LSB May 2020

THE 

BULLETIN 

THE LAW SOCIETY OF SA JOURNAL 

VOLUME 42 – ISSUE 4 – MAY 2020 

IN THIS ISSUE 

New civil rules 

explained 

Guide to written 

submissions 

Preparing for 

criminal trials 

COVID-19 

Relief package for 

Society Members 

Practice 

management guide 

Access to justice 

during COVID-19 

ADVOCACY

LEAP is the best system for lawyers 

and staff to work from home 

#workingfromhomewithLEAP 

1300 886 243

This issue of The Law Society of South Australia: Bulletin is 

cited as (2020) 42 (4) LSB(SA). ISSN 1038-6777 

CONTENTS 

ADVOCACY 

6 Advocacy in the appellate context: 

Fulfilling the functions of written 

submissions – By Kris Handshin 

10 The new Uniform Civil Court 

Rules explained – By Alex Lazarevich 

& Lisa Amabili 

15 Preparing for criminal trial advocacy 

101 – By Edward Jolly 

18 Mandatory prison for sex offences: 

the effect of new sentencing laws 

By Andrew Culshaw 

FEATURES & NEWS 

27 Chris Bleby SC appointed to Court 

of Appeal 

30 Vale: The Hon. Trevor Olsson AO 

COVID-19 

21 Ensuring legal services can be 

delivered during COVID-19 

22 Managing your practice during 

COVID-19: A guide 

24 $1.8 million COVID-19 package to 

support practitioners 

25 Taking care of your mental wellbeing 

in a time of uncertainty 

26 Opinion: Enforced isolation has made 

me treasure my freedom even more 

By Michael Esposito 

28 Risk Watch: Rise to the challenge 

- Try to find some positives in the 

lockdown – By Grant Feary 

REGULAR COLUMNS 

4 From the Editor 

5 President’s Message 

20 Young Lawyers: Coffee with Barbara 

– The Legal Forecast 

By Matthew Rismondo 

By Rosemary Pridmore 

32 Tax Files: Superannuation & 

succession – By Stephen Heath 

34 Family Law Case Notes 

By Rob Glade-Wright 

35 Bookshelf 

36 Gazing in the Gazette 

Executive Members 

President: 

T White 

President-Elect: R Sandford 

Vice President: J Stewart-Rattray 

Vice President: E Shaw 

Treasurer: 

F Bell 

Immediate Past 

President: 

A Nikolovski 

Council Member: S Hooper 

Council Member: V Gilliland 

Metropolitan Council Members 

T Dibden 

M Tilmouth 

M Janus 

A Lazarevich 

T Vozzo 

F Bell 

M Mackie 

M Boyle 

E Shaw 

J Marsh 

C Charles 

R Piccolo 

Country Members 

S Minney 

(Northern and Western Region) 

P Ryan 

(Central Region) 

J Kyrimis 

(Southern Region) 

Junior Members 

M Rossi F Wambeti 

Ex Officio Members 

The Hon V Chapman, Prof V Waye, 

Prof M de Zwart, Prof T Leiman 

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 

Programme manager (GDLP) 

Desiree Holland 

Desiree.Holland@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 Mottillo B Armstrong 

D Misell R Scarabotti 

The Law Society Bulletin is published 

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All contributions letters and enquiries 

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Views expressed in the Bulletin 

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FROM THE EDITOR 

Practitioners adjusting 

to major upheaval 

MICHAEL ESPOSITO, EDITOR 

IN THIS ISSUE 

assume the majority of you are now 

I working from home and are adjusting to 

a very different way of working. 

For a number of us, particularly 

those juggling parental or caring duties 

with work, merely staying afloat could be 

considered a huge achievement. 

There’s no doubt the profession is 

doing it tough, and it’s not just anecdotal. 

A survey that the Society sent to Members 

asking for their views with regards to the 

commencement of the Civil Rules amid 

the health crisis revealed that 70% of 

respondents had been financially impacted 

by the pandemic and a number have had 

to cut staff or reduce employees' hours. 

As President Tim White has mentioned 

in his President’s Message and numerous 

notices to the profession, the Society has 

been busy doing what it can to support the 

profession during this time, in terms of 

providing practice management support, 

keeping the profession regularly informed 

of developments affecting the legal system, 

and advocating for measures to facilitate 

the delivery of legal services as best as 

possible in challenging circumstances. 

While there has been an unavoidable 

financial impact on the profession, as there 

has been in most sectors, the COVID-19 

pandemic has also thrown up a number 

of novel legal problems that have not 

been contemplated in great detail before. 

Nevertheless, lawyers are equipped to 

help resolve such unprecedented issues 

and therefore play a critical role in guiding 

people through very challenging times. 

The Society, in consultation with 

special interest committees, identified a 

number of legal issues that have arisen or 

become particularly pronounced as a result 

of COVID-19. These issues have formed 

the basis of a social media campaign to 

highlight some of the issues that people 

might be dealing with at the moment and 

encouraging them to see a lawyer. 

The market volatility caused by 

COVID-19 has seriously impacted asset 

values, which has legal implications with 

regards to a number of issues such as 

estate planning, division of assets and 

business contracts. There’s uncertainty 

and angst around parenting arrangements. 

Employers and employees are doing it 

tough, raising numerous industrial law 

issues. The list goes on. 

In the midst of all this is the imminent 

commencement of the Uniform Civil Rules 

and the CourtsSA electronic filing system, 

which will herald significant changes to 

procedures in the civil jurisdiction. 

It was recently announced that the 

commencement date of the new Rules 

has been deferred to 18 May, giving the 

profession a few more weeks to prepare. 

This is likely to provide some relief 

for firms that are also dealing with the 

upheaval caused by COVID-19. 

Members of the Society’s Civil 

Litigation Committee, Alex Lazarevich 

and Lisa Amabili, have written a detailed 

summary of the Rules in this edition of 

the Bulletin. It will no doubt be a hugely 

valuable resource and the Society thanks 

them for their efforts in putting this 

article together. 

This edition contains other extremely 

helpful articles that provide practical 

advice on the art of advocacy, as well 

as a digest of the practice management 

guidance the Society has provided during 

the COVID-19 pandemic. B 

MANDATORY SENTENCING 

The effect of mandatory prison for 

sex offences 

COVID-19 RESTRICTIONS 

Civil liberties implications of social 

distancing 

18 

26 

30 

VALE 

Remembering former Supreme Court 

Justice Trevor Olsson 

4 

THE BULLETIN May 2020

PRESIDENT’S MESSAGE 

Confronting the challenges 

of COVID-19 

TIM WHITE, PRESIDENT, LAW SOCIETY OF SA 

hope you are all coping with the current 

I environment we are all having to work 

in over the past month or so. These are 

challenging and unusual times that few, if 

any of us, have experienced in the past. The 

most memorable description of working in 

the current COVID-19 environment I have 

heard was by co-founder of Airbnb, Brian 

Chesky, who stated: “Running a business at 

the moment is like continuing to construct 

a new home whilst it is on fire.” 

I thought that metaphor painted a 

very vivid but accurate picture of how 

many of us have felt in recent times. Keep 

persevering, as I am sure your clients will 

be especially appreciative of your advice 

and assistance in these times more than 

ever before. 

Our profession has risen to take on 

the endless challenges presented to it of 

late, and I wanted to briefly share with you 

a few examples of these . I have heard 

about trials proceeding in the SAET via 

video conferencing where both counsels, 

the tribunal member, instructing solicitors 

and the witnesses were all located in 

different buildings. Despite those logistical 

challenges I understand the matters 

were heard and dealt with efficiently and 

almost as expeditiously as if these had 

occurred with all parties present in person. 

I understand there have been similar 

experiences involving South Australian 

practitioners in the Federal Court and also 

in the High Court. 

Practitioners appearing in the criminal 

divisions have arguably confronted the 

greatest challenges in terms of managing 

social distancing requirements. Given 

the daily attendances in court that their 

work necessitates, and the diversity and 

volume of matters that pass through the 

Magistrates Court, they have done an 

exemplary job in ensuring their clients 

have continued to be able to access legal 

assistance in a modified capacity. The 

Magistrates Court, like other jurisdictions, 

has worked very closely with the Law 

Society and practitioners to ensure the 

“wheels of justice” keep turning. The 

extent to which most matters have been 

able to continue to progress through the 

various jurisdictions is impressive, and a 

credit to the Courts and the practitioners 

involved. 

The many questions and challenges 

that we face in practising the law are being 

experienced by fellow practitioners in 

other states or territories of Australia, and 

indeed by lawyers all around the world. 

After consulting many of the websites 

of our equivalent Law Societies or Bar 

Associations overseas, this commonality 

became even more obvious. By way of 

just one example, the Law Society of 

British Columbia in one of its main 

COVID-19 updates informed practitioners 

that in March virtual commissioning 

of affidavits was permitted. Another 

example of the measures being taken in 

Canada was the announcement that time 

limitations for instituting proceedings 

applicable to family law and civil actions 

be suspended,which continues until the 

state of emergency is rescinded. Similar 

changes have been implemented in some 

states of Australia. NSW has recently 

passed a significant regulation allowing 

witnessing of certain documents, including 

a will, power of attorney and a deed, by an 

audio-visual link. 

These are all important developments 

in enabling our clients to still receive 

access to legal advice and services in these 

restrictive times. 

The Society is continuing to regularly 

make submissions to the Courts and the 

Attorney General’s office in relation to 

various modifications to Acts, regulations 

or court rules that will enable us to 

provide assistance to clients remotely. 

Some of the recent requests made include: 

• Allowing electronic signing of court 

documents by solicitors 

• Permitting wills, powers of attorney 

and affidavits to be witnessed remotely 

• Allowing certain statements and other 

court documents that are required to be 

signed by a client, to be filed without a 

client’s original signature 

• Further court appearances to be done 

via telephone or video conferencing 

• The reintroduction of jury trials 

There remains many aspects that the 

Society continues to work on for the 

benefit of its members. There will be new 

and different challenges that we face each 

week, and all the stakeholders involved in 

the provision of justice will need to adapt 

and change the way it is offered. These 

changes will hopefully ensure members 

of the public retain faith and trust in our 

profession. Keep up the terrific work you 

are all doing whilst remaining safe and 

well. Thank you to those members who 

have provided feedback and suggestions to 

me direct, please continue to do so. B 

May 2020 THE BULLETIN 5

ADVOCACY 

ADVOCACY IN THE APPELLATE 

CONTEXT: FULFILLING THE FUNCTIONS 

OF WRITTEN SUBMISSIONS 

KRIS HANDSHIN, BARRISTER, BAR CHAMBERS 

In his article, “The future of appellate 

advocacy”, 1 Justice Michael Kirby wrote: 

Talent in advocacy has conventionally been 

viewed as a natural gift rather than a skill to be 

learned. Good advocates were thought to be born. 

I do not deny that there may be a gene or two 

in the 36,000 genes on the human genome that 

are labelled ‘top advocate’...However, in recent 

decades it has increasingly been recognised that 

advocacy skills can be improved and sharpened. 

The concluding observation in this 

extract is of particular application to 

written advocacy which, as Justice Kirby 

acknowledges in his article, has assumed 

a prominent role in litigation. Written 

submissions and outlines of argument are 

now routinely requested by trial courts 

and are required by appellate courts. If 

you wish to practise law as a barrister 

or solicitor advocate, you cannot avoid 

preparing written submissions. Nor should 

you try. Preparing written submissions 

offers an opportunity to sharpen 

and improve our skills of advocacy. 

Developing and refining the ability to 

write persuasively is, to my mind at least, 

an indispensable part of improving 

our advocacy skill set more generally. 

By practising and honing our skills of 

drafting effective written submissions, we 

educate ourselves about the importance of 

precision; linguistic elegance; structure and 

thoroughness in advocacy. Written work 

teaches us to be thoughtful, methodical 

and persuasive: key attributes of any form 

of advocacy. 

While as practitioners we may benefit 

from such an exercise, what is the 

objective of written advocacy? Like all 

advocacy, persuasion is the goal. Written 

submissions should assist, in fact pave 

6 

THE BULLETIN May 2020 

the way, for a favourable outcome. Both 

Justice Kenneth Hayne and Chief Justice 

James Allsop have said that written 

submissions should fulfil three functions: 

• They should be a “...coherent and 

readable encapsulation of the essence 

of your argument” to assist the judge/s 

preparing for the hearing; 

• They should be useful during oral 

argument and so reflect the structure 

and content of what you propose 

to say, together with appropriate 

references to the evidence, the 

judgment of the court below, and 

important authorities; 

• They should be useful to the decision 

maker when preparing judgment. 2 

If we focus for the moment on 

the appellate context, how might we 

go about drafting written submissions 

that fulfil these three functions? In this 

brief note - which does not permit of 

a lengthy disquisition on what is a deep 

and elusive topic - I will attempt to offer 

a brief refresher on what, over time, have 

been identified by judges and eminent 

practitioners as some of the defining 

traits of effective written advocacy, 

focusing on written submissions in 

the appellate setting. As advocacy is 

an innately individual undertaking, it 

is not possible to promulgate “rules” 

for effective written submissions - only 

suggestions 3 that may or may not assist 

and which may require adaptation to suit 

our individual style and the idiosyncratic 

features of a particular case. 

With that qualification in mind, 

some suggestions for drafting written 

submissions which I have collated from a 

review of helpful source materials on the 

topic 4 - and as a result of trial and error in 

my own experience - include: 

• Know the applicable rules; 

• Focus on structure and issue framing; 

• Language and style - be polite, 

respectful and methodical; 

• Write early and synthesise grounds of 

appeal and written submissions; 

• Understand the cases presented at trial; 

KNOW THE APPLICABLE RULES AND 

PRACTICE DIRECTIONS 

It goes without saying that if you are 

preparing written submissions for the Full 

Court or Court of Criminal Appeal, it is 

essential to revisit the applicable rules to 

understand what is expected and when. 5 

Persuasive written advocacy begins with 

filing submissions in the proper form and 

on time. If you are the appellant, avoid 

at all costs allowing the respondent the 

apparently irresistible opportunity of 

submitting their submissions with the 

proviso that “These submissions have 

been prepared without the benefit of the 

appellant’s submissions”. 

If compliance with the Rules is not 

possible, inform the other side when you 

will have your submissions to them and 

be sure to advise the court and seek an 

extension of time. 

STRUCTURE AND ISSUE FRAMING 

Advocacy is fundamentally an exercise 

in problem solving using persuasion. 

Whether conducting a trial or arguing 

an appeal, the objective is the same: to 

solve the legal problem using our skills as 

advocates. 6 It is trite, but solving a problem 

requires us to first identify the nature of 

the problem. If we cannot correctly and 

succinctly identify the problem, then we 

cannot begin to develop an answer that will 

persuade the decision maker in our favour.

ADVOCACY 

FRAME THE ISSUES AT THE OUTSET 

On occasion, particularly when under 

time pressure, it is tempting to commence 

written submissions by following the 

path of least resistance: an uninspiring 

and abstract statement of the case under 

review; a re-statement of the grounds of 

appeal; followed by a lengthy dissertation 

of the facts and evidence. Five pages later, 

a reader of the submissions might be better 

educated about some of the facts and 

procedural history but, not knowing why the 

chronology or facts of the case are relevant 

to the grounds of appeal, our reader is 

unlikely to have been assisted in placing 

them into any meaningful legal context. 

Effective written submissions, like 

effective oral advocacy, start with a 

punchy introduction that connects the 

borders of the arguments and issues to 

be addressed so that throughout the body 

of the submissions, the reader has an 

understanding of where the process of 

analysis will lead. Framing the questions 

for determination; identifying, even in a 

cursory way, the answers that will result in 

the remedy or orders sought and exposing 

in economical terms the process of 

reasoning and analysis that supports the 

correctness of the answers, persuasively, 

intelligibly and concisely is a good starting 

point for effective written submissions. 7 

That is, concededly, easier said 

than done. Drafting effective written 

submissions is a demanding and timeconsuming 

task. But we can make the task 

easier both for ourselves and more useful to 

the court, by taking the time to accurately 

and meaningfully frame the issue/s for 

determination and forecast the resolution 

of the issue/s at the outset of submissions. 

For a statement of the issues to be 

meaningful it should bring together the 

key statements of fact or premises (ideally 

those which are non-contentious) and 

the question of law raised by a ground of 

appeal in a succinct, yet informative way. 

The identification of an issue at a level of 

abstraction (such as, “the appeal should 

be allowed because the trial judge erred in 

finding x or y” 8 ) will not fulfil this objective. 

One of the most prolific writers in this area 

of practical tuition, Bryan Garner, suggests 

that a statement of an issue should be no 

more than 75 words (a surprisingly difficult 

task) and should set out the preferably 

non-contentious statements of fact (or 

premises) which generate the question of 

law to be determined. 9 

By defining the issues early on, we 

lay the groundwork for fleshing out the 

substantive argument in the body of the 

written submissions by reference to: 

• The evidence and / or findings of fact 

relevant to the issue; 

• Any arguments relevant to the issue 

advanced at trial; 

• The primary court’s treatment of the 

issue; 

• The authorities relevant to the 

correctness or otherwise of the primary 

court’s approach; and 

• By stepping through these topics, we 

construct a suitable platform to detail 

our analysis of the issue and, hopefully, 

justify the correctness of the answer we 

posited in our introductory remarks. 

To return to Garner’s approach, 

by identifying issues in an incisive and 

meaningful way at the outset, we can control 

the remainder of the argument by providing 

the reader with the necessary compass 

for navigating the written submissions. 

This approach also provides the advocate 

with a map for explaining the steps in the 

argument in a structured and logical way, 

which will prove to be a useful reference for 

supplementary oral submissions. 

As a final observation on structure, 

we should not underestimate the utility of 

descriptive headings to break up slabs of 

text and broadcast a transition to the next 

step in the argument without having to 

waste precious space explaining as much. 10 

BE POLITE, RESPECTFUL, METHODICAL 

AND COMPREHENSIVE 

Persuasive written submissions 

observe the time-honoured traditions of 

oral advocacy: be polite, respectful and 

methodical. Describing an opponent’s 

submissions - or the presentation of 

their case - in terms that are pejorative or 

denigrating (such as the commonly seen 

“completely misconceived” or “grossly 

deficient” mantras) is both unnecessary and 

usually unjustified. It is always unpersuasive. 

The use of vituperative language and 

“intensifying epithets” 11 which typically 

appeal to emotion and involve personalised 

attacks instead of method, can also have the 

side effect of turning your reader against 

an argument and diminishing an otherwise 

good point. 12 Think of Justice Peter 

Applegarth’s observation: 

A coolly written demolition of the other side’s 

evidence and case is likely to be more effective 

than an emotional and personalised attack on 

the other party and its lawyers. 13 

There is nothing more devastating than a 

clinically written submission that appeals 

to logic and reason. 

The need for moderation and clinical 

writing is amplified when discussing 

shortcomings in a trial judge’s approach. 

The use of unnecessary adverbs and 


ADVOCACY 

hyperbole when deconstructing a judgment 

is both impolite and unpleasant to read. 14 An 

appellate court is unlikely to be persuaded 

by “overheated prose”. 15 Be appropriately 

forceful without being discourteous. 

That is not to say that we should 

avoid a critical analysis of competing 

arguments or the judgment of the court 

below. That is our task as advocates. But 

we should be mindful of the way we go 

about performing that task. An appellate 

court is more likely to respond favourably 

to a methodical, well-reasoned and well 

supported argument than one that resorts 

to unhelpful and disparaging descriptors. 

Instead of labelling an opponent’s work as 

“completely misconceived” for example, 

perhaps consider whether the point can be 

made using a more measured submission 

such as “The appellant’s primary complaint 

should be rejected as it cannot be reconciled 

with the High Court’s decision in...” 

Another characteristic of methodical 

writing is avoiding basic errors. I am not 

referring to proof reading - that goes 

without saying. I am referring to misstating 

or distorting the evidence to suit an 

argument. Apart from being unethical 

and unprofessional, it does a disservice 

to professional reputation and the 

persuasiveness of submissions. A genuine 

mistake in drafting is one thing - we all 

make them and it is important to own up 

to them when we do, as embarrassing as 

that may be - but ignoring evidence because 

it is unhelpful devalues the assistance 

we are striving to extend to the court. It 

also gives an opponent an opportunity to 

highlight the error and cast doubt on the 

cogency and reliability of our argument 

more generally. 16 Being accurate - and, 

again, methodical - is essential to preserving 

the integrity of an argument. That is not 

to “confuse fairness with neutrality”. 17 

Advocating is appropriate; indeed, essential. 

But it must be done in a way that preserves 

the integrity of the argument. 

In an appropriate case, that may 

also mean confronting factual and legal 

shortcomings. Effective written advocacy is 

not one-eyed. Where appropriate, address 

the weakness of an argument in a manner 

that does not draw excessive attention to 

it 18 and provides an opportunity to explain 

it away as unimportant. In a sense, this is 

about being comprehensive. And written 

submissions should be comprehensive. As 

Justice Hayne has explained: 

If [the written submission] is not comprehensive, 

when do you propose to fill in the gaps? 19 

SYNTHESISE WRITTEN SUBMISSIONS AND 

GROUNDS OF APPEAL 

One technique to assist in writing 

persuasively (if time permits) is to write 

submissions at the time of formulating 

the grounds of appeal. There are two 

benefits to doing so: first, it provides 

the best opportunity to harmonise the 

grounds of appeal with the argument to 

be advanced (instead of contorting an 

argument to fit a ground of appeal that is 

not quite right). The second benefit was 

referred to by Heydon J, in a different 

context, in AK v Western Australia (2008) 

232 CLR 438 at [108]: 

...the process of stating reasoning often reveals 

its fallacies: in the course of composing reasons 

for judgment directed to supporting a conclusion 

which seemed clear, judges often find that the 

opinion “won’t write”, and that a different 

conclusion develops. 

There is a useful message for appellate 

advocates in this commentary. Writing 

submissions earlier rather than later 

and, preferably, contemporaneously 

with the composition of the grounds of 

appeal, allows us to gauge the merits of a 

complaint. If an argument “won’t write”, 

it may be because it has no merit. Early 

writing affords an opportunity to identify 

and focus on the arguments most likely 

to succeed. To my mind, this is about 

synthesising grounds of appeal and written 

submissions. This reduces the prospect 

of mystifying the court when “the written 

argument bears no relationship to the 

grounds of appeal”. 20 

UNDERSTAND THE CASE RUN AT TRIAL 

Trials involve a forensic exercise. 

Parties make informed choices about how 

they will conduct litigation; the points 

to be taken; witnesses to be called and 

cross examined; the defences to be relied 

upon. The forensic issues as perceived 

and pursued by the parties shape the 

evidentiary landscape and inform the 

arguments that are put by way of final 

addresses. 

The circumstances in which new 

points may be taken on appeal are finite. 21 

Appellate court judges frequently ask 

how trial counsel dealt with an issue or 

argument at first instance. Persuasive 

written submissions must, therefore, 

be sympathetic to and demonstrate an 

understanding of the conduct of the 

proceedings in the court below. Collecting 

references in written submissions to how 

an issue was dealt with at first instance 

is therefore a worthwhile exercise. If the 

need arises to take a new point, confront 

the issue and explain why it is appropriate 

and necessary to do so. 

CONCLUSION 

In a helpful paper 22 on this topic, 

Justice Peter Applegarth provided a 

survey of expectations regarding written 

submissions from the judicial perspective: 

“What judges want and expect 

• They may hope for brilliance 

• But they want (and expect) assistance 

• They are time poor 

• They want written (and oral) 

submissions which will help them do 

their job 

8 


ADVOCACY 

They want to know: 

• The essential facts 

• The issue or issues 

• The relevant rule or principle 

• The result you contend for 

• Why that result is justified by applying 

the rule to the facts 

• Why you say the other side’s arguments 

are not persuasive 

Good written submissions are the raw 

material for an oral or written judgment. 

• They should frame the issue 

• Contain the relevant facts, including 

those that do not help your case 

• State the rule or principle that allows or 

compels the result you seek 

• Persuade why that result flows by 

application of the rule to the facts.” 

If we use this checklist as a reminder 

of what might appeal to our intended 

audience and we strive for written advocacy 

that fulfils the “three functions” as initially 

set out by Justice Hayne and Chief Justice 

Allsop, we will hopefully be well on our 

way to presenting written submissions 

in a persuasive and compelling fashion, 

whilst discharging our duties to the court 

and assisting in the efficient and proper 

disposition of appeals. B 

Endnotes 

1 (2006) 27(2) Aust Bar Review 141. 

2 Justice Kenneth Hayne, Written Advocacy, a 

lecture delivered to the Victorian Bar, March 

2007, pg 5 (); Chief Justice James 

Allsop, ‘Written Submissions - What judges love 

(and hate)’, (2013) 2 Journal of Civil Litigation 

and Practice 9 (< http://thomsonreuters.com. 

au/journals/2013/06/11/written-submissionswhat-judges-love-and-hate/>). 

3 Justice Michael Kirby, ‘The future of appellate 

advocacy’, (2006) 27(2) Aust Bar Review 141, 142. 

4 See, eg, Justice Tom Gray, M Hinton, D Caruso 

(eds), Essays in Advocacy, 2012, Barr Smith Press. I 

have drawn heavily on the following , particularly 

useful articles: Justice Kenneth Hayne, Written 

Advocacy, a lecture delivered to the Victorian Bar, 

March 2007 

(); Chief Justice James 

Allsop, ‘Written Submissions - What judges love 

(and hate)’, (2013) 2 Journal of Civil Litigation and 

Practice 9 (); 

Justice Peter Applegarth, 

Modern Advocacy: Issue Framing in Oral and Written; 

Submissions, QLS Modern Advocacy Lecture Series, 

30 August 2017 (; Justice 

Stephen Estcourt, ‘Use of Written Submissions’, 

(2014) Supreme Court of Tasmania Publications 

(< https://www.supremecourt.tas.gov.au/ 

publications/speeches-articles/legalwise-10-pointsone-day-seminar-use-written-submissions/?); 

Baida, ‘Writing a Better Brief: A Useful Guide 

to Better Written Submissions in Appellate 

Advocacy’, (2002) 22(2) Australian Bar Review 149. 

5 See Supreme Court Criminal Supplementary Rules 

2014, rr 69-74; Supreme Court Civil Rules 2006, r 

297; Supreme Court Civil Supplementary Rules 2006, 

Ch 13, Part 5. 

6 Justice Kenneth Hayne, Written Advocacy, a lecture 

delivered to the Victorian Bar, March 2007, 

pg 4-5 (). 

7 Garner, ‘How to frame issues clearly and 

succinctly for effective motions and briefs’, 

(2017) American Bar Association Journal (); Justice 

Kenneth Hayne, Written Advocacy, a lecture 


pg 8-9 (); Justice Peter 

Applegarth (Supreme Court of Queensland), 

Modern Advocacy: Issue Framing in Oral and Written 

Submissions, QLS Modern Advocacy Lecture 

Series, 30 August 2017, pg 4-5. 


delivered to the Victorian Bar, March 2007, pg 

8, 16 (); 

9 Garner, ‘How to frame issues clearly and 

succinctly for effective motions and briefs’, 

(2017) American Bar Association Journal (). 

10 See, eg, Justice Stephen Estcourt, ‘Use of 

Written Submissions’, (2014) Supreme Court 

of Tasmania Publications (< https://www. 

supremecourt.tas.gov.au/publications/speechesarticles/legalwise-10-points-one-day-seminaruse-written-submissions/?). 



pg 15 (). 

12 A useful example appears in Justice Peter 

Applegarth, Modern Advocacy: Issue Framing in Oral 

and Written Submissions, QLS Modern Advocacy 

Lecture Series, 30 August 2017, pg 13. 

13 Justice Peter Applegarth, Modern Advocacy: Issue 

Framing in Oral and Written Submissions, QLS 

Modern Advocacy Lecture Series, 30 August 

2017, pg 13. 

14 Consider the contrasting examples set out in 

Baida, ‘Writing a Better Brief: A Useful Guide 


Advocacy’, (2002) 22(2) Australian Bar Review 

149, 153. 




2017, pg 13. 

16 Baida, ‘Writing a Better Brief: A Useful Guide 



149, 160. 

17 Baida, ‘Writing a Better Brief: A Useful Guide 



149, 160. 

18 Ehrenberg, ‘Teaching the Neglected Art of 

Persuasive Writing’, (2017) 26(1) Legal Education 

Review 215, 223. 



pg 5. (). 



pg 6. (). 

21 University of Wollongong v Metwally (No 2) (1985) 59 

ALJR 481, 483; Whisprun Pty Ltd v Dixon (2003) 

77 ALJR 1598, [51]; Nudd v The Queen (2006) 60 

ALJR 614, [9] (Gleeson CJ). 




2017, pg 18. 


FEATURE 

THE NEW UNIFORM CIVIL 

COURT RULES EXPLAINED 

ALEX LAZAREVICH AND LISA AMABILI, MEMBERS OF THE CIVIL LITIGATION COMMITTEE 

The South Australian Courts are 

introducing a new Electronic Court 

Management System (ECMS), and with it 

a new set of Uniform Civil Rules. The new 

Rules are anticipated to come into effect on 

18 May, 2020. 

One consequence of the new Rules is 

that there will be one set of rules for the 

Supreme, District and Magistrates Court 

(albeit that there are some variations as 

to the operation of some of the rules as 

between the Courts). 

As the Rules are presently in draft 

form, we have not set out any numbering 

of the rules referred to below. Given the 

size of the Rules we have focused on some 

of the major changes rather than trying to 

summarise all of the new rules. 

TERMINOLOGY CHANGES 

For those who have only finally trained 

themselves to use the terms ‘disclosure’ 

rather than discovery, and ‘permission’ 

rather than leave, the new rules will be 

going ‘back to the future’. 

Disclosure will once again be 

‘discovery’, ‘permission’ will once again be 

‘leave’, ‘adjudication of costs’ will again be 

‘taxation of costs’. 

A plaintiff is now an ‘applicant’ and a 

defendant a ‘respondent’ at first instance 

(similar to the Federal Court, but leading 

to possible convoluted appearances 

like “I appear for the respondent who 

is the applicant on the application for 

discovery”). On appeal, the parties will be 

named appellant and respondent. 

A new concept is that of an ‘interested 

party’. An interested party includes, not 

only an intervenor, but also a party whose 

interests are not directly and adversely 

affected by the claim, but who should be 

given the opportunity to be heard or who 

must be joined to be bound by the result. 

The notes to the Rules give examples 

of the latter as including the Minister in 

relation to disputes under the s35 of the 

Housing Improvement Act or the Registrar- 

General on an application to rectify the 

real property Register Book. The notes 

to the Rules also state that an interested 

party may choose to participate or not 

participate in the proceeding, and that the 

automatic or presumptive costs rules that 

apply as between applicant and respondent 

do not apply as between applicant 

and interested party (e.g. costs do not 

necessarily follow the event). 

ECMS SYSTEM 

Documents are to be filed by an online 

portal. There will be a short transition 

period during which most documents can 

be lodged physically or electronically, but 

in due course the intention is that most 

documents (apart from less common, low 

volume documents) will be required to be 

filed electronically. 

Parties and their lawyers, including 

counsel, will be able to access the 

electronic file, provided they are registered. 

Requests for access will be processed by 

the registry before access is granted – it 

is not intended that the public at large 

can view a case file, or that lawyers would 

have access to files for matters they are 

not acting in. The Registrar has the power 

to cancel the registration of a person if 

they are “not a fit and proper person to be 

a registered user”, and also has a general 

discretion to as to whether to admit a 

person as a registered user. 

Some documents will be entered into 

ECMS directly, with time savings to occur 

where data like parties names, action 

numbers, addresses for service and similar 

data will be ‘pre populated’ so once one 

form is complete the data does not need 

to be re-entered each time (for example, 

there is no longer a Form 1 coversheet). 

Other documents such as affidavits will 

be created on the practitioner’s (or party’s) 

computer system and uploaded for filing. 

A document to be filed in a 

proceeding must be in accordance with 

the requirements contained in the Rules 

and prescribed forms. A document that 

does not comply with these requirements 

may be rejected by the Registrar or the 

Electronic System. 

There is no longer a requirement for the 

name of counsel who settled a document 

filed in a proceeding to appear on that 

document other than for summaries of 

argument or written submissions. 

When a document is lodged for filing 

electronically it is conditionally accepted by 

the Registry if a case number is allocated 

to the proceeding and the Court’s seal and 

a filed document number allocated to the 

document (where the document is the first 

document filed in the proceedings) and 

otherwise for any other documents, if a 

filed document number is allocated to the 

document or the Court’s seal applied. 

The document is conditionally treated 

as filed on the day and at the time at which 

it is accepted for filing if filed when the 

registry is open, and otherwise on the next 

day at the next time when the registry is 

open. Thus, a document filed for example 

at 5:01p.m. on a Friday would be taken to 

be filed the following Monday at the time 

when the Registry next opens. 

The Registrar retains the power 

to reject a document for filing in 

circumstances where the Court so directs 

or if it is frivolous, vexatious, scandalous 

or an abuse of the process of the Court. 

A document may also be rejected by 

the Registrar if it does not substantially 

comply with the rules. 

10 


FEATURE 

Significantly, if a document filed 

electronically which was conditionally 

accepted for filing is rejected within seven 

days of lodgement by the Registrar, it will 

be treated as not having been filed. This 

may have consequences on time sensitive 

matters (such as applications to set aside 

a statutory demand which must be filed 

and served within 21 days of receipt 

of the demand and where case law has 

developed that to be a proper application 

it must not just be filed, but also have on it 

a return date). The Court may order that a 

document be treated as having been filed 

on an earlier date if the document ought 

to have been accepted for filing by the 

Court earlier. 

A document is issued by the Court 

when a filed document number is allocated, 

the Court’s seal is applied or the signature 

of a court officer is applied to the 

document by the ECMS or the Registry. 

It is sufficient for the purposes of the 

Rules, to serve a true copy of the issued 

document downloaded from the ECMS or 

a true copy of a downloaded copy. 

THE RULES 

The Rules are divided into two 

components. Most of the new rules will 

be contained in the Uniform Civil Rules. 

There are also ‘Schedules’ to the new 

Rules, which largely include topics that are 

less frequently used such as those relating 

to electronic document protocols, freezing 

orders, service of documents overseas, and 

commercial arbitrations. 

There is no longer a need to 

cross reference the rules against the 

‘Supplementary Rules’. 

Overarching obligations 

The new Rules contain a provision 

placing obligations on both parties and 

lawyers to, amongst things, act honestly, 

not take frivolous or vexatious steps, or 

make assertions for which they do not 

have a proper basis. Each of those matters 

represents obligations that already apply. 

Some new matters include ‘not to take a step 

unless they reasonably believe that it is necessary 

to facilitate the resolution or determination 

of the proceeding’ and to use reasonable 

endeavours to ensure that time and costs 

incurred are ‘reasonable and proportionate’ 

to the importance and value of the 

subject matter of the proceeding or the 

complexity of issues raised. 

Sanctions can be ordered against 

the parties (including their insurers) and 

lawyers including as to costs or the making 

of orders to avoid or mitigate the prejudice 

to be suffered by a person arising from 

the failure to comply with the Rules. 

Further, the Court may, in making orders, 

have regard to the objects of the Rules, 

including having regard to (amongst other 

things) the nature and complexity of issues, 

the importance of the subject matter or 

step, proportionality between time and cost 

incurred and the complexity of issues, and 

the extent to which a person has complied 

with the overarching obligations. 

Whether these overarching obligations 

result in a change in behaviour (in terms 

of the kinds of applications made or 

interlocutory disputes) from parties 

themselves and the way in which the 

Court manages litigation will be interesting 

to monitor. For example, the idea of 

‘proportionality’ could potentially see some 

interlocutory applications dismissed as the 

costs being disproportionate to the benefit. 

On the other hand, perhaps nothing will 

change with applications being justified as 

being in the applicant’s view ‘reasonable’ 

and ‘necessary’. It will also be interesting to 

see whether the Magistrates Court adopts 

any less technical an approach to issues 

like pleadings than the Higher Courts, 

given the inherent disproportion between 

cost of litigation and amount in dispute in 

particular in that jurisdiction. 

Originating Claims/Originating 

Applications 

Presently most proceedings are issued 

in the Supreme and District Court by way 

of Summons, or, in the Corporations List, 

by Originating Process. In the Magistrates 

Court proceedings were generally issued 

by a ‘Claim’ or, for statutory proceedings, 

an ‘Application’. 

The new Rules adopt the Magistrates 

Court’s approach. There will be the filing 

of Claims – which are to be accompanied 

by pleadings, or Originating Applications. 

Claims are used for common law or 

equitable causes of action, and statutory 

remedies analogous to common law or 

equitable causes of action. Originating 

Applications are defined as a proceeding 

that does not include a Claim, and 

will be used for certain types of 

statutory proceedings. With Originating 

Applications, a return date will be given 

when the application is filed. With Claims 

a directions hearing will be listed only after 

a defence is filed. 

Claims are to be accompanied by a 

pleading. 

Originating Applications are to be 

accompanied by an affidavit which contains 

admissible evidence setting out the facts 

relied upon to obtain the orders sought. 

Pre Action Protocols 

The rules mandate pre-action steps to 

be followed before Claims are instituted. 

For Originating Applications compliance 

is optional. The object of the pre-action 

steps is to encourage resolution before 

commencing litigation (or at least a 

narrowing of the issues). On the one hand 


FEATURE 

this may result in delays in having matters 

instituted and determined. On the other 

hand, matters should be substantially more 

advanced at the time of filing than they 

presently are, with the hope of avoiding 

some matters being lodged at all. 

The Rules extend the requirement to 

give early notice of medical negligence to 

personal injury claims generally (except in 

relation to claims under section 126A of 

the Motor Vehicles Act 1959 or for which 

notice was given under section 30 of 

the Return to Work Act 2014 which have 

statutory requirements for notices). 

The Pre-Action Steps for Claims 

include the requirement to give a preaction 

claim by written notice (which 

replaces the old Rule 33 pre-action 

letter). Unless otherwise agreed the preaction 

claim (and any response) is to be 

confidential and the subject of privilege 

(save that they may be relevant to the 

question of costs). 

The particulars for the pre-action claim 

are more onerous than the previous rule. 

The notice is to include (amongst other 

things) the provision of sufficient material 

necessary for the respondent to respond 

as required by the Rules; an estimate in 

the prescribed form of the total costs 

likely to be incurred by the applicant if 

the matter proceeds to trial (except for 

personal injury claims); an offer to settle 

the claim in terms capable of giving rise 

to a legally binding agreement if accepted; 

and a proposed date and time and physical 

location or audio visual or telephone link 

for a pre-action meeting. 

There are a number of exemptions 

from the obligation to serve a pre-action 

claim including for commencement 

of proceedings where urgent relief is 

sought including by way of a search or 

freezing order or an interlocutory interim 

injunction is sought and the applicant fears 

that if a pre-action claim is provided to the 

respondent the process for obtaining the 

injunction will be frustrated. 

Exemptions include where there is a 

statutory time limit of not more than 3 

months; or if the dispute has been the 

subject of a similar dispute resolution 

process; or the applicant reasonably 

12 

THE BULLETIN May 2020 

believes the claim will be uncontested (or is 

not generally contestable) and serves on the 

respondent a Final Notice; or it is a minor 

civil matter; or for certain statutory actions 

including an Originating Application, 

proceedings for payment under the Building 

and Construction Industry (Security of Payment) 

Act 2009, or the proceeding is a dust 

disease action that meets the criteria for an 

Urgent Case. Applicants may assert that the 

Claim is not genuinely contestable, though 

such an approach may lead to the other 

party seeking orders for non-compliance. 

However, the fact that proceedings 

are about to become statute barred is not 

one of the exceptions (other than as set 

out above) – the expectation is that parties 

should not avoid the need for compliance 

by leaving their Claims to the last moment. 

Further steps include that a respondent 

who receives a pre-action claim must 

within the prescribed time serve on the 

applicant a pre-action response and a preaction 

meeting is to be held within 21 days 

after the time for service of the last preaction 

document. The pre action meeting 

is a new requirement for most actions 

(it is part of the present Construction 

protocols). Absent agreement, the meeting 

is to be face to face, however the parties 

can agree to have a telephone meeting 

or video meeting. The parties are to 

negotiate in good faith; identify the main 

issues in dispute and primary cause of 

disagreement; how the issues may be 

resolved without recourse to litigation. The 

parties are directed to consider alternative 

dispute resolution, and to consider 

whether to appoint an independent person 

to chair the pre-action meeting. 

The Rules strengthen the cost 

consequences of non-compliance with 

the pre-action steps including unless the 

Court orders otherwise, an applicant who 

breaches the pre-action rules is not entitled 

to recover the costs of preparing, filing or 

serving the Claim. At the time when the 

proceeding is instituted the applicant must 

certify on the Claim whether a pre-action 

claim and pre-action response have been 

served and if a pre-action meeting has 

been held. A special directions hearing 

will automatically be listed by the Court 

when the pre-action steps have not been 

complied with and the Court may make 

such orders as it thinks fit including, 

without limitation, ordering that any 

pre-action step or steps in lieu be taken, 

staying other steps in the proceeding, 

making orders for ordinary steps in the 

proceeding to be taken or making orders 

for costs of a defaulting party (including 

costs fixed in a lump sum or on an 

indemnity basis payable forthwith). Given 

that the Rules provide that the pre-action 

communications are confidential, there 

will be a limit on the Court doing much 

other than adopting a checklist approach 

to any such orders (i.e. the Court could 

not be expected to descend into detail as 

to whether a party negotiated in good faith 

as that would involve consideration of 

privileged material). 

Service 

The Rules contain a table setting out 

what is regarded as personal service and 

also provide for service by express post 

if certain requirements are met, including 

where the sender obtains from Australia 

Post proof of posting by way of an 

Article Lodgement Receipt showing when 

the envelope was received over the counter 

at a post office and proof of delivery via 

Australia Post’s online tracking facility 

showing when the envelope was delivered 

to that address. 

Email service is also permitted 

provided there has been communication 

from the relevant email address in relation 

to the subject matter of the proceeding or 

the dispute the subject of the proceeding. 

A document is served by email where 

the recipient replies to or acknowledges 

receipt of the email (though an automated 

response by the recipient’s email service 

is not a reply or acknowledgment for the 

purposes of the rule). 

Generally speaking, personal service 

is no longer required in the District Court 

and Supreme Court for an Originating 

Process (although personal service may 

still have an advantage of certainty given 

experience in the Magistrates Court 

shows it is remarkable how many times a 

defendant asserts that Claims go missing 

when served through Australia Post!).

FEATURE 

The Claim documents must be served 

on the respondents and interested parties 

within 6 months of being filed. The notes 

to the rules provide that the Court expects 

parties to be served, and, if the claim is 

for damages for personal injuries and 

the injuries are not stable or some other 

reason exists for no further steps to be 

taken, that the applicant would invoke 

the rule relating to a moratorium of steps 

rather than not serving and seeking an 

extension of time to serve. 

There are also provisions for solicitor 

service, agent service, agreed service, 

substituted service, deemed service and 

original service. 

The Rules set out the particular 

service requirements for certain types 

of documents, including an originating 

process, subpoena, enforcement process 

and other documents requiring original 

service which have particular requirements. 

They also contain provisions for an 

Address for Service noting that it must 

include not only the law firm but also the 

individual responsible solicitor and if the 

individual responsible solicitor within a law 

firm acting for a party changes, a notice 

of acting showing the new responsible 

solicitor must be filed and served on all 

parties within 7 days. 

There are also provisions which set out 

the requirements for proof of service for 

the different categories of service allowed 

under the Rules. 

Amendments 

Terminology has changed – Amended 

documents should be marked as ‘Revision 

1’, ‘Revision 2’, as the case may be. The 

rules require any amendments to be marked 

up (including deletions in strike through) 

and numbering preserved (for example by 

inserting an additional paragraph between 

paragraphs 10 and 11 as 10A). 

There are changes as to when 

documents may be amended. For example, 

pleadings can now be amended on more 

than one occasion without consent or leave 

if this is done within the time allowed (14 

days after lists of documents are due) - the 

Rules do provide that the amending party 

pay the other party’s costs thrown away 

unless an order is made to the contrary. 

Notices of appeal may be amended before 

the appeal is listed for hearing. 

Pleadings 

Most of the pleadings rules reflect the 

current rules. 

Particulars are to be requested within 

28 days of the receipt of the pleading in 

question. 

The Court may order that instead of 

there being separate pleadings, that there 

be a Consolidated Pleading where the 

parties file their pleadings progressively 

into one document. 

Discovery 

There are a number of potential 

ways to make discovery including general 

discovery, discovery by categories, or 

specific discovery, using the Physical 

Protocol, Simple Electronic Protocol, 

Complex Electronic Protocol, and 

Combined List of Documents. 

The default position is general 

discovery by way of the Physical Protocol 

(when the use of an electronic protocol is 

not needed or justified). This is the reverse 

of the current position in the Higher 

Courts. The Rules clarify that a document 

is a discoverable document if it is directly 

relevant to an issue raised in the pleadings, 

and that a document will be directly 

relevant if it is intended to be relied upon 

at trial or supports or adversely affects a 

party’s case. 

Experts Reports 

Much of the new Rules are similar to 

the existing Rules. 

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in response to or in the same field of 

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FEATURE 

expertise or dealing with the same subject 

matter as an expert report by another 

expert should, to the extent practicable, 

confer with the other expert about their 

respective assumptions and opinions. The 

rule is expressed to apply to both the prior 

expert and subsequent expert. 

If an expert subsequently changes 

their opinion about any material matter, 

the expert must provide a supplementary 

report. 

Litigation Plans 

Litigation plans are no longer 

compulsory but may be ordered by the 

Court or the parties may agree to provide 

them. 

Tender Books 

Tender books are required in the 

District and Supreme Courts, and may 

be required in the Magistrates Court. 

Documents must be included in a 

joint tender book if a party nominates 

its inclusion (even if the other party 

objects). Generally, documents are to be 

in chronological order, paginated, and 

separated by dividers. The applicant is to 

prepare the draft index 35 days before 

trial; the other parties must advise as to 

any additional documents 21 days before 

trial; and objections to documents or 

passages within them are to be filed 7 days 

before the trial, using the abbreviation 

codes set out in the rules. Leave of the 

Court is required to object to a document 

in the tender book if the rule hasn’t been 

complied with. 

Parties must also, at least seven days 

before trial, file and serve any objections to 

any parts of any expert report(s). Again, no 

objection may be made at trial without leave 

of the Court if this process is not followed. 

The Court can order that evidence 

be given by way of affidavit or witness 

statement. The rules provide for timelines 

for the filing of the same and for notices of 

objection. Again, if the notice of objection 

procedure is not complied with, any 

objection at trial requires leave of the Court. 

Appeals 

The main changes to appeals relate 

to Full Court appeals which are aimed at 

reducing the time taken to bring a matter 

to hearing. One of the ways has been to 

eliminate the joint certification of appeal 

books and set down procedure. 

There is a requirement to file a ‘core 

appeal book’ within 28 days of the 

‘preparation commencement date’. The 

core appeal book contains what can be 

described as a list of standard and noncontentious 

items (including amongst 

other things the judgment appealed 

against, current originating process and 

pleadings, list of exhibits tendered at trial, 

index to transcript). 

The appellant is to file its written 

submissions and list of authorities 

within 28 days of the preparation 

commencement date, along with a ‘draft 

chronology’. The respondent is to make 

any revisions to the draft chronology and 

file its written submissions in reply within 

14 days. The appellant is to file the final 

chronology and any submissions in reply 

within a further 14 days. The written 

submissions are not to exceed 20 pages, or 

10 pages for the reply without the leave of 

the Registrar or the Court. The idea is that 

the chronology is prepared progressively 

with input from both parties. 

Notices of appeal can be amended 

without leave before the appeal is listed 

for hearing – preparing the written 

submissions early is accordingly a good 

idea to ensure the grounds of appeal 

match the submissions. 

The appellant is then to prepare an 

exhibit appeal book which contains only 

those exhibits referred to or relied on 

in the written submissions. 3 copies are 

to be filed, and within 7 days the parties 

are to revise their written submissions to 

incorporate the cross references to the 

exhibit appeal book, 

Minor Civil Actions 

There are separate rules for minor 

civil actions. 

Lists 

Finally, the rules contemplate that there 

will be a number of specialist lists including 

(in addition to the existing Corporations 

Lists, Fast Track Lists and Possession 

Lists) the creation in the District Court of 

a Commercial List, Construction List, and 

Personal Injuries List. The new inclusions 

will often be judge managed by judicial 

officers with special expertise in the field. 

CONCLUSION 

Given the significance of the changes 

to the rules and the introduction of 

the ECMS it is likely that there will 

be a significant adjustment period for 

practitioners, the Registry and the Courts 

generally. It is anticipated that in due 

course once transitioned, the ECMS and 

Uniform Civil Rules will create efficiencies 

for all Court users. 

Of more significance however, will 

be whether strengthening the overarching 

obligations in the rules (and the 

enforcement of the mandated Pre-Action 

steps) has any impact on the Court’s 

management of litigation generally 

and the flow on effect that has on the 

behaviour of litigants and whether this 

reduces the number or duration of court 

proceedings. B 

14 


ADVOCACY 

PREPARING FOR CRIMINAL 

TRIAL ADVOCACY 101 

EDWARD JOLLY, BARRISTER, LEN KING CHAMBERS 

This paper was originally prepared 

as “how to prepare” guide for the 

Advocacy Committee’s practical Advocacy 

Workshops that are run for practitioners 

in their first five years of practice. These 

CPD sessions are run by the Advocacy 

Committee throughout the year and are a 

great place to “try before you buy”. 

The difference between a criminal 

advocate in Court and a criminal solicitor 

sitting in an office is the decisions you 

repeatedly make whilst on your feet at the 

Bar table and under pressure. 

The CCA refer to this as “a forensic 

decision made by counsel at trial”. 

This is a polite way of referring to how 

you deal with a witness who has not come 

up to proof (gone “off script”); evidence 

that you thought was admissible but was 

ruled inadmissible (and vice versa!); and, 

objecting to a question but not being able 

to articulate why you have objected to 

the question. It also encompasses those 

occasions where your opposing counsel 

is suffering from FITHS (syndrome 

proposed for inclusion in DSM VI). These 

are just few examples of what can happen 

during a criminal trial; there are many, 

many more… 

The goal of the Advocacy Committee’s 

Advocacy Workshops is to engage and 

trigger a budding advocate’s ‘forensic 

decision making’ skills. The goal of 

this paper is to get you to sign up for 

an Advocacy Workshop. Failing that, it 

attempts to provide some guidance on 

how you might prepare for a criminal trial. 

PREPARING FOR THE TRIAL 

Prior preparation is the only way 

to deal with the forensic decisions that 

are guaranteed to arise in criminal trials. 

Once you are 100% prepared, do some 

additional preparation, and then a little bit 

more preparation. There is nothing else 

required. If someone tells you that there 

is an alternative approach, they are lying 

and/or they are grossly intoxicated. 

Preparation for a criminal trial starts 

with the chronology. The process of 

completing the chronology forces you to 

order (sequence) and then retain events 

the subject of the charge(s). In doing so, 

it can reveal holes in the evidence and the 

case narrative. It also provides you with an 

overview of the case. 

Consider the following: when a 

witness gives evidence with the correct 

sequence of events coupled with a 

consistent narrative (ie, the same details 

each time), it allows for the submission 

that the witness is reliable and credible, 

and thus truthful. The converse is the 

submission that when the evidence lacks 

reliability and credibility, a doubt may 

arise. You can only confidently identify 

the significance of the sequence and 

details of the actual events after having 

placed them in chronological order. This 

helps to identify irrelevant evidence that 

might have seemed important when 

simply reading the statements. 

Once complete, the chronology should 

identify the elements of the offence that 

have sufficient evidence, or insufficient 

evidence, or that there is no evidence to 

meet an element. The chronology also 

allows you to categorise and qualify the 

evidence; is it direct or circumstantial? 

What is its probative value? For example, 

Chronology Example: 

CHRONOLOGY – R V KNOBB 

a good ratio result with DNA evidence 

would be highly probative, as opposed to 

a photo board identification that might 

have a low probative value. Is the evidence 

corroborated? Particularly in a complex 

or large trial, a chronology can rapidly 

identify if there is corroborative evidence. 

In circumstantial cases, the chronology 

can also identify, for a prosecutor, any 

potential “explanations” consistent with 

innocence that will need to be excluded on 

the prosecution case. This is also helpful 

for defence counsel. 

The chronology will also help you 

identify any evidence that might require, if 

prosecuting, the filing of a Discreditable 

Conduct Notice (section 34P Evidence Act); 

and for defence counsel, any evidence that 

needs to be challenged and potentially 

excluded via a pre-trial application under 

rule 49 (voir dire). 

Once the chronology is complete, 

the next step in effective preparation is 

drafting your closing address. This helps 

you identify the relevant evidence and 

thus the critical evidence. Importantly, it 

allows you to speak with authority on what 

is the real issue for trial. Judges love it 

when this occurs! 

EXAMINATION IN CHIEF (XN) 

If you are nervous about conducting 

an effective examination in chief; fear not, 

you are in good company. An effective 

examination in chief is often more difficult 

than cross examination. 

DATE TIME EVENT WITNESS REFERENCE 

June 2010 Complainant purchases house in Halcion Drive Drivell Pg 1, para 3 

June 2014 Argument in hull of boat Drivell Pg 2, para 18 


ADVOCACY 

Witnesses in criminal trials regularly 

do not come up to proof, regardless of 

how many times they have been ‘proofed’. 

When this happens, even competent 

counsel can struggle if not properly 

prepared to lead a witness in chief. 

Some advocates prepare their chief by 

listing the topics on which they are going 

to ask questions. Other advocates make 

annotations on the witness statement(s). I 

suggest that for criminal trials a good habit 

to begin with is to write your questions in 

chief in prose. 

The purpose of writing out your 

questions in full is not so you can read 

them verbatim in Court when you are 

leading your witness in chief. When a 

person reads out loud, it shuts down their 

other senses, such as hearing and seeing 

what is going on around them and this is 

not good for your health in a court room. 

Writing out your questions in full 

achieves a number of objectives in one 

action: 

• When combined with the already 

prepared chronology and draft closing 

address, critical evidence is well and 

truly embedded in your brain. 

• It gives a sense of direction, a sense 

of being prepared, and thus creates 

confidence. 

• It forces you to look at the structure 

of the question. 

• You can easily see the sequence of 

your questions. 

• It makes it easier to ‘vocalise’ the 

question (how it will sound in Court). 

• You can readily identify questions that 

might provoke an objection; and, 

• You can identify questions that might 

trigger a mistrial (more common than 

you think!). 

I make the same recommendation 

for cross examination questions and your 

opening and closing addresses as you start 

down the path of a criminal advocate. The 

primary reason is that writing out your 

questions and submissions is effective and 

efficient preparation; the process “loads” 

your case firmly into your brain. 

When you are on your feet leading your 

witness in chief, by having written out your 

questions in advance, you will find that by 

actively listening to your witness, you will 

get a feel for how they are ‘tracking’ with 

their evidence. You will probably see that 

they provide answers that cover several of 

your questions. Or, they may not come up 

to proof with a question you ask, and this 

may make the next series of your prepared 

questions redundant. 

The critical point is that it is much better 

to have planned the questions in advance as 

omitting some of them, when you are on 

your feet, will cause less stress than trying to 

articulate a question that goes beyond your 

scribbles on the witness statement or wasn’t 

covered in the list of topics you jotted down 

when reading the Brief. 

Once you have notched a few trials 

on your belt, your written questions in 

prose will become a general guide that 

will allow you to readily adapt to any 

response by a witness. Your written 

questions do not preclude you from asking 

questions that will naturally arise from the 

witness’ response. A good examination in 

chief should be like an iconic television 

interview; a conversation skilfully 

conducted by the interviewer where the 

person interviewed is providing all of the 

information (think ‘Graham Norton!’). 

Having written out your questions; if 

you see the word “and” in what you have 

written, then it is likely to be a compound 

question (thus requiring more than one 

answer) and the question should be split 

into two or more questions. 

If you see a full stop or a question 

mark followed by sentence, then it is again 

likely to be a compound question. 

You don’t need to explain or give a 

prequel for your questions in chief; just 

ask the question. It is okay to use headings 

when you write out your questions and it 

is okay to use those headings when you 

are asking questions: “can I take to you back 

to New Year’s Eve in 2015; were you at home 

that day?” 

In chief, you should be looking 

to use questions that follow the ‘who, 

what, when, where, and why’ process. 

Foolproof! When you are on your feet and 

flummoxed, just say to yourself, ‘who, what, 

when, where, and why’ and you will be able to 

reset and continue! 

Avoid, wherever possible, the question 

“and what happened next?”; it’s lazy and might 

adduce evidence that you are not expecting. 

Avoid questions that are too general 

or vague. For evidence in chief, your 

questions should be chronological in 

order, so do not jump around the timeline 

as this will confuse your witness. With 

cross examination, you do the complete 

opposite! 

Do not be afraid of leading questions 

on non-contentious issues. If leading was 

strictly prohibited in criminal trials they 

would take three times as long to complete! 

CROSS EXAMINATION (XXN) 

In preparing for cross examination, the 

first step is to think of Mount Everest. 

The colloquial response of every 

mountain climber to the question of “why did 

16 


ADVOCACY 

you climb [insert name of iconic mountain]?”; 

is, of course, “because it was there”. The same 

can be said of cross examination. 

Many (all) new criminal advocates are 

beguiled by the ‘Cruise/Nicholson Syndrome’ 

(Google “you can’t handle the truth!”) and 

thus believe that one must cross examine 

every witness until they break down in the 

box and confess all, which never happens 

in ‘real life’. 

How many Hollywood series/movies 

contain devasting scenes of examination 

in chief? 

Your starting point is posing the 

question to yourself as to whether you in 

fact need to cross examine a witness. 

As with chief, my recommendation is 

to write the questions out in prose. 

All you need are my three golden 

rules in order to determine if you need 

to ask questions in cross examination! 

Your goal in cross examination is to 

show that a witness or piece of evidence 

lacks consistency, and/or reliability, and/ 

or credibility. These three factors, when 

combined, are the hallmarks of truth. 

The Three Golden Rules 

1. Substantive Inconsistency 

• Will my cross examination establish 

a substantive inconsistency 

between: 

∘ 

∘ 

The prosecution witness’s oral 

evidence and their statement to 

police? 

The witness’s oral evidence and 

other evidence? 

2. Substantive Issue of Credit 

• Will my cross examination identify 

a substantive issue of credit 

regarding the witness? 

∘ 

∘ 

A question of motive? 

Does the witness have an agenda? 

∘ Should I use the witness’ 

antecedents? 

3. Compliance with the rule in Browne v 

Dunn (1893) 6 R. 67, H.L 

• Sometimes, all you have are your 

instructions! 

The practical necessity is obvious, as 

Justice Wells noted in Reid v Kerr (1974) 9 

SASR 367 at 373-4: 

... a judge (or a jury) is entitled to have 

presented to him (or them) issues of facts that 

are well and truly joined on the evidence; there 

is nothing more frustrating to a tribunal of 

fact than to be presented with two important 

bodies of evidence which are inherently opposed 

in substance but which, because Browne v 

Dunn has not been observed, have not been 

brought into direct opposition, and serenely 

pass one another like two trains in the night. 

You will see that the operative word in 

the first two rules are “substantive”! Just 

because a witness gives oral evidence about 

there being four panes of glass and their 

written statement refers to two panes; it 

does not mean that you will need to cross 

examine on this potential inconsistency. 

Apply the ‘Golden Rules’; is it a substantive 

inconsistency? If the answer is “no”, then 

don’t cross examine on that point. 

Cross examination that solely focuses 

on the substantive issues is very powerful 

and does not go unnoticed by the trier 

of fact! 

TAKING AND DEALING WITH OBJECTIONS 

A trial that is replete with counsel 

objecting, is a trial where the jury or 

trier of fact is constantly distracted. A 

distracted jury/judicial officer is never 

desirable, regardless of who you represent. 

The purpose of the voir dire is to 

‘object’ in advance, to the admissibility of 

evidence. Thus, well prepared advocates 

should not have to object to too many 

substantive questions of admissibility 

during the trial. 

Most objections during trial focus 

on the question asked (as opposed to 

the answer). The common objection is 

usually one of relevance. The second most 

common objection is that of hearsay. 

They usually both focus on a loose or 

clumsy question that is in danger of 

adducing irrelevant evidence or hearsay 

evidence. The third common objection 

usually relates to the form of the question; 

it might be lacking in precision, or 

inadvertently misstate the evidence, or it 

might just be a clumsy question. 

For new advocates, I recommend 

revisiting the Evidence Act 1929, sections 

22 through to 25, and 27 to 29 inclusive. It 

can’t hurt. 

CONCLUSION 

If, at the end of the day, you are 

still dazed and confused about criminal 

advocacy, recall to memory the timehonoured 

aphorism that criminal 

barristers swoon at the sound of their 

own voice. Then pick up the phone and 

start calling your friendly neighbourhood 

criminal barrister… 

The author has endeavoured to be a 

windswept and interesting criminal barrister for 

the last 22 years, largely as a means of concealing 

the fact that he is mostly dazed and confused. 

For their entertainment, his colleagues at Len 

King Chambers allow him to continue to try 

to practice as a criminal barrister. With the 

emphasis on ‘practice’… B 


ADVOCACY 

Mandatory prison for sex offences: 

the effect of the Sentencing (Suspended 

and Community Based Custodial 

Sentences) Amendment Act 2019 

ANDREW CULSHAW, LEN KING CHAMBERS 

On 23 May, 2019, the Sentencing 

(Suspended and Community Based 

Custodial Sentences) Amendment Act (“the 

Amending Act”) came into force. The 

Amending Act made amendments to the 

Sentencing Act and the Correctional Services Act. 

The amendments apply to all offenders 

sentenced after the commencement of the 

Amending Act, regardless of when the 

offending in question was committed. 

This article discusses the most 

substantive amendments to the Sentencing 

Act. Most commonly encountered by the 

criminal lawyer will be the prohibition on 

suspension of sentences of imprisonment 

for certain sexual offences. 

This will have the knock-on effect of 

lowering the bar for the categorisation of 

a defendant as a serious repeat offender 

for the purposes of Part 3, Division 4 

of the Act. An offence is not one to 

which the Division applies if a suspended 

sentence is imposed. The removal of 

suspension as a sentencing option will 

bring many offenders closer to the “three 

strikes” threshold set out in s 53 of the 

Sentencing Act. 

SENTENCING FOR “SERIOUS SEXUAL 

OFFENCES” – THE PRE-AMENDMENT 

POSITION 

Before the commencement of the 

Amending Act, a sentencing court was 

prohibited from ordering that a sentence 

for a “serious sexual offence” be served 

on home detention. “Serious sexual 

offence” is defined by s 71(5) of the 

Sentencing Act and includes most sexual 

offences contained within the Criminal Law 

Consolidation Act. The only exception to 

the prohibition on such home detention 

orders was the existence of “special 

reasons”, in respect of which the court 

was entitled to have regard only to the 

following matters: 

• The defendant no longer presenting 

an appreciable risk to the safety of the 

community by reason of advanced age 

or infirmity; 

• The interest of the community as 

a whole being better served by the 

defendant serving the sentence on 

home detention rather than in custody. 

The “special reasons” provision, s 

71(4), did not expressly state whether it 

was necessary to satisfy both criteria, only 

one, or whether those two criteria were the 

matters to which the Court was to have 

regard in a weighing process to determine 

the existence or otherwise of special 

reasons, such that strict satisfaction of 

either or both was not necessary. 

No such limitation existed on 

the power to suspend a sentence of 

imprisonment for a serious sexual offence. 

The court was therefore able to impose 

a less serious punishment (a suspended 

sentence) but precluded from imposing 

a more serious punishment (home 

detention) except in limited circumstances. 

This anomaly was addressed by the 

Amending Act. 

THE AMENDMENTS TO THE 

SENTENCING ACT 

In summary, the anomaly was 

addressed by largely precluding suspended 

sentences for serious sexual offences so 

as to bring the suspended sentence regime 

into line with the home detention regime. 

Amendments to home detention 

provisions 

The Amending Act made two 

substantive amendments to s 71 of the 

Sentencing Act. 

The ambiguity in s 71(4) of the Act was 

one of the issues raised in the high-profile 

case of Vivian Deboo, which was described 

in the Parliamentary Debates as the 

“catalyst” for the Amending Act. Judgment 

in Mr Deboo’s case was reserved at the time 

the Amending Act came into force. 

Section 71(4) of the Act was amended 

so as to make clear that it is necessary for 

an offender satisfy both criteria to make 

themselves eligible for a home detention 

order. The Court of Criminal Appeal 

ultimately held that was the effect of the 

pre-amendment provision in any event: R v 

Deboo [2019] SASCFC 74 at [54]-[60]. 

The second substantive amendment 

slightly broadened the circumstances in 

which a home detention order might be 

made. Section 71(2)(b)(ii)(A) was inserted 

into the Act, which permits a home 

detention order where the offence is “a 

prescribed serious sexual offence that occurred in 

prescribed circumstances”. In summary, this 

amendment provides home detention as an 

option for a “Romeo and Juliet” offender 

who commits an offence that falls short of 

the most serious sexual offences. 

“Prescribed serious sexual offence” 

and “prescribed circumstances” are 

defined in ss 71(5) and (6) of the Act 

respectively. It is not proposed to 

describe those subsections exhaustively, 

however it is important to note that for 

prescribed circumstances to be made 

out, the offender must be aged 20 years 

or less at the time of the offence. The 

18 


ADVOCACY 

Parliamentary Debates make clear that this 

is to be interpreted as meaning that the 

offence occurred before the offender’s 21 st 

birthday. 

The definition of “prescribed serious 

sexual offence” limits the offences 

to which this exception applies to 

objectively less serious (albeit unpleasant) 

sexual offences such as unlawful sexual 

intercourse, offences of indecency and 

lower end child exploitation material 

offences. 

Amendments to suspended sentence 

provisions 

The suspended sentence provisions of 

the Sentencing Act have been amended so 

as to preclude a suspended sentence for a 

defendant being sentenced as an adult for 

a “serious sexual offence” - s 96(3)(ba). 

“Serious sexual offence” is defined by 

a combination of ss 96(9) and (10) so as 

to permit a court to suspend a sentence in 

the same circumstances as those in which 

a home detention order can be made 

pursuant to s 71(2)(b)(ii)(A) of the Act, 

considered above. 

There is no equivalent in s 96 of the 

Sentencing Act to s 71(4). In other words, 

“special reasons” as defined in s 71(4) give 

rise to power to make a home detention 

order, but do not give a basis to suspend a 

sentence of imprisonment. 

The power to impose a suspended 

sentence on home detention conditions 

for reasons of ill health, previously 

contained in s 96(7) of the Sentencing Act, 

has been omitted from the Act. This 

power had been overtaken in a practical 

sense by the creation of home detention 

as a sentencing option in 2016. However, 

its omission closes a potential opportunity 

for defendants in the new, more restrictive, 

sentencing regime for sex offences. 

PRACTICAL IMPLICATIONS 

The amendments have caused a shift 

in the way criminal practitioners view 

what might be considered low to midlevel 

sexual offences. The vast majority of 

sexual offenders are no longer eligible for 

a suspended sentence of imprisonment or 

a home detention order. 

It takes little imagination to envisage 

circumstances that previously would have 

plainly constituted good reason to suspend 

a sentence of imprisonment, where the 

amendments will operate harshly on the 

offender. For example, a first offence 

of indecent assault, an offence of 

(consensual) unlawful sexual intercourse 

where the victim has deceived the offender 

about their true age, or a barely competent, 

intellectually challenged offender. 

Where previously counsel were willing 

to accept a sentence of imprisonment 

was inevitable and focus on the question 

of suspension, the unavailability of 

that sentencing option has led to 

counsel seeking sentences other than 

imprisonment, usually in the form of a 

good behaviour bond pursuant to s 97 

of the Sentencing Act. Anecdotally, courts 

have been receptive to submissions of this 

nature in an appropriate case. 

The other type of case where the 

amendments have caused a shift in 

approach is that where previously the 

question of suspension might have been 

considered borderline. In such a case, 

defendants would frequently be advised 

that the remorse demonstrated by a 

plea of guilty might be the difference 

between going to prison and receiving 

a suspended sentence. That incentive 

to enter a plea of guilty is no longer in 

existence. It is anticipated that more sex 

cases will proceed to trial in light of the 

amendments; the alleged offender might 

“roll the dice” with little to lose by doing 

so. Therefore, the amendments might 

operate harshly not only on the offender, 

but also their victim who will be forced to 

give evidence at trial where previously the 

offender might have pleaded guilty. 

In these circumstances, and bearing 

in mind the guilty plea discount scheme 

provided by sections 39 and especially 40 

of the Sentencing Act, it is important that a 

prosecution case is rigorously analysed and 

a defendant comprehensively advised at 

an early stage. Whilst a 10% discount on 

sentence for a guilty plea entered shortly 

before trial may not be a substantial 

incentive to plead where a custodial 

sentence is inevitable, a 30 or even 40% 

discount for a plea entered at committal 

might encourage a defendant to give more 

sober consideration to his or her plea. 

CONCLUSION 

The Amending Act has taken away 

from the court a sentencing option that 

gave flexibility to be adapted to the 

circumstances of a particular case. It is 

crucial that a criminal practitioner advising 

a client charged with a sexual offence be 

alive to the amendments and give prompt, 

comprehensive advice on potential 

penalties and the benefits of an early 

guilty plea. B 


YOUNG LAWYERS 

facebook.com/YLCSA 

Coffee with Barbara – The Legal Forecast 

MATTHEW RISMONDO, SOLICITOR, SWAN FAMILY LAWYERS 

met with Barbara Vrettos on 14 

I November, 2019 for a coffee and a 

chat at BTS Café. At the time we met, 

Barbara was the SA President of The 

Legal Forecast (TLF), an organisation of 

early-career professionals who are looking 

to bridge the gap between the legal 

profession and technology and innovation. 

Barbara stepped into the role of Director 

in early 2020. Although TLF is structured 

as a company limited by guarantee, it is still 

a not-for profit. TLF have representatives 

in Melbourne, Sydney, Adelaide, Perth and 

Canberra as well as their headquarters in 

Brisbane. Barbara is also a lawyer at Cowell 

Clarke and recent Flinders University Law 

and Legal Practice (Honours) and Justice 

and Society (Criminology) graduate. 

TLF’s work does not bring its 

members any financial gain but provides 

them with “intellectual and social 

satisfaction” that they are boosting 

everyday Australians’ access to justice. 

Each State operates differently and 

dependent on their establishment, 

sponsorship and profession support. 

Barbara admits that it has been difficult to 

get TLF off the ground in South Australia 

and notes some resistance from more 

traditional or conventional members of 

the profession. This is contrary to the 

general feeling towards innovation and 

technological advances in South Australia, 

given recent funding increases in these 

areas from the Government. Barbara 

emphatically believes that South Australia 

is now the innovation hub of Australia. 

DISRUPTING LAW HACKATHON 

This is probably TLF’s biggest event in 

the calendar and following on from 2018’s 

success, was expanded to Queensland, 

Victoria, South Australia, New South 

Wales and Western Australia for 2019. 

The 2019 event can proudly say that it was 

Australia’s biggest legal tech hackathon 

to date. Disrupting Law is a chance for 

20 THE BULLETIN May 2020 

forward thinking lawyers, technologists, 

students and innovators to join forces 

with the common goal of finding new 

opportunities in the legal industry. It is fast 

pace, creative and interdisciplinary problem 

solving with the dial turned all the way up 

to 12! Run over a weekend, Disrupting Law 

is 54-hours of “ideas men” (sorry for the 

Castle reference) from a range of faculties 

and universities coming together to search 

for the next best idea to advance the legal 

practice. All State-based winners headed to 

a national round where the winners were in 

February 2020. 

Law firms and universities are enlisted 

as Disrupting Law mentors who present a 

problem derived from their own processes, 

or a brief, to participants who are then 

tasked with searching for the best and 

most innovative solution. The participants 

and their mentors then spend 54 hours 

designing an idea that will work. Teams 

will then pitch that idea to a panel of 

experienced judges and the public in the 

hopes of winning gold. 

One success story Barbara speaks of, an 

idea out of Queensland’s hackathon event 

last year, allows everyday Queenslanders 

the help needed to resolve disputes 

with their neighbour through a chatbot. 

The Queensland government have now 

funded the chatbot concept which can be 

accessed through their QCAT website and 

government website. 

There were humble beginnings in 

South Australia this year but we believe 

that this will only continue to grow as more 

law firms jump on board and realise the 

value of such intense and open-minded 

collaboration over one weekend. We 

speculate that it might have something 

to do with lawyer’s unfounded fear of 

artificial intelligence and automation taking 

their jobs. Barbara assures me that my job 

is safe and that lawyers have always adapted 

to new technologies and advances that are 

intended to make our lives easier. The only 

danger with the relationship between AI 

and lawyers is resistance. 

Barbara was optimistic for the year 

ahead, citing a plan of more refined and 

interactive events. The Young Lawyers’ 

Committee looks forward to seeing what 

TLF brings to 2020!

COVID-19 

Ensuring legal services can be 

delivered during COVID-19 

The COVID-19 pandemic has thrown 

up a number of challenges for the 

legal profession and the Society has been 

working with Members, the Government 

and other stakeholders to ensure that they 

can continue to provide legal services 

to the public during a time where such 

services will be required more than ever. 

Following advocacy by the Society, the 

COVID-19 Emergency Response Act 2020 

included: 

• regulation making powers to enable 

legislative requirements relating to 

documents to be amended (including 

preparation, signing, witnessing, 

attestation, certification, stamping) 

during the COVID-19 pandemic; 

• amendments to the requirements 

around service of documents; and 

• regulation making powers to enable the 

extension of statutory time frames. 

SIGNING & WITNESSING DOCUMENTS VIA 

VIDEO CONFERENCE 

The Society has written to the Attorney 

General seeking regulations to provide for 

the electronic witnessing of documents. 

This would enable documents such as wills, 

powers of attorney, deeds, and affidavits to 

be witnessed using audio-visual link. The 

Attorney General advised that she would 

not be making any such regulations at this 

time. The Society will continue to advocate 

for these temporary measures. The Society 

has also written to the Chief Justice seeking 

arrangements to be put in place with 

respect to the signing of court documents, 

as has been done in the Family Court and 

Federal Circuit Court. 

PERSONAL INJURY CLAIMS DURING 

COVID-19 

The COVID-19 pandemic has had 

significant impacts on personal injury 

claimants. In the workers compensation 

space, the Society was concerned for 

claimants whose matters had stalled due 

to Return to Work SA temporarily ceasing 

referrals for whole person impairment 

assessments. The Society made suggestions 

as to how delays may be mitigated at this 

time and raised concerns relating to time 

limits relating to medical impacts. RTWSA 

has advised that it will recommence 

referring workers for permanent 

impairment assessments from 4 May. 

The Society has also been working 

with the CTP Regulator to ensure that the 

COVID-19 pandemic does not impact 

the rights of persons injured in motor 

vehicle accidents. The Society met with 

the CTP Regulator to discuss its concerns 

with respect to medical and psychiatric 

assessments. The Society was consulted 

by the CTP Regulator with respect to 

the undertaking of Injury Scale Value 

(ISV) and Guide for the Evaluation of 

Psychiatric Impairment for Clinicians 

(GEPIC) assessments by psychiatrists 

using video conferencing/audio visual link. 

ESSENTIAL LEGAL SERVICES 

The Society has advocated both 

at a State and Federal level as to the 

importance and essential nature of legal 

services during the COVID-19 pandemic. 

The Society made submissions that 

the justice system is an essential service 

and the legal profession is critical to 

the essential and continuing functions 

of the justice system throughout the 

COVID-19 pandemic. 

The COVID-19 pandemic has 

increased demand for a variety of legal 

services. The Society takes the view that 

all legal services are essential and will be 

required throughout and following the 

COVID-19 pandemic. 

The Society and the profession 

have been working with the courts 

to facilitate the increasing use of 

technology to ensure compliance 

with COVID-19 restrictions across 

all jurisdictions. 

The COVID-19 pandemic and the 

restrictions imposed in order to mitigate 

the public health risks of COVID-19 

have, and are likely to continue to have, 

a serious impact on the legal profession 

and the community. Access to legal 

services will be essential throughout and 

of course following the pandemic. The 

Society will continue to advocate for the 

profession and the community during 

these challenging times. B 

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COVID-19 

Managing your practice during 

COVID-19: a guide 

With the COVID-19 pandemic 

causing so much upheaval, it can 

be difficult to know how one should 

operate in this environment. With regards 

to legal services, much has changed, but 

some things, such as a lawyer’s ethical 

obligations, remain the same. The Society 

appreciates the challenges facing the 

profession and is committed to ensuring 

that the profession can navigate this trying 

time while limiting unwanted professional 

risks. The following article sets out to 

remind practitioners of their regulatory 

obligations, and to provide some guidance 

where the current circumstances create 

practical, procedural or ethical challenges. 

The article also summarises some of the 

temporary measures the Society has put in 

place to assist members during this time, 

and compiles some of the key advices and 

updates relating to providing legal services 

during COVID-19. 

Ethical Obligations 

Practitioners are doing everything they 

can to continue providing legal services 

in these extraordinary circumstances, but 

are having to rethink and change the way 

they practice and are facing new difficulties 

and challenges on a daily basis. Despite 

this, it is still business as usual with regard 

to statutory and professional obligations 

that have not (at the time of print) been 

subjected to temporary COVID-19-relief 

legislative amendments. 

Practitioners are therefore encouraged 

to still be mindful of the ethical and 

statutory obligations that continue to apply 

notwithstanding the current circumstances. 

What has changed, and may continue 

to change, is how these obligations are 

observed in specific circumstances. 

Importantly, it’s not about whether you 

can comply but about how you do so in 

your particular circumstances. 

How you comply with any professional 

obligation will depend on factors such as 

the resources available to you, the nature 

of the matter, what orders have been 

made and applicable time limits, availability 


of alternatives for attending court and 

obtaining client instructions in person. 

You will need to satisfy yourself that 

the steps taken by you in client matters 

permit you to observe your professional 

obligations under all of the circumstances. 

Practitioners are further encouraged to 

not only consider all available options and 

but also to ensure that the decided course 

of action is reasonable in the particular 

context. We would encourage the making 

and keeping contemporaneous notes of 

those decision-making processes for risk 

management purposes. 

Although the Society does not have the 

power to excuse compliance with statutory 

or professional obligations, if you are 

unsure about your compliance obligations 

in a particular circumstance you can 

contact Ethics and Practice for assistance 

either by phone or by email. 

Administration of Justice 

In the same way that your professional 

obligations remain so does your primary 

obligation to the administration of justice. 

The key is to identify the difficulties that 

are in play and then to find alternative 

means by which they can be overcome. 

If for example an order has been made 

for something to be done within a certain 

time frame or in a certain way, and you have 

exhausted all reasonable alternatives for 

complying with the order but are unable to 

do so, we recommend that you notify the 

Court and the other side (making sure that 

you observe any applicable rules for doing 

so) at the earliest possible opportunity and 

ask for direction on how to proceed. 

Clients’ Interests 

Your obligation to ensure that your 

clients’ interests are protected remains. The 

issues that may arise will vary, depending 

on the type of work, legal services 

being provided, your client base, and the 

particular rules and procedures that apply 

to the matters in which you are engaged. 

These factors will influence any decision 

to operate your practice in isolation. We 

strongly encourage practitioners to take all 

reasonable steps to inform clients about any 

changes to the operation of the practice 

and the means by which contact with them 

is to be maintained. 

Informed clients are generally less likely 

to complain. 

Despite the difficulties facing 

practitioners we encourage and reinforce the 

importance for you to continue to deliver 

legal services as promptly and diligently as 

reasonably possible in the circumstances. 

Your obligation of competence still 

requires you to be aware of timeframes 

and limitations which may exist in a client 

matter and are required to be fulfilled to 

protect the clients’ interests. 

Again, careful documentation of 

all relevant factors is important from a 

risk management point of view and in 

addition there is a standing invitation 

to have a conversation with Ethics and 

Practice if required. 

Confidentiality 

Now more than ever we encourage 

practitioners to consider the effectiveness 

of their measures for protecting 

confidential client information where 

working from home is the new normal. It 

is still important that client confidentiality 

is not compromised by the need to work 

remotely. Most practices will already have 

in place arrangements to protect client 

information for remote workers. This could 

include providing limited information to 

those workers who do not usually work 

from home and may not have access to 

secure IT or other adequate equipment. 

For instance, you may consider 

redacting information shared with home 

workers in that situation. It is a good idea to 

document the details of the arrangements 

you have put in place to keep client’s 

information confidential. You should also 

consider raising the issues with clients so 

they are aware work is happening outside 

the office and what safeguards you have put 

in place. This gives clients the opportunity 

to raise objections if they have concerns. 

There is no change in the Society’s

COVID-19 

advice with regards to cyber security and 

all usual cyber safety measures should still 

be followed. Never provide or receive 

bank account details via email. When 

dealing with clients by phone, and visual 

is not available, satisfy yourself that you 

are actually speaking to your client. If you 

do not recognise their voice you could ask 

them to confirm what you discussed at the 

last meeting or consultation, or to tell you 

the date and location of that meeting. 

Alternatively, you could allocate 

code words to clients for use when 

communication by phone and/or by email. 

When communicating by phone with 

clients, you cannot control the environment 

they are in but it is useful to just remind 

them of the importance of maintaining 

confidentiality and encourage them to take 

the call away from others if necessary. 

REGULATORY REQUIREMENTS 

Supervision 

It is important that employers and 

principles implement effective means 

by which they can continue to supervise 

legal work. 

Matters to be addressed for remote 

supervision include the following: 

• Frequency of contact between the 

supervisor and the supervised person. 

• Awareness of the supervisor about 

the work being done by the supervised 

person. 

• The ability for the supervisor to 

exercise the requisite degree of 

management or control over the work 

being done by the supervised person. 

• The ability for the supervisor to 

otherwise guide and mentor the 

supervised person. 

• The ability for the supervisor to satisfy 

themselves that correspondence and 

advice is well founded, endorsed, and 

capable being signed off. 

The level of the supervision that 

will be required will vary depending on 

the experience, qualifications, type and 

complexity of the work being undertaken 

by the supervised person. LPEAC has 

published guidelines for the supervision 

of practitioners working from home or 

remotely in the context of COVID-19 

arrangements. 

View the LPEAC Guidelines - 

Remote Supervision Arrangements for 

PLT Students; and Category C (Restricted) 

PC Holders During COVID-19 

Restrictions on the Society’s COVID-19 

Resources webpage. 

MCPD Period: 5 Unit Cap Lifted 

The Legal Practitioners Education 

and Admission Council (LPEAC) has 

lifted the five-unit cap on pre-recorded or 

web based CPD activities. In addition, it 

has extended the deadline for compliance 

with the Mandatory Continuing 

Professional Development requirements 

for the CPD year commencing on 1 April 

2019 and concluding on 31 March 2020 to 

30 June 2020. 

Therefore, practitioners who are not 

yet compliant, unlike in previous years are 

not required to complete rectifications 

but only need to complete their MCPD 

obligations by 30 June 2020. 

Notwithstanding the extension of 

time, practitioners are encouraged to 

complete their prescribed MCPD as soon 

as possible (noting that there is no limit 

on the number of units claimed for prerecorded 

or web-based material which 

can be accessed from home) so as not to 

delay or impede the renewal of practising 

certificates on 1 July 2020. 

Combined Trust Account 

Section 53 of the Legal Practitioners 

Act 1981 requires law practices to transfer 

a portion of the funds in their legal 

practitioner trust account to the combined 

trust account (CTA) within 14 days after 

31 May and 30 November. To assist in 

easing the pressure on practitioners in 

these times the Society has: 

• Written to approved ADIs requesting 

them to ensure that CTA account 

establishment and the making of 

deposits (and withdrawals) can be done 

electronically and without the need for 

personal attendance at the bank. 

• Implemented processes to ensure that 

the Society will be taking a proportionate 

and pragmatic approach with respect to 

the imposition of penalty interest and, 

where it is appropriate to do so, will be 

remitting interest in part or in whole. 

• Written to the Attorney-General to 

request that the requirement to do the 

calculation and make any deposit that is 

needed be delayed (on the proviso that 

when it is done the calculation is based 

on the situation as at 31 May 2020). 

The current Combined Trust Account 

(CTA) period will end on 31 May 2020 

with deposits or notices of withholding 

due by 14 June 2020. 

To assist the profession the Society 

has decided to make its online CTA 

calculator available to all members of the 

profession on a temporary basis. The CTA 

calculator is a member service funded by 

and usually restricted to Society members. 

The calculator is being made available on a 

temporary basis to the wider profession as 

a result of the COVID 19 emergency but 

will revert to being a member service only 

when restrictions are relaxed. 

The Society reassures the profession 

that it will be taking a proportionate and 

pragmatic approach with respect to the 

imposition of penalty interest in the event 

of CTA non-compliance and, where it 

is appropriate to do so, will be remitting 

interest in part or in whole (in accordance 

with its internal policies). 

Regulation 33(3)(b) Waiver 

Regulation 33(3)(b) of the Legal 

Practitioners Regulations 2014 states that, 

during April of each year, all law practices 

with trust accounts must give the Society 

written notice of the associates of the 

practice (including their full name and 

residential addresses) who are authorised, 

as at 31 March of that year – 

i. to sign cheques drawn on a general 

trust account of the practice; or 

ii. otherwise to effect, direct or give 


COVID-19 

authority for the withdrawal of 

money from a general trust account 

of the practice, 

Given the difficult circumstances 

the Council of the Society has resolved 

as follows: 

That, pursuant to Regulation 56, the Society 

waives the notification requirements under 

Regulation 33(3)(b) with respect to April 

2020 on the proviso that practitioners respond 

to specific requests by Society officers for such 

information in a timely manner. 

Please note that the waiver only relates 

to the requirement to notify the Society. 

Ethics & Practice Visits and Legal 

Practice Advice 

Trust Account inspections will be 

postponed or completed remotely, eg via 

correspondence if appropriate. The relevant 

law practices will be separately contacted. 

If legal practitioners have any 

concerns about practice arrangements 

as a result of the spread of COVID-19 

please do not hesitate to contact the 

Ethics and Practice Unit of the 

Society by phone 8229 0200 or email 

(ethicsandpractice@lawsocietysa.asn.au) 

for advice and assistance. 

Practitioners are also encouraged to 

refer to Society’s COVID-19 webpage for 

further information and support. B 

$1.8 million COVID 19 package to support practitioners 

The Law Society is proud to announce 

a once-off $1.8 million rebate support 

package to help Members and insureds 

during the COVID-19 crisis. 

The once-off package includes: 

• Membership discounts of 23-24% for 

most members and up to 85% for low 

fee earners, subject to renewal by 30 

September 

• a 15% rebate on all CPD events for the 

2020-21 financial year* 

• a $500 Administration Fee rebate for 

every insured practitioner 

• Members eligible for the 20% or 50% 

reduced PI contribution for Low Fee 

Earners will automatically receive 

the corresponding Low Fee Earner 

membership rate 

• Expansion of the eligibility criteria for 

the Non-practising Admitted member 

category to include members stood down 

or made redundant due to COVID-19 

• The continuation of a 10-month 

repayment plan on renewal fees 

The Society has taken these extreme 

measures in response to the financial 

hardship many practitioners are facing due 

to the unprecedented pandemic. 

The Society has had to substantially dip 

into its reserves to provide this relief 

package, with the measures as approved 

by Executive based on a detailed financial 

analysis to determine the maximum 

amount that the Society can release. 

The Society has worked hard to provide 

the highest possible subsidies while 

maintaining financial viability. The rebate 

applied to the Administration Fee on 

Professional Indemnity Insurance will be 

funded from the PI Fund. 

MEMBERSHIP DISCOUNT TABLE 

CLASSIFICATION 

Importantly, the package will not impact 

the level and range of services provided by 

the Society. We are committed to serving 

our members as best we can, especially in 

these trying times. 

Once again, the Society has an 

arrangement with Westpac through which 

renewals (Professional Indemnity Insurance, 

Practising Certificates and Membership) can 

be paid by instalments over 10 months at 

the below interest rates: 

We will also continue to provide 

the option for members to pay their 

2020 

MEMBERSHIP 

FEES 

REBATE 

MEMBERSHIP 

FEES AFTER 

REBATE 

DISCOUNT 

Principals, Employed, Sole Practitioners 

admitted for more than 3 years 

$876 $208 $668 24% 

Principals, Employed, Sole Practitioners 

admitted for less than 3 years 

$529 $123 $406 23% 

Government (including Legal Services 

Commission) and Corporate 

$356 $83 $273 23% 

Barrister $658 $153 $505 23% 

Low Fee Earner 50 $876 $540 $336 62% 

Low Fee Earner 20 $876 $742 $134 85% 

Not Practicing $213 $50 $163 23% 

Interstate $233 $47 $186 20% 

Overseas $264 $64 $200 24% 

$ SUBJECT TO FINANCE INTEREST RATE 

More than $50,000 2.2% 

$20,000 to $50,000 2.8% 

$5000 to $20,000 3.5% 

Membership fees by monthly instalments, 

interest free. 

We hope these measures provide some 

relief for practitioners who are doing 

it tough at the moment. We are here to 

support you any way we can. 

The Council and Executive convey their 

appreciation to Lawguard Management Pty 

Limited for their assistance in this process. 

Members are not required to do 

anything to claim the rebates – they will 

be automatically applied. If you have 

any questions about which rebates you 

are eligible for, don’t hesitate to contact 

Member Services: (08) 8229 0200 or email. 

* CPD rebate will apply to all Admitted 

Members who have completed their renewal by 30 

September 2020 (including those who have entered 

an instalment plan) B 

24 THE BULLETIN May 2020

WELLBEING & SUPPORT 

Taking care of your mental 

wellbeing in a time of uncertainty 

WELLBEING & RESILIENCE COMMITTEE 

We are hearing a lot about 

handwashing and social distancing 

at the moment (and rightly so) – but what 

about the other things we need to be doing 

to look after ourselves and our family, 

friends and colleagues? 

Lawyers right across SA are facing 

uncertainty, disrupted income, health 

issues, worry about their loved ones, and 

so on. These challenges can produce 

effects such as exhaustion, detachment 

from others, insomnia, poor eating habits, 

irritability and, of course, an increased risk 

of experiencing anxiety and depression. 

Some of the usual recommendations 

for keeping ourselves mentally healthy 

and resilient aren’t very helpful at a time 

like this where social isolation is mandated 

for the foreseeable future. The isolation of 

working remotely without the usual day to 

day interactions with your colleagues will 

likely take its toll. 

The gym is no longer an option. 

Connecting with friends and family 

over dinner has been ruled out. Even 

getting some quiet time on your own at 

home might be difficult now if everyone 

in the household is working or studying 

from home. 

The Law Society’s Wellbeing and 

Resilience Committee wants to remind 

you that there are a range of services still 

available to support you at this difficult 

time and there is a lot you can do to take 

care of yourself despite the restrictions on 

movement and interaction. 

OUR TOP FIVE TIPS FOR YOUR WELLBEING 

AND RESILIENCE: 

1. Stay connected – there are so many 

ways to do this online now. Share 

a Spotify playlist, have a video call 

through Skype or FB Messenger, play 

games against colleagues or friends 

online… This is particularly important 

for people who are working from 

home and are therefore physically 

isolated from colleagues as well as 

their family and friends. For more 

inspiration, click here. 

2. Keep physically active – use this 

as an opportunity to work on your 

(solo) running or explore the millions 

of free exercise videos online. Chris 

Hemsworth is offering a free trial of 

his fitness/lifestyle app, Centr, and 

there are lots of other free options to 

choose from as well. Your gym might 

even be offering some free online 

content. Even if you are only working 

out in your lounge room – you will still 

get the same boost to your physical 

and mental health. 

3. Focus on what you can control – 

there is a lot that we can’t control, 

predict or even understand at the 

moment. Taking charge where we can 

will help us to combat anxiety. So, create 

a new daily routine for yourself, decide 

on some projects you want to spend 

your weekends at home working on, 

and make sure you get enough sleep. 

4. Practice meditation and 

mindfulness – much of the anxiety 

we feel comes from rehashing what 

we have already lived through and 

obsessing over what might happen 

next. That is a normal response to a 

situation like this but meditation and 

mindfulness can bring us back to the 

present moment and therefore help us 

to keep anxiety at bay. There are lots 

of apps which make this really easy, 

such as HeadSpace and InsightTimer. 

5. Give yourself some enjoyable 

distractions – don’t just work and 

scroll through news feeds. Here is 

one of the many central resources for 

suggestions about podcasts, books, TV 

shows, movies and much more to keep 

the whole household amused. 

OUR TOP THREE RESOURCES IF YOU NEED 

SOME SUPPORT: 

1. Lifeline is still available to you 24/7. 

They offer phone, text and online 

chat services. They also have some 

suggestions about getting through 

this period. 

2. BeyondBlue services are also still 

available via phone and chat. 

3. LawCare Counselling service remains 

available via phone and face-to-face. 

If you are interested in learning more, 

click here for more apps, fact sheets 

and websites. You can also access our 

free Online Wellbeing and Resilience 

Program (for which you can claim 

1 CPD point) and a Wellbeing and 

Resilience Guide. 


OPINION 

Enforced isolation has made me 

treasure my freedom even more 

MICHAEL ESPOSITO 

Seeing the restrictions that have been 

imposed on Australians in the wake of 

the COVID-19 pandemic become the most 

intrusive and extreme in my lifetime has 

been a confronting experience. 

Who thought we’d end up in a scenario 

where police can patrol the streets and 

break up picnics, order children off 

playgrounds, issue on the spot fines for 

standing too close to each other and take 

you to court for socialising? 

While there is good reason for these 

temporary shackles being cast upon our 

collective way of life, it doesn’t mean we 

should not examine them with a critical eye. 

Lawyers are often sceptical of laws 

enacted or proposed by government 

that curtail free expression, restrict our 

movement, invade our privacy and deny 

us the right to challenge decisions of 

the State, because of the unintended 

consequences they create. Governments 

have, over a number of years, gradually 

made legislative amendments that slowly 

but surely erode our rights and freedoms, 

usually in the name of national security. 


Where the current freedom-curbing 

public health measures differ from 

say, some anti-terror laws, is that the 

COVID-19 orders are based on sound 

evidence as to their effectiveness in 

achieving a specific desired outcome – in 

this case to halt the spread of a highly 

infectious and deadly disease. The majority 

of Australians accept that the pandemic 

has the potential to be so catastrophic that 

the ends justify the means 

Nevertheless, Australians are being 

asked to make incredible sacrifices in the 

pursuit of this objective. 

We can no longer congregate in 

communal areas. Thousands of people 

have lost work, and many who are lucky 

enough to keep working have also had 

to supervise their children’s schooling, 

effectively ruling out “leisure time”. People 

cannot see their sick loved ones, and may 

never see them again. Couples’ marriage 

plans have been torn up, and people are 

unable farewell departed family members 

in the way they want to. Everyone has 

been confined to their homes, and for 

some people that means the harrowing 

reality of being trapped with an abuser. 

Isolation is amplifying mental health 

struggles for many. 

The social connections that sustain and 

nourish us as humans has been severely 

diminished. 

The point is, we can understand, 

agree with and comply with these 

oppressive restrictions, but that doesn’t 

mean Government decrees should go 

unquestioned, regardless of their motive. 

We should demand that our leaders 

clearly articulate the reasons why they are 

imposing these measures, and we should 

expect authorities to educate the public 

about their obligations under the new 

regime, especially when the goalposts are 

constantly shifting. With the fast-spreading 

virus necessitating swift action, laws that 

would normally been the subject of public 

consultation and in-depth parliamentary 

debate have been issued overnight in the 

form of far-reaching regulations. 

Ignorance is no defence to breaking 

a law, but it must be unnerving for, say,

OPINION 

a group of three people having a walk 

in the park being told by police that are 

breaching a law that carries an on the spot 

fine of $1000 - and up to six months in 

prison or an $11,000 fine if the matter 

goes to court - as is the case in NSW, when 

such laws were summarily imposed the 

previous night. 

The Government will still have 

access to some of these powers after the 

COVID-19 crisis is over. South Australia 

has recently amended its Public Health 

Act, expediting Government access to 

broad powers to quarantine and detain 

people suspected of being exposed to an 

infectious disease. This law will remain 

after the pandemic passes. 

The extent to which the public trusts 

the government to protect them will 

be in part determined by the manner in 

which police enforce the directives. If an 

inflexible and heavy-handed approach is 

taken, or people don’t accept the rationale 

behind the restrictions, resentment may 

build and suspicion of authority could 

undermine efforts to rally the public to act 

for the common good. While desperate 

times call for desperate measures, it should 

not mean the State should expect to 

exercise its extraordinary powers without 

scrutiny. 

It is appropriate that a COVID-19 

Response Committee has been established 

in the South Australian Parliament. It 

will have an important role to play in the 

monitoring and scrutinising of actions 

and decisions which may impact upon 

rights and liberties during COVID-19. 

The COVID-19 pandemic has enlivened 

incredibly broad and coercive powers 

never seen before and inevitably create a 

tension between public health measures 

and individual rights and freedoms. 

As the COVID-19 situation evolves, 

the Committee has an important role 

to ensure that emergency measures are 

necessary, reasonable and proportionate in 

the circumstances, and whether alternative, 

less intrusive measures (such as broader 

testing) are reasonable as the threat slowly 

subsides. Accountability is key. 

So far, it seems South Australia’s 

approach has been firm but fair. There 

have not been the reports of over-zealous 

police as has been the case in other 

jurisdictions, nor have SA’s restrictions 

followed the lockdown scenarios of some 

of the other States, thanks in large part 

to the community’s attentiveness to the 

Government’s social distancing advice and 

by virtue of not being an international 

tourist epicentre like some of the other 

States. 

The intrusive directives to stay at home 

unless necessary to go out have prevented 

the hospitals being overwhelmed with 

patients. We are doing the right thing. 

But stopping the spread comes at an 

inevitable cost. The financial burden alone 

is colossal. On a personal level, I have felt 

stifled, anxious, stressed and at times lonely, 

despite being one of the lucky ones who 

has the luxury of a loving family to isolate 

with. Living like this for months on end is 

a daunting prospect, and reinforces how 

important it is to protect our civil liberties. 

One thing is for sure, I will never take 

my freedom for granted again. B 

New Court of Appeal welcomes Justice Bleby 

The Society congratulates Dr Chris 

Bleby SC on his appointment to the 

newly established South Australian Court 

of Appeal. 

The Solicitor General will sit on the 

Supreme Court, beginning on 4 May, 

until the Court of Appeal commences in 

January. 

Dr Bleby gained an Honours Arts 

degree, then a first-class Honours Law 

degree before being admitted to legal 

practice in South Australia in 1995 

and working as judge’s associate in the 

Supreme Court. 

In 2000 he was awarded a doctorate in 

Laws from the University of Cambridge 

where he also worked as a Supervisor in 

Public Law for a year. 

He has published extensively on legal 

topics has built up experience in legal 

practice in administrative, constitutional, 

commercial, criminal, industrial, taxation 

and succession law. 

In 2000, Dr Bleby joined the South 

Australian Bar and took silk in 2012. He 

joined the Crown Solicitor’s Office in 2014 

and became Solicitor General in 2016. 

Attorney General Vickie Chapman 

said: “I’m confident he will serve the new 

Court with distinction.” 

“This appointment will help alleviate 

existing workloads within the Supreme 

Court while also ensuring the Court has 

flexibility to continue hearing matters.” 

Law Society President Tim White said: 

“Dr Bleby’s appointment is a fantastic one 

and he will no doubt serve the role with 

the integrity, commitment and intellectual 

rigour he has always demonstrated.” 

Crown Solicitor Mike Wait SC will take 

over the position of Solicitor-General on 3 

August 2020. B 


RISK WATCH 

Rise to the challenge - Try to find 

some positives in the lockdown 

GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS 

At the time of the writing of this 

article we are (in early April) in the 

second or third week of widespread 

working from home and Government 

imposed “social distancing” as a result of the 

Covid-19 Pandemic. The response of the 

Federal Government in relation to relief 

from insolvent trading law, increasing the 

threshold debt levels for bankruptcy and 

liquidation proceedings to $20,000 and 

extending the time for responding to a 

bankruptcy notice and a statutory demand 

to six months before a deemed insolvency 

occurs has been, in terms of the time it 

usually takes for legislative changes to 

occur, remarkably swift. Further, the issues 

surrounding employment law and changes 

to awards announced by the Fair Work 

Commission in early April also show how 

quickly things are changing. 

The speed of these changes, many 

of which are quite radical, is in fact a 

sobering indication of the seriousness of 

the situation we find ourselves in. The 

situation has been changing so quickly 

that it is impossible for this article to even 

pretend to be topical with substantive 

legal matters and so it will not: instead 

this article will attempt to set out some 

considerations that might lead to some 

positives coming out of this crisis. 

Without wanting to sound like 

Pollyanna or Dr Pangloss, 1 the unique 

nature of the current problems might 

be seen as the opportunity to test your 

resourcefulness and resilience. 2 

Although we don’t know when the 

immediate crisis will abate, and what 

the “new normal” will look like, strategic 

thinkers will already be planning how their 

businesses -including legal practices- will 

deal with things if and when the current 

“social distancing” rules are relaxed and 

society emerges from this current period 

of “hibernation”. Who knows, there may 

actually be some good that comes out of 

all this - we can hope for this, but we can 

also plan to make those positives happen, 

without of course downplaying the 

obvious issues we all now face. 

One example of a potential “silver 

lining” might be if your newly found (and in 

many cases, including mine, hard won) IT 

skills developed after a period of working 

from home result in a more flexible 

approach to working from home even after 

your office reopens. It is possible that this 

could turn into a long term positive for 

your practice and your staff. As long as the 

cyber security issues caused by working 

remotely are properly addressed and client 

needs are met it may be that a happier and 

more productive work place could result. 

I recall that many years ago I was in 

Bangkok on my way home to Adelaide 

after trekking in both Kashmir and Nepal 

when my wallet was stolen leaving me with 

48 hours before my flight home and no 

money and no credit cards. As crises go 

it wasn’t by any means life or death but 

it was in the days before mobile phones 

and the internet. It was very much in the 

heyday of hard copy guidebooks. So out 

of the blue I had the idea to hang out 

for a while in a bookshop in the main 

28 


RISK WATCH 

backpacker area of Bangkok and see if 

I could sell my Lonely Planet Guides to 

Kashmir, Nepal and Thailand. I still don’t 

know where this thought came from but 

I did manage to get talking to a Swiss 

backpacker who was going to both India 

and Nepal and she bought my books! I 

managed to clear enough Baht to tide me 

over for the next couple of days and get 

me to the airport on time. 

Hardly Bear Grylls or The Amazing 

Race, I know, but the point of the 

anecdote is that faced with an unusual 

situation I managed to find resources and 

resilience within myself that I didn’t know 

I had. It was actually a classic win-win 

scenario because I got enough money 

to have some cheap and delicious Thai 

curries from street hawkers and she got 

the guidebooks she wanted cheaply. 

The story is most likely apocryphal but 

King George III is reputed to have said 

“lawyers don’t know any more law than anyone 

else, they just know where to find it”. Now I’m 

sure that lawyers do know more law than 

others, but of course no one can know or 

remember everything. When faced with a 

problem that we don’t know the answer 

to, lawyers will search for the answer 

perhaps through legal research, looking 

for precedents, consulting colleagues or 

barristers, or maybe even searching the 

risk management resources on the Law 

Society website. These steps will always be 

done by lawyers using their training and 

logical clear thinking skills. The challenges 

brought about by our current situation 

should be no different. 

As legal practitioners you will have 

been trained to think clearly and logically 

and to apply problem solving skills for the 

benefit of your clients. In addition to using 

these skills for the benefit of your client 

you also need to use them in your own 

practice generally but in particular over the 

next few months. We are all in unchartered 

waters and no-one has all the answers, but 

hopefully as lawyers we have the capacity 

to find them. B 

Endnotes 

1 Look it up! 

2 As to well-being, the Well-Being & Resilience 

Committee has released a useful article published 

to Practitioners on 25 March 2020 and which is 

reproduced in this issue of the Bulletin. 


IN HONOUR 

Vale: Chevalier Colonel the 

Honourable Leslie Trevor Olsson 

AO MBE RFD ED GCSJ CMSJ 

Leslie Trevor Olsson (known as 

Trevor) was born on 31 st July 1931, 

in Adelaide. He was the second of four 

children of Athol and Emily Olsson. His 

father was a partner in the law firm 

which is now Mellor Olsson. Whilst 

Trevor was destined to have a career in 

law, he also had a career in the Army 

Reserve, joining at the age of 17 years and 

serving for 43 years. 

Trevor first met his future wife, 

Marilyn, at Rose Park Primary School, but 

then he went on to Prince Alfred College. 

He reconnected with her in 1963, and they 

were married on 24 th July 1964. They were 

to have two children, Elizabeth and Geoff. 

Trevor, Marilyn and the children had a 

campervan holiday in Europe during the 

1970s and this led to many campervan 

holidays around Australia. Trevor had 

many interests including BBQ connoisseur, 

gardening, fishing, handyman and flying. 

He learnt to fly, and, with his friend 

Langdon Bader purchased a Mooney 

Mark 21 light aircraft, participating in the 

Brisbane to Adelaide Air Race in 1964 and 

taking Marilyn on a flying honeymoon to 

the outback Northern Territory and the 

Kimberley. 

Trevor graduated in Law from the 

University of Adelaide in 1953 and thus 

began his distinguished career in Law. 

He practiced as a barrister and solicitor 

with the Johnston and Olsson law firm 

until 1963, then was made Deputy and 

then Senior Deputy Master and Registrar 

of Divorce Supreme Court of SA. 

Throughout his career he chaired and held 

several senior positions from the President 

of the Industrial Court and Commission 

of SA to Chairman of the Teachers’ 

Salaries Board and the Childhood Services 

Council of SA, as well as many other 

professional appointments in Industrial 

Relations, Judicial Administration and 


the Courts Administrative Authority. He 

became Puisne Judge of the Supreme 

Court, SA, in 1984 and after retirement 

went on to auxiliary judicial positions 

at the Supreme Courts in Perth and the 

Northern Territory until 2015. This was a 

judicial career of some 51 years, more than 

any other Australian judicial officer. 

Involved in many high-profile cases 

during his career, his daughter is proud 

of his decision to injunct Port Adelaide 

Football Club from entering the AFL, 

leading to the formation of the Adelaide 

Crows. 

Trevor pioneered the use of 

technology throughout his legal career and 

was responsible for introducing up-todate 

word processing, stenotype reporting 

to court proceedings and the current file 

management systems and JURIS. This was 

not always successful. When the new court 

reporting system started in the Industrial 

Court, the reporters went on strike! 

Trevor was renowned internationally 

for his work as the Australian 

representative on, and, Chief Rapporteur 

of Joint ILO/UNESCO Committee of 

Experts on the Status of Teachers. His 

2006 report became a reference for teacher 

organisations around the world and had an 

enormously positive impact on the status 

of teachers around the world. 

Whilst maintaining his full-time 

professional life in law, Trevor also 

managed to find time for his other 

passion, the Army Reserve. Starting as 

a gunner in 13 th Field Regiment, Royal 

Australian Artillery, in 1948, he took a 

commission as a lieutenant in 1951.He 

rose in the ranks to a full colonel and 

became Colonel Commandant, 4 th Military 

District, from 1983 to 1986 and then 

Senior Reserve Officer, South Australia 

until 1989. He returned to the military 

as Honorary Colonel of the Adelaide 

University Regiment from 1999 until 2003. 

During his military service he undertook 

an exchange visit to the US Army and was 

Aide-de-Camp to the Governor of SA, 

and the Governor-General of Australia. 

On his retirement from the Bench, 

the then Chief Justice, John Doyle, 

referred to Trevor as using unique turns 

of phrase such as “patently obvious” and 

“the narrative facts”. He nicknamed him 

“Justice Chauffeur” because Trevor would 

regularly state in his decisions that “he was 

driven to the conclusion.” 

Trevor continued to fill his life with 

many interests after retirement from 

the judiciary, and the army. A Knight 

Grand Cross in the Order of St John of 

Jerusalem, Knights Hospitaller, for his 

efforts Trevor was awarded the Order of 

Merit in 2018, the only Knight in Australia 

to hold such an award. 

He also co-authored the Report of the 

Board of Inquiry into the Handling of 

Claims of Sexual Abuse and Misconduct 

Within the Anglican Diocese of Adelaide 

in 2004 with Professor Donna Chung.

IN HONOUR 

Trevor Olsson conducting a telephone hearing in the UK in 1989 

Trevor Olsson with his wife Marilyn, daughter Elizabeth (top right), son Geoff and daugher-in-law Pauline 

He and Marilyn loved travelling around 

Australia, especially in the Northern 

Territory and Western Australia.Marilyn 

sadly died on 18 th December 2011 and 

Trevor nursed and supported her during 

her lengthy illness. 

Throwing himself into new 

challenges Trevor became involved in the 

Burnside City Church Mission Trust, the 

Kensington Park RSL and Rostrum and 

Probus. 

One of Trevor’s passions was boating 

and fishing, so much so that he was 

known as the “Fishing Judge”. For many 

years his boat, known as Sea Mist, was 

stationed at the Royal Yacht Squadron. 

Sadly, this came to an end after he 

managed to sink the campervan that he 

used to pull the boat out of the water as 

it travelled backward down the boat ramp. 

Like a true Captain, Trevor went down 

with the ship, er, van! 

Known for his intellect, fairness, 

common-sense approach, lack of 

pretension and wry sense of humour, 

Trevor adhered to two maxims “Just 

get on with it” and “Near enough is 

not good enough.” His work ethic was 

tremendous. John Doyle described how, 

when sitting on the Full Court, the other 

judges would still be pondering the 

submissions only to hear a distinctive thud 

as Olsson J’s draft reasons hit their desks 

for comment. 

A devoted family man, Trevor 

loved spending time at the various 

family beachhouses, most recently at 

Carrickalinga, and on family holidays 

around the world. He maintained a sense 

of adventure all his life, even ziplining and 

caving in New Zealand at age 83! 

A friend described him as a down to 

earth, funny but incredibly intelligent man 

who just made everyone feel at home. 

On his passing, it was said “Trevor 

Olsson has no peer for the breadth and 

depth of his contribution to the Courts 

of this State as a judge and judicial 

administrator” and “A shining example of 

a life well-lived and bountiful.” 

Chevalier, Colonel, the Honourable 

Leslie Trevor Olsson AO MBE RFD 

ED GCSJ CMSJ, died on 8 January 2020, 

survived by his daughter Elizabeth, a 

Master of the District Court, his son 

Geoff, daughter-in-law Pauline and 

grandson, Simon. B 


TAX FILES 

Superannuation and succession 

STEPHEN HEATH, PARTNER, WALLMANS LAWYERS 

The significance of inheritance to 

superannuation benefits upon the 

death of a superannuation fund member 

has escalated in the last 20 years. 

Factors contributing to this include: 

1. many retail/industry superannuation 

funds offering life insurance as a matter 

of course; 

2. benefit design gravitating to preference 

for income stream benefits over lump 

sum benefits; 

3. the superannuation guarantee era, 

now on foot for almost thirty years, 

having provided increased coverage of 

superannuation benefits and in absolute 

terms an unprecedented pool of assets 

under management by value; 

4. increasing average age of Australian 

superannuants; and 

5. increased complexity of family 

structures with acknowledgment and 

acceptance of blended families and 

same sex relationships. 

HISTORICAL POSITION 

The position historically has been that 

a member’s benefits in a superannuation 

fund do not pass automatically to the 

person’s estate on death. By virtue of what 

are known as the vesting rules, historically 

governed by the superannuation fund trust 

deed, the interest of a deceased member, 

however, has always been accepted as 

subsisting and continuing after death. 

Typically, the trust deed will have provided 

a power to the trustee, in its discretion, to 

pay a deceased member’s benefit, usually 

a lump sum, to any one or more of the 

member’s estate and/or dependants. 

The significance of superannuation 

in the average person’s wealth profile 

has warranted and demanded that 

superannuation benefits be accorded 

escalated status as “property”. This is 

manifested most notably by family law 

changes recognising superannuation 

benefits as splittable property and by 

superannuation law changes authorising 

binding death benefit directions. 

BINDING DEATH BENEFIT DIRECTIONS 

The legislative framework for binding 

death benefit directions has a rather curious 

history. It started with the Superannuation 


Industry Supervision Legislation in 1993 

(SIS) whereby death was affirmed as 

a compulsory payment event and with 

death benefits only able to be paid to the 

member’s estate, surviving spouse/children 

or a dependant of the deceased. 

There has never been an historical 

impediment, whether under tax law, 

superannuation law or equitable principles 

generally, to superannuation benefits being 

“hardwired” to specified persons on death. 

In the writer’s experience, however, it just 

never happened. 

From inception, section 59 of the SIS 

Act provided a general rule prohibiting a 

superannuation fund trustee from being 

subject to the exercise of a discretion 

by a third party. That rule, however, has 

only applied to superannuation funds not 

being self managed superannuation funds 

(SMSFs). 

In 1999, Regulation 6.17A was inserted 

into the SIS Regulations, whereby, for 

the first time, superannuation law in 

Australia recognised the capacity of 

superannuation fund members to make 

death benefit directions, binding as 

against the trustee. Prior to that time, any 

expressed preference of a superannuation 

fund member only ever operated as a 

guide to the trustee rather than prescribing 

anything mandatory. 

Death benefit directions taking effect 

under the auspices of Regulation 6.17A 

lapse three years after being made and 

must be witnessed by two adults, not being 

beneficiaries under the nomination. Only 

the member’s estate or dependants may be 

nominated. 

Regulation 6.17A is silent in terms of 

differentiating between member’s benefits 

held as income streams or accumulation 

interest or between benefits subject of 

a nomination being receipted as lump 

sums or pensions. There is also an open 

question of whether Regulation 6.17A 

tolerates or accommodates a nomination 

made by a member through an authorised 

attorney or a nomination providing for 

cascading beneficiaries (see re Narumon Pty 

Ltd [2018] QSC 185). 

In the end result, Regulation 6.17A 

has not directly had the effect of being a 

“game changer”. The most likely reason for 

this is that the market place has recognised 

almost insurmountable administrative and 

commercial difficulties with nominations 

lapsing after three years. 

NOW 

Both the law relating to superannuation 

death benefit directions (most frequently 

described as “binding death benefit 

nominations”) continues to evolve as does 

market place practice. 

The indirect consequence of 

Regulation 6.17A in terms of market place 

practices has been as follows: 

1. most modern superannuation deeds 

contain express provision for binding 

death benefit directions; 

2. many retail/industry funds have sidestepped 

section 59 SIS Act / Regulation 

6.17A SIS Regulations by effecting 

express provision under the trust 

instrument for the trustee to be bound 

by a member’s death benefit direction. 

Whether this is logical is perhaps 

an open question but the argument 

presumably proceeds on the basis that 

if the trustee was never empowered 

in the first place, it cannot follow that 

the trustee can be made subject to the 

exercise of a third party discretion; 

3. the “flood gates” have opened for SMSFs, 

with SMSFs having never been bound 

by section 59 / Regulation 6.17A in 

the first place. In consequence it has 

become commonplace for SMSF 

members to make nominations which 

are both binding and non-lapsing; 

4. the market place remains undecided 

whether binding nominations apply 

to accumulation interest only, and if 

so, what happens to a superannuation 

income stream on the pensioner’s death. 

PRACTICAL ISSUES 

The writer’s experience gives rise to 

some practical issues as follows, including: 

1. Just in the last week our practice has 

experienced the following events: 

1.1 enquiry as to the status of a client’s 

death benefit nomination revealing 

one original held in the client’s 

deed packet, together with their 

current Will and, another original 

nomination held by the accountant. 

The accountant’s nomination is

TAX FILES 

dated several years after the deed 

packet nomination and makes 

materially different directions as 

to the beneficiaries of the death 

benefit payment; 

1.2 instructions seeking advice as to 

how to interpret “pension terms” 

incorporating a direction that the 

pension be paid to the deceased’s 

spouse as a reversionary pension 

coupled with a later death benefit 

nomination directing lump sum 

payments to the deceased’s four 

children from a first marriage. 

2. The requirement that superannuation 

advice be dispensed, other than by 

legal practitioners, by authorised 

representatives of holders of Australian 

Financial Services licensees may have 

created the false impression that the 

matter of death benefit direction advice 

resides within the exclusive domain and 

capability of those advisers. 

The writer’s view is that the issues are 

often complex and should be entirely 

within the purview of suitably qualified 

legal practitioners. 

3. Is there any impediment to a 

nomination which provides: 

“To my spouse as an income stream benefit if 

my spouse survives me by 28 days and, if not, 

for my four children in equal shares”. 

What then if the pension direction 

gives rise to an “excess transfer balance” 

for the surviving spouse? What if the 

nominating member is not survived by 

their spouse and one or more of their 

children? 

4. In the writer’s opinion, there is no 

theoretical impediment to a nomination 

which states: 

“The real property contained in Certificate of 

Title Volume 1 Folio 2 to my eldest child and 

the balance equally between my other surviving 

children”. 

What though if CT Volume 1 Folio 

2 is not a fund asset at the date of 

the member’s death or if at death the 

real property asset is worth $5m and 

the balance of the assets are worth 

$50,000? Do the younger children have 

any actionable rights for inadequate 

provision? 

In the writer’s view, a death benefit 

nomination is not a testamentary 

disposition and may be difficult to 

challenge unless the assets are first 

directed through the estate. Other 

practical issues can arise as to the 

identity of the person/s who step into 

the role of trustee/director of the 

trustee and the not unlikely eventuality 

that one or more such persons refuse 

to act in accordance with a nomination. 

5. Can a person acting under power of 

attorney make a nomination? What 

happens if the nominated person is 

the spouse and at the time of death the 

parties have since separated or divorced? 

6. One of the most vexing benefit design 

issues is the question of whether a 

binding death benefit nomination 

applies to an income stream interest. 

Income streams are often documented 

by “pension terms” incorporating their 

own death benefit directions which begs 

the question of interface with a separate 

binding death benefit nomination and 

also of whether the pension terms 

themselves are to be construed as a 

binding death benefit direction. It is 

important that advisers understand that 

superannuation and tax law only accept 

that one accumulation interest can be 

held under a superannuation fund but 

that multiple income stream benefits 

can be held. 

CURRENT PRACTICE 

The significance of succession planning 

for lawyers as a practice area has never 

been as acute as it is now. The current 

economic disruption in train is likely to 

be a catalyst for diminished income for 

many taxpayers and to fuel disputation 

over significant, albeit diminishing estates. 

Embedded within that is the relevance of 

superannuation death benefit directions 

and payments. Difficult and extensive 

litigation is likely to be a consequence. 

Current practices adopted by our office 

include: 

1. the adoption of clear written guidelines 

to describe the rules applicable to the 

making of a nomination. This should 

address matters such as the power of 

an attorney to make a nomination, 

that the nomination terminates if 

a nominated spouse ceases to be a 

spouse and the requirement that the 

nomination be witnessed by two adult 

persons not being beneficiaries; 

2. using death benefit nominations for 

accumulation interests only and pension 

terms for income stream benefits; 

3. where possible, we provide the benefits 

payable to a spouse to be payable as a 

pension/reversionary pension; 

4. making clear on the face of the 

nomination instrument which 

superannuation interest the nomination 

applies to and that the nomination is 

binding and non-lapsing; 

5. tax considerations, whilst always not 

paramount, should nevertheless be 

considered. For example, it is relevant 

to ascertain the taxable/tax free 

components of each superannuation 

interest and whether a nominated 

person is a “death benefit dependant” 

for tax purposes. One issue often 

forgotten is that the Medicare levy 

applies to the taxable component 

of a death benefit derived by a 

nondependant whereas there is no 

Medicare levy applied to death benefit 

payments to an estate; 

6. it is often appropriate to implement 

superannuation death benefit directions 

at the same time as the person is 

reviewing their Will. One way to avoid 

corruption of mathematical outcomes 

is for death benefit payments to be 

directed to the estate; 

7. other matters which are often 

underestimated include: 

7.1 planning with respect to 

succession to trusteeship 

following death/legal incapacity 

of a fund member; 

7.2 governance and storage of 

important documents; 

7.3 the ability and inclination of 

family members/successor 

generations to tolerate the 

commercial outcomes where 

there has been communication 

and explanation with all 

stakeholders at the time 

succession plans are put in place; 

Upskilling on estate law generally with 

skills building around peripheral practice 

areas such as broader equity practice, inter 

vivas commercial transactions, property, tax 

advice and superannuation law. B 


FAMILY LAW CASE NOTES 

Family Law Case Notes 

ROB GLADE-WRIGHT 

COSTS – INDEMNITY COSTS AGAINST 

SOLICITOR – CLIENT’S APPLICATION HAD 

NO CHANCE OF SUCCESS 

In Benard & Eames and Anor [2020] 

FamCAFC 47 (5 March, 2020) the 

Full Court (Alstergren CJ, Strickland & 

Kent JJ) dismissed with costs of $18,000 

an appeal by a solicitor ordered to pay 

indemnity costs. The solicitor acted for 

the father in an application for a credit of 

third party payments made for the parties’ 

children under s 123 of the Child Support 

(Assessment) Act 1989 and an order under 

s 66M of the Family Law Act 1975 that he 

has a lawful duty to maintain his stepchildren 

(the children of his new partner). 

At first instance Judge Bender 

summarily dismissed the application for 

having no reasonable chance of being 

granted. The father’s appeal of that 

dismissal was dismissed. Costs were 

subsequently awarded to the mother and 

the father’s solicitor was ordered to pay 

them. He appealed. 

The Full Court said (from [35]): 

“ … [I]t is clear that the application 

was brought on the advice of the 

appellant … where [he] would have 

well known that the application had 

no chance of success. Indeed, that was 

not only a finding by her Honour, but 

was also a finding by the Full Court … 

[which] also found that the application 

was brought for a collateral purpose 

and was, thus, an abuse of process. 

[36] ( … ) As was said by the Full 

Court of the Federal Court of 

Australia in Levick v Deputy Commissioner 

of Taxation [2000] FCA 674 at [44]: 

‘ … [I]t is … important to uphold 

the right of a court to order a solicitor 

to pay costs wasted by the solicitor’s 

unreasonable conduct of a case. 

What constitutes unreasonable conduct 

must depend upon the circumstances of 

a case … In the context of instituting 

or maintaining a proceeding … we 

agree with Goldberg J that unreasonable 

conduct must be more than acting [for] 

a client who has little or no prospect 

of success. There must be something 

akin to abuse of process … using the 

proceeding for an ulterior purpose or 

without any, or any proper, consideration 

of the prospects of success.’” 


PROPERTY – ADJUSTMENT UNDER S 75(2) 

SET ASIDE WHERE CHILDREN WERE 16 

AND 13 AND HUSBAND WAS PAYING CHILD 

SUPPORT 

In Chan & Chih [2020] FamCAFC 

31 (14 February, 2020) the Full Court 

(Strickland, Ryan and Tree JJ) allowed 

the husband’s appeal of property orders. 

The husband was 50 and the wife 45. The 

parties married in 1999, moved from South 

Korea to Australia in 2000 and separated in 

2013 with assets totalling $4 million. Their 

children (16 and 13) lived with the wife. 

At first instance Watts J held that 

there should be two pools, being the 

wife’s Korean assets and all other assets 

(including the husband’s Korean property). 

The wife’s Korean assets comprised a 

5/14 th share in her late father’s commercial 

property, her interest being worth $2.2 

million which also provided the wife 

with an income stream. The wife had 

also received financial support from 

her mother. Watts J made a 5 per cent 

adjustment under s 75(2)(d)-(g) for the 

wife calculated on the value of both pools. 

The husband appealed, arguing that 

no adjustment should have been made. 

The Full Court agreed. The Court ([42]) 

said that his Honour gave insufficient 

reasons for that adjustment, continuing 

(at [43]-[44]): 

“It is also argued that the particular 

factors identified … cannot justify a 5 per 

cent adjustment. Certainly, the financial 

responsibilities for the children are a 

highly relevant factor, but the children 

were aged 16 and 13 years … and the 

husband was paying child support as well 

as providing additional funds. In relation 

to the ‘real nature’ of the wife’s interest 

in the J property … his Honour made no 

findings as to the restrictions on the wife’s 

enjoyment of her interest in that property 

being significant enough to justify an 

adjustment of 5 per cent. 

Further, it is significant that his 

Honour only referred in percentage terms 

to the extent of the adjustment. There is 

no dollar figure discussed, and no analysis 

by his Honour of the real effect in money 

terms of the adjustment. The adjustment 

of 5 per cent represented $203,568, and 

created a differential of approximately 

$407,000. To not take that into account 

flies in the face of authorities such as … 

Clauson [1995] FamCA 10.” 

CHILDREN – FATHER’S INTERIM 

APPLICATION TO VARY PARENTING ORDER 

SO AS TO COMMENCE EQUAL TIME BEFORE 

TRIAL DISMISSED 

In Findlay & Reis [2020] FCCA 425 (28 

February, 2020) Judge Hughes dismissed 

an interim application by the father to vary 

parenting orders which had been in force 

for six years, by which the children (now 13 

and 11) spent four nights per fortnight with 

him. His application sought equal time. The 

mother’s application for dismissal was listed 

as a preliminary hearing. 

The father’s case was that the children 

had repeatedly asked to spend week 

about time with him ([45]), that they were 

sufficiently mature to have more weight 

given to their views and that he was in a 

stable new relationship ([68]). 

After citing Rice & Asplund [1978] 

FamCA 84 and SPS & PLS [2008] 

FamCAFC 16 her Honour said (from [65]): 

“Their Honours [in Marsden & Winch 

[2009] FamCAFC 152] set out a two-step 

process to be followed in which there was a 

requirement: 

1. for a prima facie case of changed 

circumstances to have been established; 

and 

2. for a consideration as to whether 

that case is a sufficient change of 

circumstances to justify embarking 

on a hearing. 

[66] ( … ) The mother said the only 

occasion on which … [equal time] 

was raised with her was … the result 

of the father’s influence and a desire 

by the children to meet his need to 

have an arrangement which is ‘fair’ 

as between the parents. The veracity 

of the competing evidence about the 

children’s views is not something I am 

able to determine on the strength of the 

untested affidavit material … ( … ) 

[79] Based on the limited untested 

evidence before me, I am not persuaded 

further litigation will likely result in 

a substantial change in the children’s 

arrangements given the high level of 

acrimony and resentment between the 

three significant adults. … [T]he potential 

benefit to be derived by the children from 

[any] change is, in my view, outweighed by 

the negative aspects the children will be 

required to endure for a period of more 

than 12 months until a trial can occur.”

BOOKSHELF 

M Leeming 

2 nd ed The Federation 

Press 2020 

HB $175.00 

AUTHORITY TO DECIDE - THE LAW OF JURISDICTION IN AUSTRALIA 

Abstract from Federation Press 

Since its initial publication in 2012, Authority 

to Decide has established itself as the pre-eminent 

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been cited regularly in judgments of the High 

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courts. Some of propositions advanced in the 

first edition have subsequently received judicial 

support, helping to shape the development of 

the law. 

Each chapter in the second edition has been 

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new case law. The coverage of the work has also 

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4 th ed LexisNexis 2020 

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NATIVE TITLE IN AUSTRALIA 

Abstract from LexisNexis 

Native Title in Australia, 4th ed is a 

comprehensive and authoritative work that 

provides the reader with an understanding 

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background and development. It covers the 

nature of the concept, its proof, content and 

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past grants and acts and the limited degree 

of protection from future acts, examines 

compensation for native title, and discusses 

the application of native title principles to 

resource development and traditional pursuits. It 

considers both the common law and the Native 

Title Act 1993 (Cth). 

POWERS OF ATTORNEY 


The prevalence of powers of attorney 

--- particularly enduring powers of attorney--- 

makes this book increasingly important over 

time, especially in view of Australia’s ageing 

population. Powers of Attorney 3 rd ed is not 

confined to Australian law but uses law from the 

principal common law countries to contextualise 

our law, and to provide guidance where 

Australian law may be lacking. 

G dal Pont 

3 rd ed LexisNexis 

Butterworths 2020 

PB $155.00 

S Taylor 

9 th ed LexisNexis 2020 

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FINANCIAL PLANNING IN AUSTRALIA: ADVICE AND WEALTH MANAGEMENT 


Financial Planning in Australia: Advice and 

Wealth Management explains in clear and plain 

language the concepts, vehicles and strategies 

required for providing sound advice on creating, 

investing, and managing personal wealth. 

Focusing on individual wealth-management 

problems, it provides an overview of the 

financial planning environment and discusses 

core principles and key practices. 

This 9th edition considers recent changes to 

the law, including the Financial Adviser Standards 

and Ethics Authority (FASEA) Code of Ethics 

that becomes mandatory from January 2020. In 

light of tighter regulation arising from the Royal 

Commission into Misconduct in the Banking, 

Superannuation and Financial Services Industry, 

this book has introduced a new chapter on 

Ethics and Professionalism that explores conflict 

of interest dilemmas for advising professionals. 


GAZING IN THE GAZETTE 

3 MARCH – 2 APRIL 2020 

A MONTHLY REVIEW OF ACTS, APPOINTMENTS, 

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH 

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA 

ACTS PROCLAIMED 

Legislation (Fees) Act 2019 

(No 30 of 2019) Commencement 

Schedule 1: 1 July 2000 

Commencement remaining 

provisions: 19 March 2020 

Gazetted: 19 March 2020, 

Gazette No. 19 of 2020 

Statutes Amendment and Repeal (Simplify) Act 

2019 (No 25 of 2019) 

Commencement Part 2; 4; 

ss 61, 62, 64, 66: 6 April 2020 

Gazetted: 2 April 2020, 


Judicial Conduct Commissioner (Miscellaneous) 

Amendment Act 2018 (No 31 of 2018) 

Commencement: 6 April 2020 



ACTS ASSENTED TO 

South Australian Public Health (Controlled 

Notifiable Conditions) Amendment Act 2020, 

No. 1 of 2020 



Evidence (Reporting on Sexual Offences) 

Amendment Act 2020, No. 2 of 2020 



Local Government (Public Health Emergency) 




Supply Act 2020, No. 4 of 2020 



Planning, Development and Infrastructure 

(Commencement of Code) Amendment Act 

2020, No. 5 of 2020 



Coroners (Undetermined Natural Causes) 




APPOINTMENTS 

Magistrate of the Magistrates Court of 

South Australia 

on an auxiliary basis, 

for a period commencing on 4 May 2020 and 

expiring on 3 May 2021 

Phillip Edward James Broderick 



South Australian Civil and 

Administrative Tribunal 

Revocation as Ordinary Members on a 

sessional basis, 

effective from 16 March 2020 

Appointment as sessional Senior 

Members 

for a term of three years commencing on 16 

March 2020 and expiring on 15 March 2023 

Candida Jane D’Arcy 

Alexander Lazarevich 

Kathleen Patricia McEvoy 

Full-time Senior Members 



Maria Stella Alvino Caretti 

Neil John Rainford 

Part-time Senior Member 


March 2020 and expiring on 15 March 2023 - 

Lindley Margaret Gilfillan 

Part-time Ordinary Members 



Joanne Bakas 

Stavros Georgiadis 

Cathrynne Delohery Lester 

Sessional Ordinary Members 

for a term of three years commencing on 1 April 

2020 and expiring on 31 March 2023 

Jeanette Barnes 

Katherine Jane Christian Bean 

Lucy Delia Marie Byrt 

Bethany Marie Caldeira 

Jodie Mareika Carrel 

Robert McBeath Croser 

Sally Elizabeth Gooch 

Bruce Gregory Harvey 

Rosemary Frances Hordern 

Magdelena Christina Madden 

Tracee Ann Micallef 

Jane Rosemary Moularadellis 

Terrence William Sparrow 

Alexander Peter Reilly 

Anne Elizabeth Trengove 

Helen Ward 



Police Disciplinary Tribunal and 

the Protective Security Officers 

Disciplinary Tribunal 

from 29 April 2020 

Revocation as Magistrate in Charge 

Maria Panagiotidis 

Revocation as Deputy Magistrate in 

Charge 

Simon James Smart 

from 29 April 2020 until 28 April 2023 

Magistrate in Charge: 

Simon James Smart 

Deputy Magistrate in Charge: 

Brett Jonathon Dixon 

Panel Member: 

Alison Frances Adair 

Nicholas Alexandrides 

Teresa Marie Anderson 

Jayne Samia Basheer 

Paul Bennett 

Yoong Fee Chin 

Luke Anthony Davis 

Cathy Helen Deland 

Lynette Catherine Duncan 

John Gerard Fahey 

Gregory Charles Fisher 

Paul Marvin Foley 

Terence Frederick Forrest 

Alfio Anthony Grasso 

36 


GAZING IN THE GAZETTE 

Gary Clive Gumpl 

Robert Bruce Harrap 

Kathryn Hodder 

Mary-Louise Hribal 

Anna Jackson 

Briony Kennewell 

Oliver Rudolf Gerhard Koehn 

Koula Kossiavelos 

Jayanthi McGrath 

David Hamilton Bruce McLeod 

Stefan Peter Metanomski 

Simon Hugh Milazzo 

Kym Andrew Millard 

Brian Malcolm Nitschke 

Rodney Oates 

Susan Elizabeth O’Connor 

Maria Panagiotidis 

Kylie Sue Schulz 

Mark Steven Semmens 

Elizabeth Ann Sheppard 

Derek Yorke Nevill Sprod 

John Cardale Wells 

David John White 

Ian Lansell White 



Parole Board of South Australia 

First Deputy Presiding Member: 

Member: 

from 2 April 2020 until 17 December 2022 

William Penn Boucaut 



RULES 

Magistrates Court Rules 1992 

Amendment No. 81 



Magistrates Court Rules 1992 

Amendment No. 82 



Disallowance of Regulations 

Genetically Modified Crops Management 

Act 2004, No. 249 of 2019 

From 4 March 2020 



REGULATIONS PROMULGATED (3 MARCH 2020 – 2 APRIL 2020) 

REGULATION NAME REGULATION NO. DATE GAZETTED 

Correctional Services (Corresponding Law) (Variation) Regulations 2020 21 of 2020 5 March 2020, Gazette No. 16 of 2020 

Genetically Modified Crops Management (Designation of Area) Variation 

Regulations 2020 

22 of 2020 5 March 2020, Gazette No. 16 of 2020 

Development (Bushfire Recovery) Variation Regulations 2020 23 of 2020 5 March 2020, Gazette No. 16 of 2020 

National Electricity (South Australia) (Local Provisions) Variation Regulations 

2020 


South Australian Public Health (Notifiable Contaminants) Regulations 2020 25 of 2020 19 March 2020, Gazette No. 19 of 2020 

Development (Delivery of Goods) Variation Regulations 2020 26 of 2020 19 March 2020, Gazette No. 19 of 2020 

Children and Young People (Safety) (Exemption from Psychological Assessment) 

Variation Regulations 2020 


Emergency Management (Expiation Notices) Variation Regulations 2020 28 of 2020 28 March 2020, Gazette No. 25 of 2020 

Supreme Court (Fees) Variation Regulations 2020 29 of 2020 2 April 2020, Gazette No. 27 of 2020 

District Court (Fees) Variation Regulations 2020 30 of 2020 2 April 2020, Gazette No. 27 of 2020 

Magistrates Court (Fees) (Miscellaneous) Variation Regulations 2020 31 of 2020 2 April 2020, Gazette No. 27 of 2020 

Motor Vehicles (Simplify and Other Matters) Variation Regulations 2020 32 of 2020 2 April 2020, Gazette No. 27 of 2020 

South Australian Public Health (Notifiable and Controlled Notifiable Conditions) 

33 of 2020 

(CPE) Variation Regulations 2020 

2 April 2020, Gazette No. 27 of 2020 

Passenger Transport (Regular Passenger Services) Variation Regulations 2020 34 of 2020 2 April 2020, Gazette No. 27 of 2020 

Passenger Transport (Small Vehicle) Variation Regulations 2020 35 of 2020 2 April 2020, Gazette No. 27 of 2020 

Child Safety (Prohibited Persons) (Exemption) Variation Regulations 2020 36 of 2020 2 April 2020, Gazette No. 27 of 2020 

Disability Services (Assessment of Relevant History) (Exemptions) Variation 

Regulations 2020 

37 of 2020 2 April 2020, Gazette No. 27 of 2020 

Youth Justice Administration (Psychological Assessment) Variation Regulations 2020 38 of 2020 2 April 2020, Gazette No. 27 of 2020 


CLASSIFIEDS 

VALUATIONS 

MATRIMONIAL 

DECEASED ESTATES 

INSURANCE 

TAX REALIGNMENT 

INSOLVENCY 

FURNITURE 

ANTIQUES, COLLECTIONS 

BUSINESS ASSETS 

MACHINERY 

MOTOR VEHICLES 

CARS, BOATS, PLANES 

CITY & COUNTRY 

ROGER KEARNS 

Ph: 08 8342 4445 

FAX: 08 8342 4446 

MOB: 0418 821 250 

E: auctions@senet.com.au 

Certifi ed Practising Valuer NO.346 

Auctioneers & Valuers Association 

of Australia 

Providing practical, cost-effective 

investigation services in SA 

Workplace Investigation 

General Insurance 

Workers Compensation 

Factual Investigation 

Surveillance 

Skip Tracing 

Process Serving 

6 Todd Street, Port Adelaide SA 5015 

admin@hhriskservices.com.au 

08 8440 2436 

www.hhriskservices.com.au 

VALUER 

Commercial & Residential 

Real Estate 

Matrimonial 

Deceased Estates 

Rentals etc. 

Experienced Court 

Expert Witness 

Liability limited by a scheme approved under 

Professional Standards Legislation 

JANET HAWKES 

Cert. Practising Valuer, AAPI 

0409 674 122 

janet@gaetjens.com.au 

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 

NORWOOD SA t. 5067 +61 8 431 80 82 

m. +61 401 712 908 

e. ahi@andrewhillinvestigations.com.au 

Fellow AIPI 

Andrew Hill 

Andrew Hill 

Investigations 

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, 

including alcoholism and drug 

abuse. 

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. 

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 

38 THE BULLETIN May 2020

Letter to Owners 

and Marketing 

Managers 

+ Boylen has a record of reducing website and digital marketing costs. 

+ In one case last year, we reduced costs for online marketing by 90% 

and achieved significantly better results. This was for a small SA company. 

+ In another case, an ASX-listed company asked us to “take a zero off the end 

of the bill we get each month” from another supplier. We achieved this. 

+ In these challenging times, many of us are reviewing our cost structures 

(and we certainly are). 

+ If you would like us to review your digital investment and provide an 

alternative quote, we would be happy to assist. 

+ We are happy to share the details of the two cases above and to 

explain how we went about it. 

Call Vince Fusco on 08 8233 9433. 

It will cost you nothing to get an alternative 

– but it might save you valuable dollars. 

P 08 8233 9433 

A Level 3, 47 South Tce, Adelaide SA 5000 

As a digital company, we have managed a remote workforce for over 15 years. The working-from-home model does not affect our business.

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08 8179 9900 lane@laneprint.com.au laneprint.com.au

LSB May 2020

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