutiny principles
feature prominently in the work of
Commonwealth parliamentary committees
and have a particularly strong connection
to the scrutiny criteria applied by the
Commonwealth Scrutiny of Bills
Committee. 9 They also align closely with
the features and functions of both the
South Australian and Federal Parliament
and the so-called common law ‘bill of
rights’ articulated by Spigelman. 10
Many may dismiss this list of rights
scrutiny principles as nothing more than
strategic political rhetoric in parliamentary
debates, void of any substantive impact
on the rights and interests of individuals
on the ground whose rights may be being
curtailed by the laws being enacted. 11
Others may argue that the narrow focus
of this list of principles (centred strongly
around legal and political rights rather than
economic and social rights) highlights the
severe deficit within the Australian system
when it comes to protecting the rights and
interests of the most vulnerable in our
community. 12 Both of these criticisms are
compelling and are reasons to continue
to advocate for structural change in
the form of a Charter or Bill of Rights.
However, these criticisms should not be
used to completely dismiss the significance
of this emerging rights scrutiny culture,
particularly when it comes to developing
advocacy strategies for rights- enhancing
local law reform. This is because my
research suggests that these scrutiny
principles can give rise to important
legislative changes that operate to improve
rights protection for vulnerable people
and transcend party-political lines. For
example, my research suggests that these
principles were integral to securing the
inclusion of important safeguards within
Australia’s counter-terrorism framework,
and to the legislative design of oversight
bodies that have in turn improved the
rights-compliance of these laws, including
the Independent National Security
Legislation Monitor. 13 Critically for current
purposes, these scrutiny principles appear
to be shared even by parliamentarians
who are openly sceptical about the role
and value of international human rights
law in the Australian context. 14 My
findings also suggest that the application
and discussion of these principles has
a far stronger influence on legislative
outcomes than discussion or application of
international human rights law concepts,
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INTERNATIONAL LAW
such as those applied by the specialist
Joint Parliamentary Committee on Human
Rights (PJCHR). This is not intended
as a criticism of the PJCHR – but rather
an observation designed to encourage
rights advocates to think carefully about
the language they choose when seeking
to advocate for reform or persuade key
decision makers to pursue alternative, less
rights-intrusive legislative options when
seeking to implement their policy aims.
In my role at the South Australian Law
Reform Institute, I saw the findings of my
Commonwealth-based research reflected
to varying degrees in the State Parliament.
While very significant differences
characterise the process of rights scrutiny
across the two parliaments (the lack of a
Human Rights Committee at the state level
being just one), the rights scrutiny culture
has important similarities. For example,
State parliamentarians across the political
divide appear genuinely keen to ensure that
the enacted laws are actually going to work
in practice, and not have any unintended
consequences. 15 They care about how
much proposed laws might ‘cost’ – both
from an economic and community-impact
perspective. 16 They often (but not always)
seek to balance intrusive executive power
with increased independent oversight or
reporting to enable parliament to keep an
eye on how these powers are used. 17 Again,
this emerging rights-scrutiny culture is not
immune from attack on the grounds that it
is simply a disguise for political expediency
when it comes to implementing popular
(but rights intrusive) policy agendas. But at
the very least this existing rights scrutiny
culture provides an important insight for
those seeking to improve the quality of
law making in South Australia from a
rights perspective. It suggests that utilising
this type of language might have a more
persuasive impact across a broader range
of key decision makers – at least until there
is political appetite to canvass more radical
structural reform.
For example, if we want to see the
Optional Protocol to the Convention
Against Torture implemented in South
Australia to improve protection for the
rights of prisoners and other detainees, 18
we may do better to adopt the language
of ‘improved parliamentary oversight’,
‘executive accountability’, ‘improved
efficiency’ and ‘risk mitigation’ rather than
drawing upon concepts relating to the
individual freedoms and dignity of those
being detained. It also suggests that when
thinking about how to improve the rights
compliance of South Australian laws, we
should lean in to parliamentary models
of rights scrutiny – in particular models
such as the Commonwealth Scrutiny of
Bills Committee – that embrace and build
upon common law ideas and values that
are already shared by a broad spectrum of
parliamentarians, before adopting scrutiny
criteria that derived from international
human rights law source, or investing the
courts with powers to instruct or overrule
parliament when it comes to the rights
compliance.
This thinking is nothing new. It
has parallels with the findings made in
2006 by Evans and Evans in their study
on parliamentary engagement with
rights issues, 19 , and with many of the
recommendations made following the
National Consultation on Human Rights
in 2010. 20 Applied to the South Australian
context it points to a way forward for
rights advocates and for those sick of
waiting for more direct incorporation of
international human rights law into our
legal system. It suggests that ‘talking the
talk’ is of central importance. It encourages
a lean in approach that builds upon the
existing emerging rights scrutiny culture
in Australian Parliaments to advance a
substantive rights agenda at the local level. B
Endnotes
1 Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (open for signature
on 10 December 1984 ([1989] ATS 21).
2 Convention on the Rights of the Child (open for signature
on 20 November 1989 ([1991] ATS 4).
3 See e.g. Julie Debeljak, ‘Does Australia Need a Bill
of Rights?’ in Paula Gerber and Melissa Castan
(eds) Contemporary Perspectives on Human Rights In
Australia (Lawbook Co, 2013) 37-70; Megan Davis
and George Williams, ‘A Statutory Bill of Rights
for Australia? Lessons from the United Kingdom’
(2002) 22(1) University of Queensland Law Journal
1; Pamela Tate, ‘Human rights in Australia: what
would a federal charter of rights look like?’ (2009)
(13) Southern Cross University Law Review 1; George
Williams, A Charter of Rights for Australia (University
of New South Wales Press, 2007).
4 See e.g. George Williams, (2016) 16(2) ‘The legal
assault on Australian democracy’ Queensland
University of Technology Law Review 19; Carolien Van
Ham and Louise Chappell, ‘Democracy and human
rights: a tripartite conceptual framework’ (2017)
23(2) Australian Journal of Human Rights, 143; Gillian
Triggs, ‘Overreach of executive and ministerial
discretion: a threat to Australian democracy’ (2017)
7(1) Victoria University Law and Justice Journal 8; Hilary
Charlesworth, ‘Who Wins Under a Bill of Rights?’
(2006) 25 University of Queensland Law Journal 39.
5 Sarah Moulds, The Rights Protecting Role of
Parliamentary Committees: The Case of Australia’s
Counter-Terrorism Laws (PhD Thesis, University of
Adelaide) available at https://digital.library.adelaide.
edu.au/dspace/handle/2440/115212
6 South Australian Law Reform Institute, Audit Report:
Discrimination on the Grounds of Sexual Orientation,
Gender, Gender Identity and Intersex Status in South
Australian Legislation (Report, September 2015)
available at https://law.adelaide.edu.au/system/
files/media/documents/2019-01/audit_report_
lgbtiq_sept_2015.pdf
7 Sarah Moulds, The Rights Protecting Role of
Parliamentary Committees: The Case of Australia’s
Counter-Terrorism Laws (PhD Thesis, University of
Adelaide) available at https://digital.library.adelaide.
edu.au/dspace/handle/2440/115212
8 Sarah Moulds, The Rights Protecting Role of
Parliamentary Committees: The Case of Australia’s
Counter-Terrorism Laws (PhD Thesis, University of
Adelaide) available at https://digital.library.adelaide.
edu.au/dspace/handle/2440/115212
9 Senate, Parliament of Australia, Standing Order 24(2)
(a) (29 November 2017).
10 James Spigelman, ‘The Common Law Bill of
Rights’ (Speech delivered at the University of
Queensland, Brisbane, 10 March 2008); See also
Robert French, ‘The Common Law and the
Protection of Human Rights’ (Speech, Anglo
Australasian Lawyers Society, Sydney, 4 September
2009) 2; Jeffrey Goldsworthy, Parliamentary Sovereignty:
Contemporary Debates (Cambridge University Press,
2010) 17. The Common Law Bill of Rights
is also reflected in what the current Attorney
General Brandis describes as ‘traditional rights and
freedoms’.
11 See eg Greg Carne, ‘Prevent, detain, control and
order? Legislative process and executive outcomes
in enacting the Anti-Terrorism Act (No 2) 2005
(Cth)’ (2007) 10(1) Flinders Journal of Law Reform 17-
79, 43.
12 See eg. Julie Debeljak, ‘Does Australia Need a Bill
of Rights?’ in Paula Gerber and Melissa Castan (eds)
Contemporary Perspectives on Human Rights In Australia
(2013, Lawbook Co) 37.
13 See Sarah Moulds ‘Committees of Influence:
Parliamentary Committees with the Capacity
to Change Australia’s Counter-terrorism Laws’,
(2016) 31(2) Australasian Parliamentary Review 46;
Sarah Moulds, ‘Forum of choice? The legislative
impact of the Parliamentary Joint Committee of
Intelligence and Security’ (2018) 29(4) Public Law
Review 287.
14 Ibid.
15 See eg Vickie Chapman, ‘How Laws are Made’
(2019) 40(1) Adelaide Law Review 227, 229-231
16 Ibid, 228-9.
17 For further discussion of these themes see
Laura Grenfell and Sarah Moulds, ‘The Role of
Committees in Rights Protection in Federal and
State Parliaments in Australia’, (2018) 41(1) University
of New South Wales Law Review 40; Laura Grenfell
and Sarah Moulds, ‘Legislative review: Youth
treatment orders bill highlights ad hoc approach to
rights-scrutiny of bills’ (2019) 41(4) Bulletin (Law
Society of South Australia.
18 For further information about the challenges and
opportunities associated with implementing the
Optional Protocol to the Convention Against
Torture in Australia see Richard Harding, ‘Australia’s
circuitous path towards the ratification of OPCAT,
2002-2017: the challenges of implementation.
19 Carolyn Evans and Simon Evans, ‘Evaluating the
Human Rights Performance of Legislatures’ (2006)
6 Human Rights Law Review 545; Carolyn Evans and
Simon Evans, Australian Parliaments and the Protection
of Human Rights, Parl Paper No 47 (2007).
20 National Human Rights Consultation, National
Human Rights Consultation: Report (2009)
Recommendation 5, xxx–xxxi.
14
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INTERNATIONAL LAW
International Wills, Succession
and Inheritance
ROY HASDA, HASDA LEGAL
Today’s world sees families who
have lived in or come from various
countries. In multi-national Australia,
people may have been born in Australia
or an overseas country and hold dual
citizenship.
Immigrant families have left
grandparents or other members of their
families in foreign countries and those
members have assets in ‘the old country’.
Unfortunately, most of the general public
and many in the legal profession remain
unaware or unsure of how to claim or
obtain those inheritances.
This is a specialist area. As in the
European Union (EU) and many other
Civil Law jurisdictions, it is important that
Australians or Australian residents, who
find themselves in this position, are aware
of two fundamental facts:
• almost certainly it will be necessary for
you to engage a notary public; and
• it will also be important to engage a
notary who understands foreign civil
law jurisdictions and the way in which
the Law of Succession operates in
those legal systems.
National rules on inheritance in the
EU member states vary considerably. They
cover a myriad of issues including but not
limited to who inherits, in what portions
and reserved shares, the extent (if any) of
testamentary freedom and how the estate
is to be administered. But the fundamental
rule remains that the law of the State in
which the assets are located will determine
the issue of succession.
In Civil Law jurisdictions it is the
Notary who deals with the succession,
determines which documents are needed
to comply with the National Laws of
Succession and determines distribution.
Without a Notary’s involvement, even
16
THE BULLETIN October 2019
within a single State, beneficiaries may not
obtain their inheritance.
The office of a notary public has a
long and distinguished history. It is the
oldest branch of the legal profession.
Notaries have been around longer than
Christianity. But still there remains a great
deal of misunderstanding of the role of
Notaries Public in South Australia, among
the general public, and, worryingly, among
the legal profession. I had hoped that with
the passing of the Notaries Public Act 2016
a better understanding and knowledge of
Notaries generally would occur.
All Notaries are lawyers but not all
lawyers are Notaries.
But before we turn to international
succession, we should briefly look at the
concept of an “International Will”. This
can now be used to deal with assets both
in SA and in other countries.
THE INTERNATIONAL WILLS CONVENTION
On 10 March 2015, the Australian
Government acceded to The Convention
Providing a Uniform Law on the Form of an
International Will (Washington, D.C., 1973)
(“the Convention”). The convention
seeks to harmonise and simplify the
formalities for wills that have international
characteristics. It does this by establishing
a uniform law introducing a new form of
will known as an International Will.
The provisions of the Convention
were introduced in Australia by the
passing of amendments to wills and
succession legislation in all Australian state
jurisdictions. The amendments allow for the
making of International Wills in Australia
and the acceptance of International Wills
made outside of Australia into Australia for
the administration of Estate assets located
in Australia.
Under the Convention, to be a valid
International Will, a Will must:
• be made in writing, although it need
not be written by the testator in his/
her own hand and it can be written in
any language; and
• be signed and dated by the testator in
the presence of two witnesses.
In addition, a certificate must be
attached to the end of the International
Will, signed by an authorised person,
attesting that the requirements and
procedures for drafting and execution of
an International Will have been satisfied.
It should be noted here that the
International Will, if used, does not
replace any existing form of will in
Australia and the Convention has
no effect on state and territory laws
governing:
• succession:
• the construction and interpretation of
wills; and
• the revocation of wills
But International Wills are accepted
only in countries where legislation
supporting the Convention is in force.
These countries are Australia, Belgium,
Bosnia-Herzegovina, Croatia, Cyprus,
Ecuador, France, Italy, Libya, Niger,
Portugal and Slovenia and some US States
(Due to the federal nature of the United
States, individual states also had to enact
the Convention – 23 states and the District
of Columbia have done so).
INTERNATIONAL SUCCESSION
So how does a South Australian
resident (either an Australian national or
a foreign national resident in SA), who does
not have the capacity to travel overseas, obtain
or acquire an inheritance from a foreign
jurisdiction?

INTERNATIONAL LAW
In almost every instance, the host
Nation will require from the SA resident
either:
• a Power of Attorney appointing
someone in the host nation to act for
them in the succession; or
• a Certificate of Hereditary or Statutory
Declaration proving the line of
succession from the deceased; or
• both above.
Sometimes other documents such as
A Declaration of Succession (like our
Probate) or a Declaration of Acceptance
or Renouncing of an Inheritance may be
asked for. Again, these documents need
to be certified by a notary, not attested
by a lawyer or a Justice of the Peace (JP).
Unfortunately, in my experience there
continue to be both JP’s and practicing
members of the legal profession who
seek to certify documents for use
internationally.
Very often, documents proving the
identity of the beneficiaries will need to be
annexed. These also must be certified only
by a notary public. I have been privy to a
few cases where SA lawyers have sought to
attest those documents only to have them
returned as void.
Another important factor is that many
countries will require these documents in
their own language. For a Notary who is
not fluent in that language the documents
will need to be translated by a NAATI
qualified translator.
What many local practitioners also
do not know or understand is that even
if notarised, those documents must be
“Legalised”. Just as the first act of the
Notary is to verify the identity of the
beneficiary; the Notary must be verified
by our Department of Foreign Affairs
(DFAT).
Notarial acts and certificates are
recognised in all countries of the British
Commonwealth and some other countries
without the need for further certification
from DFAT. For other countries, once
the Notary has completed the act of
Notarisation, they must obtain either an
Authentication or an Apostille stamp from
DFAT. This will not occur unless the
signature and seal of the Notary is on the
database of DFAT.
An Apostille is the act of certification
required by countries subscribing to
the 1961 Hague Convention Abolishing the
Requirement for Legalisation for Foreign Public
Documents. The 1961 Convention became
operative in Australia in 1995. The
Convention abolishes the requirement of
Legalisation of a foreign country document
where that country is a signatory.
For countries not signatories to the
Hague Convention, the old legalisation
is still required. The completed notarial
act needs to have an Authentication from
DFAT, following which the document
is submitted to the foreign High
Commission, Consulate or Embassy for
another “legalisation” stamp.
These countries include, inter alia, the
UAE, Iraq, Lebanon and Vietnam. Some
countries impose restrictions on how an
authentication is affixed. For example, you
may not be allowed to have an Australian
notary certify your foreign document as a
true copy for the purposes of having an
authentication affixed.
This is a legal process. DFAT will only
issue an authentication or apostille once
satisfied that the signature, stamp or
seal on the document of a Notary is not
fraudulent.
As with our Probate Rules, the Law of
Succession of most Civil Law countries
have rules as to time limits and who and
in what shares beneficiaries may inherit. In
many cases a time limit of one year from
the date of death of the deceased applies
to either accept or reject the inheritance. In
many countries’ inheritance taxes or death
duties still apply, and some can be quite
high. If you accept the inheritance you are
liable for the taxes, if you renounce you do
not have to pay.
Civil Law succession rules are like our
rules of intestacy. In most instances the
laws of succession determine who and in
what proportions family members inherit.
And in many cases only family members
must inherit. For example, the Law of
Succession in Italy prescribes that if there
is a surviving spouse (not divorced) and no
issue, the spouse takes all; if there is one
child it is half to the spouse and half to
the child; more than one child, one third
to the spouse and the other two thirds
are shared equally by the children. Until
September 2015, only legitimate children
of the deceased were recognised but now
by amending legislation all proven children
can share in the estate.
Many of the Civil Law countries have
very similar rules as to who may inherit
and in what proportion. The laws of some
countries even provide for these rules
of succession to override testamentary
dispositions. These things should be known
and advised to potential beneficiaries when
discussing international succession.
It is beyond the scope of this article
to discuss all the possible intricacies or
exigencies of international succession.
But as I hope I have shown, a very good
start would be to seek the advice of a
Notary well versed in the laws of the
country in which the potential inheritance
is located. B
October 2019 THE BULLETIN 17

INTERNATIONAL LAW
Endangered Lawyers need
International Protection
YASUSHI HIGASHIZAWA, CO-CHAIR OF THE HUMAN RIGHTS SECTION OF LAWASIA;
PROFESSOR, FACULTY OF LAW, MEIJI GAKUIN UNIVERSITY, TOKYO
The unduly harsh sentence against
the prominent Iranian human
rights lawyer, Nasrin Sotoudeh, shocked
the global community of lawyers early
this year. It has been reported that her
representation of dissenting activists,
including women prosecuted for removing
their mandatory headscarf, resulted in
38 years’ imprisonment and 148 lashes
by the Islamic Revolutionary Court in
Tehran. 1 Major international organisations
of lawyers immediately responded with
strong statements of concern against such
oppression of lawyers and their duties. 2
Unfortunately, attacks on lawyers
for carrying out their professional duties
are nothing new and still pervasive.
LAWASIA, an association of lawyers that
advocates for the interests and concerns
of the Asia Pacific legal profession, has
published numerous statements since
2015 in support of endangered lawyers in
China, Turkey, Pakistan, the Philippines
and the Maldives. 3 More generally, the
Council of Bars and Law Societies of
Europe (CCBE) reported that it has had
to intervene in support of almost 800
cases where lawyers were subject to threats
and violence, acts of reprisal, hindrance,
intimidation, harassment, prosecution,
torture and murder for merely carrying out
their professional duties. 4
Those interferences against lawyers
came not only from government
authorities, but also from social groups
such as religious or ethnic extremists,
powerful political figures, adversarial
parties (including business powers) and
even the media. Lawyers are in danger
wherever governments target them or
fail, whether intentionally or not, to take
measures to protect the professional
activities of lawyers.
Are there any international rules to
address those situations or to hold such
aggressive or negligent governments to
account? Are the rules, if any, binding
on states as part of International Human
Rights Law (IHRL)? The answers are not
simple. The IHRL does not distinguish
lawyers from other individuals. Roles of
lawyers are, however, implied in order
to guarantee individuals’ rights to access
justice and to a fair hearing. 5 Thus, human
rights documents have correctly pointed
out that “the administration of justice
--- especially, an independent judiciary
and legal profession in full conformity
with applicable standards contained in
international human rights instruments,
are essential to the full and nondiscriminatory
realization of human rights
and indispensable to the processes of
democracy and sustainable development. 6 ”
With this understanding, the United
Nation Congress on Crime Prevention
and Criminal Justice (the UN Congress),
held every five years, adopted the Basic
Principles on Role of Lawyers (the Basic
18
THE BULLETIN October 2019

INTERNATIONAL LAW
Principles) at the 8 th UN Congress in
1990. 7 The Basic Principles consist of 29
principles, including, Principle 16, which
provides that governments shall ensure
lawyers:
• are able to perform all of their
professional functions without
intimidation, hindrance, harassment or
improper interference; and
• shall not suffer, or be threatened with,
prosecution or administrative, economic
or other sanctions for any action
taken in accordance with recognized
professional duties, standards and ethics.
The Basic Principles, on the surface,
provide international guidelines for
protecting lawyers and their professional
activities. So why do lawyers around
the world suffer from interferences and
attacks? Why do governments often fail to
acknowledge these international rules? I
would suggest that there are several flaws
in the rules.
First and foremost, the Basic Principles,
as a resolution of the UN Congress, are
by no means a binding instrument of
international law. There have been no
successful initiatives or keen interest from
states to incorporate rules of the Basic
Principles into a binding treaty. Thus, it still
continues to be a “soft law” incorporated
on a voluntary basis. Secondly, the Basic
Principles were provided without any
monitoring or implementing systems. The
UN Congress, or the UN Commission
on Crime Prevention and Criminal Justice
which succeeded the legislative function
of the UN Congress in the early 1990s,
continues to fail to discuss such systems
. Thirdly, the Basic Principles themselves
do not include a suitable provision on the
institutional protection of lawyers. Instead,
that is within the ambit of independent
bar associations or law societies (Bars) to
function as a safeguarding body of their
members.
I would like to discuss the last point
further. Clearly, in order to protect lawyers,
it is crucial to recognise the role of
independent Bars and to empower them
to protect their members. The 7 th UN
Congress in 1985 had once resolved on
that point that it is:
“[a]ware that bar associations and other
professional associations of lawyers have a
vital role and responsibility to strive to protect
and defend their members against improper
restrictions or infringement, as well as to uphold
their professional ethics.” 8
Nevertheless, the Basic Principles
adopted thereafter limit the role of Bars to
protecting lawyers’ “professional integrity”
by cooperating “with Governments”
(Principles 24 and 25). They were silent on
the Bars’ role to protect and defend their
members against improper restrictions or
infringement.
Although the Basic Principles have
the aforementioned flaws, they have
been relied upon by several UN human
rights bodies. Committees of human
rights conventions have referred to the
Basic Principles from time to time when
addressing situations of state parties. A
recent example involves China and the
Committee against Torture (CAT) of the
body that monitors the implementation of
the Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment
or Punishment. The CAT, expressing
its concerns about “the unprecedented
detention and interrogation of, reportedly,
more than 200 lawyers and activists since 9
July 2015,” recommended that the Chinese
government “stop sanctioning lawyers
for actions taken in accordance with
recognized professional duties.” 9 .
Also, there exists a monitoring
mechanism in the form of a Special
Rapporteur on the Independence of Judges
and Lawyers, at the UN Human Rights
Council, originally established in 1994.
The successive Special Rapporteurs
have produced annual reports on the
independence of lawyers since 1995.
In her recent activities, the Special
Rapporteur, Ms. Mónica Pinto, reported
that, among communications she sent to
states and one entity from August 2015 to
February 2016, “a dozen communications
contained allegations of violations of
the rights and independence of lawyers,
which included killings, attacks, threats,
intimidation, harassment and detention, as
well as undue restrictions on their work.” 10
Another recent publication on Bar
associations was a report in 2018 by the
Special Rapporteur, Mr. Diego Garcia-
Sayan. In his report, he said: “it is the duty
of all State authorities to respect the role
of bar associations in protecting their
members, so as to ensure that they are able
to carry out their professional activities
without any intimidation, hindrance,
harassment or improper interference.” 11
That recommendation might urge the
Basic Principles to be more comprehensive
by including a clear role of Bars to protect
lawyers and impose duties on governments
to respect and maintain the role of Bars.
The final question is how lawyers and
the global community could respond to
situations where lawyers are in danger as a
result of their professional activities.
First, there are many collective
initiatives among national, regional and
international associations of lawyers.
An example is The Day of the Endangered
Lawyer, held annually on 24 January,
which highlights the plight of endangered
lawyers all over the world and focusses on
a specific country every year 12 .
Secondly, the Council of Europe is
drafting a European convention on the
profession of lawyer. 13 The proposed
convention intends to impose binding
obligations on state parties in relation
to prior recommendations on the legal
profession, 14 to establish an earlywarning
mechanism to respond to
immediate threats to lawyers’ safety and
independence, and to open the future
convention to non-member states. If
successful, the proposed convention would
provide a binding international text to
protect lawyers.
October 2019 THE BULLETIN 19

INTERNATIONAL LAW
Lastly, it is worth reflecting on the
origin of the Basic Principles. The
next 14 th UN Congress will take place
in Kyoto, Japan next April (the Kyoto
UN Congress). 15 That will be the 30 th
anniversary of the Basic Principles. While
the UN Congress ceased to adopt new
international instruments long ago, it is
a good opportunity to revisit the Basic
Principles and convince states to fully
implement and even expand these rules.
The Japan Federation of Bar Associations
(JFBA) announced its position on the Basic
Principles. It urges all participating States
to “consider international mechanisms to
ensure that basic principles are observed
in each state.” It also urges the expansion
of the Basic Principles to include the
role of Bars to protect and defend their
members and to guarantee the Bars’
role under national law. This should be
achieved by a consolidated voice of lawyers
and the global community to guarantee
lawyers over the world can engage in
their professional duties, particularly with
regards to defending human rights, without
interference or fear.
I would not say that it is an easy task,
or that mere written rules could improve
the situation. That task requires struggles
and solidarity over borders, every day and
everywhere. Nevertheless, I hope that
current initiatives can be a good start to
change the situation of the legal profession,
particularly in the Asia Pacific region. B
Endnotes
1 “Husband of Iranian human rights lawyer
says she is sentenced to 38 years, 148 lashes,”
REUTERS, March 11, 2019.
2 Eg. Statements of the IBA on 15 March 2019,
the UIA on March 16 2019 and the LAWASIA
on 9 May 2019.
3 See those statements at https://www.lawasia.asn.
au/resources-publications/advocacy-documents.
4 The CCBE, “Threats to the Legal Profession,”
February 18, 2019.
5 Eg. art. 10 0f the Universal Declaration of
Human Rights and art. 14 of the International
Covenant on Civil and Political Rights (ICCPR).
6 ‘Vienna Declaration and Programme of Action,’
A/CONF.157/23 (1993), Part I, para. 27.
7 Adopted by the Eighth United Nations Congress
on the Prevention of Crime and the Treatment
of Offenders, Havana, Cuba, 27 August to 7
September 1990.
8 ‘Seventh United Nations Congress on the
Prevention of Crime and the Treatment of
Offenders, (A/CONF.121/22/Rev.1, Milan, 26
August – 6 September 1985), ‘I. DECISIONS
OF THE CONGRESS,’‘E. Other resolutions
and decision adopted by the Congress,’‘18. Role
of Lawyers,’ Preamble para.4 (pp.87-8).
9 Concluding observations of the Committee
against Torture on China, CAT/C/CHN/CO/5
(2015), paras.18-9.
10 A/HRC/32/34(2016), paras.10-12.
11 A/73/365(2018), para.106.
12 http://dayoftheendangeredlawyer.eu/
foundation/
13 http://assembly.coe.int/nw/xml/XRef/Xref-
XML2HTML-EN.asp?fileid=24466&lang=en
14 Council of Europe, Recommendation Rec
(2000)21 of the Committee of Ministers to
member states on the freedom of exercise of the
profession of lawyer.
15 http://www.un-congress.org
YOUNG LAWYERS
Young Lawyers’ Premium Dinner
The 2019 Young Lawyers’ annual
Premium Dinner was held on
Tuesday 3 September at Borsa Pasta
Cucina. The intimate crowd of early
career professionals enjoyed a night of
networking, socialising, what seemed like
never-ending Italian food, and a rousing
speech from the night’s guest speaker, her
Honour Judge Penelope Kari.
Guests arrived to an array of canapés
and took the opportunity to socialise with
each other and Judge Kari, who made sure
to get around to each table. Following
main courses, her Honour spoke about
what it takes to have a career in the law
and that the making of a good practitioner
(or person, for that matter) starts with
three key attributes: kindness, honesty
and bravery. Her Honour’s very honest
and witty account of juggling law with
life outside of the law no doubt provided
tips that the room of young lawyers will
carry with them through their careers.
Her Honour’s speech was followed by a
mouth-watering dessert spread.
The Young Lawyers’ Committee would
like to thank Judge Kari for her time,
our major sponsor, Burgess Paluch Legal
Recruitment for their continued support,
and Borsa Pasta Cucina for their incredible
hospitality and, as always, sending all guests
home very happy and extremely full.
20 THE BULLETIN October 2019

YOUNG LAWYERS
Not for the first time:
Lawyer X Inspires Famous Victory
PATRICK KERIN, LYNCH MEYER LAWYERS
facebook.com/YLCSA
On Thursday, 22 August 2019, a 1,000
strong crowd assembled at the
Rhino Room on Pirie Street to spectate
the 2019 South Australian Golden Gavel
competition.
The judging panel comprised the
Honourable Dr Robyn Layton AO QC,
Mr Tim Mellor and Mr Paul Burgess.
Thank you to all three of our judges who
provided witty insight into the strange
minds of our competitors. The judges
hardly made a mistake, apart from their
plainly misinformed criticism of the quality
of one of the questions.
Fresh off his afternoon bottle of
sparkling San Pellegrino and kissing the
Lipman Karas crocodile for good luck,
Seamus Brand kicked off the evening in
a vibrant fashion with his topic “Chief
Justice Kiefel, will you accept this rose?” The
Pros and Cons of Dating a Lawyer. Seamus
(perhaps somewhat unfairly) drew the ire
of the judges in part for his failure to work
many Kiefel CJ references into his very
humorous presentation.
Daniel Pallaras, Partner at Pallaras Legal
and eventual runner-up on the evening,
presented a well thought-out analysis of
his topic, “Meghan Markle – From Paralegal
to Princess: My 10-year plan”. Daniel is
rumoured to have spent 20 of his 24
hours’ preparation time binge watching
seasons 1-3 of popular legal television
documentary “Suits”. He is now said to be
an avid Daniel Hardman fan, and has been
quoted as saying “I like the cut of his jib”.
Polina Asmalovskaya of Woodburn &
Co took us on an interesting journey with
her topic “At least I’m not a parking inspector”
– Explaining Your Legal Career Choice to Others.
In summing up, Dr Layton remarked that,
in any event, perhaps young lawyers may be
better off employed as parking inspectors
than as lawyers in the current market.
After helpfully being let out of work
several hours early, Callum Macleod of
Minter Ellison got off to a good start
on the night with his gag: “What kind
of lawyer has it toughest?”, “A probate
lawyer – because it requires “will”-power”.
However, a poorly written topic – “Sure
I’ll do it, if you change the pension laws for
me”: Legal Recruitment in the Modern Age –
unfortunately cost Callum Macleod his
shot at gold. The author of the question
has since been reprimanded.
In a tightly contested affair, Alexandra
Douvartzidis of HWL Ebsworth was
crowned champion for her presentation
of “Hey Officer, you’ll never guess what Tony
did”: Lawyer X’s Guide to Legal Ethics. Alex
included several references to her Greek
and Italian heritage, much to the delight
of approximately 50% of the attendees
which seemingly comprised the entire
Adelaide office of HWL Ebsworth and all
of Alex’s extended family, including her
4 th cousin Ioannis who had flown in from
Icaria especially for the event. The judges
unanimously approved of Alex’s proposed
trust accounting reform of securing
clients’ monies underneath concrete slabs
in the backyard.
Alex has often been overheard
claiming to be “Adelaide’s Greatest
Solicitor” (on occasion prior to her
admission) – but it seems as though she
can at least now officially lay claim to the
illustrious title of “Adelaide’s Funniest
Solicitor (under the age of 35)”.
By all accounts, Alexandra represented
SA with distinction at the National Golden
Gavel in Darwin on 6 September 2019.
Unfortunately Alex could not complete the
double and finished in second place. In her
runner-up acceptance speech, Alex quoted
her hero, Buzz Aldrin, who once famously
mused, “second comes right after first”.
Thank you to our major sponsor
Burgess Paluch Legal Recruitment and Mr
Paul Burgess for their continued support
of the Young Lawyers.
Special mention must also go to Kate
Walkley and Amelia Garreffa for all of
their work in organising and co-ordinating
the event.
October 2019 THE BULLETIN
21

RETIREMENT
Basheer calls time on a famous career
After 68 years of continuous service,
Max Basheer finally called full-time
on his long and illustrious legal career.
Max has been an enduring figure of
both the legal and football worlds in South
Australia for many years, and holds the
record for longest-serving lawyer in SA.
The son of Lebanese immigrants, Max
was born in Kalangadoo in rural South
Australia in 1927. As a boy, Max was
obsessed with sport – with a fixation on
football, cricket and tennis taking priority
over his studies.
Max played in the first XVIII at Princes
from the time he was in second year high
school. He went on to win a blue in football
at the University of Adelaide and receive
All Australian Amateur status, earning
accolades such as best afield for South
Australia against Western Australia in 1950.
Max’s close friend Kevin Duggan AM
QC described him as an “outstanding”
footballer.
His long association with the law, his
other lifelong passion, began in 1947 when
Max articled to Povey and Waterhouse as a
law student. The legendary Elliot Johnson
QC mentored the young Max, teaching
him about legal practice and forming a
close friendship that was to last for years.
Max’s early days of practice were a time
when the culture of the South Australian
legal profession was vastly different than it
is today, as he reflected in a recent speech
given at his retirement function in June.
“In those early days, the profession was
small in number. Everyone knew everyone
else. Just imagine it, especially you young
lawyers,” he said.
Max went on to list the necessities of
a modern law firm that were not a part of
1950s practice – computers, emails, mobile
phones and photocopiers. In those early
times, Max worked on Saturday mornings
– but said Friday afternoons were often
the time for the “legendary” long legal
lunch and afternoons on the golf course.
It was a culture that Max described
as “fantastic”, compared to the relentless
pace of the modern legal profession.
Max said that it was common in the
early days of his career to practice in a
variety of areas.
“In those early days there was little
specialisation and you were expected to
do everything from drafting wills, going to
22 THE BULLETIN October 2019
Max Basheer flanked by his daughter Jayne and
Peter Pedler
court in criminal matters, commercial and
civil work and matrimonial cases,” he said.
By 1954, Max had taken the opportunity
to become partner of the firm, which was
renamed to Povey, Waterhouse and Basheer.
Max said the name change came after he
“cheekily” asked the firm about adding his
name, surprised by their decision to do so.
The long-standing association between
the Basheer name and the law in South
Australia had begun. By 1966, he became
the sole partner of Povey, Waterhouse and
Basheer, the beginning of a significant period
of growth for the firm. From the early 1990s
Max practised with Peter Humphries and
David Tillett under the banner of Reilly
Basheer Downs and Humphries, before
amalgamating with Duncan & Hannon to
form Duncan Basheer Hannon.
The rest, Max says, “is history.”
Away from the office or the courts,
Max played a vital role in the South
Australian football scene. He has been
involved in South Australian football since
1954, when he became Commissioner of
the South Australian Amateur League.
From this time, he has occupied various
Amy Nikolovski speaking at Max Basheer’s
retirement function
roles within the SANFL over 42 years, as
well as other organisations and committees.
In 1978, Max became the SANFL
president, a position he held for 25 years
until 2003. He was instrumental in the
establishment of Football Park at West
Lakes and the entry of the Adelaide Crows
into the national competition.
“He has dominated South Australian
football administration for over 40 years,”
said Kevin Duggan. “No one has ever
doubted his determination to provide
players and spectators with the best
facilities. No one has done more for the
welfare of the game in South Australia.”
Max has been bestowed a number of
honours during his long career, including
the Order of Australia and inductions
into the SANFL and AFL Hall of Fame.
His name has been immortalised in large
grey lettering on Adelaide Oval’s eastern
grandstand - the Max Basheer Stand.
“I find it quite surreal when I attend
football at Adelaide oval, sit on the
western side and see my name on the
stand. I often wonder what my Lebanese
parents, who migrated here with nothing

RETIREMENT
in the 1920’s would make of it. It really is a
dream come true,” Max said.
After 68 years of legal practice, Max
said his two daughters, Anna and Jayne,
were pleased he has made the decision to
retire. But Max said they think he’ll miss
being constantly surrounded by people –
he knows he’ll miss it too.
“People from all ages and walks of life
gravitate to him,” said David Edwardson
QC.
“Going to the football with Max is
unlike anything I have experienced before.
He’s the elderly rock star of the football
world.
“You cannot get from Max’s
prearranged personal car park to table
number one for lunch or dinner without
multiple people wanting to interact and
acknowledge him as he makes his way to
the pre-match entertainment.”
In his own speech, Max neatly summed
up the philosophy he has lived and which
has earned him so many friends over 68
years of legal practice.
“I have often said that without people
you are nothing.” B
Long-serving Magistrate
Michael Ardlie retires
ELIZABETH OLSSON
On 9 August, 2019, Deputy President
Magistrate Michael Ardlie retired from
the South Australian Employment Tribunal
after 17 years. Appointed to the Industrial
Court of South Australia on 1 July, 2002,
His Honour has seen a great deal of change
both to the structure of the Court, now
Tribunal, and to the jurisdictions over which
he presided. The workload of the Tribunal
has also dramatically increased, particularly
the Return to Work jurisdiction.
Born in Naracoorte, His Honour
attended high school at Pulteney School,
before studying law at the University of
Adelaide. He was articled to Kevin Lynch at
Lee & Partners and worked for a suburban
firm before establishing Ardlie Alvaro
Lawyers with Paul Alvaro. After 10 years,
the firm merged with Wallmans Lawyers, of
which His Honour was a partner for about
six years.
However, the bench had always
interested His Honour, particularly the
jurisdiction to which he was appointed,
having as it did, the variety of industrial law,
criminal law (in the work health and safety
jurisdiction) and workers compensation.
When he was first appointed, His
Honour made the decision to always set a
date for the delivery of his judgment after
a hearing, thereby giving himself a date to
work towards that was not too distant for
the litigants. “I managed to do that for many
years” said His Honour, smiling wryly, “but
in recent times, the work has become so
voluminous that it was just not possible to
maintain.”
During his time as an Industrial
Magistrate, His Honour has dealt with
some difficult cases, one of which being
the prosecution relating to an explosion
at a factory near Gladstone. “That was
pretty challenging and a horrific set of
circumstances,” he said. “Any death at
work is appalling and I have dealt with too
many cases where it has occurred.” He is a
strong supporter of the need for training
and preventative measures being taken by
employers.
One particular aspect of his time on
the bench that has brought His Honour
great satisfaction has been his position
as President of the Health Practitioners
Tribunal for the last six years. The Tribunal
is a separate entity from the SAET and
presides over the registration and regulation
of health practitioners, with each area of
practice having its own Board as part of
AHPRA. This has been very interesting and
challenging work, with hearings often being
complex and lengthy – a recent case of
alleged misconduct ran for 20 days.
In the course of this work, His
Honour advised that he had some very
capable counsel appear before him. “This
significantly aids us in coming to a sensible
solution to the problem before us,” he said.
His Honour was also fulsome in his
praise for his long-term Judicial Support
Officer, Nikki Pascoe. “She has been brilliant
in assisting me through my time at the Court,
she is very capable and intelligent.”
When asked if there could be
improvement from the profession, His
Honour was quick to answer. “Preparation is
the key,” he said. “I take the view that when
Retiring Magistrate Michael Ardlie
you first see a client to take instructions,
you should take a comprehensive statement
whilst the incident or event is still fresh in
their mind. This serves as a blueprint for the
file from the beginning because it gives you
time to explore and follow up issues that
affect the case, rather than they only come
up shortly before the hearing.”
Technology has aided the SAET,
particularly the new case management
system that is soon to be introduced.
“The expansion of the jurisdiction of the
Tribunal and the complex issues still to be
determined with regard to the Return to Work
Act has meant that the current volume of
work in the SAET is quite overwhelming,”
he opined. “It has been of great benefit that
my successor (Deputy President Magistrate
Cole) was appointed in advance to aid the
transition.”
His Honour has greatly enjoyed his
time on the bench but time and the age of
“statutory senility” (70) comes to everyone.
“I will miss the intellectual stimulus,” he
reflected “but it will be nice to have some
free time to discover other interests. And
I will enjoy sleeping in!” (His Honour’s
dedication to fitness and running prior to
preparing for the working day have meant
he has had very early starts during his
working life).
One interest he is pursuing is the guitar,
but His Honour also wants to see more of
Australia. And there is no doubt that he will
continue to devote time at the Norwood
Oval watching his beloved Red Legs.
We wish His Honour a very happy
retirement! B
October 2019 THE BULLETIN 23

RISK WATCH
The song remains the same – another
important case about solicitors’ file notes
GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
The importance of file notes is an oft
repeated refrain in the offices of
Law Claims. An interesting and recent
NSW case - Lemongrove Services Pty Ltd v
Rilroll Pty Ltd [2019] NSWCA 174 - again
demonstrates the critical importance of
making good and detailed file notes so
that you can protect yourself in the event
of a claim.
Anthony Brischetto, a solicitor in a
NSW firm, acted for Mr & Mrs Hanshaw
in relation to the purchase of land at
Huntleys Cove on the Parramatta River
and a café business conducted on that
land. The Hanshaws wished to purchase
the land and business, however wanted
to have included in the Contract for Sale,
which Mr Brischetto was negotiating on
their behalf, a “subject to finance” clause.
On 19 November, 2014, Mr Brischetto
wrote to the Vendors seeking that such
a clause be included. The following day,
the solicitors for the Vendors wrote back
to Mr Brischetto saying that their clients
would not agree to making the contract
“subject to finance” and would not insert
the requested clause into the contract. Mr
Brischetto met with the Hanshaws on 27
November, 2014 and the contracts were
later exchanged without the inclusion of
any “subject to finance” clause.
Mr & Mrs Hanshaw were unable to
obtain the necessary finance and were
unable to complete the purchase. They
were sued by the Vendors and agreed to
pay the Vendors’ damages which were
ultimately agreed at some $272,000. The
Hanshaws cross-claimed against their
solicitors alleging that Mr Brischetto was
in breach of retainer and duty in that he
had not told them that the Vendors had
not agreed to include the “subject to finance”
clause in the contract. They alleged that,
had they known that, they would not
have exchanged contracts. Mr Brischetto
denied that there had been a breach and
said that he had told the Hanshaws at
their meeting on 27 November, 2015 that
the Vendors had not agreed to include the
relevant clause.
The case therefore came down to
a narrow question of fact – did Mr
Brischetto on 27 November, 2014 tell the
Hanshaws about the Vendors’ refusal to
include the clause, or did he not?
Mr Brischetto’s case was that his oral
evidence that he had told the Hanshaws
about the Vendors’ position on 27
November, 2014 was corroborated by his
detailed handwritten notes. It was said
that these notes confirmed that he went
through the Contract in detail with his
clients.
The Trial Judge and the Court
of Appeal examined in detail the
evidence given by Mr Brischetto, Mr &
Mrs Hanshaw and Mr Brischetto’s file note
as to what occurred on the 27 November,
2014. The evidence of the Hanshaws was,
in effect, that they had no recollection of
ever being told that the “subject to finance”
clause had not been agreed and that, given
the obvious importance of that clause to
them, this was something that they would
have remembered. They also said that
in the absence of being explicitly told
that the clause had not been agreed they
assumed that it had been agreed.
Mr Brischetto’s notes (made shortly
after the meeting) record that:
“Loan with NAB – Val wouldn’t be done
until after exchange – will lend 70% of Val –
John [Mr Hanshaw] is okay with this – can
put in more if Val is short”
His submission was that this note
confirmed that he had raised the absence
of the “subject to finance” clause with the
Hanshaws before they signed the contract
because it was implicit in the statement
that the Hanshaws could make up a
shortfall that they knew the contracts were
not “subject to finance”.
One of the key factors in the reasoning
of all Judges in rejecting Mr Brischetto’s
defence was that nowhere in Mr
Brischetto’s file (either in correspondence
or in file notes) was there an unequivocal
statement advising the Hanshaws that the
“subject to finance” clause was not included
in the Contract. Critically the Court of
Appeal (Payne JA, with whom Bell P and
Simpson AJA agreed) held as follows:
“[38] The primary judge was entitled to
conclude that a competent solicitor
would formally communicate such
a rejection promptly to his or her
clients. Sometimes powerful proof or
evidentiary support for a proposition is
provided by the absence of something
that would reasonably be expected to
be present.
[39] The absence of a letter or email
communicating the rejection of the
clause by the vendors is consistent
with it having been overlooked by Mr
Brischetto. A solicitor, in circumstances
where there had been an explicit
request for the inclusion of a detailed
clause, which had been immediately
rejected the following day, would be
expected to communicate that rejection
to his or her clients in writing. Were
the rejection to be communicated orally,
a careful file note of that conversation
would be expected to be made. There
was neither here.”
This was not a case therefore where
the solicitor had no notes at all of the
relevant attendance, as is too often the
case. Needless to say, had there been no
notes at all the position of the solicitor
would have been even worse.
The problem here was that the notes
did not deal adequately with the critical
issue. The Risk Management lesson is
obvious – not only do file notes need to
be made, they need to properly deal with
all matters of importance, otherwise your
defence of a subsequent claim will be
compromised.
24
THE BULLETIN October 2019

WELLBEING & SUPPORT
Seven secrets to a healthy mind
SARAH EL SAYED, MEMBER, WELLBEING & RESILIENCE COMMITTEE
With great success, The Law Society’s
Wellbeing and Resilience Committee
held the annual R U OK event at the Law
Society of South Australia on 12 September.
This year’s event included a
complimentary two-hour interactive
workshop hosted by Clinical Psychologist,
Dr Tom Nehmy of Healthy Minds
Education and Training.
The Workshop aimed at arming
attendees with the psychological skills such
as helpful thinking, stress management,
regulating emotion and self-compassion
to assist them to effectively self-manage
their wellbeing and prevent the onset of
symptoms of anxiety and depression.
The workshop was well received by
everyone who attended and described as a
somewhat cathartic experience with personal
reflection and gratitude journaling. Dr Nehmy
revealed the seven secrets to a healthy mind:
Life is not perfect and, and there
is value in imperfection – Reject
perfectionism and embrace the benefits of
challenges, mistakes and failure!
Thoughts affect how you feel, but
aren’t always accurate – Thinking errors
are common.
Emotions are natural and have
evolved to help us – They are like the
weather, it’s only a problem if we get stuck.
Stress is neither good nor bad, it’s about
having the right amount.
Emotions do not control our
behaviour, our choices do – Identify
unhelpful reaction urges and use psychological
muscle. Use the Magic Question: What is the
helpful thing to do now?
Learn and live the Helpful Thinking
Process –Use the Healthy Minds template to
work through your thoughts and feelings in
challenging situations or when you feel ‘stuck’.
The most important relationship in
your life is the one you have with yourself
– Apply self-compassion rather than selfcriticism.
Chair of the Wellbeing & Resilience Committee Toni
Vozzo (left), Dr Tom Nehmy of Healthy Minds Education
& Training, Sarah El Sayed and Gianna Di Stefano.
What you focus on, you amplify in
your awareness – Attitude counts –practice
gratitude!
Dr Nehmy also revealed a complimentary
eighth secret that he describes as potentially
the most important of them all and that is to
seek support when you need it.
To access the Society’s Wellbeing and
Support Resources available, visit: www.
lawsocietysa.asn.au/Public/Lawyers/
Practitioner_Support/MHWB_
Resources.aspx
FISHER BRENNAN CONSULTING
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CONSULTING
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Guy Fisher
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October 2019 THE BULLETIN 25

TAX FILES
Discretionary Trusts: Distributions in specie
PAUL INGRAM, PARTNER, MINTER ELLISON
reasonably common method
A of extracting an asset from a
discretionary trust is to distribute it in specie
to one of the beneficiaries. This can be
done either during the life of the trust, or
on vesting/winding-up.
In the case of a distribution in specie
made by the trustee during the life of the
trust, the practical issues will include:
• is there power to make an interim
capital distribution, and to satisfy that
distribution by transferring an asset
in specie (and if so, what requirements
must be followed?)
• is the proposed recipient an eligible
beneficiary of the distributing trust?
For example:
• in recent times, it has become
increasingly common to exclude
foreign persons and entities from
ever benefiting under the trust, due
to the preponderance of Federal
(eg. FIRB) and State (stamp duty
and land tax) rules that otherwise
treat trusts as ‘foreign persons’.
This can be particularly problematic
when considering distributions to
other trusts;
• some trust deeds only allow
distributions to other trusts where
the transferee trust vests prior
to the transferor trust. (Such
provisions are an aspect of the ‘rule
against perpetuities’. Even in South
Australia, where that rule has been
repealed, it is important to note
that the repealing legislation did not
have the effect of overriding these
provisions, so they still apply);
• are there any issues in relation
to creditors, or fairness between
beneficiaries?
In the case of a distribution in specie
on vesting/winding-up of the trust, there
are some additional issues that need to be
borne in mind:
• the fact that the trust has reached its
‘vesting date’ does not necessarily mean
that the trust itself has come to an
end 1 .
• in practice, what happens on the
‘vesting date’ will depend on the terms
26 THE BULLETIN October 2019
of the particular trust deed that is
before you. Some deeds will make a
particular beneficiary or beneficiaries
immediately entitled to the trust assets.
Other trust deeds may give the trustee
a discretion to distribute to any one or
more of a defined class, but with rules
as to ‘takers-in-default’ if that discretion
is not exercised (or at least not exercised
within a particular time period). It really
is a case of ‘read the deed’.
CGT ISSUES
CGT Event
The distribution of an asset in specie
to a beneficiary will generally result in the
trustee making a capital gain, although
there is some complexity as to which CGT
Event applies, and the timing and other
issues that flow from that.
In some cases, CGT Event E5 may be
triggered before the date of the transfer, as
the making of the resolution to distribute
may itself result in the recipient beneficiary
becoming ‘absolutely entitled’ to the asset
as against the trustee. This potentially
means that the CGT Event and the actual
transfer may occur in different years.
But it is important to note that CGT
Event E5 will not always apply. As set out
in Draft Taxation Ruling 2004/D25 (which
has never been finalised), the Commissioner
takes a reasonably narrow view of ‘absolute
entitlement’, particularly where two or more
beneficiaries are involved:
‘8. The main CGT provisions to which
the concept of absolute entitlement
is relevant apply if a beneficiary is
(or becomes) absolutely entitled to
a CGT asset of the trust as against
the trustee (disregarding any legal
disability): see section 106-50 and
CGT event E5 in section 104-75.
…
10. The core principle underpinning the
concept of absolute entitlement in
the CGT provisions is the ability of
a beneficiary, who has a vested and
indefeasible interest in the entire
trust asset, to call for the asset to
…
be transferred to them or to be
transferred at their direction. This
derives from the rule in Saunders
v. Vautier applied in the context of
the CGT provisions... The relevant
test of absolute entitlement is not
whether the trust is a bare trust.
20. The most straight forward
application of the core principle is
one where a single beneficiary has
all the interests in the trust asset.
Generally, a beneficiary will not be
absolutely entitled to a trust asset if
one or more other beneficiaries also
have an interest in it.
…
23. If there is more than one
beneficiary with interests in the
trust asset, then it will usually not
be possible for any one beneficiary
to call for the asset to be transferred
to them or to be transferred at
their direction. This is because
their entitlement is not to the entire
asset.’
So in Private Binding Ruling 1012 254
771 092 (which is understood to relate to
the well-known litigation concerning the
Rinehart family), the Commissioner took
the view that ‘absolute entitlement’ was
not present, even though the trust had
reached its vesting date, as there was a
number of children who were entitled to
the trust assets as tenants-in-common.
There may also be other reasons why
‘absolute entitlement’ does not exist at
a particular point in time, so that CGT
Event E5 is not triggered. 2
However, where CGT Event E5 has
not been triggered prior to the date of the
actual transfer, then that transfer will itself
trigger either CGT Event A1 or E7. 3
CGT Concessions
To the extent that the Trustee does
incur a capital gain, consideration will need
to be given to whether it can claim any of
the CGT concessions.

TAX FILES
A detailed review of those concessions
is beyond the scope of this article, but it
should be noted that there are a few issues
with applying the CGT Small Business
Concessions to distributions in specie:
• as mentioned earlier, the time of the
CGT Event may depend upon which
CGT Event applies, and this may have
implications for satisfying the various
significant individual requirements
(and in particular whether the in
specie distribution itself needs to be
taken into account in applying those
requirements);
• proceeding by way of distribution
in specie may also complicate the
application of the payment rules of
the Small Business 15 Year Exemption
of Subdivision 152-B, and the Small
Business Retirement Exemption of
Subdivision 152-D;
• the use of a distribution in specie might
also endanger the ability of the relevant
taxpayers to access the ‘concessional
CGT cap’ that is sometimes available
for payments that flow from
Subdivisions 152-B and 152-D for
superannuation purposes 4 .
There has also been some suggestion
that a trustee making an in specie distribution
might be able to rely on the Small Business
Restructure Relief (SBRR) of Subdivision
328-G. But there are a number of issues
that need to be considered in this regard:
a. the first point is that the SBRR is about
business assets:
• the transferred asset must be an
active asset; and
• each party to the transfer must pass
one of the ‘Small Business Entity’
tests.
b. the second point is that under section
328-430(1)(c), it is a condition of the
SBRR that the transaction must not
have the effect of materially changing:
• which individuals have ‘ultimate
economic ownership’ of the asset;
and
• if there is more than one such
individual, each individual’s share of
that ultimate economic ownership.
The term “ultimate economic
ownership” is not actually defined,
although the EM indicates that a tracing
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TAX FILES
exercise is required. Importantly, for
present purposes, it would appear that
this requirement could not ordinarily
be satisfied where a discretionary
trust is involved (either as transferor
or transferee). 5 However, there is an
alternative rule in section 328-440 which
may offer some assistance. The drafting
is somewhat obscure, but it appears that
where the transferring trust has made
a family trust election, the trustee may
be able to transfer to individuals in the
family group, or even entities they control,
without breaking the ultimate economic
ownership requirement. 6 So perhaps there
is some flexibility here;
c. but even if you can get through the
above points, the SBBR still requires
that the transaction is part of a genuine
restructure of an ongoing business:
section 328-430(a). It is clear from Law
Companion Guideline LCG 2016/3
that the ATO believes that this is a
fairly narrow concept:
‘6. A ‘genuine restructure of an ongoing
business’ is one that could be reasonably
expected to deliver benefits to small
business owners in respect of their efficient
conduct of the business. It can encompass
a restructure of the way in which business
assets are held where that structure is
likely to have been adopted had the
business owners obtained appropriate
professional advice when setting up the
business. However, it is a composite
phrase emphasising that the SBRR is not
available to small business owners who
are restructuring in the course of winding
down or realising their ownership interests.
…
10. Other factors which tend to indicate that a
restructure is not a ‘genuine restructure of
an ongoing business’ include:
– where the restructure is a preliminary step
to facilitate the economic realisation of
assets, or takes place in the course of a
winding down to transfer wealth between
generations…’
The reference to ‘transfer wealth
between generations’ suggests that a transfer
which is essentially being undertaken to
divide up ownership and/or control of trust
assets may struggle to qualify as a ‘genuine
28 THE BULLETIN October 2019
restructure’. This is made even clearer in
Example 6 in the LCG.
But that is not actually the end of the
matter. Section 328-435 provides for a
‘safe harbour’, under which the genuine
restructure requirement is deemed to be
satisfied if, in the 3 year period after the
restructure:
• there is no change in the ultimate
economic ownership of any significant
assets of the business (other than
trading stock) that were transferred;
• those significant assets continue to be
active assets; and
• there is no significant or material use
of those significant assets for private
purposes.
This indicates that a trustee could make
a transfer to (for example) a second trust
with very similar beneficiaries, claim the
SBRR, and then just ensure that none of
the relevant changes occur for at least 3
years. However, advisers should note that
the LCG suggests that Part IVA might need
to be considered in these circumstances 7 .
STAMP DUTY
It should be remembered that following
legislative reforms in recent years, stamp
duty in South Australia now only applies to:
• certain types of land, namely:
• residential land;
• primary production land;
• some vacant land;
• interests in such land; and
• items ‘fixed’ to such land.
Accordingly, if the assets that are to
be transferred to the recipient fall outside
those categories, then no duty can be
payable.
To the extent that there is dutiable
property, the section 71(5)(f)
exemption will apply if the following
conditions are satisfied:
• the beneficiary is a natural person and
is taking in his or her own capacity (not
as trustee);
• the trust was created wholly or
principally for the benefit of that
beneficiary or a family group of which
that beneficiary is a member); and
• there is no consideration for the
distribution (and in this regard, it
is currently unclear whether the
assumption of mortgage obligations,
or entering into other related debt
arrangements, may be seen as
consideration which denies the 71(5)(f)
exemption).
The family farm exemption of section
71CC is also a possibility, but only where
the transferring trust (and if the recipient
is also a trust, that trust) has a class of
beneficiaries that has been restricted in
accordance with the section (which may be
unlikely). However, advisers should bear
in mind that it may be possible to do a
‘double shuffle’ – that is:
• distribute the primary production land
to a qualifying individual under the
section 71(5)(f) exemption; and
• then have that individual transfer the
primary production land to a qualifying
trust under section 71CC.
Section 71CC(1)(d) does exclude
transfers that ‘arise from arrangements or
a scheme devised for the principal purpose
of taking advantage of the benefit of this
section’, but it appears that RevenueSA
currently has no problems with the ‘double
shuffle’, as long as all other requirements
of the exemptions are satisfied.
Tax Files is contributed on behalf of the
South Australian based members of the Taxation
Committee of the Business Law Section of the
Law Council of Australia. B
Endnotes
1 Refer paras 11-14 of Taxation Ruling TR
2018/6.
2 Such as the existence of a power sale, or the
trustee’s right of indemnity: refer Kafataris [2008]
FCA 1454, Oswal [2013] FCA 745, Walrut B,
‘Trustee’s Right of Indemnity’, STEP Australia
Conference, May 2019.
3 There is some confusion in the ATO materials
as to which CGT Event applies. Private Ruling
1012 789 440 077 seems to treat CGT Event
A1 as applying. But both TR 2018/6 (at para
21) and Private Ruling 1012 916 689 897 treat
CGT Event E7 as applying. And it can make a
difference – for example, CGT Event A1 only
gives the trustee a capital gain, whereas CGT
Event E7 can also give the beneficiary a capital
gain (albeit in family limited circumstances).
4 Refer Ingram P, ‘Trust Restructuring’, Tax
Institute Darwin Seminar, 2 August 2019
5 Refer para 107 of LCG 2016/3.
6 Refer the EM at para 1.36, and Example 12 in
LCG 2016/3. If the recipient is itself a trust, it
would appear that it must have made a Family
Trust Election specifying the same test individual
as the transferring trust.
7 Refer Example 10

125 TH
ANNIVERSARY
OF WOMEN’S
SUFFRAGE LUNCHEON
THURSDAY, 31 OCTOBER 2019 • HILTON ADELAIDE • 12NOON – 3.00PM
HOSTED BY
Amy Nikolovski, President, Law Society of South Australia
PANEL MEMBERS
Her Honour Judge Mary-Louise Hribal
The Honourable Justice Judith Hughes
Marie Shaw QC
MAJOR SPONSOR

125 TH ANNIVERSARY OF WOMEN’S SUFFRAGE LUNCHEON
THURSDAY, 31 OCTOBER 2019 • 12NOON - 3PM • HILTON ADELAIDE
REGISTRATION FORM
Contact Name
Email
Firm / Organisation
Telephone
125TH ANNIVERSARY OF WOMEN’S
SUFFRAGE LUNCHEON PRICES:
EARLY BIRD
Book before 11 October 2019
REGULAR RATE
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M : Member & partner $99 per person $125 per person
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PLEASE BOOK SEATS FOR THE FOLLOWING GROUP: (alternatively book online at members.lawsocietysa.asn.au)
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PLEASE RETURN REGISTRATION FORM AND PAYMENT BY THURSDAY, 24 OCTOBER, TO:
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For phone enquiries or payments please contact Amelia Garreffa on 8229 0264 or email mcs@lawsocietysa.asn.au
Cancellations: Payment in full of the registration fee is required to be made at least five working days prior to the event. Previously paid registrations are transferable subject
to the alternate attendee being eligible to register at the same registration fee (that is a practitioner who is not a Society member is not eligible to attend in place of a member
without the price differential having been paid). Any person who has registered and paid to attend an event but is subsequently unable to do so and does not wish to transfer the
registration is able to apply to the Society for a refund, however such refunds (in whole or in part) will be at the discretion of the Law Society subject to the circumstances and
any external costs paid by the Society which cannot be recovered by us.
MAJOR SPONSOR

IN HONOUR
Amanda Tsoundarou: a dedicated
advocate who will be remembered for
her compassion and fighting spirit
In June 2019, Amanda Tsoundarou,
solicitor and advocate for access to justice,
sadly lost her battle with cancer.
Born in Adelaide in 1974, Amanda
attended Immanuel College, graduating
in 1991. After graduating high school,
Amanda attended The Travel Academy and
became qualified as a Travel Consultant.
Working in the travel industry for 13 years,
Amanda was able to indulge in her love
of travel and travelled the world, visiting
numerous countries and cultures.
In 2000, Amanda entered and won an
essay writing competition resulting in her
undertaking work experience in Russia with
the Australian Institute of International
Affairs.
She married her husband of over
16 years, Dr Paul Tsoundarou, on 29
September 2002.
Through her love of politics and her
desire to help people, Amanda began her
law degree at the University of Adelaide.
She eventually graduated with a Bachelor
of Law and a Graduate Diploma in Law
Practice, along with a Bachelor of Arts
with Honours in History and Politics and
a Diploma in Languages in French and
Japanese.
Wanting to assist the vulnerable and
disadvantaged, Amanda began working
at the Welfare Rights Centre (SA) Inc,
a community legal centre, in 2007 as an
Outreach Case worker assisting those facing
social security matters. Through the years,
she became the coordinator and champion
for the Centre’s Housing Legal Clinic, SA’s
equivalent of the Homeless Persons’ Legal
Clinic. Through this role, Amanda tirelessly
advocated for those facing or experiencing
homelessness. In 2017, Amanda took on
the role of Principal Solicitor and Manager.
Throughout her roles, Amanda
campaigned to improve access to justice
for some of our most disadvantaged
communities in South Australia. Amanda
presented papers at numerous national
conferences, including the National
Association of Community Legal Centres
Conference, National Access to Justice and Pro
Bono Conferences and the National Social
Security Rights Network Conference. Several
of her publications were published in the
South Australian Law Society’s The Bulletin,
including an opinion piece on Centrelink’s
“Robodebt” titled “Technology Fail: The
Centrelink fiasco and the impact on vulnerable
people.” As a member of the Law Society’s
Justice to Access Committee (February 2016 to
February 2019) and the Administrative Law
Committee (January 2019 to April 2019),
Amanda continued to fight for a more
equitable society.
At the time of her death Amanda
was also working towards a PhD at the
University of Adelaide, on the topic of
“Homelessness in 1979-89: What Policies worked
or Failed in the UK and the US, What lessons can
we learn?
Through her employment at the Welfare
Rights Centre (SA) Inc, Amanda travelled
regularly to regional areas, including the
APY Lands, to facilitate clinics providing
pro bono legal advice to those experiencing
homelessness and those at risk of becoming
homeless in remote and rural areas in South
Australia. She was an essential part in the
implementation of a programme to provide
access to justice to individuals living in the
Apara-Makiri-Punti-Alkara Indigenous
Protected Area.
The programme focused on educating
indigenous communities on their legal
rights regarding social security and on
building confidence and trust in the legal
system and empowering the community
to promote greater access to justice. This
pioneering work included organising a
number of community organisations and
government bodies to accompany the
Welfare Rights Centre to the APY Lands
and to assist in the developing of the legal
assistance and education programme. This
was the first time such a co-ordinated
approach to access to justice in relation to
Social Security matters had been undertaken
in the APY Lands. Much of Amanda’s
work on this programme was outside of
her responsibilities and requirements as
a member of staff at the Welfare Rights
Centre.
In 2015 Amanda received the Law
Society of South Australia’s Justice Award
for her outstanding, compassionate
approach and work regarding legal
education and access to justice for
those living in remote and indigenous
communities throughout South Australia.
In January 2019 Amanda moved to a
new role as an Early Resolution Officer
with the Commonwealth Ombudsman. She
saw this as an opportunity to further her
work assisting vulnerable people to navigate
the complexities of government agencies,
systems and processes and prevent further
injustice for already-disadvantaged people.
Amanda was a dedicated and supportive
mentor to many young lawyers and a
revered colleague.
In addition to her contributions to the
legal sector, Amanda was a talented cook,
a devoted dessert connoisseur and keen
gardener. She was a loving wife, an attentive
daughter and a true fighter for the most
disadvantaged. She will be greatly missed. B
October 2019 THE BULLETIN 31

INTERNATIONAL RELATIONS
THE FOREIGN INFLUENCE
TRANSPARENCY SCHEME ACT:
WHAT’S IT ABOUT?
LAURA GIARETTO, SENIOR LEGAL COUNSEL, LEGAL & RISK BRANCH, UNIVERSITY OF ADELAIDE
Foreign influence, when conducted
in an open, lawful and transparent
manner, contributes to our vibrant and
robust democracy by ensuring that decision
makers and the public are exposed to
diverse opinions and voices from all sectors
of society. However, when foreign actors
seek to exert influence in a way that is
hidden or not transparent, this can have
serious implications for Australia.
In order to provide the public and
government decision-makers with visibility
of the nature, level and extent of foreign
influence on Australia’s government
and political processes, the Australian
Government has enacted the Foreign Influence
Transparency Scheme Act 2018 (Cth) (the Act).
The Act commenced on 10 December
2018, and established the Foreign Influence
Transparency Scheme (the Scheme).
WHAT DOES THE SCHEME DO?
The Scheme establishes registration
obligations for individuals and entities that
undertake certain activities on behalf of a
“foreign principal”.
The types of activities that are
registrable are:
• parliamentary lobbying – lobbying a
member of Federal Parliament or their
staff on behalf of a foreign principal;
• general political lobbying – covers
lobbying activities on behalf of a
foreign principal directed towards
Commonwealth public officials,
departments, agencies or authorities of
the Commonwealth registered political
parties, or candidates in federal elections;
• communications activity - covers all
circumstances in which information or
material are disseminated, published,
32 THE BULLETIN October 2019
disbursed, shared or made available
to the public on behalf of a foreign
principal and for the purpose of political
or government influence; and
• disbursement activity - includes the
distribution of money or things of value
on behalf of a foreign principal.
WHO IS A FOREIGN PRINCIPAL?
The term “foreign principal” is defined
to include:
• a foreign government - ranging from
the government of a foreign country
or a part of it (agencies, departments,
etc) to a foreign local or regional
government body. The definition seeks
to capture all levels of government.
• a foreign political organisation -
includes a foreign political party or a
foreign organisation primarily concerned
with pursuing political objectives.
• a foreign government-related
individual (FGRI) – is an individual
who is not an Australian citizen
or Australian permanent resident
and a foreign government, foreign
government-related entity or foreign
political organisation is able to exercise
total or substantial control over the
individual.
• a Foreign government-related
entities (FGRE) – an entity will be
considered a FGRE if it is either:
οο
A company where either a
foreign government or political
organisation holds more than 15%
of share capital/voting rights;
or appoints at least 20% of the
board of directors who usually acts
according to instruction or wishes
(by formal or informal obligation);
οο
οο
or the foreign government or
political organisation is in a position
to exercise total or substantial
control over the company.
An entity that is not a company and
either its executive members, for
whatever reason, act in accordance
with the directions, instructions or
wishes of a foreign government or
foreign political organisation; or
the foreign government or political
organisation is in a position to
exercise total or substantial control
over the entity.
An entity is not a body politic and its
directors or employees are required
to be members of a foreign political
organisation and that requirement is
contained in a law, constitution, rules
or governing documents by which
the entity operates.
WHEN IS AN ACTIVITY UNDERTAKEN ON
BEHALF OF A FOREIGN PRINCIPAL?
A person or entity undertakes a
registrable activity “on behalf of ” a
foreign principal if:
• there is an arrangement with the
foreign principal;
• it is conducted in the service of the
foreign principal;
• it is conducted on the order or at the
request of the foreign principal; or
• it is conducted under the direction of
the foreign principal.
Regardless of the nature of the
relationship, both the foreign principal and
the person (or entity) must have intended
or expected that the person might or
would undertake the registrable activities
on behalf of the foreign principal.

INTERNATIONAL RELATIONS
WHAT IS THE PURPOSE OF THE FOREIGN
PRINCIPAL’S ACTIVITY?
The term “for the purpose of ” refers
to the reason behind undertaking the
activity. The Scheme captures any activity
where the sole, primary or a substantial
reason for undertaking the activity is to
influence a political or government process.
The concept of “influencing” a
political or government process includes
any attempt by a foreign principal to
influence any persons, entities, structures
or processes that are part of Australia’s
federal political and governmental
architecture, as well as any attempt to
influence the Australian public’s opinion
about Australian political and government
processes.
The Scheme captures activities that
are inherently political in nature, such as
parliamentary lobbying, as well as more
nebulous activities undertaken on behalf
of a foreign principal where the purpose,
though less obvious, is to influence an
aspect of Australia’s democratic system
(e.g. processes of government including
the creation of laws and policies, the
practices of Parliament and the conduct
of federal elections).
TO REGISTER OR NOT TO REGISTER?
Simply put:
Any person who undertakes registrable
activities on behalf of a foreign principal in
Australia is required to register under the
scheme, unless they are exempt.
It is the responsibility of the person
undertaking the activities to determine
whether they are required to register. It
is an offence not to register if you are
required to do so, and penalties apply.
EXEMPTIONS FROM REGISTRATION
The Scheme includes numerous
exemptions which apply in very specific
circumstances. If any of the exemptions
apply, a potential registrant may not need
to register even if they undertake activities
on behalf of a foreign principal. Those
seeking to rely on the exemptions should
consider their circumstances carefully. Some
examples of exemptions include:
• providing humanitarian aid or assistance;
• providing legal advice;
• providing legal representation in judicial,
criminal or civil inquiries, investigations
or proceedings;
• providing legal representation related to
government administration processes
involving the foreign principal;
• undertaking a registrable activity on
behalf of a foreign principal while
employed as an officer of a foreign
government and the activity is
undertaken in the name of the foreign
government;
• undertaking a registrable activity on
behalf of a foreign government-related
entity, the activity is a commercial
or business pursuit, the activities are
undertaken by the individual are in
their capacity as a director, officer or
employee of the foreign governmentrelated
entity, and it is clear that the
person is undertaking the activity in
their official capacity;
• where a registered charity undertakes
certain registrable activities on behalf
of a foreign principal in pursuit of the
charity’s purpose; and
• where a person is undertaking a
registrable activity on behalf of a
foreign principal and the activity
relates to the arts or to a person’s
artistic purpose.
PENALTIES
The Scheme imposes a number of
criminal penalties for non-compliance. Most
of the obligations are owed by the registrant.
The maximum penalties for offences under
the Scheme range from six months to five
years imprisonment, depending on the
seriousness of the conduct.
Refer to part 5 of the Act for more
information on enforcement and penalties.
THE TRANSPARENCY REGISTER
The Transparency Register (the Register)
provides a list of all registered activities by:
• Registrant Name,
• Activity Type,
• Foreign Principal,
• Foreign Principal country, and
• Start & End dates.
At the time of writing, there were 171
entries on the Register.
The Register can be accessed at:
https://transparency.ag.gov.au/
MORE INFORMATION
The Attorney-General’s Department
has developed a comprehensive suite of
guidance documents designed to help
people understand how the Scheme works,
and help people determine whether they
need to register. Those resources can
be accessed at: https://www.ag.gov.au/
Integrity/foreign-influence-transparencyscheme/Pages/Resources.aspx
B
October 2019 THE BULLETIN 33

INTERNATIONAL LAW
The 'clearly inappropriate forum'
test for international disputes
DR RICKY J LEE, MEMBER OF THE INTERNATIONAL LEGAL PRACTICE COMMITTEE, LAW SOCIETY OF SOUTH AUSTRALIA
Since the decision of the High Court
in Voth v. Manildra Flour Mills Pty.
Ltd., an Australian court would only
order a permanent stay of a proceeding
if it considered itself to be a “clearly
inappropriate forum” to resolve the dispute.
This “clearly inappropriate forum test” is
now nearly 30 years old.
In the joint majority judgment in Voth,
Mason C.J., Deane, Dawson, and Gaudron
JJ. adopted the “clearly inappropriate
forum” test applied by Deane J. in Oceanic
Sun Line Special Shipping Co. Inc. v. Fay, in
which the other Justices each favoured a
different approach to the same problem.
Further, the judgment expressed favour
with the discussion of “connecting factors”
and “legitimate personal or juridical
advantage” of Lord Goff of Chieveley
in Spiliada Maritime Corp. v. Cansulex Ltd.
These “connecting factors” are:
1. factors affecting convenience or
expense, such as availability of witnesses;
2. the law governing the relevant
transaction;
3. the places where the parties respectively
reside and/or carry on business; 1 and
4. “the substantive law of the forum is a
very significant factor in the exercise
of the court’s discretion, but the court
should not focus upon that factor to
the exclusion of all others”. 2
After dismissing the contentions
of there being legitimate personal and
juridical advantages for the plaintiff in
pursuing their claims in New South Wales,
Mason C.J., Deane, Dawson, and Gaudron
JJ. concluded that the appeal ought to
be allowed and for the proceeding to
be stayed permanently. 3 Since then, the
courts have applied consistently the
“clearly inappropriate test” in applications
for permanent stays, with surprising
inconsistent results except in one context,
which is that concerning cross-border
contractual disputes.
APPLICATION OF THE TEST
In most international contractual
disputes, the contract between commercial
parties would contain an exclusive
34 THE BULLETIN October 2019
jurisdiction clause by which the parties
bound themselves to have any dispute
between them litigated in a particular
jurisdiction. Generally, the parties would
be held to their bargain in agreeing to
an exclusive jurisdiction clause, as the
respective courts did in Huddart Parker
Ltd. v. The Ship “Mill Hill”; 4 Compagnie
des Messageries Maritimes v. Wilson; 5 Lopez
v. H.B.S. (P.N.G.) Ltd.; 6 Gonzalez v.
Agoda Co. Pte. Ltd.; 7 Venter v. Ilona M.Y.
Ltd.; Ilona M.Y. Ltd. v. M.D. Engineering
G.m.b.H.; 8 and F.A.I. General Insurance Co.
Ltd. v. Ocean Marine Mutual Protection &
Indemnity Association Ltd. 9 As Bell P. noted
in Australian Health & Nutrition Association
Ltd. v. Hive Marketing Group Pty. Ltd. earlier
this year, 10 other common law jurisdictions
have adopted similar approaches to these
clauses, including England, 11 Canada, 12
New Zealand, 13 Singapore, 14 and the United
States. 15 In Australia and New Zealand, this
is particularly the case in matters involving
a contest between an Australian court and a
New Zealand court, as courts are bound by
the respective Trans-Tasman Proceedings Acts
2010 to give effect to any exclusive choice
of jurisdiction agreed between the parties,
regardless of any other relevant factor that
the court is meant to take into account at
common law or by statute. 16
The greater difficulty arises when
not all parties to the dispute are party to
a contract with an exclusive jurisdiction
clause, as was the case in Australian
Gourmet Pastes Pty. Ltd. v. I.A.G. New
Zealand Ltd., 17 or when there may be two
commercially connected contracts between
the same parties but they specify different
jurisdictions as the exclusive forum for
litigation, as was the case in Australian
Health. 18 In Australian Gourmet Pastes, the
Australian plaintiff brought a proceeding
in the County Court of Victoria against
a New Zealand defendant, Endeavour
Packaging Pty. Ltd., and its insurer, which
is also a corporation registered in New
Zealand, and Judge Anderson considered
himself bound by statute to stay the
proceeding because the insurance policy
contained an exclusive jurisdiction clause
that nominated New Zealand courts. 19
On appeal to the Court of Appeal, Tate
J.A. (with whom Santamaria and Beach
JJ.A. agreed) held that, as the plaintiff
was not personally a party to the contract
of insurance, the exclusive jurisdiction
clause had no application to it. 20 Tate J.A.
went on further to find that, as most of
the witnesses are located in New South
Wales and Victoria and the differences
between Australian law and New Zealand
law being insignificant on the issue of
product liability, the factors refusing a stay
outweighed those in favour of it, and held
accordingly. 21
In Australian Health, the dispute
involved involving Australian Health &
Nutrition Association Ltd. (Sanitarium) and
Rebel Sport Ltd. (Rebel), both Australian
corporations and the plaintiffs, and Emirat
Ltd. (Emirat) of the United Kingdom and
Hive Marketing Group Pty. Ltd. (Hive) of
Australia as defendants. There was one
contract involving all parties other than
Rebel that was governed by English law
and contained an exclusive jurisdiction
clause for England, while another contract
involving all parties other than Emirat that
was governed by New South Wales law
and contained a non-exclusive jurisdiction
clause for New South Wales. 22 In such
cases as well as cases involving exclusive
jurisdiction clauses generally, Bell P. (with
whom Bathurst C.J. and Leeming J.A.
agreed) noted: 23
In such cases, two very powerful policy
considerations may be in play and,
depending on the facts, in tension.
They are, on the one hand, the desire to
and importance of holding commercial
parties to their bargain, and, on the
other hand, trying to ensure that all
aspects of a dispute between all parties
(including, relevantly, non-contracting
parties) be resolved in one place at
the one time, the rationale for this
being not only judicial “tidiness”
and “efficiency” but, perhaps more
profoundly, the high desirability of
minimising the possibility or prospect
of different courts reaching different

INTERNATIONAL LAW
decisions (whether as to the facts or
the law or both) in relation to the
same dispute, a consequence apt to
undermine confidence in the rule of
law were it to materialise.
In the circumstances of the case,
the Court of Appeal upheld the stay of
proceeding granted by McDougall J. at
first instance as between the plaintiffs and
Emirat, 24 on the basis that Sanitarium was
bound by the exclusive jurisdiction clause
in the contract between it and Emirat to
litigate their dispute in England. 25 What
was notable in this case was that Rebel,
which was not party to the contract
containing the exclusive jurisdiction clause
for England, was in effect compelled
into making an election between joining
Sanitarium in having the entirety of the
dispute litigated in England, or limit its
monetary claim to that against Hive (as
it had pleaded) and continue in New
South Wales, which appeared to have
been motivated, at least in part, by the
knowledge that Rebel must have had
regarding the exclusive jurisdiction clause
involving Emirat as Rebel and Sanitarium
shared the same firm of solicitors. 26
SOME OBSERVATIONS
It is apparent from Australian Gourmet
Pastes and Australian Health:
1. contracting parties are usually held
to the terms of their bargain if the
terms of their agreement contain a
choice of an exclusive jurisdiction,
especially in a case involving a contest
between Australian and New Zealand
jurisdictions;
2. lawyers need to exercise care in
negotiating and drafting governing law
and exclusive jurisdiction clauses in
multiple and related contracts involving
different parties; and
3. there is need for caution in
representing multiple parties in the
same proceeding where the position(s)
and knowledge of the respective
parties are not aligned in entirety. B
Endnotes
1 [1987] A.C. 460 at 478.
2 Above n. 1, at 566 per Mason C.J., Deane,
Dawson, and Gaudron JJ.
3 As above, at 571.
4 (1950) 81 C.L.R. 502 (Dixon J.).
5 (1954) 94 C.L.R. 577 (Dixon C.J., McTiernan,
Fullagar, Kitto, and Taylor JJ.).
6 [2018] A.C.T.S.C. 190 (McWilliam As.J.).
7 [2017] N.S.W.S.C. 1133 at [34] per Button J.
8 [2012] N.S.W.S.C. 1029 (Rein J.).
9 (1997) 41 N.S.W.L.R. 559 at 569 per Giles C.J.
Comm. D.
10 (2019) 367 A.L.R. 146 (Bathurst C.J., Bell P., and
Leeming J.A.).
11 Donohue v. Armco Inc. [2002] 1 All E.R. 749 (Lord
Bingham of Cornhill, Lord Mackay of Clashfern,
Lord Nicholls of Birkenhead, Lord Hobhouse of
Woodborough, and Lord Scott of Foscote).
12 Z. I. Pompey Industrie v. E.C.U.-Line N.V. [2003] 1
S.C.R. 450 (McLachlin C.J., Gonthier, Iacobucci,
Major, Bastarache, Binnie, and LeBel JJ.).
13 Kidd v. Van Heeren [1998] 1 N.Z.L.R. 324 (Allan J.).
14 Vinmar Overseas (Singapore) Pte. Ltd. v. P.T.T.
International Trading Pte. Ltd. [2018] S.G.C.A. 65
(Sundaresh Menon C.J., Andrew Phang Boon
Leong, Judith Prakash, Tay Young Kwang, and
Steven Chong JJ.A.).
15 M/S Bremen v. Zapata Off-Shore Co (The Chaparral)
(1971) 407 U.S. 1 (Burger C.J., Douglas, Brennan,
Stewart, White, Marshall, Blackmun, Powell, and
Rehnquist JJ.).
16 Trans-Tasman Proceedings Act 2010 (Cth.), ss. 17-20;
and Trans-Tasman Proceedings Act 2010 (N.Z.), ss.
22-24. See Australian Gourmet Pastes Pty. Ltd. v.
I.A.G. New Zealand Ltd. (2017) 321 F.L.R. 345
(Tate, Santamaria, and Beach JJ.A.).
17 Above n. 19.
18 Above n. 13.
19 Australian Gourmet Pastes Pty. Ltd. v. Endeavour
Packaging Pty. Ltd. [2016] V.C.C. 455 (Judge
Anderson).
20 Above n. 19, at 345.
21 As above, at 365-367. Although the relevant test
in the proceeding, as prescribed by the Trans-
Tasman Proceedings Act, was a “more appropriate
forum” test, it is the author’s contention that
if a New Zealand court cannot be said to be a
“more appropriate forum”, it can hardly be said
that the County Court of Victoria was a “clearly
inappropriate forum”. See also Re Douglas Webber
Events Pty. Ltd. (2014) 291 F.L.R. 173 (Brereton J.).
22 Above n. 21, at 153 per Bell P.
23 Above n. 21, at 164. See also Incitec Ltd. v.
Alkimos Shipping Corp. (2004) 138 F.C.R. 496
(Allsop J.); and Donohue v. Armco Inc. [2002]
1 All E.R. 749 (Lord Bingham of Cornhill,
Lord Mackay of Clashfern, Lord Nicholls of
Birkenhead, Lord Hobhouse of Woodborough,
and Lord Scott of Foscote).
24 [2018] N.S.W.S.C. 1236 (McDougall J.).
25 Above n. 13, at 170.
26 As above.
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COURT RULES
“Liquidated” and “Unliquidated” Claims:
Default judgments in the Supreme,
District and Magistrates Courts
NICK ANDERSON, MEMBER, CIVIL LITIGATION COMMITTEE
Default Judgments are relatively
common, especially in the Magistrates
Court. Approximately 25,000 civil actions
are filed in the Magistrates Court each year
of which about 25% are resolved by way
of default judgment.
The percentage of minor civil matters
resulting in default judgments is even
higher. Approximately 50% of minor civil
claims result in default judgment. 1
The Rules and procedures for
obtaining default judgment in South
Australia differ depending on the Court,
whether the claim seeks relief under
Federal legislation 2 , and whether the
claim is “for a liquidated sum”, or is for
an “unliquidated claim”, or is a claim for
property damage, or is a claim for recovery
of premises or ejectment and includes a
claim for mesne profits.
A review of the Courts Rules is
currently underway for the purpose of
the introduction of the Electronic Court
Management System (ECMS). The review
is likely to result in new Rules.
As such, this article might become
redundant soon after it is published, but
until then, here is an overview of the
current Rules and procedures in relation
to default judgments in South Australian
Courts.
MAGISTRATES COURT – INITIATING FORMS
• Leaving aside special types of actions 3
minor civil claims are to be filed using
Form 3 4 .
• Form 3 does not ask a minor civil
claimant to nominate whether the claim
is liquidated or unliquidated.
• General claims in the Magistrates Court
are to be filed using Form 2 5 .
• Form 2 seemingly requires 6 the plaintiff
to nominate whether the claim is
liquidated or unliquidated.
• Neither “liquidated claims” nor
“unliquidated claims” are defined in the
Magistrate Court Rules. The expression
“liquidated” first appears in the Rules in
MCR61 which relates to the procedures
available for default judgments for
certain types of claims.
36 THE BULLETIN October 2019
MAGISTRATES COURT – DEFAULT JUDGMENT
PROVISIONS (FAILURE TO FILE A DEFENCE 7 )
The default judgments provisions are
found in MCR60, MCR61 and MCR62.
In basic terms, MCR60 sets out when
an application for default judgment can
be made, MCR61 specifies the types of
claim where judgment can be entered for
a specific sum, and MCR62 sets out the
process and requirements for claims where
the quantum of damages has to be assessed.
MCR60
If a claim is filed and served and a
defence is not filed within 21 8 days after
service, then the Plaintiff can ask the
Registrar to enter default judgment 9 . A
Plaintiff does this by completing and filing
Form 18.
To enter default judgment under
MCR60, the Registrar has to first satisfy
themselves that service has been affected
and of the date of service.
How to calculate the date of service
is not as simple as it might first appear as
it depends on the method of service. In
relation to default judgments for failure to
file a defence, the Plaintiff and the Registrar
have to have regard to both MCR52 and
MCR60(3). Requirements in relation to
service 10 and the issue of whether there has
been effective service are beyond the scope
of this article.
MCR61 or MCR62?
Assuming that MCPD7 and Form18A
are not applied 11 the Registrar considering
an application for default judgment has to
pay close attention to the provisions of
MCR61 and MCR62.
MCR61 and MCR62 prescribe what
orders can be made in relation to applications
for default judgments depending on which of
five categories the claim falls into:
• where the claim is for a debt -
MCR61(1)(a)
• where the claim is for a liquidated
sum - MCR61(1)(a)
• where the claim is in relation to
property damage and any consequential
loss - MCR61(1)(b)
• any other types of claims - MCR62
A Registrar who applies the wrong
categorisation may fall into jurisdictional
error.
As noted in paragraph [4] above,
a Plaintiff filing a claim in Form 2 is
asked to nominate whether their claim is
liquidated or unliquidated. Form 2 is to be
compared to MCR61(1)(a), which does not
refer to “liquidated claims”, but refers to
claims for liquidated sums.
The detail sought in Form 2 must be
a short hand reference and asking the
Plaintiff to nominate whether their claim
is “for a liquidated sum” as referred to
in MCR61. That is, Form 2 is not asking a
Plaintiff to nominate whether their claim
is a liquidated claim at common law.
Irrespective of the Plaintiff ’s selection
on Form 2, ultimately it is for the Court
to determine which category the claim
actually falls into. A Registrar who relies on
a Plaintiff ’s nomination in Form 2 could
very easily fall into jurisdictional error.
There are some useful authorities in
relation to MCR61 and MCR62.
Jaffer v Chakasa
In Jaffer v Chakasa PTY LTD [2003]
SASC 123, the claim in question was for
“$7,500 damages” being the difference
between the sale price of a car ($18,500),
and the minimum price that the appellant
said that the respondent had promised to
sell the car for ($26,000).
At [19-20] Perry J set aside the
default judgment for $7,500 because His
Honour considered that default judgment
application in relation to a claim for
“$7,500 damages” should have been dealt
with under MCR62 and not MCR61(1).
His Honour did not express any view
on what the approach would have been
if the claim had simply said “$7,500”
and had not referred to any claim for
“damages”.
Hamilton-Smith v Bernsteen
In Hamilton-Smith v Bernsteen Pty Ltd
(In Liq) [2004] SASC 212 (22 July, 2004)
the claim was for $27,723.29 being the
balance of money due for goods sold and
delivered under a contract.

COURT RULES
At [13-17] Anderson J agreed with
a Magistrate’s assessment that a claim
was a claim for a liquidated amount, and
therefore found that it was appropriate
for the Magistrate to have entered default
judgment in a specific sum under MCR61
and appropriate to not have proceeded
under MCR62.
Marmanidis v Germein
In Marmanidis v Germein & Anor [2017]
SASC 103 (7 July, 2017) the claim was
for $2,080 for damages, being $1,589 for
repairs to a car and $491 for a hire car. In
August 2013, default judgment was entered
for the full amount of the claim. In July,
2016, and when Dr Marmanidis’ property
was on the brink of sale following
steps taken to enforce the judgment,
Dr Marmanidis brought an application
to set aside the default judgment. In
October, 2016 the application to set aside
the default judgment was dismissed. In
October, 2016 an application for judicial
review was brought in the Supreme Court
with the Attorney-General intervening.
At [123] Hinton J considered MCR61.
At [127] His Honour found that the
applicable default judgment procedure was
MCR61(1)(b).
Having found that MCR61(1)(b)
applied, His Honour found that to obtain
default judgment in a specific amount,
the Plaintiff also had to show compliance
with the requirements in MCR61(2). Since
MCR61(2) had not been fully complied
with, His Honour found [at 135 and 136]
that the judgment was irregular and His
Honour [at 173 and 179] quashed the
default judgment.
However, the unfortunate saga of a
$2,000 car bingle was not over and Justice
Hinton’s decision was appealed (Attorney-
General (SA) v Marmanidis [2019] SASCFC
3 (17 January, 2019))
The appeal raised many issues in
relation to the appropriateness of judicial
review of minor civil decisions, including
the most appropriate way to correct any
jurisdictional error. Those considerations
are beyond the scope of this article.
However, the appeal did touch upon the
operation of MCR60, MCR61 and MCR62.
MCR61(1)(a) or MCR 61(1)(b)?
Both Mr Germein and the Attorney-
General argued that the claim could and
should have been treated as a claim for a
liquidated sum under MCR61(1)(a).
Blue J at [77], Tilmouth AJ at [179] with
Nicholson J agreeing [at 156] all found that
the claim fell under MCR61(1)(b).
Tilmouth and Nicholson JJ did not
provide any reasons, but at [77 to 79]
Justice Blue set out his reasoning as to why
the claim did not fall under MCR61(1)
(a). In his reasons, Justice Blue referred
to the common law distinction between
liquidated and unliquidated claims as well
as to the definitions in the Supreme Court
Rules. At [79] His Honour concluded that
MCR61 and MCR62:
“preserve the traditional dichotomy between a
claim for a liquidated sum and an unliquidated
sum, with one qualification. If the claim is
for property damage and the plaintiff serves
with the Claim the requisite evidence of the
quantum of damages, the plaintiff can obtain
judgment for the amount claimed. In this respect
the position is equated to the position in respect
of a liquidated sum but ex hypothesis it is not
for a liquidated sum. The construction of rule
61 advanced by the Attorney-General and Mr
Germein would undermine and subvert the
trichotomy created by rules 61 and 62.”
What is Any Relevant Evidentiary
Material as referred to in MCR61(2)?
The Full Court (and Justice Hinton
at first instance) all found that in order
for default judgment to be entered in a
specific amount under MCR61(1)(b), the
Plaintiff had to prove that “any relevant
evidentiary material” had been served at
the same time as serving the claim.
At first instance Hinton J had found
that MCR61(2) had to be strictly complied
with, namely because of the use of the
word “only” in Rule 61(2). The Full Court
agreed that at the very least, a failure to
provide any record of the hire car costs
meant that the Registrar’s entry of default
judgment was irregular.
Justice Blue at [85 to 91] found that the
insurer’s internal summary of repair costs
were not sufficient and that source records
(or material capable of proving the quantum)
were required to satisfy MCR61(2).
Tilmouth and Nicholson JJ at [180 to
182] held that the insurer’s summary of
repair costs were sufficient for the purpose
of MCR61(2) so as to allow a Registrar to
enter default judgment in a specific sum,
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COURT RULES
“litigants would be better advised to rely
upon and include in their claims, copies of
primary documents of the very kind mentioned in
MCR61(2).”
Summary of the Cases
What appeared to be a claim for a
liquidated sum in Jaffer was treated as an
unliquidated claim because “damages”
were mentioned.
What might have been pursued as a
claim for damages for breach of a contract
in Hamilton-Smith was considered as a claim
for a liquidated sum because the claimant
claimed for a specific figure (and seemingly
did not make any claim for “damages” or
other relief).
What appeared to be an unliquidated
claim in Marmanidis in respect of property
damage but for which a specific amount
was claimed, was not considered under
MCR61(1)(a) because the nature of the
claim brought it under the provisions of
MCR61(1)(b).
An analysis of MCR60, MCR61,
MCR62 and the cases, leads to a
hypothetical question:
Can a Plaintiff with a Magistrates Court
Claim, which is unliquidated at common law,
but which does not come under MCR61(1)(b)
nominate a specific sum and then (if the claim is
served but undefended) seek default judgment for
a specific sum instead of seeking default judgment
with damages to be assessed?
For reasons which follow, I think that
they can:
• It seems to be exactly what happened
in Hamilton-Smith.
• The majority of the Court in Attorney-
General (SA) v Marmanidis [2019]
SASCFC 3 (17 January, 2019) did not
address the operation of MCR61(1)(a)
because it appears the claim clearly fell
under MCR61(1)(b). 12
• At common law, there is no doubt that a
Plaintiff cannot convert an unliquidated
claim into a liquidated claim merely by
nominating a specific amount - Abbey
Panel and Sheet Metal v Barson Products
[1948] 1 KB 493 and as applied in
Environmental Systems Pty Ltd v Peerless
Holdings Pty Ltd [2008] VSCA 26 (26
February 2008) at [81]. However there is
no reason why a Court cannot set Rules
that depart from the common law.
• The expression “claim for a liquidated
sum” is not defined. The phrase should
be given its natural and ordinary
38 THE BULLETIN October 2019
meaning. If MCR61 meant to refer to
“liquidated claims” at common law it
would have used that expression.
• I think it is dangerous to consider
the Supreme Court definition of
liquidated claims and unliquidated
claims when interpreting and applying
MCR61 and its concept of a claim for
a liquidated sum. MCR12(1) is of
no particular assistance in this regard
because the Rules in the Supreme and
District Court in relation to default
judgments are significantly different
from the Rules in the Magistrates Court.
• Even if the Supreme Court definition
of “liquidated claims” should be
applied to the Magistrates Court
concept of “claims for a liquidated
sum”, the definitions and the Court
Rules do not repeat the common law -
they appear to modify the common law.
It is better to construe the Rules not by
reference to common law concepts but
by reference to their own text, context
and purpose 13 . As set out in [11] above
MCR61 and MCR62 do not preserve
the common law dichotomy. Instead
they create a five-category regime.
• The text in MCR61 should take
precedence over the shorthand text in
Form 2 - which can only be a reference
to the concepts in MCR61 and MCR62.
• Given the number of applications for
default judgment 14 it makes sense that
the Magistrates Court Rules might
have been drafted so as to encourage
claimants to nominate specific sums.
Claims for specific sums also make it
easier to apply the Magistrates Court’s
Costs Rules as well as simplifying the
steps, time and resources required in
the event of an application for default
judgment.
• It goes without saying that default
judgments are entered without
reference to the actual merit of the
claim. A Rule which allows a Plaintiff
to claim a specific sum, which rule only
ever has application in the context of
default judgment and which Rule does
not prejudice the Defendant 15 , seems
perfectly acceptable as a matter of
fairness and efficiency.
• As a matter of principle, the regime
created by MCR61 and MCR62
already allows for the entry of default
judgment in a specific sum to what
otherwise would be an unliquidated
claim at common law. Perhaps this is
just an illustration that the Magistrate
Court Rules do not seek to preserve the
common law, but seek to change it. 16
The approach is consistent with MCR3
– an expeditious, economical and just
resolution of an action.
Noting that the conclusion in [18]
above is not consistent with Blue J’s
reasons in ATTORNEY-GENERAL
(SA) v MARMANIDIS I make the
following further observations:
Mr Germein’s claim could not possibly
have been under 61(1)(a) – not because it
was not a claim for a liquidated sum,
but because the claim for a liquidated
sum was clearly of the type referred to in
MCR61(1)(b).
In light of Justice Blue’s reasons, it
would take a courageous litigant to seek to
argue the issues raised in this article 17 and/
or to seek default judgment in a specific
sum in relation to a claim which is an
unliquidated claim at common law.
Consequence of the Categorisation
Assuming that the Registrar or a
Magistrate has correctly characterised
the claim, then the balance of the default
judgment procedure is easy enough to
understand - but difficult to apply in
practice:
MCR61 and MCR62
Category 1 - If the claim falls under
MCR61(1)(a) (a claim for debt) - judgment
can be entered for the amount specified.
Category 2 18 - If the claim falls under
MCR61(1)(a) (a claim for a liquidated sum
and which does not fall into any other
category) - judgment can be entered for
the amount specified.
Category 3 - If the claim falls under
MCR61(1)(b) (property damage) - in order
to get judgment in a specific amount for
property damage claims, the Plaintiff
must also demonstrate compliance with
MCR61(2) and prove (to the Registrar
for the purpose of seeking administrative
default judgment) that relevant evidentiary
material (on which the Plaintiff intended to
rely for proving quantum) was served on
the Defendant at the same time as the action
was served on the Defendant.
A Plaintiff seeking to rely on
MCR61(1)(b) has to take pre-emptive steps
at the time of serving the claim. As noted

COURT RULES
by the Full Court, litigants would be better
advised to rely upon and include in their
claims, copies of primary documents of
the very kind mentioned in MCR61(2) if
they intend to rely on MCR61(1)(b) and
seek default judgment in a specific sum.
A Plaintiff providing relevant
evidentiary material in a pre-action notice
will not strictly satisfy MCR61(2) because
such materials are not served at the same
time as the claim.
Category 5 - In any other case the
matter is to be set down for assessment of
damages and costs (MCR62).
There are many examples of what
might constitute “any other case”, but
applying Master Blumberg’s approach (see
[35] below) a claim which does not fall into
any one category (for example, because it
consists of a combination of liquidated
and unliquidated claims) might be sensibly
considered as “any other case”.
MCR62 – Process and Timeframes for
Assessment of Damages
If the Court cannot enter default
judgment in a specific sum, then MCR62
sets out the process to be followed for
damages to be assessed:
• After entering default judgment, the
Registrar must fix a date, time and place
for the assessment of damages or such
other order, remedy or relief as the
action may require, and give at least 21
days’ notice in writing of the hearing
to the parties. 19
• Under MCR62(2) the party who has
signed judgment must serve on all other
parties at least 21 days before the
hearing date:
1. a notice in Form 19 20 ; and
2. a copy of any affidavit evidence to
be relied upon, and
3. a written schedule of costs sought.
A party hoping to comply with
MCR62(2) has to act very quickly to
prepare and serve 2 further and substantial
documents and to ensure that such
documents are served at least 21 days before
the hearing date (a date which the Plaintiff
will have no particular way of knowing what
it is until it is set by the Registry).
A substantial amount of time and
paperwork is required to obtain judgment
in a specific sum relating a claim which,
by definition the Defendant has already
been served with but which claim the
Defendant has failed or refused to answer.
DISTRICT & SUPREME COURT
Having got your taste buds tingling on
the Magistrates Court Rules, now is time to
digest the equivalent Supreme Court Rules
(SCRs) and District Court Rules (DCRs).
The SCRs and DCRs, in relation to
default judgment provisions are identical,
so for simplicity sake I will just refer to the
DCRs.
In contrast to the Magistrates Court
Rules:
• There is no equivalent to Section 4 of
Form 2 - a Plaintiff is not required to
nominate at the time of filing whether
their claim is liquidated or unliquidated.
• There is no equivalent of MCR61(1)
(b) and MCR61(2) – a Plaintiff with an
unliquidated claim for property damage
cannot nominate a specific sum in their
claim and obtain judgment in a specific
sum by establishing that they served
“evidence” of loss at the time as they
served the claim.
The relevant time frame from service
is 28 days not 21.
DCR229
The relevant Rule is DCR229, which
provides that if a defendant does not file a
defence to a claim within 28 calendar days
after service, then:
• DCR229(1)(a) - if a liquidated claim, the
plaintiff may enter judgment for an
amount not exceeding the amount of
the liquidated sum plus interest;
• DCR229(1)(b) - if an unliquidated claim,
the plaintiff may enter judgment for an
amount to be assessed;
• DCR229(1)(c) - if a claim for the
detention of goods, the plaintiff may
enter judgment for delivery of the
goods or for the value of the goods to
be assessed.
Unlike the Magistrates Court Rules,
the DCRs do define liquidated claims and
unliquidated claims. 21
• DCR229(3) - a liquidated claim is a
claim for a specific amount or a claim
for an amount that can be precisely
calculated;
• DCR229(3) - an unliquidated claim is
a claim for an amount that requires
assessment by the Court.
So, rather than the five categories
found in the Magistrates Court, the DCRs
identify four categories of claim for the
purpose of proceeding towards default
judgment.
• Category 1 - Claims for specific
amounts – refer DCR229(1)(a) and
DCR229(3)
• Category 2 - Claims for amounts that
can be precisely calculated – refer
DCR229(1)(a) and DCR229(3)
• Category 3 - Claims for an amount that
requires assessment by the Court –
refer DCR229(1)(b) and DCR229(3)
• Category 4 - Claims in relation to the
detention of goods – refer DCR229(1)(c)
The same sort of interesting 22
hypothetical question arises in relation
to DCR229(1)(a) and 229(3) as arises in
relation to MCR61(1)(a), namely Can a
Plaintiff with a District Court Claim, who has
an unliquidated common law claim make a claim
for a specific amount, and thereby bring their
claim within the definition of a liquidated claim
under DCR229(3), and thereby proceed under
DCR229(1)(a) in event of application for default
judgment, instead of proceeding under DCR229(1)
(b) or DCR229(1)(c)? For similar reasons as
set out in paragraph [18] above, I consider
that the answer to the question is “Yes”.
DCR240(2)(a) and DCR229 – How
to Apply for Default Judgment in the
District Court
All applications for default judgment
In the District Court must be done the
same way – by way of administrative
request to the Registrar. 23
A Plaintiff seeking default judgment
in the District Court has to pay particular
attention to ensure that the form of the
default judgment that they are seeking is
consistent with the provisions of DCR229.
• Category 1 - Claims for specific
amounts – the request can be to enter
judgment for an amount not exceeding
the amount of the liquidated sum plus
interest.
• Category 2 - Claims for amounts
that can be precisely calculated – the
request can be to enter judgment for a
liquidated sum [presumably with details
of how it has been precisely calculated]
plus interest.
• Category 3 - Claims for an amount that
requires assessment by the Court – the
request can be to enter judgment for an
amount to be assessed.
• Category 4 - Claims in relation to the
detention of goods – the request can
be to enter judgment for delivery of the
goods or for the value of the goods to
be assessed.
October 2019 THE BULLETIN 39

COURT RULES
If the Plaintiff seeks judgment in
terms which are not consistent with
DCR229 and if the Registrar grants
judgment in terms which are not
consistent with DCR229, any default
judgment entered runs the risk of being an
irregular and unenforceable judgment.
Rule 229 is silent on what approach
ought to be taken in default judgment
where there are both liquidated and
unliquidated aspects of a claim.
• In Homestead Homes Pty Ltd v Horizon
Lifestyle Development 24 the claim was for
unpaid invoices (claims for a specific
amount of $96,422.00) as well as a
claim for damages for lost profits
(estimated at $73,330.40).
• The Plaintiff sought and obtained
default judgment in a specific sum of
$169,752.40.
• Several months later, during attempts
to enforce the judgment, the Defendant
applied to have the judgment set aside
on the basis that it was irregular.
• The Plaintiff cross-applied to amend
the default judgment so that it was
reduced to the sum of the unpaid
invoices only with the balance for
damages to be assessed.
• There is no doubt that where a
judgment has been incorrectly entered
on the basis that the claim is liquidated
it can be amended to one for damages
to be assessed - Gemini Investments v
Woodards Investments Pty Ltd [2000]
SASC 210. However, amending an
irregular default judgment is a matter
of discretion for the Court.
• In Homestead Homes Pty Ltd v Horizon
Lifestyle Development the learned Master
exercised his discretion, refused to
amend the default judgment, and set
the default judgment aside.
• In the course of his reasons,
the learned Master noted that in
circumstances where a claim consists
of both liquidated and unliquidated
claims, the safe and best course for a
litigant would be to seek a judgment
for an assessment of damages under
40 THE BULLETIN October 2019
DCR229(1)(b), but to include a
liquidated component at the time of
the assessment.
CONCLUSION & OBSERVATIONS
• The Magistrates Court Rules are overly
complex and difficult to apply at a
practical, administrative and judicial
level.
• There is no good reason for the
Courts to preserve the complexities
of the common law and the common
law dichotomy of “liquidated or
unliquidated” in relation to default
judgments.
• It is likely that an insurer’s summary of
repair costs incurred or to be incurred
are sufficient to satisfy MCR61(2)
to obtaining default judgment in a
specific sum, but litigants claiming a
specific sum and who might want to
seek default judgment in a specific
sum in respect of property damage are
better advised to serve primary source
documents when serving their claim.
• The regime created by MCR61 and
MCR62 is a 5 category regime.
• The regime created by DCR229 is
different and is a 4 category regime.
• The requirements in MCR62(2) create
a lot of work for a Plaintiff and the
Court to do to assess damages in
relation to a claim which has been
served but unanswered.
• A conservative approach to obtaining
default judgment in the Magistrates
Court in respect of claims for specific
sums which are not liquidated at
common law and which don’t fall under
MCR61(1)(b) or 61(4) is to seek default
judgment with damages to be assessed.
The conservative approach adds
substantial cost to the default judgment
process for a Plaintiff and is a waste of
valuable Court resources.
The introduction of the ECMS is
a perfect opportunity to simplify and
rationalise the process and rules in relation
to default judgments across all South
Australian Courts. B
Endnotes
1 ATTORNEY-GENERAL (SA) v
MARMANIDIS [2019] SASCFC 3 (17 January
2019) at [214]
2 Refer to Magistrates Court Practice Direction 7
and Form 18A. However MCPD7 and Form 18A
are not actively applied, and the Magistrates Court
Registry accepts requests for default judgments in
Form 18 in relation to Federal matters.
3 Forms 3A-3G
4 MCR25(1) and MCR5(2).
5 MCR25(1) and MCR5(2).
6 Section 4 of Form 2 - Query what the Registry
would do if this section is not completed.
7 Note that under MCR101 the Court can enter
default judgment if a party fails to attend any
interlocutory hearing.
8 For the purpose of this article, any additional
time allowed for defences to be filed where
service is effected outside of South Australia is
not considered.
9 MCR60.
10 Such as MCR43(1), MCR44, MCR47 to MCR52
11 Refer footnote 2.
12 ATTORNEY-GENERAL (SA) v
MARMANIDIS [2019] SASCFC 3 (17 January
2019) at [179]
13 RULE CHAMBERS PTY LTD v BADGE
CONSTRUCTIONS (SA) PTY LTD [2009]
SASC 70 (16 March 2009) at [26]
14 About 25% of the Court’s civil proceedings and
about 50% of the minor civil proceedings.
15 Plaintiffs have to establish service of the claim
to obtain default judgment. Defendants can seek
to set aside default judgments for a specific sum
just the same as they can seek to set aside default
judgments with damages to be assessed. Further,
a specific sum which has no basis could always
be set aside as an abuse of process.
16 Whilst it might have been the intent of the Rules
to preserve the common law dichotomy but
to introduce two exceptions, MCR3 provides
guidance as to how the Rules should be applied,
and intent is not a factor.
17 This article is not a substitute for specific legal
advice and no-one should rely on it.
18 Applying Justice Blue’s reasons, this category
would be claims which are liquidated at common law
19 MCR62(1)
20 Note that Form 19 is not available on the Court’s
website and in practice, the Registrar serves
the Form 19 when fixing the hearing for the
assessment of damages.
21 These definitions are not to be confused with
the definition of a liquidated debt claim as defined
in Supplementary Rule 4 for the purpose of the
possible application of Supplementary Rule 74.
22 If you have got this far into the article, and read
this footnote, at least the question is of interest
to you.
23 refer DCR240(2)(a). The appropriate form is
Form 56.
24 unreported decision of Master Blumberg,
Decision 23 of 2011

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THE COHERENCE OF STATUTORY INTERPRETATION
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October 2019 THE BULLETIN 41

FAMILY LAW
Family Law Case Notes
ROB GLADE-WRIGHT, THE FAMILY LAW BOOK
Property – No error in Court’s treatment
of non-commutable military pension as
Ia financial resource (income stream)
n Carron & Laniga [2019] FamCAFC 115
(8 July 2019) the Full Court (Aldridge,
Kent & Austin JJ) considered a property
case where the wife had been made
redundant from the Australian Defence
Force and had interests in the Military
Superannuation Benefits Scheme. The first
was in the growth phase and the second
was in the payment phase as a noncommutable
pension of $520 per fortnight.
At trial, neither party sought a splitting
order. The wife’s expert provided a
notional capital valuation of the pension
interest of $230,148, but otherwise
confirmed that this amount could not
be “cashed out” in any way. Judge Egan
treated the wife’s growth phase interest
as property, but found that the pension
interest was a financial resource. The
husband appealed, arguing that both
interests were “property”.
The Full Court said (from [29]):
“The wife opposed her MSBS
pension being attributed any notional
capitalised value because it could not
be commuted and the husband did
not seek any … splitting order in
relation to it, as the trial judge correctly
recognised. ( … )
[36] In property settlement proceedings,
there is no need to ascertain the
capitalised value of a superannuation
interest, much less one in the payment
phase being paid in the form of a
non-commutable pension, unless a
… splitting order is sought in relation
to the interest (Welch & Abney [2016]
FamCAFC 271 … At trial, neither party
sought a … splitting order in respect of
the wife’s MSBS pension.
42 THE BULLETIN October 2019
[37] The Act only provides that a
superannuation interest must be valued
before it is amenable to a splitting
order (s 90XT(2)) ( … )
[39] Relevantly, the wife’s entitlement
to the MSBS pension crystallised in
2000 following her redundancy from
employment in the armed services,
shortly after the parties’ marriage in
1998. She is entitled to receive the
pension for life, during which time
it cannot be commuted or alienated.
While it will continue to be a modest
income stream for her, it will not be
enough alone to sustain her and she
will always need to supplement it with
other income from paid work. Such
features of the pension made it readily
identifiable as a financial resource
rather than an asset. …”
Children – Judge erred by restraining
overseas travel without considering
relevant matters set out by Full Court
in Line & Line
In DeLuca & Farnham and Anor [2019]
FamCAFC 100 (13 June 2019) Le Poer
Trench J had ordered that neither party
remove the children from Australia
without the written consent of the other
or an order and that the children’s names
be placed on the watch list. The mother
appealed so as to facilitate visits to family
in Europe by the children.
The Full Court (Strickland, Kent &
Watts JJ) said (from [34]):
“ … The primary judge had an
obligation to give adequate reasons
which allowed the parties to
understand why his Honour assessed
the risk of flight as being too great …
(Bennett … [1990] FamCA 148 … )
[35] In Line & Line [1996] FamCA 145
… the Full Court set out … relevant
matters … :
4.49 The … degree of risk that the
departing parent … will … choose
not to return. In assessing that, …
considerations are the existence (or
otherwise) of continuing ties … the
existence and strength of possible
motives not to return ( … )
4.50 … [W]hether the country …
is … a signatory to the [Hague
Child Abduction Convention] …
[although] there may be little to
prevent him or her … travelling on
to a non-convention country.
4.51 [T]he financial circumstances
of both parties, … hardship … the
departing parent would suffer by the
imposition of security at a particular
level as compared with the hardship
which the non-departing parent
would suffer if the security were
fixed at a lower level. …
[36] The primary judge did not
discuss why he assessed the risk of
flight of the parties … as too great,
and why he put the travel restriction
in place until 2027. Most of the
considerations referred to in Line were
not explored. ( … )
The Full Court re-exercised discretion,
making an order for overseas travel.
Property – Wife was refused leave
to rely on her shadow expert as an
adversarial expert
In Forsburg & Stubbs [2019] FCCA
1884 (12 June 2019) a single expert
(“Valuer A”) appointed by the parties
valued Town C property at $265,000. A
gross value of $425,000 was reduced by
$160,000 of “deductions” to account for

FAMILY LAW
the property being land with “modest
improvements” such as “an older style
caravan”, “a non-approved sceptic
system”, “an older-style … patio” and
“some concrete tanks” ([18]). The
deductions included “costs [of] upgrading
vehicular access”, “professional studies
re bushfire flora and fauna” and “risk
associated with obtaining consent for the
site to be utilised as a single home site”
([19]). Disputing that valuation, the wife
applied for leave to rely on a valuation by
shadow expert (“Valuer D”) of $430,000
without deductions.
In dismissing that application, Judge
Betts said (from [20]):
“[T]he wife … did not instruct her
[lawyer] to write to Valuer A to put
questions … Rather, she engaged
Valuer D to conduct a shadow
valuation for litigation purposes.
[21] [Her] instructions … to Valuer D
… contained … factual assertions that
were not agreed and are in dispute.
[They] were prepared solely by the
wife’s solicitors, unlike the single
expert’s instructions. The instructions to
the shadow expert … were partisan and
entirely one-sided. ( … )
[26] In good faith, the husband
permitted the shadow expert access to
the property for the valuation … on
the … basis that Valuer D was being
engaged by the wife as a shadow expert
only. ( … )
[46] The wife could have engaged Valuer
D to undertake the shadow report as
they did do and questions could then
have been put to Valuer A based on
what Valuer D had said. But that is not
what the wife wants to do. She wants
… to engage an expert in a partisan way
as a shadow expert and then call them
as an adversarial expert. But a shadow
expert and an adversarial expert are two
very different experts. Real questions of
natural justice and procedural fairness
arise when adversarial evidence is
contemplated. ( … )
[55] In short, I do not consider it
appropriate that the single expert be
provided with a copy of the Valuer
D report. … [I]f the wife wishes
to challenge the Valuer A by using
information provided to her by Valuer
D then [she] should pose specific
questions to Valuer A.
[56] In the event the wife wished to
call Valuer D as an adversarial expert, I
consider that the instructions they have
already provided are so tainted as to
render such a report of lesser, if not of
no, weight.” B
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LEGALSUPER
Take charge of your investment options
ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER
The super investment
options choices you make –
or do not make – will have
a significant impact on how
much super you have in
retirement.
One of the most important decisions
you make when joining a super fund
are the investment options in which your
super is invested.
Super funds provide a menu of
different investment options in which
you can invest your money to grow your
balance over time. The investment options
choices you make over the course of your
working life will play a substantial role in
determining how much super you have
when you retire.
People who join a super fund and do
not choose an investment option(s) are
allocated to a “default” investment option.
Members can change their investment
option(s) at any time.
Most super funds offer a range of
investment options designed to cater for
their members’ investment return and risk
objectives. More conservative investment
options (with higher allocations to cash
and fixed interest) will involve less risk
and returns are lower. Conversely, more
aggressive investment options (with higher
allocations to shares and property) involve
higher risk and are more volatile in the
short-term but over the longer-term yield
higher investment returns.
DIFFERENT INVESTMENT OPTIONS WILL
BE SUITABLE AT DIFFERENT CAREER AND
LIFE STAGES
Your decision to choose investment
option(s) is not a “set and forget” decision.
Your objectives and needs will change
through your working life and your life
into retirement. For this reason, you should
periodically review your investment choices.
There can be strong financial reasons
for taking different approaches to your
investment options depending on what
stage your career is at, and in response to
changes in personal circumstances.
Early in your career, retirement is
further into the future meaning that you
have time to consider more aggressive
investment options.
OPTION
Cash
Enhanced cash
Conservative
Conservative
balanced
Balanced index
MySuper balanced
RETURN OBJECTIVE
(NET OF FEES)
At least match Bloomberg
Ausbond Bank Bill Index
over rolling 5 year periods
Outperform Bloomberg
Ausbond Bank Bill Index
over rolling 5 year periods
Outperform CPI +2.0%
over rolling 10 year periods
Outperform CPI +2.5%
over rolling 10 year periods
Outperform CPI +2.8%
over rolling 10 year periods
Outperform CPI +3.0%
over rolling 10 years periods
As the independent Australian
Securities and Investments Commission
(ASIC) MoneySmart website says: “A
higher growth option will have higher risk
and experience more volatile returns over
the short term, but will usually achieve
higher returns over the long term. If you
are at least 10 years from retirement, you
might consider choosing a higher growth
option as you have time to ride out the ups
and downs in the market.” 1
Then, as you near retirement, ASIC
MoneySmart suggests “you might decide
to reduce your level of risk, as preserving
your capital will become more important.” 2
Changes in personal circumstances –
including marriage, divorce, children, the
death of a spouse, personal health issues,
the success or failure of a businesses and
other investments you own or are involved
in – may mean that the investment options
you currently have in place and which were
perfectly suited to your long term financial
planning for retirement are no longer
the best fit for your needs and the needs
of your dependents, which is why it is
important to regularly review the suitability
of your super investment options.
AN EXAMPLE: LEGALSUPER’S
INVESTMENT OPTIONS
legalsuper fund members have the
choice of 12 investment options, plus
the Direct Investment option. Compare
risk profile return objectives to find an
investment mix that suits you.
LIKELIHOOD OF
NEGATIVE RETURNS
less than 6 months
in every 20 years
6 months to 1 year
in every 20 years
1 to 2 years in every
20 years
2 to 3 years in every
20 years
3 to 4 years in every
20 years
3 to 4 years in every
20 years
RISK LEVEL
Very low
Low
Low to
Medium
Medium
Medium to
High
Medium to
High
GETTING ADVICE ABOUT INVESTMENT
OPTIONS
Making decisions about your investment
options which best meet your current
and future needs can be challenging, but
the difference between choosing a more
suitable option as compared to a less
suitable option can result in significantly
different financial outcomes over the course
of your working life.
The ASIC MoneySmart website
offers members of the public a free
Superannuation Calculator 3 where they can
estimate the different retirement benefit
they may accrue based on the investment
option they have chosen.
As the table below shows, based on the
below assumptions, the Super Calculator
show that the difference between the best
and worst position is 39 per cent more in
retirement savings.
CALCULATOR INVESTMENT
OPTION
BALANCE AT
AGE 67
Cash $204,946
Conservative $232,702
Moderate $252,372
Balanced $266,556
Growth $271,951
High growth $283,931
Assumptions:
Starting age: 40, Income: $80,000, Retirement
age: 67, Super balance: $45,000, Contributions:
9.5% employer, Fund fees level: Medium, All other
standard assumptions unchanged.
44 THE BULLETIN October 2019

LEGALSUPER
However, making investment choices
should never be solely about chasing
a higher return. People need to feel
comfortable with the choices they have
made and the best way to accomplish this
is to choose options which are compatible
with your return objectives and risk
tolerance.
When making these decisions, in the
first instance you should call your super
fund and discuss the types of super
investment options on offer, your longerterm
financial goals for retirement and your
investment risk profile. Ideally, you would
have this sort of conversation with your
super fund every few years to ensure your
choices remain aligned with your goals.
As ASIC MoneySmart notes: “Picking
the right investment option within super is
important whether you’re 16 or 65. Your
investment strategy will influence how much
money you’ll have to retire on and how you
live your life in your retirement years.” 4
Finally, for many people super will be
one of a number of components of their
overall financial plan and it may also be
advisable to consult your financial planner.
This information is of a general nature
only and does not take into account
your objectives, financial situation or
needs. You should therefore consider the
appropriateness of the information and
obtain and read the relevant legalsuper
Product Disclosure Statement before
making any decision.
Legal Super Pty Ltd ABN 37 004
455 789, AFSL 246315 is the Trustee of
legalsuper ABN 60 346 078 879.
ANDREW PROEBSTL is Chief
Executive of legalsuper, Australia’s
industry super fund for the legal
community. He can be contacted on
ph 03 9602 0101 or via aproebstl@
legalsuper.com.au. B
Endnotes
1 See https://www.moneysmart.gov.au/
superannuation-and-retirement/how-superworks/super-investment-options
2 See https://www.moneysmart.gov.au/
superannuation-and-retirement/how-superworks/super-investment-options
3 See https://www.moneysmart.gov.au/tools-andresources/calculators-and-apps/superannuationcalculator
4 See https://www.moneysmart.gov.au/
superannuation-and-retirement/how-superworks/super-investment-options
3 AUG 2019 – 2 SEPT 2019
ACTS PROCLAIMED
Statutes Amendment (SACAT) Act 2019 (No
14 of 2019)
Commencement except Parts 2-15; 17-19;
21-25; 27-31: 9 August 2019
Gazetted: 8 August 2019, Gazette
No. 39 of 2019
Victims of Crime (Offender Service and Joinder)
Amendment Act 2019 (No 15 of 2019)
Commencement: 2 September 2019
Gazetted: 22 August 2019,
Gazette No. 42 of 2019
Statutes Amendment (SACAT) Act 2019
(No 14 of 2019)
Commencement
Part 11: 2 September 2019
Commencement Part 4; 17;
23 and 24: 1 October 2019
Gazetted: 29 August 2019, Gazette
No. 43 of 2019
ACTS ASSENTED TO
Director of Public Prosecutions (Pension
REGULATIONS PROMULGATED (3 JULY 2019 – 2 AUGUST 2019)
Entitlements) Amendment Act 2019, No. 18
of 2019
Gazetted: 8 August 2019, Gazette
No. 39 of 2019
Education and Children’s Services Act 2019,
No. 19 of 2019
Gazetted: 8 August 2019, Gazette
No. 39 of 2019
Fire and Emergency Services (Volunteer
Charters) Amendment Act 2019, No. 20
of 2019
Gazetted:
APPOINTMENTS
8 August 2019, Gazette
No. 39 of 2019
Master of the District Court of South
Australia
effective from 12 August 2019
Elizabeth Christina Olsson
Gazetted: 8 August 2019, Gazette
No. 39 of 2019
Legal Services Commission,
Member:
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS
AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.
REGULATION NAME REGULATION NO. DATE GAZETTED
from 28 August 2019 until 30 November 2019
Lucinda Kirsty Byers
Gazetted: 22 August 2019,
Gazette No. 42 of 2019
RULES
Magistrates Court Rules 1992
Amendment 76
Gazetted: 8 August 2019, Gazette
No. 39 of 2019
Magistrates Court Rules 1992
Amendment 76 REPUBLISHED
Gazetted: 13 August 2019,
Gazette No. 40 of 2019
Magistrates Court Rules 1992
Amendment 77
Gazetted: 22 August 2019,
Gazette No. 42 of 2019
Magistrates Court Rules 1992
Amendment 78
Gazetted: 29 August 2019,
Gazette No. 43 of 2019
Subordinate Legislation Act 1978 199 of 2019 15 August 2019, Gazette No. 41 of 2019
Development Act 1993 200 of 2019 15 August 2019, Gazette No. 41 of 2019
Development Act 1993 201 of 2019 15 August 2019, Gazette No. 41 of 2019
South Australian Local Government Grants Commission Act 1992 202 of 2019 22 August 2019, Gazette No. 42 of 2019
Victims of Crime Act 2001 203 of 2019 22 August 2019, Gazette No. 42 of 2019
Anangu Pitjantjatjara Yankunytjatjara Land Rights Act 1981 204 of 2019 29 August 2019, Gazette No. 43 of 2019
Spent Convictions Act 2009 205 of 2019 29 August 2019, Gazette No. 43 of 2019
October 2019 THE BULLETIN 45

CLASSIFIEDS
Take Your
Business
Mobile
boylen.com.au
P (08) 8233 9433
A Level 3, 47 South Tce,
Adelaide SA 5000
FIRE & EXPLOSION
INVESTIGATION
Over 6 years forensic experience
on behalf of the Insurance
Industry and Legal Profession
throughout Australia.
Mr Ben Cox B.E. (Chem)
Grad. Cert. (Fire Investigation)
Ben Cox & Associates
PO Box 205, Marden, SA 5070
Phone: 0437 325 112
E: ben@bcafireforensics.com.au
www.bcafireforensics.com.au
We provide independent, hands-on, personalised and
professional advice in an open and communicative way.
Our expertise covers:
• Preparation of independent expert witness reports
in relation to site contamination matters (under
instruction from lawyers)
• Appearance in court to provide independent expert
witness in relation to site contamination matters
• Site Contamination Auditing under the South Australian
Environment Protection Act (1993), including
Restricted Scope Audits
Adrian Hall MA DipEd FIEAust
CPEng NER Environmental Auditor
+61 457 516 329
GPO Box 2305 Adelaide SA 5001
adrian@esheres.com
www.esheres.com
Business
valuations
Simple, clear,
unbiased advice,
without fear or
favour.
t. +61 8 431 80 82
Hugh McPharlin FCA
d m. +61 +61 8 8139 401 712 1130 908
m e. +61 ahi@andrewhillinvestigations.com.au
419 841 780
e hmcpharlin@nexiaem.com.au
w nexiaem.com.au
Consulting Engineers
Australian Technology Pty Ltd
for expert opinion on:
• Vehicle failure and accidents
• Vehicle design
• Industrial accidents
• Slips and falls
• Occupational health and safety
• Statistical analysis
W. Douglass R. Potts
MAOQ, FRAI, FSAE-A, FIEAust,
CPEng, CEng, FIMechE
8271 4573
0412 217 360
wdrpotts@gmail.com
Andrew Hill Investigations
Investigating:
ABN 68 573 745 238
• workplace conduct
• fraud
• unprofessional conduct
• probity
Support services:
• forensic computing analysis
• transcription services
• information sessions, particularly
for HR practitioners on the
investigative process
• policy development.
PO Box 3626
Andrew Hill
Andrew Hill
Investigations
NORWOOD SA t. 5067 +61 8 431 80 82
m. +61 401 712 908
e. ahi@andrewhillinvestigations.com.au
Fellow AIPI
Licensed Investigation Agents
& Process Servers
Servicing the Mid North, Yorke &
Eyre Peninsula`s and Outback of
South Australia with:
• Process Serving
• Property Lockouts
• Investigations
• Missing Persons
OUTBACK BUSINESS SERVICES
P.O. Box 591,
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 October 2019

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