LSB October 2020 F LR

THE
BULLETIN
THE LAW SOCIETY OF SA JOURNAL
VOLUME 42 – ISSUE 9 – OCTOBER 2020
LOCAL GOVERNMENT
IN THIS ISSUE
Major local
government reforms
State power
over councils
Cat curfews &
dangerous dogs

Instalment Plans
Instalment Plans
MATTERS DETAILS
New Instalment Plan
Matter: 20183506
PAYMENT REQUEST DETAILS
Make your law firm’s
DATE
revenue predictable
with instalment plans
OUTSTANDING INVOICES
Secure a predictable cash flow for your firm with a
RapidPay instalment plan, accessible from LEAP.
Make it easy for your clients to pay off their outstanding
Client: Ms Sarah Hill
Matter:
Description: Property Settlement
Invoice No.:
01/08/2019
invoices with regular fortnightly or monthly payments
to ensure your business maintains a healthy cash flow.
DATE
INVOICE NO.
Invoice Balance Due:
PAYMENT REQUEST DETAILS
DESCRIPTION
20180506 Hill, Property Settlement
10
$1200.00
BALANCE DUE AFTER
FUTURE INSTALMENTS
Plan Amount:
$ $1200.00
01/08/2019 10 20180506 Hill, Sale $1,200.00
01/08/2019
Start Date:
02/08/2019
11
20180506 Hill, Sale
Instalments:
12 Monthly
Ends on 02/07/2020
$980.36
01/08/2019
9
20180506 Hill, Sale
Instalments Amount $100.00
PAYERS DETAIL
ALL INVOICES TOTAL
$569.30
Name:
Ms Sarah Hill
Start Date:
sarah.hill@outlook.com
BALANCE DUE AFTER
FUTURE INSTALMENTS
$2,749.66
Submit
EXISTING PLA
No
No
No
EXISTING PLA
No
leap.com.au/rapidpay

This issue of The Law Society of South Australia: Bulletin is
cited as (2020) 42 (9) LSB(SA). ISSN 1038-6777
CONTENTS
LOCAL GOVERNMENT
FEATURES & NEWS
REGULAR COLUMNS
6 Reforming Local Government in SA
By Natasha Jones
8 How the State exercises power over
Local Government
By Dale Mazzachi & Norman Waterhouse
10 The process of making by-laws
By David Robertson
12 Cats, curfews & local councils
By David Robertson & Diana Thomas
16 The enforcement of dog control
orders by local councils
By Ronan O’Brien
24 The new planning system & the role
of local government
By Alison Brookman & Felicity Niemann
16 Oral histories: The fascinating career
of Brian Martin
By Lindy McNamara
18 Calderbank offers in SA: encouraging
early settlement at all costs?
By Flynn Wells
22 Reviewing your annual super
statement may lead to higher savings
By Andrew Proebstl
26 Commissioner Lander reflects on
seven years of investigating
corruption, misconduct &
maladministration
By Michael Esposito
29 Ground-breaking project to manage
high-risk family law matters
By Michael Esposito
16 From the Editor
By Lindy McNamara
5 President's Message
28 Tax Files: Principal Place of Residence
exemptions of the Land Tax Act
By Paul Ingram
32 Risk Watch: Financial certificates: why
take the risk? By Grant Feary
34 Family Law Case Notes
By Rob Glade-Wright
36 Wellbeing & Resilience: 20/20 Wellbeing
in 2020 By Zoe Lewis
37 Bookshelf
38 Gazing in the Gazette
38 Members on the Move
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
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
N 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
monthly (except January) by:
The Law Society of South Australia,
Level 10-11, 178 North Tce, Adelaide
Ph: (08) 8229 0200
Fax: (08) 8231 1929
Email: bulletin@lawsocietysa.asn.au
All contributions letters and enquiries
should be directed to
The Editor, The Law Society Bulletin,
GPO Box 2066,
Adelaide 5001.
Views expressed in the Bulletin
advertising material included are
not necessarily endorsed by The
Law Society of South Australia.
No responsibility is accepted by the
Society, Editor, Publisher or Printer for
accuracy of information or errors or
omissions.
PUBLISHER/ADVERTISER
Boylen
Ph: (08) 8233 9433
Email: admin@boylen.com.au
Web: www.boylen.com.au
Studio Manager: Madelaine Raschella
Layout: Henry Rivera
Advertising
Email: sales@boylen.com.au

FROM THE EDITOR
Law just one of
many tools to
promote integrity
MICHAEL ESPOSITO, EDITOR
After three months of “crisis” themed
editions dealing with COVID-19,
bushfires and other emergency situations,
this edition of the Bulletin reverts to a
more conventional model and focuses on
legislation relating to local government.
Although, if you consume local media
on a regular basis, you could be forgiven
for thinking that the local government
was in constant crisis mode, with all the
stories of council-infighting, financial
mismanagement, corruption investigations,
and the predictable “lawyers’ picnic” articles
that are written when councils obtain legal
advice and representation (it should be
remembered that it’s not the lawyers who
organise the picnics, but are merely invited
to attend when their help is needed).
The topic of local government seems
to inspire heated debates about their utility.
Some think they should be abolished
altogether, some think that they overreach
in the influence they try to wield and
should stick to basic civil duties such as
waste collection and roadside management,
while others think that it’s the States whose
arbitrary borders should be eradicated
and instead greater responsibility given to
local municipalities, in order to strengthen
community ties.
In any case, it seems unlikely the
current three-tiered system will change any
time soon, so the best we can do is try to
make these systems of government work
together effectively.
Recently retired Independent
Commissioner Against Corruption
Bruce Lander reflects on the role of local
government in his recent “Looking Back”
report.
Mr Lander reports that the Office of
Public Integrity received more than 2,400
complaints and reports relating to local
government since the office commenced
in 2013.
He notes that while several reports
contained very serious allegations, a large
number involved councillors complaining
about other councillors and were costly,
lengthy and ultimately futile exercises.
Mr Lander expresses the view that
proposed reforms to local government by
way of the Statutes Amendments (Local
Government Review) Bill 2020, which
is examined by Natasha Jones in this
edition, is an improvement of the current
regulatory framework in place. However,
he provides this warning:
“Amendments to the existing scheme
will have little real effect unless elected
members of local governments remind
themselves that they are elected to
represent the interests of their electorate
and to advance the statutory functions
given to a local government body, rather
than to use integrity systems in an effort to
point score against each other, settle petty
differences and undermine those who hold
different views.”
It serves as a timely reminder that
we need more than prescriptive tools of
laws, rules and codes to build a culture
of integrity, cohesion and respect in any
organisation. B
IN THIS ISSUE
COUNCIL REFORM
The new plan to reform local
government
DANGEROUS PETS
The enforcement of dog control
orders by local councils
6
16
26
PUBLIC INTEGRITY
Bruce Lander reflects on seven
years as Independent Commissioner
Against Corruption
Senior counsel appointments to resume
Chief Justice Chris Kourakis confirmed
that Judges will resume the practice of
appointing Senior Council, following the
passage of the Legal Practitioners (Senior
and Queens Counsel) Amendment Bill on
23 September.
The new legislation means barristers
appointed Senior Counsel will be able
to adopt the QC post-nominal upon
application to the Attorney General to
make a recommendation to the Governor
that they be appointed as Queen’s Counsel.
A former version of the Bill provided
discretion to the Attorney General as to
whether to grant a request from a Senior
Counsel to be appointed Queen’s Counsel,
however the Bill as enacted effectively
grants an automatic approval of such a
request.
Applications for Senior Counsel need
to be submitted to the Chief Justice, via
his Executive Assistant, by 30 October. B
4
THE BULLETIN October 2020

PRESIDENT’S MESSAGE
Submissions a vital part of
the Society’s work
TIM WHITE, PRESIDENT
Submissions form a vital function that
the Society undertakes on behalf of its
Members and the profession. The Society
is called upon to make submissions on a
variety of topics and issues. Predominantly
they are made in relation to federal and
state Bills and regulations.
This year has been particularly
demanding in view of the numerous new
amendments and new Bills introduced
into parliament arising from COVID-19
aspects. To date the Society has made in
excess of 80 submissions, a number that is
usually not reached in a 12 month period.
I wanted to highlight three particular
submissions made this year, that I thought
would be of interest to many practitioners.
We have written to Return to Work
(RTW) on several occasions in relation
to the process of undertaking permanent
impairment assessments. It is evident
from a number of reported judgments
of the South Australian Employment
Tribunal (SAET) that there have been
concerns with regards to RTW’s dealings
with medical practitioners when providing
permanent impairment assessment reports.
Issues with regards to medical
practitioners feeling pressured to amend
their reports have been specifically
commented on in a number of SAET
decisions including a full bench decision
of Frkic 1 , and also the decision of Palios 2
and Canales-Cordova. 3 These are important
decisions to consider and be aware of.
Concerns were also raised by the SAET
that independent assessors, during the
Section 22 process, were being unilaterally
approached, and that the communications
between RTW and the doctor were not
being communicated to the worker or the
worker’s legal representative.
RTW has responded to the Society’s
concerns, advising that it does not
challenge or coerce assessors to produce
an opinion they do not agree with.
RTW have a statutory entitlement to
seek clarification from an independent
assessor if an error or area of uncertainty
exists in their report. Part of the
compliance review process permits RTW
to seek clarification from an assessor, to
ensure that the report is completed in
accordance with the relevant guidelines.
The Society is maintaining an ongoing
dialogue with RTW on this topic so if you
have any concerns with how the Section
22 process is occurring please do not
hesitate to contact the Society.
Another aspect that detailed
submissions were made in relation
to was the Bill to amend Section 40
of the Sentencing Act. In relation to
serious indictable offences, rather than
a sentencing discount of up to 40% for
a guilty plea not more than four weeks
after the first court appearance, the Bill
proposes to reduce it to a maximum
of 25%. Further, for a guilty plea not
more than four weeks after the court
appearance but on or before the committal
appearance, the maximum discount
has been reduced to 15% (down from
30%). From the day after the committal
appearance to before committal for trial,
a discount previously of up to 20% is
proposed to be reduced to 10%.
The Society submitted that significant
reductions in the early discount were not
necessary or beneficial for the criminal
justice system. It was likely to encourage
defendants to test the evidence and run
matters to hearing, which of course puts
additional strain on court resources, delays
outcomes and requires victims to give
evidence at a trial. The delay in waiting
for a trial to be reached and the inevitably
stressful process of giving evidence at a
trial has its greatest impact on victims.
The Society requested that the court
have discretion to increase the percentage
reduction available by up to 5%, if it
was satisfied that an additional reduction
was appropriate by reason of rare and
exceptional circumstances. This provision
is now provided for in the draft Bill.
Clearly for those practitioners advising
criminal clients the implications of the Bill
are significant and one that is important to
be aware of if you have the client’s matter
is presently before the criminal courts. If
the Bill commences in its current form
there will certainly be less discounts
available to those that enter guilty pleas
after the commencement of the Bill.
A third and final area on which the
Society has again recently made written
submissions relates to Advance Care
Directives (ACD). This is a topic on
which the Society has communicated to
the Government on several occasions
previously. The State Government’s
response to the review of the Advance Care
Directives Act was tabled in Parliament in late
July. One the report’s recommendations
was that it should consider how the use of
digital signatures could be implemented
when completing an ACD. The Society
encouraged the Government to adopt that
recommendation and also wrote again
raising the issue of the order in which
ACDs are signed. The Society requested
that the person making the ACD should be
the person that signs the document first. We
did not support the current regime that the
substitute decision maker must sign their
acceptance of the appointment prior to
the execution of the ACD by the donor. It
was noted that the Government now seems
open to considering amending the Act with
regards to the order of signing.
Recommendation 2 of the report dealt
with simplifying the ACD form and the
DIY kit associated with it. We supported
that recommendation, as the current
form is long and unnecessarily complex.
We hope that an amending Bill will be
introduced soon to provide more flexibility
with the order in which an ACD is signed
and also simplifying the form itself.
Submissions will continue to be a
main aspect the Society’s work. Many
Committees perform a large amount of
work each year in providing input into
the submissions that are made. I thank
all Committee Members for the hours of
effort and time they voluntarily provide to
the large number of diverse Committees.
It is often unseen work that Committee
Members devote but it’s a vitally important
role that you each play. Thank you and
please keep up the great work! B
Endnotes
1 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/
cases/sa/SAET/2020/16
2 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/
cases/sa/SAET/2019/224
3 http://www8.austlii.edu.au/cgi-bin/sign.cgi/au/
cases/sa/SAET/2020/8
October 2020 THE BULLETIN 5

LOCAL GOVERNMENT
So it begins – Reforming Local
Government in South Australia
NATASHA JONES, LAWYER, KELLEDY JONES
Very rarely these days, does a day go by
where The Advertiser fails to include
a story about a council. Whether it is about
investigation into the conduct of council
employees, allegations about behaviours of
elected members, a dog attack, recycling
and landfill reduction programs, lobbying
to retain trees or the revitalisation of local
and regional areas that have been affected
by drought or bushfires. Councils have
been and will continue to be, in the media
spotlight.
This is, in part, due to the fact that
councils, as the level of government
closest to their communities, operate
within a prescriptive integrity framework
that subjects them to significant oversight
and scrutiny, both by their communities
and by external oversight bodies. Much of
the oversight is well intended - let’s face
it, councils are public authorities and are
trusted with the expenditure of significant
public funds. This is at a time when the
well debated and agitated topic of State
Government not being subject to the
same level of accountability mechanisms
is also a regular media topic, but that is a
discussion for another day!
Local government reform does not
occur frequently. It is therefore, both topical
and important that the current proposed
reforms not be understated and, certainly
not, underestimated. The last time the local
government framework was subject to real
significant legislative change was in 2000.
This was when the Local Government Act
1934 was revoked and the Local Government
Act 1999 (the Act) was introduced. So, 20
years on, we are now facing significant
local government reform, much of which
is to be considered in the context of the
paternalistic care of the State.
On 5 August, 2019, the former Local
Government Minister, Stephan Knoll,
released the Reforming Local Government in
South Australia, Discussion Paper. This was
developed following the Reforming Local
Government Survey from earlier 2019.
Reform suggestions focussed on four key
areas:
• Stronger Council Member Capacity and
Better Conduct
• Lower Costs and Enhanced Financial
Accountability
• Efficient and Transparent
Representation; and
• Simpler regulation.
At this time, Minister Knoll stated
that the foundation for proposed reform
to local government was to achieve the
support needed for councils, appropriate
oversight and that each community enjoy
certainty that their council makes good
decisions, understands local needs and
operates efficiently and sustainably. 1
The consultation process led to the
Statutes Amendment (Local Government Review)
Bill 2020 (the Bill) being introduced to
Parliament on 17 June, 2020. The Bill
maintains the same four key reform areas.
STRONGER COUNCIL MEMBER CAPACITY &
BETTER CONDUCT
These reforms have their genesis in
asserted high community expectations
about behavioural standards and conduct
of council members and community
leadership. Amongst other things, it
recognises integrity standards and issues
of corporate and individual reputational
damage from the behaviours of a few. The
proposed framework focusses on council
member behaviour and the measurement,
judging and sanctioning thereof. This
framework will sit alongside the balance of
the public integrity framework, under the
Ombudsman Act 1972 and the Independent
Commissioner Against Corruption Act 2012.
It is considered that a new conduct
management framework will establish a
much clearer hierarchy of conduct that
separates defined ‘behavioural matters’
from defined ‘integrity matters.’ This is to
create clearer responsibilities and pathways
so council members and the public can
understand which body is responsible for
managing different aspects of council
member conduct.
The current Code of Conduct for Council
Members will be abolished, replaced with
Behavioural Standards, established by the
Minister. This will be supported by council
behavioural support and behavioural
management policies. Whilst the Minister
will regularise council member conduct
broadly, there will remain some discretion
for councils to introduce individual
behavioural support policies.
The most significant proposed change
is the establishment of a new corporate
entity, the Behaviour Standards Panel.
Its members will be appointed by the
Governor, as nominated by the Minister
and the Local Government Association.
Its primary function will be to assess and
deal with complaints alleging misbehaviour,
repeated misbehaviour or serious misbehaviour by
council members. Each term is defined.
The Panel will have various coercive
powers to conduct an inquiry into conduct
where failure to comply carries a maximum
penalty of $10,000. The Panel will have
power to suspend a member from office
for a period not exceeding three months,
with or without their allowance and may
direct the council to lodge a disciplinary
complaint with the South Australian Civil
and Administrative Tribunal.
This area of proposed reform also
introduces improved conflict of interest
provisions. These will simplify the
current system by reducing the current
three ‘categories’ of conflict of interest
(material, actual and perceived) to two -
‘material’ and ‘general’ conflict of interest.
LOWER COSTS AND ENHANCED FINANCIAL
ACCOUNTABILITY
South Australian councils annually
manage a collective budget in excess of
$2.2 billion and more than $24 billion of
6
THE BULLETIN October 2020

LOCAL GOVERNMENT
infrastructure and other assets. 2 To do so,
they raise funds through council rates,
fees and charges. This is the core of the
public perception, aided by adverse media
commentary, that councils lack adequate
financial management.
Various amendments to the Act have
occurred since 2000 to improve the
financial management and accountability
of councils, to improve accountability,
financial governance, asset management,
rating practices and auditing arrangements.
This included long term financial plans,
mandatory audit committees, consistent
and improved reporting format and
annual financial statements and measures
to strengthen the independence of
external auditors. Further amendments
have focussed on audit and reporting
requirements and Auditor-General powers
to examine the efficiency, economy and
effectiveness of activities.
The Bill centres on three main reform
proposals – rate monitoring, the role of
audit committees and, finally, expanding the
role of the Auditor-General consequential
upon the 2019 South Australian
Productivity Commission inquiry into local
government costs and efficiency.
A rate monitoring system is proposed
to be introduced with councils being
required to receive, consider and publish
independent advice on proposed changes
to general rate revenue, as received each
year from a designated authority (which the
Bill does not identify but is thought likely
to be ESCOSA). The annual business
planning and budget processes will be
subject to reporting requirements to the
designated authority.
Concerns regarding council decision
making and accountability have led to
the proposed expansion of the audit
committee to an audit and risk committee,
to reform governance standards and
decision making and to improve financial
reporting and public accessibility.
Expanded powers of the Auditor-
General are also proposed together
with changes to the external auditor
requirements to impose obligations that
exceed those that currently apply under
the Corporations Act.
EFFICIENT & TRANSPARENT
REPRESENTATION
Every four years periodic elections
determine the membership of each
council. At the moment, these coincide
with State Government elections. In 2018,
the State election was held in March and
council elections were held in November.
To avoid voter ‘fatigue’ it is proposed to
change the timing of the election cycle.
It is proposed that the periodic election
scheduled in November 2026 be deferred
until November 2027 (a five-year term)
then reverting to the four-year terms.
It is agitated from time to time that
councils are over-represented, causing
additional cost to the community. A
proposed change is that councils be
compromised of no more than 12 members.
Whilst this will affect only a few councils, it
is indicative of the Government’s position
on driving down costs in maintaining a
locally elected membership base.
SIMPLER REGULATION
This reform area aims to improve and
streamline legislative rules and processes,
also associated with council decisionmaking.
Councils have been subjected to
overly prescriptive public consultation
obligations which the proposed
amendments will address to ‘modernise’
community engagement. This is, at least in
part, recognising that current requirements
commenced before smart phones, tablets
and the widespread use of social media
- at a time when postal services were
considerably quicker and people read
newspapers in broadsheet form!
Section 270 of the Act currently
requires councils to have a process
for community members to apply for
internal review of council decisions.
Some proposed amendments include a
six month time limit to apply for a review,
subject to extension on a case-by-case
basis. This will probably present further
avenues of challenge against a council that
makes a decision which is not favourable
to the applicant.
A streamlined process for councils
to revoke community land status is also
proposed by way of a more tailored
approach that caters for an administrative
process as a limited option against the
more significant revocation requiring
Ministerial approval.
WHERE TO NEXT?
There is no doubt that the Bill is
(and is intended to be) a catalyst for
proposed wide-scale reform to local
government operations. Unfortunately,
the word restrictions for this paper do
not permit the many more examples of
proposed change that could be given. It
is, however, simply a Bill at this stage and
what is ultimately enacted, if anything,
might be substantially different from what
is currently proposed. There is also a
number of areas where the detail is not yet
known or further change to subordinate
legislation is required. There is, therefore,
a substantial element of “wait and see”, as
is becoming more common with modern
approaches to the introduction of new or
amending legislation. B
Endnotes
1 Reforming Local Government in South Australia,
Discussion Paper, August 2019, page 2.
2 Reforming Local Government in South Australia,
Discussion Paper, August 2019, page 33.
October 2020 THE BULLETIN 7

LOCAL GOVERNMENT
HOW THE STATE EXERCISES POWER
OVER LOCAL GOVERNMENT
DALE MAZZACHI, PRINCIPAL, NORMAN WATERHOUSE LAWYERS AND CHRIS ALEXANDRIDES,
SENIOR ASSOCIATE, NORMAN WATERHOUSE LAWYERS
In 2015, a South Australian motorist
refused to pay a parking ticket issued
by the City of Adelaide. She elected to be
prosecuted. She then refused to recognise
the Magistrate’s jurisdiction to hear the
matter, or to even approach the bar
table, on the basis that she was present in
Court “as a woman and […reserved her]
unalienable rights to this matter.” 1
In 2020, another South Australian
motorist provided an even more succinct
argument. When asked for his plea in
respect of a parking offence, he replied
“I am a man.” This was treated as a plea
of not guilty. The man then sat in the
public gallery and remained mute during
the trial. 2
These individuals, like many other
individuals who have sought to rely on
the so-called “flesh and blood” defence
and other pseudo-legal arguments (often
involving the Australian Constitution, the
Queen and/or the United Nations), were
unsuccessful.
Local government councils, being
(among other things) the entities who
make and enforce laws and impose of
taxes, are no strangers to pseudo-legal
arguments such as these. Indeed, aggrieved
persons often deny the very existence of
local government.
Although the enabling legislation for
local government in South Australia has,
since 1929, provided that it is not necessary
“to prove the existence” of any council in
any legal proceedings, we assure readers
that local government does indeed exist.
Anybody seeking authority for the
existence of local government in South
Australia need look no further than
the judgment of His Honour Justice
Nicholson in McDougall v City of Playford
[2017] SASC 169. 3
His Honour succinctly outlined the
City of Playford’s existence in that case as
follows:
The City of Playford is a local government
council constituted pursuant to and in
accordance with the provisions of the
Local Government Act 1999 (SA). The
power of the Parliament of the State of
South Australia to have passed the Local
Government Act rests with section 5 of the
State Constitution, that is, The Constitution
Act 1934 (SA). Section 5 adopts as the
powers of the Parliament those formerly
exercised by the Legislative Council constituted
pursuant to section 7 of the Act of the
Imperial Parliament, 13 and 14 Victoria,
Chapter 59 entitled “An Act for the better
government of Her Majesty’s Australian
Colonies”. It has never been doubted that the
power thus vested in the Parliament of the
State of South Australia is one “to make
laws for the peace, welfare and good government
of [the State]”. This is a plenary power
subject to limitations on its exercise derived
from the Australian Constitution.
The establishment of local government
councils in South Australia, including the
City of Playford, is undoubtedly within the
legislative competence of the Parliament of
South Australia.
By now, readers will hopefully agree that
local government has some form of valid
legal existence in South Australia. However,
what might be interesting to some is the
fact this existence is owed purely to the
Parliament of South Australia. Councils in
other states similarly exist only because of
the plenary powers of state parliaments.
Presently, the primary Act of
Parliament under which local government
councils are constituted in South Australia
is the Local Government Act 1999 (special
constitutive Acts also apply to the City
of Adelaide and Roxby Downs Council).
Electoral processes for councils are set
out separately in the Local Government
(Elections) Act 1999. These laws can be (and
frequently are) amended simply by the
ordinary procedures of Parliament.
In 1980, the Parliament of South
Australia inserted section 64A into the
Constitution Act 1934 (State Constitution).
That provision “guarantees” the continued
existence of elected local government in
South Australia. Local government had of
course existed in South Australia before
the insertion of section 64A into the
State Constitution—the City of Adelaide
Municipal Corporation was in fact the first
municipal corporation in all of Australia
(formed in 1840 but insolvent by 1843
with all its possessions sold off by public
auction)—but the insertion of section
64A into the State Constitution was, as
the Minister of Local Government at the
time the Hon CM Hill MLC put it, “major
acknowledgement of the maturity and the
place of local government in our system
of government”. The provision 4 was
enacted with bipartisan support.
Eagle-eyed readers will note all that
section 64A of the State Constitution
promises is some form of elected local
government. What local government
looks like is entirely up to the Parliament
of South Australia. Further, despite the
purported “guarantee”, Parliament is
still expressly permitted to abolish local
government upon the votes of an absolute
majority of the members of each House
of Parliament. No referendum is required.
In parliamentary debates, equally
attentive member of Her Majesty’s then
Labor opposition, Hon NK Foster MLC,
8
THE BULLETIN October 2020

LOCAL GOVERNMENT
stated that the provision does “nothing”.
The Hon RC DeGaris MLC rebutted on
the Liberal Government’s behalf with the
observation that “although it does not do
that much, it does do something”.
The minimal protection provided by
section 64A of the State Constitution is in
fact more protection than other states have
afforded to local government. The only
states apart from South Australia which
provide any sort of restrictive procedure
for the abolition of local government
are Victoria and Queensland, with a
referendum required in each of those states.
Recognition of local government in
state constitutions was originally only
intended as a largely symbolic first step
in a process agreed at the 1976 Australian
Constitutional Convention in Hobart. That
process was meant to clarify the financial
relationship between the Commonwealth,
state, and local governments and to
culminate in possible recognition of local
government in the Australian Constitution.
However, recognition of local
government in the Australian Constitution
has never occurred. The most recent
attempt was in 2013, when the Constitution
Alteration (Local Government) 2013 Bill was
passed by the Commonwealth Parliament
but never put to a referendum due to
an untimely leadership change in the
governing Labor party.
The notion of local governing bodies
being “elected” is one of the few aspects
of local government actually entrenched in
section 64A of the State Constitution.
However, this does not necessarily
mean that all local governing bodies will
be made up of elected representatives all
the time. 5 Parliament’s ability to confer
powers upon the State government of the
day to step in and manage the affairs of a
council—“bureaucratic, dictatorial or even
despotic though [those powers] may be
considered to be” 6 - are not excluded by
section 64A of the State Constitution.
The Minister responsible for the
Local Government Act 1999 is effectively
empowered (via recommendation to the
Governor) to put any South Australian
council in administration, and to
subsequently dismiss the council resulting
in new elections. The legal thresholds
which apply for the exercise of these
powers are not particularly high, relying
largely on subjective opinions formed
by the Minister. The Minister’s powers
are, of course, not immune from judicial
scrutiny—see for example the various
deficiencies identified by the Full Court of
the Supreme Court in respect of the then
Minister’s investigation into the City of
Burnside in 2009-2010. 7
Some readers might be quite surprised
by the extensive level of oversight which
the State government can exercise over
local government. For example, looking
beyond the power to put a council
in administration and to dismiss its
members, the Minister also controls
whether a council may sell certain land it
owns 8 (known as “community land”) or
establish any subsidiary 9 either alone or
in conjunction with other councils. The
Minister can also demand that a council
provide any information relating to its
affairs or operations 10 as the Minister sees
fit. Individual elected council members
are also bound by a mandatory Code of
Conduct 11 published by the Minister, and
the Minister may refer any alleged breach
of that Code to the Ombudsman.
The Statutes Amendment (Local
Government Review) Bill 2020 proposes to
further extend the State Government’s
influence over local government. For
example, if passed in the form as originally
introduced into Parliament, that Bill
would grant some person or body (to
be designated by the Governor) the
functions of advising councils about “the
appropriateness” of any proposed increase
in rates revenue, and reporting to the
Minister if a council does not “respond
appropriately” to the authority’s advice. Such
a report can lead to a council being put
in administration. In such a circumstance,
Councils would therefore not even be
able to exercise that most basic power
of an elected representative government
- the power of taxation - without State
government oversight.
Thus, although local government
councils are answerable to their electors,
they are also answerable to the State
government in an increasing number of
ways. It is useful for lawyers and other
members of the public to be aware that
local government is therefore not as
‘separate’ from the State government as
some might understand. Councils are
subject to myriad oversight mechanisms
administered by the State government, and
the current trend appears to be that yet
more such mechanisms will be added in
the coming years.
Nevertheless, local government will
continue to exist in some form or another
unless and until an absolute majority of
the members of South Australia’s House
of Assembly and Legislative Council
determine otherwise. Given the significant
and fundamental contributions which
local government councils and their
subsidiaries make to the safety, welfare and
development of our local communities,
the authors contend it would be a brave 12
Parliament indeed to pass such a measure. B
October 2020 THE BULLETIN 9

LOCAL GOVERNMENT
Endnotes
1 Justice Peek’s judgment in that individual’s
unsuccessful appeal to the Supreme Court
includes a number of general remarks under the
heading ‘Antidotes to the bane’ which may assist any
readers who encounter unrepresented litigants
relying upon similar meaningless jargon: see
Adelaide City Council v Lepse [2016] SASC 66.
2 Rossiter v Adelaide City Council [2020] SASC 61.
3 There were a number of purported legal ‘issues’
at play in that case, including allegations that
Magistrates Sprod had committed treason; as
Justice Nicholson put it, “the appellant’s contentions
are so wide ranging and misconceived as to defy reasoned
responses short of a short lecture series”.
4 Section 64A of the State Constitution provides
as follows:
1. There shall continue to be a system of
local government in this State under
which elected local governing bodies
are constituted with such powers as the
Parliament considers necessary for the
better government of those areas of the
State that are from time to time subject to
that system of local government.
2. The manner in which local governing
bodies are constituted, and the nature and
extent of their powers, functions, duties and
responsibilities shall be determined by or
under Acts of the Parliament from time to
time in force.
3. No Bill by virtue of which this State would
cease to have a system of local government
that conforms with subsection (1) of this
section shall be presented to the Governor
for assent unless the Bill has been passed
by an absolute majority of the members of
each House of Parliament.
5 Relevantly, the District Council of Coober
Pedy is presently governed by an Administrator
appointed by the Governor, and the Roxby
Downs Council has always been governed by an
Administrator although legislation contemplates
that it may hold elections one day.
6 See South Melbourne City Council v Hallam
(1994) 83 LGERA 231, 243. Even in Victoria,
where the constitutional protection for local
government is stronger than in South Australia,
there is no doubt about the state parliament’s
power to exercise ultimate oversight its local
counterparts.
7 Paterson v MacPherson (2011) 109 SASR 547.
8 Local Government Act 1999, ss 201 and 194.
9 Local Government Act 1999, ss 42-43.
10 Local Government Act 1999, s 271A.
11 Local Government Act 1999, s 63.
12 Noting the negative outcomes for State
Governments of various persuasions in New
South Wales (circa 2017), Western Australia
(circa 2015) and Queensland (circa 2012) who
have proposed or implemented substantial local
government reform since the end of the last
decade.
The process of making by-laws
DAVID ROBERTSON
The recent rejection of the City of
Marion’s cat by-law by the Legislative
Review Committee of Parliament has
raised the question of just how by-laws are
enacted.
Local Government is granted power to
make by-laws providing they are within the
ambit of the Local Government Act and
‘for the good rule and government of the
area’ (sections 246 - 252). But it is not just
a case of passing a resolution at a Council
meeting, there are several steps that have to
be taken beforehand. A proposed by-law
starts with a motion before Council for
consideration. If passed, Council starts the
process with a request to Council staff to
investigate, consult ratepayers and report
back. This may take six months or more.
Staff may well check with other Councils
who have or may be moving towards a
similar by-law. Council may then decide to
proceed more formally. This would include
legal advice as to whether the proposed
by-law is within Council’s powers, does
not conflict with other legislation and
assistance with drafting. Councillors and
staff are not expected to be draftsmen.
Council may then decide to proceed
with the legislative requirements for
enacting the by-law.
At least 21 days before resolving to
make the by-law, Council must make
copies of the proposed by-law available
for public inspection, without charge
and during ordinary office hours, at the
principal office of the Council, and so far
as is reasonably practicable on the internet.
By notice in a newspaper circulating
in the area of the Council, it must inform
the public of the availability of the
proposed by-law and set out the terms of
the by-law or describe in general terms
the by-law’s nature and effect. When the
Messenger Newspaper was in circulation
(sometimes delivered) this was sufficient
but now it is only available online. Many
older people who have cats may not have
a computer. Even those who purchase
The Advertiser may not read the public
notices. The Council newsletter could
be a substitute but would it meet the
requirements of the Act?
Council must give reasonable
consideration to a written or other
acceptable submission made concerning
the proposed by-law. This is especially
relevant if the by-law is controversial, as in
the case of cat control or curfew.
Before the resolution can be
considered Council must obtain a
certificate from a legal practitioner
certifying that the Council has the power
to make the by-law and is not in conflict
with the Act. The practitioner is not
required to comment on the merits of
the by-law but in the case of a by-law
made under section 90 of the Dog and Cat
Management Act 1995, Council is required
to submit the by-law to the Dog and Cat
Management Board for comment. The
Board cannot change the by-law but the
Council must consider any comments.
When the by-law finally comes before
Council for a decision there are special
requirements. At least two-thirds of the
members of Council must be present and
it must be passed by an absolute majority.
Then it will come in to force not less than
four months after it has been published
in the Gazette unless it is disallowed by
the Legislative Review Committee of
Parliament.
This what happened to Marion’s cat
by-law – the Legislative Review Committee
rejected the law because, according to
Environment Minister David Speirs, it
went beyond the scope of the Dog and
Cat Management Act. So, what does
Marion do now? Can it simply amend the
by-law to comply with the Committee’s
objections or must it start again from
scratch? That could take a long time.
Minister Speirs has indicated that the State
Government would work on developing
an overarching by-law for local councils to
adopt. B
10
THE BULLETIN October 2020

PLANNING
ONLY 6 APARTMENTS LEFT!
Artist Impression
Artist Impression
Construction has started on your new home
• Only two apartments per floor
• North & South orientation
• Exclusive wine cellar & gallery lounge
• Peerless views of Adelaide skyline & parks
• Open gas fires & spacious living areas
• Expansive alfresco terraces
Private and secure living with only 18 residences
CALL NOW FOR YOUR PRIVATE APPOINTMENT
Julianne Price 0408 771 797
THEBROUGHAM.COM.AU
Disclaimer: While every endeavour has been made to verify the correct details in this item, the information herein is believed, but not guaranteed to be correct. Prospective purchasers must rely on their own enquiries and independent advice. Illustrations and CAD images are artists impressions and indicative
only. Final designs and concepts may change. No assumptions should be made that any development will proceed in accordance with the plans or at all. 49 Brougham Place Pty Ltd reserves the right to amend its plans for the proposed development of its property in its absolute discretion. All development and
use is subject to approvals. This item does not constitute an offer or contract. 49 Brougham Place Pty Ltd does not accept any liability for any incorrect information or omissions. 49 Brougham Place Pty Ltd ACN 632 142 879. RLA 262864

LOCAL GOVERNMENT
Cats, curfews and local councils
DAVID ROBERTSON AND DIANA THOMAS, ANIMAL LAW COMMITTEE
The Dog and Cat Management Act 1
allows for local councils to take
responsibility for the control of cats in
their areas which includes microchipping, 2
desexing 3 and registration of cat breeders. 4
“Nuisance” cats may cause property
damage and pollution as well as the
harassment and killing of other pets and
native fauna. Stray cats may also pose a
risk via the transmission of toxoplasmosis,
ringworm and fleas.
12
“The per capita kill rate of pet cats is 25%
that of feral cats. However, pet cats live at
much higher densities, so the predation rate of
pets per square kilometre in residential areas
is 28–52 times larger than predation rates by
feral cats in natural environments, and 1.3–2.3
times greater than predation rates per km 2 by
feral cats living in urban areas.” 5
Local councils may control nuisance
cats via by-laws; 6 they may also appoint
cat management officers 7 who have the
authority to seize, detain 8 or destroy 9
unidentified cats in their council area.
Local councils must be mindful that
by-laws are expected to be:
“for the good rule and government of the area,
and for the convenience, comfort and safety of
its community.” 10
When first considering the making
of a by-law to control cats the council
may have regard to the Dog and Cat
Management Board guide to preparing a
cat by-law 11 .
A council proposing to make a by-law
under the Dog and Cat Management Act 12
must give 42 days’ notice to the Dog and
Cat Management Board and provide a
report which: 13
• outlines the objects of the proposed
by-law;
• sets out how it is proposed to implement
or enforce the proposed by-law; and
• explains the reasons for any difference in
the proposed by-law from other by-laws
about a similar subject matter applying or
proposed to apply in other council areas.
Council must consider any
recommendations of the Board
relating to the by-law.
THE BULLETIN October 2020
At least 21 days before resolving to
make the by-law, the council must make
copies of the proposed by-law available
for public inspection usually at council
offices or via the internet 14 .
The council must also advertise the
availability of the proposed new by-law
for inspection via the local paper. 15 This
may be anachronistic as many local papers
are now online only and physical papers
are less attractive due to the fear of
COVID-19 transmission.
Council must give reasonable
consideration to a written or other
acceptable submission made concerning
the proposed by-law. 16 This is especially
relevant if the by-law is controversial, as in
the case of cat control or curfew.
Before the resolution can be considered,
the council must obtain a certificate from a
legal practitioner certifying that the council
has the power to make the by-law and the
proposed by-law is not in conflict with the
Local Government Act 1999. 17
When the by-law comes before the
council for a decision at least two-thirds
of the members of the council must
be present and it must be passed by an
absolute majority. 18
By-laws usually become operative
four months after publication in the
Government Gazette 19 and expire on
the first of January in the seventh year
after commencement. 20 For this reason,
regular reviews are usually written into
the by-law with community comment and
engagement sought 12 to 18 months prior
to any expiration date.
However, despite the rigorous process
described above, by-laws can be disallowed
by the Legislative Review Committee of
Parliament 21 . This is what happened to
Marion’s proposed cat by-law.
MARION’S PROPOSED CAT CURFEW
BY-LAW
Marion Council endorsed the proposed
draft Cats (Confinement) Variation By-law No.
7 2019 22 for community consultation on 29
January, 2019. Under the proposed by-law
cats and their owners would be under the
following restrictions:
• Create an offence of “cat wandering at
large”. This means cats cannot wander
from their owner’s property during
times determined by Council. Council
gave in-principle support for this to be
from 9pm to 7am daily
• Residents requesting cages from
Council to help catch wandering cats
on their property
• Proposed to give Council’s Community
Safety Inspectors the powers to seize
and detain cats. If owners cannot be
identified, cats could be impounded at
the RSPCA

LOCAL GOVERNMENT
• Fines of $187.50 could be issued to
owners who don’t keep their cats
indoors during the proposed times
A report by the Legislative Review
Committee did not support the by-law
for a number of reasons including only
allowing 72 hours for cats to be held
before being destroyed, lack of certainty
with regards to the curfew times and a
lack of consultation in some aspects of
the by-law.
At its July, 2020 meeting, Marion
Council 23 voted to wait for a response
from Environment and Water Minister
David Speirs, possibly involving a state
wide model by-law.
CAMPBELLTOWN CAT CURFEW
In June, 2020 Campbelltown Council
endorsed a draft Cats By-Law for
consultation which is currently with the
Dog and Cat Management Board for
comment. Once the Board’s comments
have been received, a broader public
consultation will commence, anticipated to
be September, 2020 24 .
The draft by-law would:
• Introduce a cat curfew between 9pm
and 7am daily until 1 January, 2024;
• From 1 January, 2024 Council will
move to full confinement of cats;
• A requirement to register cats (no fee
has been discussed or set at this stage);
• Limit cats to two per household
without further permission from
Council;
• Ensure cats are registered and can be
identified if they leave their owner’s
premises; cats not to cause a nuisance
when roaming from their owner’s
property.
Following consultation with the
Board and the public, Council will
reconsider the by-law. If Council then
proceeds to adopt the by-law and it is
approved by the State Government, it
is anticipated the by-law will take effect
during early-mid 2021.
MOUNT BARKER DISTRICT COUNCIL
More than 70% of participants
supported a cat curfew during public
consultation for the new proposed cat bylaw
by Mount Barker District Council: 25
“Cat predation on our native fauna has been
identified as a key threat to 35 species of birds,
36 species of mammals, 7 species of reptiles
and 3 species of amphibians.
Mount Barker District Council takes its role
of protecting the biodiversity of our region
seriously and Council’s Cat By-law especially
the curfew aims to minimise the impact that
cats have on our environment”.
The draft cat by-law 26 proposes the
following:
• Introduce a cat curfew between 8pm
and 7am daily
• Council aim to reunite cats found to
be in breach of the curfew with their
owners
• Limit of two cats per residence without
specific Council permission
• Control nuisance cat behaviour.
Nuisance cat behaviour includes:
о Unreasonably interferes with the
peace, comfort or convenience of
a person, including but not limited
to a cat(s) displaying aggressive
nature or creating unpleasant noise
or odour;
о Damages or otherwise has an
adverse impact upon native flora
or fauna;
о Acts in a manner that is injurious to
a person’s real or personal property;
о Wanders onto land without the
consent of the owner or occupier
of the land or
о
Defecates or urinates on land
without the consent of the owner
or occupier of the land
The Council is planning to trial
a transition period to finalise details
(including dispensation processes, fines
and actions).
The UniSA Cat Tracker 27 project
analysed the roaming habits of 428 cats.
Roughly 40% of the cats that had been
classified by their owners as being kept
inside at night had in fact been out and
about with night-time home-ranges of over
one hectare. Given cats do not recognise
council borders or by laws perhaps a state
wide model by-law with regards to curfews
and controls may be in order. B
Endnotes
1 Dog and Cat Management Act 1995 (SA) s 26,
26A.
2 Ibid s 42A.
3 Ibid s 42E.
4 Ibid s 68, 69.
5 We need to worry about Bella and Charlie:
the impacts of pet cats on Australian wildlife
Sarah Legge A B G , John C. Z. Woinarski C , Chris
R. Dickman D , Brett P. Murphy C , Leigh-Ann
Woolley C F and Mike C. Calver E
https://www.publish.csiro.au/WR/WR19174
6 Local Government Act 1999 (SA) s 246 – 253
inclusive; Dog and Cat Management Act 1995
(SA) s 90.
7 Dog and Cat Management Act 1995 (SA) s 8
8 Ibid s 64
9 Ibid s 63, 64A
10 Local Government Act 1999 (SA) s 246 (2).
11 http://goodcatsa.com/media/W1siZiIsIjIw
MTUvMDMvMTcvM211ZHc5NmljYl9BX0d
1aWRlX3RvX1ByZXBhcmluZ19hX0NhdF9C
eV9sYXcucGRmIl1d/A%20Guide%20to%20
Preparing%20a%20Cat%20By-law.pdf
12 Dog and Cat Management Act 1995 (SA) s 90
13 Ibid s 90 (5).
14 Local Government Act 1999 (SA) s 249 (1)(a)
15 Local Government Act 1999 (SA) s 249 (1)(b)
16 Local Government Act 1999 (SA) s 249 (2).
17 Local Government Act 1999 (SA) s 249 (4).
18 Local Government Act 1999 (SA) s 249 (3)
19 Local Government Act 1999 (SA) s 249 (5)
20 Ibid s 251
21 Parliamentary Committees Act 1991 (SA) s 12,
Subordinate Legislation Act 1978 (SA) s 10A (2).
22 https://www.makingmarion.com.au/45517/
widgets/242021/documents/104493
23 Page 12, https://cdn.marion.sa.gov.au/
meetings/minutes/GC200728-Final-Minutes.
pdf?mtime=20200731153921&focal=none
24 https://www.campbelltown.sa.gov.au/council/
have-your-say/future-engagements/draft-catsby-law
25 https://www.mountbarker.sa.gov.au/
community/animals/cats
26 https://www.mountbarker.sa.gov.au/__data/
assets/pdf_file/0029/687413/Cats-By-law-2019.
pdf
27 https://data.unisa.edu.au/dap/Project.
aspx?ProjectID=33202
October 2020 THE BULLETIN 13

ORAL HISTORIES
Not one to just sit there: The
fascinating career of Brian Martin
LINDY MCNAMARA
Reflecting on a legal career in which
he was involved in many high profile
cases, former Supreme Court Judge Brian
Martin AO QC says the Snowtown murder
trial was “undoubtedly the hardest” during
his time on the Bench.
Mr Martin said the evidence
presented in the nine-month jury trial was
“distressing” and it was a “huge mental
challenge” to understand the sheer volume
of material provided.
“It was a case with extraordinary public
profile,” he said during an oral history
interview for the Law Society.
“It involved 12 murders in one trial.
The details of various aspects of it
were both graphic and traumatic. Very
distressing.
“There were logistical challenges
surrounding the technical side of how this
would all be presented, and how the court
would handle well over a thousand exhibits
and all the material that was there. There
were logistical challenges with getting a
jury, and how we would deal with a jury.
“In fact, coping - helping the jury cope
with a trial of that magnitude, notoriety
and graphic detail. All of those things
come together into one large case, which
was extraordinarily difficult, but you just
had to go day by day.
“So, it took up 18 months of my life,
and nine months of that was with the jury.”
Mr Martin said as intense as it all
was, a shining light was how the process
reinforced his belief in the jury system.
“They acquitted of one count. Their
verdict of acquittal was, in my view,
correct.
“So, it showed they weren’t
overwhelmed by the totality of it, or they
hadn’t taken such an adverse view they
were going to convict of everything. They
worked it through. They brought back the
correct verdict.”
Mr Martin’s love of being involved in
the courtroom process was evident early in
his career. Admitted in 1970, his first job
was with Wallman and Partners, however
the desire to do more court work saw him
leaving the firm in 1974 to join the Crown
Law Office.
“Lying in bed one Saturday morning - I
never read the positions vacant - there was
an advertisement for an Assistant Crown
Prosecutor,” he recalled.
“I looked at the people in the firm
(Wallmans), the extraordinary amount of
work they pushed out and the toll it took
on them, and I thought two things.
“One, I really didn’t want that sort of
toll taken on me, because I’d built up a
large number of files pretty quickly, and
secondly, perhaps more importantly, the
job of Assistant Crown Prosecutor, doing
the court work, appealed to me.”
Rising through the ranks he was
appointed Crown Prosecutor in 1982,
admitting he was “extraordinarily lucky” to
be involved with so many interesting cases.
“Some good cases came my way and
some fantastic legal issues arose from time
to time. In the later years, the prosecution
of Emily Perry was a fascinating exercise.
“Somebody accused of poisoning their
husband and other husbands or relatives,
and the forensic exercise of putting all that
together, coupled with the fact that the
alleged victim, Ken Perry, did not believe
she had tried to poison him and ended up
as a witness for the defence.
“And he was not beyond being quite
voluble, outside the court sitting times,
about what was happening. That in itself
made life interesting. The whole thing -
and the law surrounding what was then
called similar fact evidence - it was a
great exercise in itself, and, of course, we
ended up in the High Court, and that was
terrific.”
Another stand-out case was the
prosecution of Bevan Spencer Von Einem
as it uncovered the “whole scene around
the issue of what was happening in parts
of our community that we didn’t know
about”.
After his appointment as a Queen’s
Counsel in 1984, Mr Martin decided he
had “had enough” and moved back to
private practice, joining Murray Chambers.
“When I say ‘had enough’, what I
mean is you reach a point where, not that
you’ve done it all, but you’re doing things
you’ve been doing for so long. I was
Brian Martin
looking for a change at that stage. I was
ready for a change, and the opportunity to
go to the Bar came,” he explained.
During this next phase of his career
he and wife Leigh spent two years in
Perth while he worked as Senior Counsel
with the WA Inc. Royal Commission.
Back in Adelaide he was appointed
Commonwealth Director of Public
Prosecutions in 1997, dealing with cases
around Australia, with a lot of travelling to
Canberra and Sydney.
“I finished after two years, when I
accepted the call to be a judge, and I
regret that in many ways. I was doing
cases around the country in different
appellant courts. There were a lot of
High Court cases, and just dealing with
an office of 400 odd people around the
country. The management exercise… that
was a terrific time.”
Joining the Supreme Court in 1999, Mr
Martin had to adjust his thinking about his
role in the cases before him.
“The one thing I did have to
concentrate on was that I was no longer
running the case,” he said.
“I didn’t have to worry about whether
that particular counsel was asking the right
questions or not, or whether they were
making the points they should. I was there
to sit and let them run the cases. So that
was a change.
14
THE BULLETIN October 2020

ORAL HISTORIES
“But as time went by, as plenty will
tell you, I was never one to just sit there.
If I thought they hadn’t asked questions
the jury would want to know the answer
to, then I’d ask the questions. That’s my
approach.”
When it came to writing judgments
he drew on the teachings of mentors and
judges before him who “had it right”.
“My principal, John Mangan, taught
me how to write letters and to think in
detail. Eventually, I wrote letters like he
did, and he still corrected them, so in that
sense he was a mentor, but the others,
by example and so on, were Len King,
Andrew Wells, George Walters.
“In those days, we used to talk to the
judge, not as much to Len King, because
he came in later, but in the early days,
Andrew Wells and George Walters. I learnt
from those sort of things. They were very
good.
“But there were a whole lot of other
judges who set examples - Roma Mitchell
was a fantastic example of how you do
things, get to the point. Don’t mess around.
Get to the point. Get on with it and do it.
“I heard her sum up in a rape case one
day. I reckon it was about 12 minutes and
she got everything right. That was it. Out
you go, ladies and gentlemen. She had it
right. She knew how to get to the point.
And so did some of the other judges.”
Five years after joining the Bench
he received a call “out of the blue”
asking him to be the Chief Justice of the
Northern Territory. This was to open the
door to another phase of his career and
he admits he debated the move north long
and hard.
“I was flabbergasted. I was honoured,
and I thought, ‘Hell, do I really want
to go and live in the tropics? I like cool
weather’.
“I didn’t think, ‘Oh, no. I could never
do that’. I was quite positive, but there
were issues that I had to deal with. In
the end, we went and had a look, and the
answer was yes.”
To read more about Mr Martin’s
work as Chief Justice in the NT, his
love for playing football and later
role as SANFL Commissioner, go to
www.lawsocietysa.asn.au B
October 2020 THE BULLETIN 15

LOCAL GOVERNMENT
THE ENFORCEMENT OF DOG CONTROL
ORDERS BY LOCAL COUNCILS
RONAN O’BRIEN, ANIMAL LAW COMMITTEE
Working from home during the
COVID pandemic has allowed many
of us to spend more quality time with our
dogs. This has been a great experience
for many, not least our dogs who have
benefited from more walks, more pats
and more treats! As we gradually return to
our office environments, however, these
same dogs may become more stressed
and anxious due to the significant change
in their daily routine. Any increase in
dog barking will certainly be noticed by
neighbours still working from home,
and bored dog escapees will no doubt be
quickly reported to the local council. Left
unresolved, these situations can lead to
unpleasant neighbourly disputes (perhaps
only rivalled by arguments related to
fencing!) leading to council involvement.
Dog Control Orders (Orders) are
imposed by local councils under section
50 of the Dog and Cat Management Act 1995
(the Act) following investigations by their
Animal Management Officers. 1 Quite often,
prior to implementing an Order, a council
has been through a series of conversations,
correspondence and warnings with the
relevant dog’s owner. Usually it is only where
an owner is unable or (more likely) unwilling
to change their dog’s behaviour that a
council will resort to imposing an Order.
TYPES OF ORDERS
Depending on the severity of the
dog’s behaviour, a council may impose the
following Orders if the relevant criteria
are met:
Control (Barking Dog) Order
• The dog is a nuisance; and
• The dog has created noise which
persistently occurs or continues to such
a degree or extent that it unreasonably
interferes with the peace, comfort or
convenience of a person.
Control (Nuisance Dog) Order
• the dog is a nuisance; and
• has attacked, harassed or chased a
person or an animal or bird, or is likely
to do so, in circumstances that would
constitute an offence against the Act.
Control (Menacing Dog) Order
• the dog is menacing; and
• has attacked, harassed or chased a
person or an animal or bird, or is likely
to do so, in circumstances that would
constitute an offence against the Act.
Control (Dangerous Dog) Order
• the dog is dangerous; and
• has attacked, harassed or chased a
person or an animal or bird, or is likely
to do so, in circumstances that would
constitute an offence against the Act.
Destruction Order
• the dog is unduly dangerous; and
• has attacked, harassed or chased a
person or an animal or bird, or is likely
to do so, in circumstances that would
constitute an offence against the Act.
Given that a council must be satisfied of
the above criteria prior to making an Order,
you would expect the legislation would
provide definitions of the words “nuisance”,
“menacing”, “dangerous” and “unduly
dangerous”. Unfortunately, the Act does
not provide any guidance on the meaning
of these important words. Instead, Judge
Millsteed helpfully provided the following
guiding principles in Clare & Gilbert Valleys
Council v Crawford [2005] SADC 135:
Nuisance Dogs
A nuisance dog is one which is “disposed
to unreasonably interfere with property or the
comfort or convenience of people or animals.” 2
This can include wandering at large,
harassing other animals, chasing cars, or
damaging property.
Menacing Dogs
A menacing dog “presents some risk of
harm to people or animals” 3 although such
risk is lesser than the risk associated with
dangerous dogs or unduly dangerous dogs.
Dangerous Dogs
A dangerous dog is one which presents
a risk of harm, being something more
than slight or trivial. However, a dog may
not be considered dangerous if the risk of
the dog causing harm is limited to certain
circumstances (for example where the dog is
provoked). Instead, a dog will be dangerous
if “it presents an appreciable risk of injury to
any person acting in a way in which a person may
reasonably be expected to act in circumstances which
may be reasonably expected to occur.” 4
Unduly Dangerous Dogs
A similar test to dangerous dogs
applies in this case, however there must
be “an appreciable risk of serious harm.” 5
Again, Judge Millsteed took into account
the circumstances in which a dog may be
dangerous, recognising that:
A dog may be so ferocious that it
presents a risk of serious harm to
anyone who has the misfortune to
come across it and in any situation that
may reasonably be expected to occur.
On the other hand a dog of ordinarily
mild disposition might present a danger
in such limited circumstances that it
may be fair and reasonable to address
the difficulties that the dog presents by
measures other than destruction.
REQUIREMENTS OF ORDERS
Each type of Order contains different
requirements and restrictions placed upon
the dog and its owner.
CHALLENGING ORDERS
Prior to July, 2018, a dog owner
wishing to challenge an Order would apply
to the Administrative and Disciplinary
Division of the District Court. This had
the effect that appeals against Orders
were rare (only two published decisions) 6
and related to the most severe category
of Orders (Destruction). Appeals against
Orders are now heard by SACAT in an
16
THE BULLETIN October 2020

LOCAL GOVERNMENT
TYPE OF ORDER BARKING NUISANCE MENACING DANGEROUS DESTRUCTION
Dog Training
On a lead when not at owner’s premises
Owner’s premises to be fenced
Muzzled when not at owner’s premises
Dog to wear a menacing dog collar
Dog to wear a dangerous dog collar
Dog to be desexed
Warning signs to be displayed at entrances to the
premises
Dog to be destroyed within a specified time frame
(with at least one month before destruction)
Dog to be kept at a specified place prior to
destruction
environment that is more accessible to
unrepresented appellants, less legalistic,
and cheaper ($78 to lodge an application).
Within two years of SACAT hearing
appeals, this has already resulted in four
published decisions, including one which
related to a Control (Menacing Dog)
Order. 7 The biggest impact, however, since
the appeal jurisdiction moved to SACAT
has been in appeals against less onerous
Orders being finalised at conciliation
conferences.
The Act requires an Order imposed
by a council to contain the mandatory
conditions outlined above without
any discretion as to whether certain
requirements are necessary for that
particular dog or owner. This has the
unfortunate effect of preventing every
dog with a Control (Nuisance Dog) Order
from ever being off lead except when at
the owner’s premises. Many dog owners
object to this condition on the basis that
their high energy dog requires exercise
off lead from time to time. The owners
may accept that their property needs to
be better fenced, and that the dog should
be on lead when walking down the street,
but many owners balk at the idea that
they will not be permitted to let their dog
get some off lead exercise at a fencedin
dog park, or at an off-lead beach.
This is a predominant reason that many
owners challenge the imposition of a
Control (Nuisance Dog) Order or Control
(Menacing Dog) Order.
Whilst an owner is challenging an
Order (which can take many months) the
dog and its owner remain under the terms
of the Order imposed by the council.
This meets the needs of the council in
ensuring that there is no increased risk to
the community whilst tribunal proceedings
are underway. Further, given that the more
onerous requirements of the Order remain
in effect during tribunal proceedings, a
helpful strategy for appellant dog owners
to pursue is for the dog and its owner
to undertake dog training in the period
between tribunal dates. If the appellant
undertakes the training successfully then
SACAT, and the council, can be more
confident in relaxing or varying the
conditions in the Order. Equally, if the
appellant does not attend the training, or
the dog is unsuccessful in being trained,
the tribunal has been provided with better
information in determining whether to
keep the Order in place.
Ultimately, having a dog and its owner
undertake training can be a far better
means of determining what specific
conditions should be placed within
an Order (rather than the obligatory
conditions approach taken by the Act).
Whilst the jurisdiction change to SACAT
may have resulted in more appeals against
Orders, it may also result in better tailored
conditions which not only ensure the
safety of the community but also take into
account the welfare of the dog. B
Endnotes
1 Whilst section 50 of the Act also gives the Dog
and Cat Management Board the power to issue
Dog Control Orders, this is far less common in
practice.
2 Clare & Gilbert Valleys Council v Crawford [2005]
SADC 135 [51].
3 Ibid [65].
4 Ibid [70].
5 Ibid [77].
6 Hastwell v the City of Holdfast Bay [2014] SADC
132; and Clare & Gilbert Valleys Council v Crawford
[2005] SADC 135.
7 Ivka v City of Charles Sturt [2019] SACAT 5.
October 2020 THE BULLETIN 17

FEATURE
CALDERBANK OFFERS IN SOUTH
AUSTRALIA: ENCOURAGING EARLY
SETTLEMENT AT ALL COSTS?
FLYNN WELLS, LLB (HONS) CANDIDATE, UNIVERSITY OF ADELAIDE
The court exercises a broad discretion
as to costs. 1 It may award costs on
three bases: a standard party–party basis;
a solicitor–client basis; and an indemnity
basis. 2 The standard basis is only departed
from in exceptional circumstances. 3
Pursuant to r 194.6 of the Uniform Civil
Rules 2020 (SA) (UCR), 4 in exercising
its discretion the court may have regard
to ‘the non-acceptance by a party of an
offer made by another party to resolve
the proceeding’. 5 As such, the court may
consider the non-acceptance of informal
offers of settlement, 6 as distinguished
from formal offers. 7
Informal offers are commonly made
by ‘Calderbank letter’, 8 a letter of offer
so named due to its origins in the case
of Calderbank v Calderbank. 9 On the
face of r 194.6, the non-acceptance of
a Calderbank offer would appear to be
one discretionary factor. There has been
a ‘great deal of judicial consideration’,
however, of the question as to whether the
costs consequences of the non-acceptance
of formal offers should also attach
to the non-acceptance of Calderbank
offers. 10 Indeed, there are authorities
for the proposition that a party whose
Calderbank offer was rejected unreasonably
is presumptively entitled to an award of
indemnity costs from the date of the
offer. 11 The high water mark of this line
of authority coincided with the decision
of Rolfe J of the Supreme Court of New
South Wales in Multicon Engineering Pty Ltd
v Federal Airports Corporation (‘Multicon’). 12
Unlike courts in other Australian
jurisdictions that have expressly departed
from the presumptive approach, 13 the
Supreme Court of South Australia has left
undecided the question as to whether to
adopt the presumptive approach on two
occasions. 14 More recently, however, the
Court appears to have expressed support
for the presumptive approach. 15
This paper considers whether the
presumption applies in South Australia.
Such certainty is needed, as is highlighted
by the following observation of Gino Dal
Pont: ‘it is difficult to see how the same
[costs] outcome will as of course ensue
where a person is required to positively
establish an entitlement to indemnity costs
as compared to where his or her opponent
must establish that indemnity costs
should not be ordered’. 16 It is argued that
the weight of South Australian authority
supports the view that the unreasonable
non-acceptance of a Calderbank offer
is but one discretionary factor. 17 (This is
referred to as the ‘discretionary approach’.)
As such, a party whose Calderbank
offer was rejected unreasonably is not
presumptively entitled to an award of
indemnity costs. This position is consistent
with other Australian jurisdictions, 18 and is
supported by policy considerations.
THE BOOM AND BUST OF THE
PRESUMPTIVE APPROACH ACROSS
AUSTRALIA
During the 1990s, it was observed
that Australian courts had developed a
tendency to award indemnity costs in
favour of a party whose Calderbank
offer had been unreasonably rejected. 19
Indemnity costs were ‘becoming more
frequently available’ in this context. 20 One
judge went so far as to say that ‘[i]t is
plain enough that … the only sanction to
encourage serious consideration of … [a
Calderbank] offer … is an award of costs
on a more favourable than usual basis.
The most favourable basis is indemnity
costs’. 21 It was from this tendency that
the presumptive approach appears to
have emerged. As was later observed, ‘[s]
o widely has this [judicial predisposition]
been accepted that the proposition has
[even] been advanced that a Calderbank
offer gives rise to a presumption that the
party rejecting the offer should pay the
offeror’s costs on an indemnity basis’. 22
In Multicon, a ‘significant’ decision for
the law of costs, 23 Rolfe J gave the first
judicial endorsement of the presumptive
approach:
In my opinion the proper approach to take to
an offer … pursuant to a Calderbank letter, is
that there should be a prima facie presumption
in the event of the offer not being accepted and
in the event of the recipient of the offer not
receiving a result more favourable than the offer,
that the party rejecting the offer should pay the
costs of the other party on an indemnity basis
from the date of the making of the offer. 24
His Honour held that the respondent
had not rebutted the presumption by
establishing that its non-acceptance was
reasonable, 25 and awarded indemnity costs
in favour of the applicant. 26
Although there remained some
uncertainty regarding the state of the
law post-Multicon, 27 which intensified
following the Federal Court of Australia’s
disapproval of the presumptive approach, 28
the decision of Rolfe J was approved by
Gillard J of the Supreme Court of Victoria
in MT Associates Pty Ltd v Aqua-Max Pty
Ltd (‘MT Associates’). 29 In so holding,
Gillard J hoped that ‘judges hereafter do
not waste time in disagreeing [with the
presumptive approach] on the ground that
… [the presumption] fetters the [court’s]
discretion’. 30 Multicon was also approved in
Queensland and Western Australia. 31
Despite the best efforts of Gillard J
in MT Associates, judges did indeed ‘waste
time’ disagreeing with the presumptive
approach thereafter. A shift to the
discretionary approach is evident in several
decisions, 32 which has led one author to
suggest that ‘the historical divergence of
authorities on the issue’ has ended. 33 The
position in South Australia, however, is not
so certain.
THE STORY IN SOUTH AUSTRALIA
Support for the Prima Facie
Presumption?
The Supreme Court of South Australia
considered the new direction taken by
the authorities, exemplified by Multicon,
in Pirrotta v Citibank Ltd (‘Pirrotta’). 34
Justice Debelle, with whom Millhouse
18
THE BULLETIN October 2020

FEATURE
and Olsson JJ agreed, noted that ‘the
effect of Calderbank letters [on costs] has
not been examined in this Court’. 35 The
first instance judge had proceeded on
the basis that the presumptive approach
represented the correct approach, but held
that the presumption had been rebutted
by the respondent. 36 On appeal, the
appellants ‘submitted that the trial judge
had acted upon a wrong principle’, and
‘that the principle was correctly expressed
by Rolfe J in Multicon’. 37 This submission
mischaracterised the approach of the
trial judge, who had adopted Multicon,
and Debelle J dismissed this ground
of appeal. 38 As such, the question as to
the status of Multicon in South Australia
was left open. 39 In obiter, his Honour
remarked that, until the issue was properly
raised, the unreasonable rejection of a
Calderbank offer should be regarded as
one discretionary factor. 40 The question
next arose in Equuscorp Pty Ltd v Jimenez
[No 2]. 41 Justice Besanko held that
the issue ‘was not fully argued’ by the
parties, however, and consequently left it
unresolved. 42 In the meantime, his Honour
expressed support for ‘the approach
adopted by the Full Court in Pirrotta’. 43
Multicon received its first positive
judicial treatment in South Australia in
Davies v Chicago Boot Co Pty Ltd [No 2]
(‘Davies [No 2]’). 44 Justice Sulan referred
to Multicon as the ‘starting position’,
adding that ‘the making of an offer of
compromise by a plaintiff who obtains
a more favourable ultimate verdict will
entitle the plaintiff to an order against the
defendant for the plaintiff ’s costs on an
indemnity basis’. 45 At this point, it may
well have appeared that the law in South
Australia was beginning to diverge from
the discretionary consensus in other
Australian jurisdictions. 46
BHP Billiton Ltd v Parker: Silence Is
Golden
Just weeks after Sulan J’s endorsement
of Multicon, the Full Court handed down
the leading decision on the effect of
Calderbank offers on costs in South
Australia to date: BHP Billiton Ltd v Parker
(‘Parker’). 47 The majority, comprising Doyle
CJ and White J, ruled that
the question is not simply whether, having
regard to a Calderbank letter, a court should
order the defendant to pay costs on a basis other
than as between party and party. The court
will be exercising a broad discretion, and the
making of an informal offer of settlement is
merely one of a number of matters relevant to
the exercise of that discretion. 48
Their Honours made no mention
of Multicon or Davies [No 2], a deafening
silence in light of the fact that Parker
has since been approved on numerous
occasions. 49
Perhaps the most consequential
comments regarding the state of the law
post-Parker came from Judge Lovell of the
District Court of South Australia (as his
Honour then was) in Cadoo v BHP Billiton
Ltd: 50 ‘[t]he onus is on the party making
a “Calderbank” offer to satisfy the court
that it should exercise the discretion in its
favour … The rejection of a “Calderbank”
offer does not necessarily or even
presumptively lead to an award of indemnity
costs’. 51 His Honour’s dismissal of any
such presumption is significant.
Notwithstanding that Multicon was
recently applied in the District Court, 52
the decision of the Full Court of the
Supreme Court remains authoritative.
Thus, the rejection of a Calderbank
offer is but one factor to be weighed
by the court in the exercise of its broad
and, importantly, unfettered discretion. 53
This position is consistent with other
Australian jurisdictions, and has received
support from the Australian Law Reform
Commission. 54
CONCLUSION
The authorities advocating the
presumptive approach placed considerable
reliance upon the need to encourage the
early settlement of disputes. 55 Justice
Gillard demonstrated this reasoning in
MT Associates when his Honour stated
that ‘[i]n this day and age litigation in this
court is expensive … [Lawyers] should
be encouraged to reduce costs’, 56 then
proceeding to endorse the presumptive
approach. 57 It is argued, however, that it is
undesirable for this policy to be pursued at
all costs.
Another important policy
consideration in civil litigation is party
certainty, 58 which is undermined by the
presumptive approach. Indeed, there
is an important distinction between
formal offers and Calderbank offers. A
formal offer is filed and served, 59 thus
recognisable by the offeree as carrying
certain costs consequences should it be
rejected and the offeree’s position is not
bettered at judgment. 60 Calderbank offers,
on the other hand, remain nebulous,
despite efforts to distil their essential
features. 61 Chief Justice Doyle and White
J expressly contemplated this ambiguity in
Parker when their Honours warned against
using the term ‘Calderbank letter … as a
term of art, as if such a letter is always of a
particular kind’. 62
It has been suggested that a
Calderbank offer will carry the header
‘without prejudice save as to costs’, 63 but
even the determinativeness of this feature
is arguable. Indeed, in Old v McInnes, 64
the New South Wales Court of Appeal
considered the costs consequences
of the unreasonable rejection of a
letter lacking the necessary Calderbank
header, but exchanged within a series of
communications in the course of which
a properly-headed Calderbank offer had
also been exchanged. 65 In dissent, Beazley
JA (as her Excellency then was) held that
the defective offer could be taken into
account in awarding costs, as if it were a
Calderbank offer. 66 Her Honour articulated
this form and substance approach
extrajudicially, 67 adding that ‘different
judges may interpret the same document
in different ways’. 68
October 2020 THE BULLETIN 19

FEATURE
It is submitted, therefore, that it is
undesirable to link the rejection of a
Calderbank offer presumptively to an
award of indemnity costs, lest party
certainty be undermined. 69 On this basis,
the discretionary approach of the Full
Court in Parker is preferred. Indeed,
‘[t]here is only one immutable rule in
relation to costs, and that is that there are
no immutable rules’. 70 As such, a party
whose Calderbank offer was rejected
unreasonably is not presumptively entitled
to an award of indemnity costs in South
Australia. This is but one discretionary
factor to be weighed by the court under r
194.6 of the UCR. B
Endnotes
1 BHP Billiton Ltd v Parker (2012) 113 SASR 206,
265 [265] (Doyle CJ and White J) (‘Parker’). See
Uniform Civil Rules 2020 (SA) r 194.1(1) (‘UCR’).
2 UCR (n 1) r 194.3(1).
3 See, eg, Colgate-Palmolive Co v Cussons Pty Ltd
(1993) 46 FCR 225, 233 (Sheppard J), cited in
Duke Group Ltd (in liq) v Pilmer [1998] SASC
6699 (Mullighan J). See also LexisNexis, Civil
Procedure South Australia (online at 15 May 2020)
[R 264.85].
4 The UCR entered into force on 18 May 2020:
UCR (n 1) r 1.2; South Australia, Government
Gazette, No 41, 18 May 2020, 1392.
5 UCR (n 1) r 194.6(2)(e) (emphasis added).
6 Parker (n 1) 265 [264]. See also Grbavac v Hart
[1997] 1 VR 154, 165 (Hayne JA).
7 See UCR (n 1) ch 11 pt 2. Subject to its
‘overriding discretion’, the court will, as a matter
of course, award costs on an indemnity basis
against a party who rejected a formal offer
and did not receive a more favourable result at
judgment: ibid r 132.10.
8 Matthew Ellis, ‘The Cost of Compromising: Offers
of Compromise and Calderbank Offers’ (2008)
17(4) Journal of Judicial Administration 253, 253.
9 [1976] Fam 93.
10 Ellis (n 8) 264.
11 See, eg, Multicon Engineering Pty Ltd v Federal
Airports Corporation (1997) 138 ALR 425, 451
(‘Multicon’). A rejection will be ‘unreasonable’
where the offeree does not receive a more
favourable result at judgment: ibid. See also Gino
Dal Pont, Law of Costs (LexisNexis Butterworths,
4 th ed, 2018) 428 [13.74].
12 (1997) 138 ALR 425.
13 MGICA (1992) Pty Ltd v Kenny & Good Pty Ltd
[No 2] (1996) 70 FCR 236, 240 (Lindgren J)
(‘MGICA [No 2]’); Jones v Bradley [No 2] [2003]
NSWCA 258, [9] (Meagher, Beazley and Santow
JJA) (‘Jones [No 2]’); Hazeldene’s Chicken Farm Pty
Ltd v Victorian Workcover Authority [No 2] (2005)
20 THE BULLETIN October 2020
13 VR 435, 440–1 (Warren CJ, Maxwell P and
Harper AJA) (‘Hazeldene’s Chicken Farm [No 2]’).
14 Pirrotta v Citibank Ltd (1998) 72 SASR 259, 266
(Debelle J, Millhouse J and Olsson J agreeing at
260) (‘Pirrotta’); Equuscorp Pty Ltd v Jimenez [No 2]
[2002] SASC 266, [17]–[19] (Besanko J) (‘Jimenez
[No 2]’).
15 Davies v Chicago Boot Co Pty Ltd [No 2] [2011]
SASC 97, [26] (Sulan J) (‘Davies [No 2]’), cited
in David Jones Ltd v BI (Contracting) Pty Ltd [2018]
SADC 40, [17] (Judge Gilchrist) (‘David Jones’).
16 Dal Pont (n 11) 427–8 [13.73] (emphasis in
original). Cf Interchase Corporation Ltd v ACN 010
087 573 Pty Ltd (2000) 45 ATR 445, 452 (White
J); ACCC v Universal Music Australia Pty Ltd [No
2] (2002) 201 ALR 618, 631 [59] (Hill J).
17 Parker (n 1) 265 [265] (Doyle CJ and White J).
18 MGICA [No 2] (n 13) 240; Jones [No 2] (n 13) [9];
Hazeldene’s Chicken Farm [No 2] (n 13) 440–1.
19 Ellis (n 8) 266.
20 Huntsman Chemical Co Australia Ltd v International
Pools Australia Ltd (1995) 36 NSWLR 242, 250
(Mahoney JA).
21 Quirk v Bawden (1992) 112 ACTR 1, 5 (Higgins J,
Miles CJ and Gallop J agreeing at 2) (emphasis
added).
22 Hazeldene’s Chicken Farm [No 2] (n 13) 440
(Warren CJ, Maxwell P and Harper AJA). See
also Multicon (n 11) 441–51.
23 Pamela Jack, ‘Calderbank Offer: Indemnity
Costs’ (1997) 53 Australian Construction Law
Newsletter 51, 51.
24 Multicon (n 11) 451.
25 Ibid 453.
26 Ibid 454.
27 Ellis (n 8) 265.
28 MGICA [No 2] (n 13) 240 (Lindgren J).
29 [2000] VSC 163, [71] (‘MT Associates’).
30 Ibid.
31 Naomi Marble and Granite Pty Ltd v FAI General
Insurance Co Ltd [No 2] (1999) 1 Qd R 518,
524–8 (Shepherdson J); Alpine Holdings Pty Ltd v
Warwick Entertainment Centre Pty Ltd [2003] WASC
53, [73]–[74] (Roberts-Smith J).
32 Jones [No 2] (n 13) [9]; Hazeldene’s Chicken Farm
[No 2] (n 13) 440–1. See also SMEC Testing
Services Pty Ltd v Campbelltown City Council [2000]
NSWCA 323, [37] (Giles JA).
33 Ellis (n 8) 265. See also Dal Pont (n 11) 427
[13.73]; Justice of Appeal Margaret Beazley,
‘Calderbank Offers’ [2009] (Summer) Bar News
65, 66.
34 (1998) 72 SASR 259.
35 Pirrotta (n 14) 262 (emphasis added).
36 Ibid 262.
37 Ibid.
38 Ibid.
39 Ibid 265.
40 Ibid 266.
41 [2002] SASC 266.
42 Jimenez [No 2] (n 14) [17]–[19].
43 Ibid [19].
44 [2011] SASC 97.
45 Davies [No 2] (n 15) [26] (emphasis added).
46 See above n 32 and accompanying text.
47 (2012) 113 SASR 206.
48 Parker (n 1) 265 [265] (Doyle CJ and White J,
Gray J reserving costs at 298 [429]).
49 See, eg, McLean v DID Piling Pty Ltd [No 2] [2014]
SASC 135, [22] (Nicholson J); Enartis Pacific
Pty Ltd v Tscharke Pty Ltd [2015] SASC 42, [28]
(Nicholson J); Cadoo v BHP Billiton Ltd [2014]
SADC 42, [16] (Judge Lovell) (‘Cadoo’); De Poi
Consulting Pty Ltd v Dutton [No 2] [2015] SADC
111, [22] (Judge Tilmouth).
50 [2014] SADC 42.
51 Cadoo (n 49) [11].
52 David Jones Ltd v BI (Contracting) Pty Ltd [2018]
SADC 40, [17] (Judge Gilchrist), citing Davies (n
15) [26].
53 Parker (n 1) 265 [265]; Cadoo (n 49) [12].
54 Australian Law Reform Commission, ‘Costs
Shifting: Who Pays for Litigation?’ (Report No
75, 20 October 1995) [11.32].
55 Multicon (n 11) 440; MT Assocites (n 29) [73].
56 MT Assocites (n 29) [73].
57 Ibid [71].
58 See, eg, Aon Risk Management Services Australia Ltd
v Australian National University (2009) 239 CLR
175, 192 [30] (French CJ), cited in Channel Seven
Adelaide Pty Ltd v Manock [2010] SASCFC 59, [46]
(Bleby J, White J agreeing at [174]).
59 UCR (n 1) rr 132.4(1)–(2).
60 Ibid r 132.10.
61 See, eg, Mark J Rankin, ‘Calderbank Letters and
Formal Settlement Offers: Is the Calderbank
Offer a Dead Letter?’ (2010) 21(4) Australian
Dispute Resolution Journal 242. See also Dal Pont (n
11) 425 [13.70].
62 Parker (n 1) 265 [264] (emphasis added).
63 See, eg, Ellis (n 8) 265. It is also common to state
that the offer is made ‘pursuant to the principles
in Calderbank v Calderbank’: Dal Pont (n 11) 425
[13.70].
64 [2011] NSWCA 410.
65 Ibid [12]–[20] (Beazley JA).
66 Ibid [20]–[21].
67 Justice of Appeal Margaret Beazley, ‘“Without
Prejudice” Offers and Offers of Compromise’
(Speech, NSW Young Lawyers Civil Litigation
Committee, 26 September 2012) [30]. See
also Singapore Airlines Cargo Pte Ltd v Principle
International Pty Ltd [No 2] [2017] NSWCA
340, [40] (Beazley P, Meagher and Payne JJA);
Secretary, Department of Business and Innovation v
Murdesk Investments Pty Ltd [No 2] [2012] VSC
586, [31] (Emerton J).
68 Beazley, ‘“Without Prejudice” Offers and Offers
of Compromise’ (n 67) [31].
69 See Old v McInnes (n 64) [106]–[107] (Meagher
JA, Giles JA agreeing at [42]).
70 Taylor v Pace Developments Ltd [1991] BCC 406,
408 (Lloyd LJ), cited in Solowij v Parish of St
Michael [No 2] [2003] SASC 48, [15] (Williams J).

Behind cabenet’s mild mannered, easy user interface lies all the powerful
features any law firm needs to deliver superior legal services and
profitable business performance, from anywhere.
End to end matter management,
certified law office accounting,
professional billing and invoicing,
and seamless Microsoft Office
integration gives control over
everything matter related - matter
files and financials, emails,
messaging, calendars and document
management, and much more.
Simple to use remote working
capability and business continuity
peace of mind for any sized firm.
Just signup online and start using
immediately, no complex
installation and no minimum
contract period.
Integrated legal practice management from $140 per month.
Up to 3 users at no extra cost. Be amazed, request an online demo.

LEGALSUPER
Reviewing your annual super statement
may lead to higher savings
ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER
Your Annual Super
Statement helps review
past performance and plan
future actions to achieve
your retirement goals.
At a time of heightened personal and
economic uncertainty due to the
COVID-19 pandemic, super fund members
are encouraged to scrutinise their Annual
Super Statement.
Super remains the bedrock of saving
for retirement for most Australians and
your Annual Super Statement contains a
wealth of information.
No doubt your Annual Super
Statement will be one of many statements
or bills you receive, but it is worth the
effort to take a closer look at your
Statement. After all, super is now the
second highest form of savings for
Australia, exceeded only by housing.
If everything is in order, you’ll get
increased peace of mind about your nest
egg. Conversely, a quick check may reveal
some opportunities to improve your
position, and the sooner these are taken
advantage of, the quicker your savings may
increase or better meet your needs.
WHAT TO LOOK FOR
The layouts of statements vary
between super funds, but there is
minimum information required by law to
be included. Some information appears in
summary form, with a detailed breakdown
shown elsewhere in the Statement.
Here are some key actions to consider
taking:
22 THE BULLETIN October 2020
COMPARE YOUR INVESTMENT BALANCE
Compare your investment balance at
the end of 2019/20 to your investment
balance at the end of the preceding
financial year. This will show you how
much your investments have changed over
the year.
Due to COVID-19 and impacts to the
investment markets worldwide, investment
returns were lower in 2019/20 and as a
result any increase in 2019/20 of your
super balance is more likely to be lower
than that of previous years. By way of
example, according to SuperRatings (an
independent super research and rating
advisory business) the median return for a
‘balanced’ investment option for the one
year ended 30 June 2020 was -0.8%. 1
Super exists to provide savings for
retirement. One of the easiest ways to
assess whether you’re on track to be
comfortable in retirement, is to use
your super fund’s tools and calculators.
legalsuper’s Retirement Income Forecast
calculator, is an excellent starting point
as it helps you project your possible
retirement income and explore options for
improvements. 2
To help determine whether your
retirement income target will set you
up for the lifestyle in retirement you
envisage for yourself and your loved ones,
it is helpful to compare your retirement
income target to the Association of
Superannuation Funds of Australia
(ASFA) Retirement Standard. The
Standard benchmarks the annual budget
needed by Australians to fund either a
“comfortable” or “modest” standard of
living in the post-work years of those aged
around 65 and those aged around 85.
The latest Standard, issued for the June
2020 quarter, states that in retirement, a
single person aged around 65 will need
$27,902 per annum to lead a “modest”
lifestyle and $43,687 per annum to
lead a “comfortable” lifestyle. Couples
aged around 65 years will need $40,380
per annum and $61,909 per annum
respectively. (These figures assume the
retiree/s own their home outright and are
relatively healthy). 3
CHECK WHERE YOU’RE INVESTED
Your Annual Super Statement
must show your investment choice. It’s
important to periodically assess the level of
risk and return you’re comfortable with and
ensure your investment choice is aligned.
legalsuper offers 13 investment
options, including the ability to selfmanage
your super with our Direct
Investment option. This SMSF-style
alternative offers the flexibility of real time
trading, for those who want to be more
hands on with their investments.
As a result of the economic impact
of the COVID-19 pandemic, super
funds have, understandably, received an
increase in inquiries from members about
the impacts to their super, including
whether they should change their current
investment option(s).
legalsuper’s members are to be
assured that the fund’s highly experienced
investment experts continue to actively
monitor and respond to changing market
conditions.
Also, history tells us that economic
downturns are temporary, as markets have
demonstrated the ability to recover losses
after a crisis. For example, despite share

LEGALSUPER
markets falling more than 40 per cent
during the Global Financial Crisis of 2008,
most balanced funds recovered the majority
of losses in the following 12 months.
That said, there may be an opportunity
to change your investment option(s) to
better suit your current and future needs
and the best way to start this conversation
is to call your super fund to discuss the
options available.
Assess your insurance
Your Annual Super Statement must set
out what insurance you had at the end of
the financial year, and how much it costs.
You should check that the type and
level of cover remains adequate given
your circumstances, objectives and needs.
Important items to check are whether you
are paying for insurance cover you don’t
need or whether you are inadequately
insured.
Review your transactions
Your Annual Super Statement lists
the transactions applied to your account
throughout the year. This will include any
money received (employer and personal
contributions, government contributions
and rebates, plus any rollovers),
investment earnings derived or losses
incurred, and any money paid out (most
commonly administration and investment
fees, insurance premiums, any withdrawals
and taxes).
If you’re employed, you should receive
an income statement via myGov or a
payment summary from your employer
for each financial year. You can use this
to reconcile contributions your employer
or you paid during the year against the
amounts reflected in your Annual Super
Statement, thereby checking if your
employer has paid the right amount of
super for you.
Check your fees against investment
performance
Most commonly, super fund fees
comprise administration and investment
management fees. These may differ
depending on your account balance and
investment option(s) chosen and the kind
of service the fund offers. It is to be
remembered that high fees don’t always
mean high investment returns and vice
versa. It’s best to assess the two together
and check if yours are competitive with
other super funds.
Other things to check
Have you provided your TFN? If not,
you will be charged extra tax.
Are your contact details up to date? If
not, your fund may be unable to contact
you.
Have you received more than one
statement? More than one statement
means more than one set of fees. Consider
whether consolidating accounts will
benefit you - but make sure you consider
insurance coverage before consolidating
super accounts.
Do you have a beneficiary? If you were
to pass away, where would you want your
super to be paid?
Reach out for help
Super is one area in life where
professional advice can really pay off. If
you need help with understanding your
Annual Super Statement, investment
options, how to consolidate accounts,
finding lost super, or ensuring you have the
right insurance cover, reach out for help.
legalsuper offers members one-on-one
meetings with our team of Client Service
Managers. Our dedicated team, or your
personal financial planner can help you
optimise your super strategy to stay on
track for a great life in retirement.
If you would like to meet with a
member of our team of Client Service
Managers for more in-depth support
about your super, contact us and request
a complimentary appointment. Call 1800
060 312 Monday to Friday between 8am
to 8pm (AEST) or via email to mail@
legalsuper.com.au
This information is of a general nature
only and does not take into account
your objectives, financial situation or
needs. You should therefore consider the
appropriateness of the information and
obtain and read the relevant legalsuper
Product Disclosure Statement before
making any decision. Past performance is
not a guide to future performance. Legal
Super Pty Ltd ABN 37 004 455 789, AFSL
246315 is the Trustee of legalsuper ABN
60 346 078 879.
ANDREW PROEBSTL is Chief
Executive of legalsuper, Australia’s
industry super fund for the legal
community. He can be contacted
on ph 03 9602 0101 or via
aproebstl@legalsuper.com.au. B
Endnotes
1 https://www.superratings.com.au
2 https://www.legalsuper.com.au/formsresources/calculators
3 https://www.superannuation.asn.au/resources/
retirement-standard
October 2020 THE BULLETIN 23

PLANNING LAWS
Planning 101 under the Planning
Development and Infrastructure
Act 2016 – the new system and
the role of local government
ALISON BROOKMAN, SPECIAL COUNSEL AND FELICITY NIEMANN, PARTNER, PLANNING & ENVIRONMENT, WALLMANS LAWYERS
This is a simplified summary of South
Australia’s planning system and
changes occurring at present pursuant to
the Planning Development and Infrastructure
Act 2016 (PDI Act). As an overview of the
legislation, and not a detailed consideration
of the Act, this article may be of interest to
those lawyers not practicing in this area.
South Australia’s current planning
system is a hybrid of that set up by the
Development Act 1993 and the PDI Act.
This is because the PDI Act is being
phased into operation, with some parts of
the State already subject to its provisions
for assessment of developments. Full
commencement of the new planning
system is now expected to occur sometime
next year 1 .
PLANNING POLICY
Under the Development Act 1993 all
councils in the State are required to have
a Development Plan which sets out all
the planning provisions applicable in the
council area. This includes the various
zones into which the area is divided and
the provisions or requirements applicable
to those zones.
Once the PDI Act is fully operational
the planning policies and zoning
provisions will be found in a State-wide
Code, the Planning and Design Code (the
Code). This will be an online tool designed
to interact with the e-planning system for
development applications known as the SA
Planning Portal.
The PDI Act establishes the State
Planning Commission which acts as
the principal planning advisory and
development assessment body. It is also
the body responsible for writing and
maintaining the Code. The Code will set
out the planning policies for the whole
State against which developments must be
assessed to determine whether approval
24 THE BULLETIN October 2020
will be granted. A council cannot initiate
an amendment to the Code, unless it has
the approval of the Minister acting on
advice of the Commission. One of the
more noticeable differences under the
new system is that the setting of planning
policy will be a very limited function of
local government.
A number of council Development
Plans have already been revoked as the
Code is operational in outback and rural
areas. Implementation of the Code in
metropolitan Adelaide and a number of
large towns has recently been deferred by
the government, in these areas the existing
Development Plans remain in force.
APPROVAL OF DEVELOPMENT
For most people any interaction
with the planning system comes through
development assessment, when a
development is proposed or concerns are
raised about another’s development. Both
the Development Act 1993 and the PDI Act
set out various pathways for assessment
of developments, these are quite different.
Both planning systems provide a general
scheme and also provide for larger or
more complex developments, those
undertaken by the Crown and also for
essential infrastructure.
Once again most people are more
likely to come across the general scheme
of development assessment as this will
include the bulk of developments for
which approval is sought.
The new planning system retains
the concept of relevant authorities, the
decision making body relevant for a
particular development. There are now
more relevant authorities than previously,
but the basic principles are similar.
Under the Development Act 1993
councils established Development
Assessment Panels which acted with the
delegated authority of the council as the
relevant authority. Now councils must
appoint Assessment Managers and a
Council Assessment Panel (CAP) which
acts with its own powers pursuant to the
PDI Act. There are provisions for other
panels in some circumstances, but the
CAP will be the most common.
A council itself may be a relevant
authority, but this is limited to building
rules consent and the issue of final
development approval, as distinct from
assessment against planning policy and the
grant of planning consent. Under the PDI
Act the council has no direct power to
undertake planning assessment.
DEVELOPMENT ASSESSMENT
Any development must be approved,
unless it is exempt. In order for a
proposed development to gain approval
it will be assessed against the provisions
of the relevant Development Plan or the
Code. Eventually the Code will be the only
relevant instrument.
The Code exists online, see the SA
Planning Portal, plan.sa.gov.au. The portal
is also the vehicle by which development
applications may be lodged online. It will
also be the means by which proposed
developments are notified, applications
tracked, and where decisions are found.
Currently development applications may
be lodged online and also over the counter,
but it is expected that in due course online
lodgment will be required.
The planning assessment of a
proposed development means that it
is considered in accordance with the
applicable zoning provisions to see if
it complies, or fits comfortably enough
to warrant consent. Often proposed
developments are not word for word
compliant with the zone provisions.
Similarly zoning will usually describe a

PLANNING LAWS
variety of types of development which
may be suitable in the area even if a
particular type is most desirable.
An obvious example is a residential
zone where dwellings will be desirable
and encouraged. However the zone may
also include allowance for other uses
which may be appropriate such as offices,
consulting rooms or perhaps tourist
accommodation. There may be threshold
criteria applicable to certain developments,
such as a limit of two storeys or buffer
areas for industrial uses.
CONCLUSION
At present we have two planning
systems in operation for different
purposes. Once the Code and the PDI
Act are fully operational it will be easier to
advise with more certainty.
There is an impression that there is
more with which to become familiar,
being a larger Act, Regulations, Practice
Directions and the online Code, along with
new terminology and acronyms. Those
practicing in this field will need to become
familiar with the PDI Act and its systems
just as happened when the Development
Act commenced. B
Endnotes
1 Media Release - ‘Updated timeline for new planning
system rollout’ Attorney-General’s Department, 18
August 2020
October 2020 THE BULLETIN 25

ICAC
Commissioner Lander reflects on seven
years of investigating corruption,
misconduct & maladministration
MICHAEL ESPOSITO
Bruce Lander ended his seven-year
tenure as South Australia’s Independent
Commissioner Against Corruption on 1
September. His final public report, “Looking
Back”, reflects on the past seven years as the
State’s chief public integrity watchdog and
makes a number of recommendations for
reform of ICAC legislation.
MEASURE OF SUCCESS
Mr Lander said he was proud of what
his office had achieved over the past seven
years, and expressed the view that the
impact and value of the office was not as
well understood as it could be.
He made the point that the success
of the office should not be measured
by way of the number of successful
prosecutions that have arisen from an
ICAC investigation, but instead should be
evaluated by considering he broader impact
of the ICAC in terms of enhancing and
promoting integrity within public agencies.
“Corruption investigations that do
not lead to a prosecution nevertheless
result in a detailed review to identify
weaknesses in an agency’s practices,
policies, procedures and those findings are
routinely communicated to agency heads,”
Mr Lander said in his report.
Mr Lander cited several examples
of investigations leading to significant
reforms, including:
• Changes to the manner in which
Government assesses unsolicited bids
(resulting from the Gillman investigation)
• Reforms to the operation of mental
health facilities (resulting from the
Oakden investigation)
• Significant improvements in
administration and governance practices
in the Public Trustee, Safework SA and
City of Playford Council, following
investigations into those organisations.
The ICAC office has developed
training programs to improve governance
and promote integrity in pubic bodies, and
has published numerous reports based on
state-wide integrity surveys, that address
integrity issues.
26 THE BULLETIN October 2020
RESOURCES
While all agencies would welcome
additional resources, Mr Lander by and
large has been satisfied with the level of
funding allocated to his office.
However, Mr Lander reported that
his request for funding to conduct an
evaluation of SA Health was rejected
by the State Government, who argued
that the ICAC office had discretion with
regards to the use the funds in its existing
budget to conduct investigations.
Mr Lander said that he sought an
additional $2 million in funding to evaluate
SA Health because “an evaluation of
SA Health could not be undertaken at
the same cost as previous and current
evaluations for the simple reasons that SA
Health is so big and so specialised”.
ASSESSING SERIOUSNESS OF
CORRUPTION & MALADMINISTRATION
Mr Lander observed in his report
that his office had progressively become
better at assessing evidence and discerning
whether the conduct that is the subject
of an assessment was likely to amount to
corruption.
“We have become better at focusing
our investigation resources on the most
serious and complex corruption matters
and we have advanced our capacity and
expertise to investigate them,” he said.
Mr Lander supported the existing
jurisdiction of ICAC, which includes
misconduct and maladministration
in addition to corruption, observing
that the line between misconduct,
maladministration and corruption is
often unclear, and the evidence the office
evaluates in order to discern the gravity of
the conduct is often incomplete.
“The benefit of having a single agency
capable of dealing with all three forms
of impropriety is that it can continue to
address a matter even when information
changes the way in which the impugned
conduct is assessed.”
TRUST V OVERSIGHT: A BALACING ACT
The “Looking Back” report reflected
on the delicate balance between trust and
oversight in public institutions. Mr Lander
acknowledged that too much oversight could
be oppressive and degrade trust, but noted
that there has been a number of occasions
where, during the course of the ICAC
office’s work, institutions have been found to
have had insufficient oversight mechanisms.
He noted the heightened risk of corruption,
misconduct and administration when public
officers who gain the trust of employers
operate with minimal oversight.

ICAC
PARLIAMENTARY CODE OF CONDUCT
The travel expenses saga that has
dogged the State Liberal Party has given
rise to a complex debate about the
privileges and ethical responsibilities of
parliamentarians.
Mr Lander, in his recent report,
repeated his call for a Parliamentary Code
of Conduct.
“A code of conduct provides for
agreed clear standards and rules by which
behavioural breaches can be measured,
and provides the justification upon which
appropriate disciplinary action may be
taken by the parliament,” Mr Lander said
in the report.
Mr Lander notes that the original Bill
to establish an ICAC included a provision
to form a Parliamentary Standards
Committee, whose function would have
been to monitor and promote standards
of conduct and report any contraventions
of the standards to the house. However,
the clause in the Bill to establish such a
Committee was rejected.
“The unique relationship between
members of Parliament and their
electorates should not be invoked as an
argument against accountability,” Mr
Lander said. “Misconduct and improper
behaviour by members of Parliament does
not need to be tolerated as the price for
maintaining parliamentary supremacy.”
RECURUITMENT PROCEDURES
Mr Lander said in his report that poor
recruitment practices created significant
risks in public administration, and noted
two particularly concerning issues:
• Poor screening and vetting practices
• Recruitment processes compromised
by conflicts of interest, favouritism,
nepotism and discrimination
In response to Mr Lander’s
recommendations, the State Government
in 2018 implemented a register of pubic
officers who have been dismissed for
misconduct or other inappropriate
conduct, or who have resigned during the
course of investigation into their conduct.
CONFLICT OF INTEREST
Mr Lander said conflict of interest
issues made up a large chunk of integrity
matters that his office has looked into.
“Many public officers, including some
in very senior positions, still struggle
to understand why integrity in public
administration requires that all conflicts
of interest be identified, declared and
managed,” he said.
The ICAC office has created an online
education course that teaches participants
about identifying and disclosing potential
conflicts of interest, and how they should
be managed.
PERVERSE INCENTIVES
Mr Lander said in his report that
“perverse incentives lurk behind corruption,
misconduct and maladministration matters
and are usually underappreciated.”
Mr Lander said that examples of
perverse incentives included circumstances
where people were rewarded for finding
efficient means of achieving outcomes
which bypass integrity measures.
He also noted the concerning practice
of agencies spending unexpended
funds before milestone dates with little
justification for the need for those funds to
be spent. This can result in ill-conceived,
unnecessary or unauthorised expenditure.
CHANGING THE NAME
In the “Looking Back” report, Mr
Lander recommends a name change
to better reflect the functions of the
Commissioner, noting that ICAC stands
for Independent Commissioner Against
Corruption and that there is no actual
Commission as such.
Mr Lander suggested that A “Public
Integrity Commission” be established, and
for a Commissioner for Public Integrity to
lead that Commission.
“It would allow the public to
understand better the scope of the work
that my office undertakes and also its
purpose,” Mr Lander argued. “The scope
and purpose are much broader than
corruption alone because they extend
to receiving and assessing complaints
and reports, receiving disclosures and
notifications under the PID Act, the
oversight of police complaints and
reports and disciplinary investigations,
misconduct and maladministration in
public administration, evaluations of
public authorities and a broad education
function.”
DEFINITION OF CORRUPTION
Mr Lander said there was merit in
narrowing the definition of corruption
under the ICAC Act, stating that the broad
definition can lead to “curious results”.
Mr Lander preferred a definition of
corruption that focuses on behaviour that
constitutes an abuse of public office to
obtain a benefit or cause a detriment.
DEFINITION OF SERIOUS OR SYSTEMIC
CONDUCT
Mr Lander suggested that the ICAC
Act focuses almost exclusively on serious
misconduct and does not pay enough
attention to systemic misconduct.
He stated: “Systemic misconduct
or maladministration might arise in
circumstances where each incident of
misconduct or maladministration is not
‘serious’, but collectively these episodes
represent a pattern of behaviour or
practice that is infecting the whole or large
part of a working group, section, agency or
body. The systemic nature of the behaviour
may be having a significant adverse impact
upon integrity in an institution but is not
being recognised because it does not meet
the present definition.”
OBTAINING DOCUMENTS
Mr Lander argued that the power
under section 23 (3) of the ICAC Act be
amended to enable the Office for Public
Integrity (OPI) or Commissioners to issue
a notice requiring an inquiry agency, public
authority or public officer to produce
documents which would assist in the
investigation of a complaint.
Mr Lander clarified that the proposed
amendments would not abrogate a public
officer’s right to claim privilege against
self-incrimination.
REFERRALS TO THE DPP
Mr Lander asserted that, in his view,
the Commissioner was entitled to refer
evidence obtained by an investigation into
public corruption directly to the Director
of Public Prosecutions.
However, a recent District Court
judgment 1 in relation to an application for a
permanent stay of criminal proceedings held
that the ICAC’s referral of the matter direct
to the DPP was contrary to the ICAC Act.
October 2020 THE BULLETIN 27

ICAC
Mr Lander said he was surprised by
the findings of the judgment but could
not comment further as the matter was the
subject of an application to the Supreme
Court. However, Mr Lander suggested
that amendments be made to remove any
ambiguity about the powers of the office
with regards to referrals to the DPP.
INVESTIGATIONS INTO SERIOUS
MISCONDUCT
Mr Lander said the ICAC should
continue to have the power to investigate
serious or systemic misconduct or
maladministration.
He stated: “I think the ICAC Act
should be amended to enable the
Commissioner to investigate serious or
systemic misconduct or maladministration
using the powers of a Royal Commission
as found in the RC Act, together with
the requisite power to make findings and
recommendations and publish those findings
and any recommendations publically if it is in
the public interest to do so.”
PUBLIC HEARINGS
Mr Lander repeated his opinion that
public hearings should be held in appropriate
circumstances. He said public hearings
would help the public better understand
the way the ICAC office operates, and
will provide greater transparency and
accountability within the office.
Mr Lander said: “I have consistently
stated that where the Commissioner
undertakes an investigation into serious or
systemic misconduct or maladministration
in public administration there is much wider
scope for part or parts of the investigation
to be held in public. In those investigations
the Commissioner is empowered to make
findings about whether or not a public
officer has engaged in misconduct or
maladministration, or a public authority
has engaged in maladministration in public
administration.”
SECRECY
Mr Lander said in his report that,
despite holding the view that corruption
investigations necessarily need to be
conducted in secret, he believed the current
secrecy provisions were “over-engineered”.
“Too little regard is had for the public
interest and too much regard is had to
avoiding reputational harm,” he said. “I
think there is scope when it is in the public
interest for those investigations, or at
least parts of those investigations, to be
conducted in the public eye.”
Mr Lander suggested amending
Section 56 of the ICAC Act, which deals
with restrictions on publishing material
relating to a person who is party to an
ICAC matter, by limiting this section to
matters being assessed by the OPI.
Mr Lander said: “That would protect
a person who has been the subject of a
complaint or report that the OPI does
not consider worthy of any investigation
but leave it open to the media to publish
information about those who are being
investigated. In the case of a corruption
investigation there would be no public
report until the investigation is complete,
which would protect the integrity of the
investigation.”
Mr Lander also recommended
amendments to section 54 of the Act which
deals with maintaining the confidentiality of
material connected to an ICAC matter.
Mr Lander said this section was so
broad that it captured benign information
that did not need to be kept confidential.
“Consideration ought to be given to
reversing section 54 so that information
of the kind captured by that section is
permitted to be disclosed to another
person where the person is satisfied
that the disclosure is reasonable in the
circumstances, unless there is direction
issued by the Commissioner … requiring
the information to be kept confidential,”
Mr Lander proposed. B
Endnotes
1 R v Bell [2020] SADC 107
Ann Vanstone begins new role as
Corruption Commissioner
Retired Supreme Court Justice Ann
Vanstone QC began her role as
Independent Commissioner Against
Corruption and Judicial Conduct
Commissioner on 2 September.
Ms Vanstone was appointed to the
District Court in 1999 and was elevated
to the Supreme Court in 2003, where she
remained until her retirement from the
bench in 2019.
Ms Vanstone was also Chair of
the Electoral Boundaries Commission,
and in 2016, delivered a decision on
the redistribution of State electoral
boundaries, which withstood an appeal to
28 THE BULLETIN October 2020
the full bench of the Supreme Court.
More recently, Ms Vanstone was
appointed to lead a review of Royal
Commission legislation in SA.
Attorney General Vickie Chapman
said Ms Vanstone was “exceptionally well
qualified” to undertake the role of ICAC.
““Ms Vanstone has an extensive
understanding of the public service, and a
strong, analytical mind,” Ms Chapman said.
“She has also been a trailblazer within
the profession - as the third woman to be
appointed to the Supreme Court, and part
of the first all-woman Court of Criminal
Appeal.”
“I have every confidence Ms Vanstone
will bring the same degree of rigour and
integrity to her approach in this important
role that she has in every other aspect of
her legal career.
Ms Vanstone made her first public
statement as Commissioner on 7
September, when she communicated that
she intended to continue the investigation
started by Bruce Lander with regards to
travel expenses of Liberal MPs Terry
Stephens, Fraser Ellis and Adrian Pederick,
but has withdrawn a notice requiring them
to produce documents, instead requesting
a narrower group of documents. B

FAMILY LAW
Ground-breaking project to manage
high-risk family law matters
MICHAEL ESPOSITO
technological innovation that originated
A in South Australia will be used to help
vulnerable litigants going through the Family
Court and Federal Circuit Court.
The Lighthouse project is a framework
that will screen for high-risk cases,
particularly parenting matters where
participants are exposed to the threat of
family violence.
The project will be rolled out in
Adelaide, Paramatta and Brisbane and
involves:
• Early identification and management
of safety concerns.
• Assessment and triage of cases by
a specialised team, who will provide
resources and safe and suitable case
management.
• Referring high-risk cases to a dedicated
court list, known as the Evatt List in
the FCC.
The Lighthouse Project is based on the
Family DOORS program, developed in
South Australia and originally implemented
by Relationship Australia SA as an
evidence-based risk screening framework to
keep children safe.
The web-based application is designed
to assist professionals to detect and
evaluate risks before they escalate, and
is designed to be used by all helping
professionals, including family law
practitioners, counsellors, psychologists
and social workers.
The tool was created by clinical child
psychologist Professor Jennifer McIntosh,
who piloted the tool with Relationships
Australia SA before it was adopted around
Australia and even internationally.
The technology has been adapted for
the family law system, and the Family and
Federal Circuit Courts have received $13.5
million in funding over 2.5 years to run the
Lighthouse Project.
The funding also covers the
appointment of additional registrars,
including Senior Registrar Kathryn Heuer
in South Australia, and extra family
consultants. One of the key roles of Ms
Heuer will be to help parties navigate
the system by hearing interim orders and
making trial directions (in consultation with
the judge) for the Evatt list. Fellow staff,
such as other registrars, family counsellors,
and case coordinators, will be involved in
triaging the cases, which includes placing
parties in appropriate streams (for example
placing parties on the Evatt list if the risk
profile is “Red”, or referring parties to
alternative dispute resolution if their risk
profile is on the lower end.
The pilot program involves a four-step
process for assessing and responding to risk
as effectively and efficiently as possible:
SCREENING
When an Application or Response
for parenting only orders is filed with the
Courts, parties will be asked to complete a
questionnaire via a confidential and secure
online platform known as Family DOORS
Triage. Developed specifically for the
Courts, this can be completed safely and
conveniently from any device including a
PC, mobile phone or tablet.
Responses are confidential and are
only used for risk screening and referral
to health support, and to identify suitable
case management to improve the safety and
wellbeing for children and families.
TRIAGE & CASE MANAGEMENT
A dedicated, specialised team will assess
and direct cases into the most appropriate
case management pathway based on the
level of risk. The team is made up of highly
skilled registrars, family counsellors, and
support staff with detailed knowledge in
family violence and family safety risks. The
team will triage matters and identify parties
who may require additional support and
safety measures.
Those cases needing greater support
will be offered appointments with family
counsellors to engage with health services
and implement safety measures. Cases will
also be offered safety planning and service
referrals as part of the online screening
process.
EVATT LIST
This specialist court list is designed to
assist families that are identified as being at
high risk of family violence and other safety
concerns. The Evatt List focuses on early
information gathering and intervention,
through a judge-led support team. The team
has specialised training and is experienced in
working with families where high-risk safety
issues have been identified.
The way in which the court responds
will be based on the program’s “traffic light”
risk indication system, where a red light
indicates high-risk, amber light indicates
medium risk and green light is low risk.
The process of evaluating risk considers
a number of factors such as family violence,
mental health issues, and drug or alcohol
misuse. The courts will then be able to
provide tailored supports to participants,
depending on their risk profile. This may
include referring participants to external
supports such as a domestic violence
services or psychologists, or it may involve
the engagement of an in-court family
counsellor.
Critically, those cases identified as high
risk will be heard and determined swiftly
through the Evatt List. In South Australia,
Judge Kari, Judge Kelly and Judge Brown
will sit on the Evatt list.
There will also be a greater focus on
referring less complex matters to alternative
dispute resolution, rather than unnecessarily
putting parties through a costly and timeconsuming
trial process. This benefits the
parties involved and also reduces delays in
the more complex matters that do need to
be heard in court.
The project team is undertaking a
program of consultation and training with
key stakeholders. For enquiries please
email the Courts at: LighthouseProject@
familycourt.gov.au
Details of the Bill to establish the
project can be found here: https://www.
aph.gov.au/Parliamentary_Business/
Bills_Legislation/Bills_Search_Results/
Result?bId=s1267
The Bulletin expresses its thanks to Family Court
of Australia and Federal Circuit Court of
Australia Registrar Lisa O’Neill, who has been
instrumental in setting up the Lighthouse Project,
for taking the time to speak to the author about the
establishment, purpose and roll-out of the project. B
October 2020 THE BULLETIN 29

TAX FILES
Principal Place of Residence
exemptions of the Land Tax Act
PAUL INGRAM, MINTER ELLISON
The Principal Place of Residence (PPR)
exemptions of the Land Tax Act 1936
(SA) (Act) are relatively complex, and raise
some tricky issues in practice. There also
appears to be some confusion as to how
they have been affected by the Land Tax
(Miscellaneous) Amendment Act 2019 (the
Amending Act). This article will summarise
the key points.
POSITION BEFORE THE AMENDING ACT
a. The Land Tax Act contains a series of
different PPR exemptions:
i. complete exemption:
• section 5(10)(a) – the base
exemption;
• section 5(10)(ab) –where
the relevant building has
been destroyed or rendered
uninhabitable;
• section 5(10)(ac) – where the
relevant building is being renovated
or rebuilt;
• section 5(10)(ad) – which appears
to cover newly acquired land that
contains a building that is being
renovated or rebuilt;
• section 5(10)(ba) – hotels, motels,
serviced holiday apartments or
similar where more than 75% of
the total floor area of all buildings
on the land is used for the owner’s
PPR;
ii. partial exemptions where more
than 25% but less than 75%, of
the total floor area is used for a
business or commercial purpose:
• section 5(10)(b) – the base
exemption;
• section 5(10)(bb) – an additional
exemption for hotels, motels,
serviced holiday apartments or
similar.
Each exemption has its own eligibility
criteria and qualifications, and will need to
be carefully considered. Refer in particular
sections 5(10a) to 5(12a) inclusive.
30 THE BULLETIN October 2020
The term ‘principal place of
residence’ is not defined. However, the
Commissioner’s ‘Guide to Legislation’ states
as follows (at page 18):
‘A principal place of residence is where the
property:
– is the primary residence of the
natural person owner(s);
– is the natural person owner(s)’s
usual abode; (i.e. where they eat and
sleep); and
– is occupied on an ongoing basis and
occupation is not merely transitory
or an intention to occupy.’
b. Importantly, where there are two or
more joint owners, the house only
needed to be the PPR of one of those
joint owners. However, this was subject
to the ‘minority interest provisions’ of
section 13A, which:
• automatically ignored interests
of 5% or less (subject to the
Commissioner’s satisfaction that
the creation of the interest was
for purposes unrelated to reducing
land tax);
• gave the Commissioner the power to
ignore interests of greater than 5%
but less than 50%, if satisfied that
one of the purposes for the creation
of the interest was to reduce land tax.
c. All of the exemptions required the
relevant owner to be a natural person.
However, the term ‘natural person’ did
not exclude a natural person holding
in his or her capacity as trustee.
Accordingly the exemption could be
claimed where one of its owners was a
natural person trustee who can pass the
PPR test. But it could not be claimed
where the relevant owner:
• was a natural person trustee who
could not pass the PPR test (ie.
because he or she did not reside at
the property, even though another
beneficiary did so); or
• was a corporate trustee.
POSITION AFTER THE AMENDING ACT
a. The Amending Act does not change
the wording of the PPR exemptions
themselves. However, there are a
couple of other changes that need to
be noted (see below).
b. Where there are two or more joint
owners, the house still only needs
to be the PPR of one of those joint
owners and while the minority interest
provisions of section 13A have been
repealed. New section 5AA re-enacts
them (with some differences in
wording) for the purposes of the PPR
exemptions only. Accordingly, the
position summarised in paragraph 1(b)
is essentially unaltered.
c. But the Amending Act actually
expands the scope of the PPR
exemptions in relation to trusts. While
it is still not possible to claim the PPR
exemptions where the trustee is either:
i. a corporate trustee; or
ii. a natural person trustee who does
not satisfy the PPR test,
it may be possible to access the
PPR exemptions where the following
conditions are satisfied, namely:
iii. in the case of land held by a
discretionary trust- the interest was
held in the discretionary trust as at
midnight on 16 October 2019, the
corporate trustee or non-qualifying
natural person trustee nominates
a ‘designated beneficiary’ under
section 13A on or before 30
June 2021, and that designated
beneficiary can pass the PPR test;
iv. in the case of land held by a unit
trust or fixed trust – the corporate
trustee or non-qualifying natural
person trustee makes a nomination
under section 12 or 13 (as relevant),
and all unitholders/beneficiaries
can pass the PPR test.
The provisions achieve this by deeming
the designated beneficiary/unitholder/

TAX FILES
beneficiary to be the owner of the land for
the purposes of the PPR exemptions.
In this regard, Revenue SA’s new
portal allows the designated beneficiary/
unitholder/beneficiary to indicate that
the land is his or her PPR. Many advisers
thought that this would be sufficient
claiming of the exemption, without
having to also lodge an additional
application form. However, it is now
understood that where RevenueSA are
unable to verify that the designated
beneficiary/unitholder/beneficiary uses
the home as his or her PPR through their
own investigation, they will be contacting
taxpayers and asking them to lodge the
additional application form.
d. One other point is that where the trustee
of a discretionary trust is itself exempt
(ie. because that trustee is a natural
person who can pass the PPR test):
• there is no need to nominate a
designated beneficiary in order to
seek the exemption;
• but the trustee may wish to do so
anyway, in case the land ceases to be
his or her PPR at any point in time
after 30 June 2021 (as otherwise
the higher tax rates will apply, as
no designated beneficiary can be
nominated for a discretionary trust
after that date).
In this regard, section 13A(10) appears
to confirm that the PPR exemption
will continue to apply while any trustee
continues to occupy the land as his or her
PPR, even if the designated beneficiary
has moved out.
Tax Files is contributed on behalf of the
South Australian based members of the Taxation
Committee of the Business Law Section of the
Law Council of Australia. B
Brilliant Kangaroo Island Escapes
Brilliant East Coast
Experience
Brilliant Self-drive
Discovery
Enjoy 3 nights in Penneshaw at the
Kangaroo Island Seafront Hotel
Inclusions & Highlights
3 NIGHTS FROM
$347 *
P/P TWIN SHARE
Take your car and enjoy 3 nights on
beautiful Kangaroo Island.
Inclusions & Highlights
3 NIGHTS FROM
$445 *
P/P TWIN SHARE
Return SeaLink ferry for 2 adults
3 nights in a Sorrento’s Room at Kangaroo Island Seafront Hotel
Full buffet breakfast served daily and a complimentary bottle of wine
Return SeaLink ferry for 2 adults and a standard size vehicle
3 nights in a Sorrento’s Room at Kangaroo Island Seafront Hotel
Full buffet breakfast served daily
*Conditions apply, see website for details.
For bookings call 13 13 01
or visit sealink.com.au/specials
October 2020 THE BULLETIN 31

RISK WATCH
Financial Certificates: Why Take the Risk?
GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
One of the most common questions
received at Law Claims goes like this:
“A client is looking to [borrow some money/
refinance/go guarantor] for their [son/daughter/
nephew/niece/family/trust/company] and the
Bank wants me to sign a certificate about giving
the client independent legal advice… I seem to
remember that there is some issue with these sorts
of things. Does my insurance cover this?”
There are indeed “issues with these sorts
of things”—issues which go back over
twenty years and which might not be
known to less experienced practitioners,
or which might have been forgotten by
more experienced practitioners 1 . For
present purposes, the story starts with
the important High Court judgment in
Commercial Bank of Australia v Amadio
[1983] HCA 14 where a mortgage and
guarantee provided by Mr and Mrs
Amadio to support borrowings by their
son’s building company was set aside, in
summary because Mr & Mrs Amadio had
no proper understanding of the effect of
the documents they signed. This led to
financiers seeking from borrowers’ security
providers (i.e. mortgagors, guarantors,
indemnifiers etc.—collectively referred to
herein as security providers) greater comfort
from those security providers that they
did in fact understand the documents
they were signing as a regular part of their
lending procedures.
The financiers may seek a certificate
from a lawyer engaged by the security
provider that the lawyer has given the
security provider legal advice about the
nature and effect of the transaction
being entered into. Some certificates even
go so far as having the lawyer certify
that the security provider “understood”
the transaction. The very fact that the
financiers are seeking such certificates
should raise alarm bells—why do the
financiers want these certificates? Two
reasons spring to mind—the financiers are
(1) seeking to outsource to the lawyers the
task of explaining the documentation to
the security providers and (2) looking to
have someone else (i.e. the lawyer) to sue if
the borrower doesn’t pay and the security
provider seeks to set aside the transaction
based on Amadio type considerations.
The result of all this was, in the mid-
1990s, a number of legal practitioners
were sued—by both financiers and security
providers—in respect of the provision
of these certificates—see, for example,
Micarone and Bechara v Perpetual Trustees (SA
Full Court) (1999) 75 SASR1 and Citibank
v Nicholson; Pirrotta v Citibank (1997) 70
SASR 206. The effect of these and other
cases was to set a very high standard
required of lawyers providing these
certificates and resulted in Law Claims
issuing warnings about the extreme risks
involved in such work.
The cases make it clear that advice
on financial transactions goes beyond
“traditional” legal advice on the nature of the
transaction, the terms of the documents,
and the rights of the parties. It extends to
advice which takes into account commercial
and personal matters, so that the client
understands the actual legal, financial and
personal risks he or she is undertaking.
Such a high standard of care for
solicitors is set that it continues to be the
view of Law Claims that it is better not to
give certificates of independent advice in
financial transactions. It has often proved
the case that where security providers
have gone back to the financier saying
that “my lawyer won’t do this sort of work” the
financiers may not insist on the provision
of the certificates. Notwithstanding this,
however, problems for lawyers continue
to arise—see the recent Victorian case in
this area of Jams 2 Pty Ltd v Stubbings [2020]
VSCA 200 (5 August 2020) where one
of the several lawyers involved in various
financing transactions gave a financial
certificate and was forced to settle the
claim against him. The settlement was, in
all probability, required in order to avoid
findings of breach of duty.
There may, however, be occasions
in practice where it is necessary to
give independent advice on financial
transactions, and where appropriate give a
certificate of independent advice. Where
that advice is unavoidable, the relevant
cases make it very clear that, to fulfil his or
her duty, a solicitor must:
• make whatever investigations are
necessary to fully understand the
transaction, the interests of the parties
involved in it, and the prudence of
entering into it; and
• give careful and substantial advice.
32
THE BULLETIN October 2020

RISK WATCH
Certainly, solicitors without extensive
commercial experience should not attempt
to advise on financial transactions, nor give
a certificate. Anyone giving this sort of
advice should be familiar with the relevant
cases, being at least those referred to
above, as well as McNamara v Commonwealth
Trading Bank (1984) 37 SASR 232.
In many cases, this advice is likely
to involve hours of work, and several
appointments. It is very difficult to strike
a balance between too much and too
little information, and it is not enough to
merely go through the document clause
by clause. The difficulties inherent in
certifying someone else’s understanding
ought to be obvious.
From a risk management point of
view, key areas that a practitioner needs
to address if considering providing legal
services in this area are:
• Open a file in the client’s name
• Insist on identification
• Keep copies of the identification
documents
• Use an independent interpreter when
appropriate
• If there is more than one security
provider, consider whether their
interests are the same. Does one need
to obtain independent advice?
• Advise any security provider
independently of the borrower
• Address the possibility of undue
influence or duress
• Advise the client about the key
elements of the documents and the
worst case scenario
• Ask the client why they are entering into
the transaction and record the answer
• Make a comprehensive file note of all
attendances on your client, whether in
your office or elsewhere
• Check that your file notes:
○ are dated;
○ identify the author;
○ record the duration of the
attendance;
○ record who was present or on the
telephone;
○ are legible to you and someone else;
and
○ record the substance of the advice
given and the client’s response/
instructions
• Confirm your advice in writing and
seek a signed acknowledgement from
the client.
Make sure that your advice is complete.
It is important to explain to clients in
the simplest language possible important
issues such as:
• Joint and several liability
• That where a mortgage is involved the
mortgagors could lose their homes
• That the amount the security covers can
be more than the amount borrowed.
The client needs to understand
the general nature and effect of the
documents and what could happen in the
worst case scenario. Asking your client at
the end of your explanation what he or
she understands to be the position, and
recording such responses, is one way of
ascertaining the degree of understanding.
It is not sufficient evidence of understand
for the client just to nod and say “yes, I
understand”. The client needs to state what
he or she understands.
Even though the cases say that the
lawyers’ duty extends to making sure
the client understands the actual legal,
financial and personal risks he or she is
undertaking, no actual financial advice
should be provided—refer the client to a
qualified accountant or financial advisor
and ensure they have enough time to
obtain this advice. Financial advice is not
covered by the terms of the Professional
Indemnity Insurance Scheme.
In the Bechara case referred to above,
the Court found that it was not enough
to advise that the client get independent
financial advice about an aspect of the
transaction. The solicitor should have
declined to provide the certificate until
that advice was obtained. In cases where
any aspects of the transaction and risks
are unclear, it seems that it is the solicitor’s
duty to refuse to act further and to
refuse to assist the client to enter into the
transaction.
Further, given that doing such a job
properly will likely involve a substantial
bill—it would not be surprising, where
everything properly required was done, if
the bill was several thousand dollars and
possibly more in complex transactions—
it may be that the client is not actually
prepared to pay. This, of course, is another
reason to be especially wary of these sorts
of matters.
The Law Claims Scheme recognises
the heightened risks to practitioners in
carrying out this sort of work by providing
for a triple excess to be payable by the
insured practitioner if a claim arises out
of or is contributed to by any matter
in relation to which the insured was
retained to provide any advice or any
certification in respect of a proposed
guarantor, indemnifier, surety, mortgagor
or co-borrower who was not to derive
substantial direct financial benefit from
the said transaction (Policy of Insurance,
cl. 4.5). For small practices (three
practitioners or conveyancers or fewer)
this will increase the excess from $5,000 to
$15,000. For the largest practices (fifty-five
practitioners or conveyancers or more) it
will increase the excess from $60,000 to
$180,000. The message to take from this
is that it is really not worth taking on this
sort of work unless your client is prepared
to pay properly for the substantial amount
of work involved and the level of care and
attention you are prepared to pay to the
matter is commensurate with this greatly
heightened level of risk.
Endnotes
1 For previous articles relating to this matter
see Advice in Financial Transaction and Guarantee
Certificates by John White—Riskwatch March
2008, Risky Business: Financial Certificate Claims
and Professional Indemnity Insurance by Graham
Edmonds-Wilson—Riskwatch September 2009
and Law Risk on Financial Certificates—by John
Doyle—Riskwatch July 2013. Much of this
article is based on these previous articles.
October 2020 THE BULLETIN 33

FAMILY LAW CASE NOTES
Family law case notes
KELEIGH ROBINSON, THE FAMILY LAW BOOK
Property – Consent orders obtained
based on false information for the
purpose of defeating creditors, in
most circumstances, justifies an order
varying or setting aside the order under
Is 79A of the Act
n Cantrell & North and Anor [2020]
FamCAFC 175 (23 July 2020) the
Full Court (Ryan, Aldridge & Austin
JJ) dismissed an appeal where a couple
had entered into consent orders and
transferred the former matrimonial home
to the wife; and where the Supreme Court
of New South Wales declared that the
transfer was void against a creditor of
the husband pursuant to s 37A of the
Conveyancing Act 1919 (NSW), setting the
order aside pursuant to s 79A.
[T]he creditor was owed $381,000
plus interest, primarily made up of costs
orders made against the husband.…. In
their application, the couple “wrongly
and misleadingly answered ‘No’” as to
whether there were any creditors entitled
to become a party to the case.
The wife said that the Supreme Court
erred in setting the orders aside as it had
not considered whether substantially
different orders would have been made,
had there been proper disclosure.
The Full Court said (from [58]):
“ … [W]e do not accept that where
there has been a failure to disclose to the
Court the existence of a significant creditor
who was entitled to join the proceedings,
the Court must proceed to consider what
final property settlement orders would
have been made under s 79 … of the Act
assuming proper disclosure. ( … )
[59] … [W]here consent orders have
been obtained from the Court on the basis
of false information for the purpose of
defeating creditors, in most circumstances,
this will be sufficient to justify an order
varying or setting aside the order under s
79A of the Act. ( … )
[83] The final [s 79A(1)(a)] step may
involve a comparison between the orders
that were made and those that were likely
to be made, absent any relevant default,
34 THE BULLETIN October 2020
but that is not the only means by which
a Court could be satisfied that it was just
to vary or set aside the orders. A denial
of procedural fairness … is … sufficient
to be able to justify such a course without
such comparison ( … ).”
Property – Court’s power to set aside
orders pursuant to s 90SN is not
fettered by common law considerations
In Hadwick & Scadden [2020]
FamCAFC 168 (16 July 2020) the Full
Court (Aldridge, Watts & Tree JJ)
dismissed with costs an appeal where
after consent orders had been made, the
de facto wife (“respondent”) sought
that the orders be set aside pursuant to
s 90SN of the Act on the ground of
non-disclosure; the de facto husband
(“appellant”) seeking that her application
be summarily dismissed pursuant to s
45A(4) of the Act.
The appellant argued that “the doctrine
of res judicata applies to preclude the
respondent from ever raising the issue of
the adequacy of … disclosure again” and
that the Anshun principle applied.
The Full Court said (from [23]):
“ … [R]es judicata and the principle
in Anshun are common law doctrines …
which have no application to the statutory
rights provided by s 90SN of the Act. (…)
[24] The sets of circumstances in s
90SN(1) of the Act which can justify
the setting aside of the otherwise final
property settlement orders extend
beyond the common law entitlements to
have a judgment set aside for fraud or
misrepresentation … There is no reason
to read s 90SN(1)(a) … other than in
accordance with its terms which make it
plain that it is not fettered by the common
law considerations of res judicata, issue
estoppel or the principle in Anshun. ( … )
[26] The fact that a party could have
obtained full disclosure but decided not to
do so before entering into consent orders
is not therefore a bar to relief under this
section. … [T]he applicant’s claim that
the respondent is estopped from pursuing
proceedings pursuant to s 90SN of the
Act is misconceived. ( … )
[36] … [T]he judicial controversy in
the two proceedings is quite different. In
proceedings under s 90SM of the Act, the
controversy is the identification and proper
distribution of the parties’ property. A
claim under s 90SN(1) of the Act, raises
the controversy as to whether there has
been a miscarriage of justice such that
earlier orders should be set aside.”
Children – Single expert witness’s
professional obligations to the court do
not constrain that expert from giving
evidence under subpoena in criminal
proceedings
In Joplin & Parkins [2020] FamCA
403 (26 June 2020) Cleary J dismissed
a father’s application to have a single
expert (“Dr Z”) released from his
obligation to the Court to not use or
disclose the contents of his report, the
factual underpinnings of his report, and
any information obtained in preparing
the report. The release was to aid Dr
Z’s compliance with a District Court
subpoena to give evidence, where the
father had been charged with sexual
assault of a 15 year old.
The Court said (from [35]):
“Dr Z apparently expressed his
concern about compromising his ability
to perform as a single expert if he gave
evidence in the criminal trial. ( … )
[37] ( … ) His concern was that he may
be in breach of the law. ( … )
[46] ( … ) This Court cannot dictate
matters of practice and procedure in
another Court. ( … )
[56] A single expert has obligations to
the Court which appoints him/her.
[57] By accepting the appointment of
the FCC Dr Z accepted that his duty to
the Court was guided by the Federal Court
Practice Direction Guidelines including
that he be an impartial witness.
[58] Within the context of the parenting
proceedings … an expert witness is not and
cannot be an advocate for a party. ( … )

FAMILY LAW CASE NOTES
[61] … [I]n a criminal trial, the role
of Dr Z …, would not be that of a single
expert … but as a witness called to give
evidence on matters considered relevant by
the party calling such evidence. ( … )
[65] Dr Z has remained an impartial
witness by requiring his service with a
subpoena to compel his evidence.
[66] He is not constrained by his
professional obligations arising from his
work in the FCC and this Court from
answering questions put to him as a
witness in the criminal trial.”
Children – Contravention – Parents
in COVID-19 List directed to obtain
updated medical report – Mother had
reasonable excuse not to comply with
order until release of the updated
medical report, but not afterwards
In Pandell & Walburg (No. 2) [2020]
FCCA 1853 (13 July 2020) Chief Judge
Alstergren heard conflicting medical
evidence as to a 4 year old’s risk of
contracting COVID-19, the mother
withholding the child from time with the
father in breach of interim parenting orders.
The mother relied on a medical
certificate from a general practitioner
that identified the child as “a person at risk
of severe disease if he contracts COVID-19”
and recommended that the child “socially
distance … [including] staying home with …
[his] primary carer and not … [attend] visits
with his Father” ([19]).
Listed on an urgent basis in the
Court’s COVID-19 List, the Court
directed that an updated medical report
be obtained from a paediatric clinic, which
said the child’s condition was “not currently
considered ‘high-risk’ for severe COVID-19
related illness”, that “attending school is safe and
that family members and contacts should comply
with government implement social distancing
recommendations” ([27]).
The Court said (from [32]):
“Whilst the initial medical evidence
provided … was somewhat vague and
required further clarification …, the
medical advice provided to the mother was
that, as a result of a pre-existing health
concern, the child was at greater risk of
suffering an adverse reaction to a possible
COVID-19 infection. [I] find that the
mother, at that stage, had a reasonable
basis for not allowing the child to spend
time with the father. … [I] find that
the mother has a reasonable excuse for
contravening the interim orders up until 5
June 2020. ( … )
[35] From 5 June 2020 or when the
updated report came to the mother’s
attention, … there was no reasonable
basis for the mother believing that it was
necessary to withhold the child from the
father, after that date, on health grounds.
The mother therefore lacked a reasonable
excuse for so withholding the child after 5
June 2020. ( … )
[40] Extensive periods of make-up
time with the father would be difficult for
the child in this matter, who is 4 years old.
However, … it is appropriate that some
make-up time should be provided, but not
to the extent sought by the father.”
In addition to compensatory time over
4 weeks, the Court extended the father’s
time pursuant to the existing interim
orders by two hours on a Sunday. B
We Are Forensic Experts In
• Engineering Analysis & Reconstruction
• Traffic Crashes & Road Safety
• Workplace or Mining Incidents
• Reporting & Experts Court Testimony
Delta V Experts
• Clarifies the facts in a situation
• Scientifically substantiates the evidence
• Failure Analysis & Safety Solutions
• Physical, Crash, Incident & Vehicle
Dynamic Handling Testing
DELTA-V EXPERTS
• Strengthens your communication
• Diverse experience and expertise
03 9481 2200 www.dvexperts.net 9 Springbank Street, Tullamarine, 3043
October 2020 THE BULLETIN 35

WELLBEING & RESILIENCE
20/20 Wellbeing in 2020
ZOE LEWIS, JUSTICENET
I
’m embarrassed to admit that last year
I was hospitalised as a result of my
determination to do chin-ups. No, I didn’t
fall off the gym equipment and knock
myself out… I actually pushed myself
to the point of developing exertional
rhabdomyolysis. (You can Google it if
you’re interested.)
After spending hours researching
online, I discovered that “rhabdo” is seen
as somewhat of a badge of honour within
some fitness communities. I even came
across a cartoon character called “Uncle
Rhabdo”! Reported cases of “rhabdo”
have significantly increased in recent years,
which is thought to be partly due to our
obsession with fitness extremes.
However, there is something else on
the rise as well – obesity. Given that two
thirds of Australian adults are overweight
or obese, it seems we are living in a time
and place where health extremes at both
ends of the scale are thriving.
With this in mind, I wonder whether
perhaps, as we progress towards the end
of 2020, we might start to think of our
20/20 wellbeing like 20/20 vision.
It surprised me to learn that 20/20
vision is not perfect eyesight. Rather, it is
about whether or not you can see clearly at
20 feet what should normally be seen from
that distance. For many people with 20/20
vision, corrective lenses could still improve
their overall vision quite considerably, but
it isn’t usually considered necessary as the
person still enjoys quite good vision.
So perhaps we could adopt a similarly
moderate approach to health and wellbeing
– aiming for reasonably good rather than
striving for perfection.
If you read about health and wellbeing
as obsessively as I do, you will find that
there are a growing number of blogs and
articles about the detrimental effects of
pursuing greater health and wellbeing
with too much gusto. It can cause eating
disorders, fuel the harmful effects of
36 THE BULLETIN October 2020
perfectionism and anxiety, or just make us
worry about yet another thing.
Two litres of water. Eight hours of
sleep. Ten thousand steps. Ten serves of
fruits and vegetables. The last thing the
legal profession needs is another list to get
through.
It is easy to think of our health and
wellbeing as a checklist of numbers such as
these. And whilst sleep, exercise, hydration
and nutrition are all essential components
of taking care of ourselves, a recent
debate with colleagues about whether we
might in fact be drinking too much water,
made me wonder if maybe we have rather
overcomplicated things for ourselves.
Both of my grandmothers were
healthy into their 90s despite never eating
kale – or suffering through chin-ups.
True wellbeing doesn’t need to involve
the perfectly balanced meal, the perfect
gym attire, or the perfect meditation. It’s
about finding personal, sustainable habits
that really nourish us, inside and out.
Otherwise, we risk making ourselves
into a project that is never quite good
enough. There is anecdotal evidence to
suggest that this phenomenon amped up
during our period of lockdown – some
people perceived that they had a lot of
extra time to dedicate to this goal and so
pursued it more doggedly than ever.
The truth is that seeking out expert,
scientific instructions for every aspect of
our lives can turn us into obsessive control
freaks (well, more obsessive control
freaks…). It can also leave us focussed on
the wrong things, such as being thin and
looking good in yoga pants, rather than
having beneficial levels of strength and
fitness.
And it can leave us feeling excessively
responsible for our health and wellbeing.
The truth is, no healthy habit will prevent
us from ever getting sick or guarantee us a
good night’s sleep. All we can do is stick to
the things that work best for us, as much
of the time as we can.

BOOKSHELF
R Pascoe (ed)
The Federation Press 2020
HB $160.00
THE TUNING CYMBAL: SELECTED PAPERS AND SPEECHES OF ROBERT FRENCH
Abstract from Federation Press
This collection of papers and speeches
draws on the career of one of Australia’s leading
jurists, the Hon Robert French AC.
The book is divided into ten parts, each
reflecting an aspect of French’s career such as
Indigenous issues, human rights, public law,
commercial dispute resolution and the judicial
system. French’s contributions are put into
context through commentaries by leading legal
academics and practitioners including Chief
Justice Tom Bathurst AC, Professor Megan
Davis, Fiona McLeod AO SC, Chief Justice
Sundaresh Menon and Professor Anne Twomey.
The result is a rich account of French’s
contribution to the law.
G Williams & H Hobbs
2 nd ed Federation Press 2020
PB $59.95
TREATY
Abstract from Federation Press
The leading book on the treaty debate in
Australia has been fully revised. This second
edition takes a fresh look at modern treatymaking
between Indigenous peoples and
governments in Australia. Exploring the why,
where, and how of treaty, it concludes by
offering seven strategies for achieving treaty.
A number of significant developments
have occurred since the publication of the first
edition. In Australia, key events include the
emergence of State and Territory driven treaty
processes, the negotiation and finalisation of
the Noongar Settlement, and the delivery of the
Uluru Statement from the Heart.
D J Cremean
5 th ed Federation Press 2020
HB $265.00
ADMIRALTY JURISDICTION
Abstract from Federation Press
Now in its fifth edition, Admiralty Jurisdiction,
has expanded to include the law of the United
Kingdom, Canada, South Africa and India in
addition to Australia, New Zealand, Singapore,
Hong Kong and Malaysia. It is a comprehensive
account of admiralty jurisdiction – law and
practice – in these jurisdictions.
The scope of the book, its detailed analysis
and its clear presentation of information makes
it a valuable resource for admiralty and maritime
law practitioners and judges.
October 2020 THE BULLETIN 37

GAZING IN THE GAZETTE
3 AUG 2020 – 2 SEPT 2020
A MONTHLY REVIEW OF ACTS, APPOINTMENTS,
REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH
OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA
ACTS PROCLAIMED
Nil
ACTS ASSENTED TO
Nil
APPOINTMENTS
Judge
District Court of South Australia
Environment, Resources and
Development Court of South Australia
Licensing Court of South Australia.
effective from 10 August 2020
Adam Patrick Kimber SC
Gazetted:
6 August 2020, Gazette
No. 66 of 2020
Magistrate
Youth Court of South Australia
Member
South Australian Civil and
Administrative Tribunal
commencing on 17 August 2020
Panel Member
Police Disciplinary Tribunal,
Protective Security Officers
Disciplinary Tribunal
from 17 August 2020 until 28 April 2023
Benjamin James Sale
Michelle Louise Sutcliffe as
Gazetted: 13 August 2020,
Gazette No. 67 of 2020
Commissioner
South Australian Employment Tribunal
for a term of two years commencing on 21
September 2020 and expiring on 20 September
2022
Anne McDonald
Gazetted: 13 August 2020,
Gazette No. 67 of 2020
Magistrate
(on a full time basis in place of his earlier
REGULATIONS PROMULGATED (3 AUGUST 2020 – 2 SEPTEMBER 2020)
appointment on 21 January 2016 to the office
of Magistrate on a part-time basis (0.5 full-time
equivalent) that commenced on 21 January 2016)
commencing on 2 September 2020
Rodney Oates
Gazetted: 27 August 2020,
Gazette No. 70 of 2020
RULES
Magistrates Court Rules 1992
Amendment No. 84
Gazetted:
6 August 2020, Gazette
No. 66 of 2020
Uniform Civil (No 1) Amending Rules
2020
Gazetted: 13 August 2020,
Gazette No. 67 of 2020
Youth Court of South Australia
Gazetted: 27 August 2020,
Gazette No. 69 of 2020
REGULATION NAME REG NO. DATE GAZETTED
COVID-19 Emergency Response (General) Regulations 2020 253 of 2020 13 August 2020, Gazette No. 67 of 2020
Australian Energy Market Commission Establishment Regulations 2020 254 of 2020 13 August 2020, Gazette No. 67 of 2020
Subordinate Legislation (Postponement of Expiry) Regulations 2020 255 of 2020 13 August 2020, Gazette No. 67 of 2020
Adelaide Dolphin Sanctuary Regulations 2020 256 of 2020 13 August 2020, Gazette No. 67 of 2020
Disability Inclusion (Publication of Plans) Variation Regulations 2020 257 of 2020 20 August 2020, Gazette No. 68 of 2020
Sheriff's Regulations 2020 258 of 2020 20 August 2020, Gazette No. 68 of 2020
State Procurement Regulations 2020 259 of 2020 20 August 2020, Gazette No. 68 of 2020
Fisheries Management (Marine Scalefish Fisheries) (Quota) Variation Regulations 2020 260 of 2020 27 August 2020, Gazette No. 69 of 2020
Fisheries Management (Blue Crab Fishery) (Quota) Variation Regulations 2020 261 of 2020 27 August 2020, Gazette No. 69 of 2020
Fisheries Management (Lakes and Coorong Fishery) (Quota) Variation Regulations 2020 262 of 2020 27 August 2020, Gazette No. 69 of 2020
Fisheries Management (Rock Lobster Fisheries) (Quota) (No 2) Variation Regulations 2020 263 of 2020 27 August 2020, Gazette No. 69 of 2020
MEMBERS
ON THE
MOVE
ANDREA MICHAELS
JOSHUA DAVIES
Andrea Michaels is stepping back
from her role as Managing Director of
NDA Law, with Joshua Davies to take up
the position of new Managing Director.
Ms Michaels, the State Member for
Enfield, said she will step back from her
role with the firm she established in 2015
to concentrate on her political career, and
has been working on succession planning
for the firm since entering Parliament in
February 2019.
She will remain an owner of the firm
and will spend transition time with clients
before stepping back to work in an
advisory role on the firm’s board.
Mr Davies specialises in civil litigation
and his firm, Joshua Davies Legal, will
merge with NDA Law in the coming
months.
Ms Michaels said: “While I am
reluctant to move away from my role at
NDA Law, playing a more prominent
role in politics has been my objective. I
want to use my commercial knowledge
and experience in the wider business
environment to help strengthen our
state and to contribute to better
decision-making in a way that can
reflect all voices in our community.”
Mr Davies said Joshua Davies
Legal will bring additional knowledge
in building and construction, civil
litigation and banking and finance to
NDA Law’s current speciality areas of
tax, estate planning, employment and
commercial law.
38
THE BULLETIN October 2020

CLASSIFIEDS
Take Your
Business Mobile
boylen.com.au
P (08) 8233 9433
Forensic
Accounting
Simple, clear,
unbiased advice,
without fear or
favour.
Hugh t. +61 McPharlin 8 431 80 82FCA
d m. +61 +61 8401 8139 712 1130 908
m +61 419 841 780
e. ahi@andrewhillinvestigations.com.au
e hmcpharlin@nexiaem.com.au
w nexiaem.com.au
Consulting Engineers
Australian Technology Pty Ltd
for expert opinion on:
• Vehicle failure and accidents
• Vehicle design
• Industrial accidents
• Slips and falls
• Occupational health and safety
• Statistical analysis
W. Douglass R. Potts
MAOQ, FRAI, FSAE-A, FIEAust,
CPEng, CEng, FIMechE
8271 4573
0412 217 360
wdrpotts@gmail.com
Andrew Hill Investigations
Investigating:
ABN 68 573 745 238
• workplace conduct
• fraud
• unprofessional conduct
• probity
Support services:
• forensic computing analysis
• transcription services
• information sessions, particularly
for HR practitioners on the
investigative process
• policy development.
PO Box 3626
Andrew Hill
Andrew Hill
Investigations
NORWOOD SA t. 5067 +61 8 431 80 82
m. +61 401 712 908
e. ahi@andrewhillinvestigations.com.au
Fellow AIPI
Licensed Investigation Agents
& Process Servers
Servicing the Mid North, Yorke &
Eyre Peninsula`s and Outback of
South Australia with:
• Process Serving
• Property Lockouts
• Investigations
• Missing Persons
OUTBACK BUSINESS SERVICES
P.O. Box 591,
PORT AUGUSTA. 5700
P: 0418 838 807
info@outbackbusinessservices.com.au
LITIGATION ASSISTANCE
FUND
The Litigation Assistance Fund (LAF) is a
non-profit charitable trust for which the
Law Society acts as trustee. Since 1992
it has provided funding assistance to
approximately 1,500 civil claimants.
LAF receives applications for funding
assistance from solicitors on behalf of
civil claimants seeking compensation/
damages who are unable to meet the
fees and/or disbursements of prosecuting
their claim. The applications are
subjected to a means test and a merits
test. Two different forms of funding exist –
Disbursements Only Funding (DOF) and
Full Funding.
LAF funds itself by receiving a relatively
small portion of the monetary proceeds
(usually damages) achieved by the
claimants whom it assists. Claimants who
received DOF funding repay the amount
received, plus an uplift of 100% on that
amount. Claimants who received Full
Funding repay the amount received, plus
15% of their damages. This ensures LAF’s
ability to continue to provide assistance
to claimants.
LAF recommends considering whether
applying to LAF is the best course in the
circumstances of the claim. There may be
better methods of obtaining funding/
representation. For example, all Funding
Agreements with LAF give LAF certain
rights including that funding can be
withdrawn and/or varied.
For further information, please visit
the Law Society’s website or contact
Annie MacRae on 8229 0263.
LawCare
The LawCare Counselling
Service is for members of
the profession or members
of their immediate family
whose lives may be adversely
affected by personal or
professional problems.
If you have a problem, speak
to the LawCare counsellor
Dr Jill before it overwhelms you.
Dr Jill is a medical practitioner
highly qualified to treat social
and psychological problems,
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, Bruce Watson
or Deborah Jones
08 8232 1333
contact@brettandwatson.com.au
www.brettandwatson.com.au
Ground Floor
157 Grenfell Street
Adelaide SA 5000
October 2020 THE BULLETIN 39

We manage one of SA’s largest
social media accounts.
boylen.com.au
P 08 8233 9433