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THE

BULLETIN

THE LAW SOCIETY OF SA JOURNAL

VOLUME 44 – ISSUE 8 – SEPTEMBER 2022

IN THIS ISSUE

Reforming laws to

address elder abuse

Aged care royal

commission

Navigating an

ageing client base

AGEING & THE LAW


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

cited as (2020) 44 (8) LSB(SA). ISSN 1038-6777

CONTENTS

AGEING & THE LAW FEATURES & NEWS REGULAR COLUMNS

6 Reforms must be made to address

elder abuse – By Tass Liveris

8 Advice for young practitioners in

succession law navigating issues in an

ageing population

By Mikayla Wilson & Julia Weltner

10 The overlooked role of intervention

orders in addressing elder abuse

By Jemma Holt & Dr David Plater

16 Aged care law reform since the Royal

Commission – By Helena Errey-White

18 Opinion: Youth in detention: A failing

system – By Katja Daly

19 Event wrap-up: Margaret Nyland

Long Lunch

22 An interview with former District

Court Judge David Smith QC

Interviewed by Richard Hoang

26 Financial wellbeing top of the agenda

By David Brownie

27 Stays of civil proceedings in the case

of civil defendants with criminal

proceedings pending– By Alexander

Lazarevich & Margaret Castles

4 From the Editor

5 President’s Message

20 Risk Watch: Don’t trust emails:

Always verify payment details

By Kate Marcus

24 Tax Files: Payroll tax for medical

practices – By Paul Ingram

35 Wellbeing & Resilience: Ageing well in

the law – a professional perspective

By Colin Brown

32 Family Law Case Notes

By Craig Nichol & Keleigh Robinson

34 Gazing in the Gazette

Compiled by Master Elizabeth Olsson

Executive Members

President:

J Stewart-Rattray

President-Elect: J Marsh

Vice President: A Lazarevich

Vice President: M Tilmouth

Treasurer:

F Bell

Immediate Past

President:

R Sandford

Council Member: M Mackie

Council Member: E Shaw

Metropolitan Council Members

T Dibden

M Tilmouth

A Lazarevich M Mackie

E Shaw

J Marsh

C Charles

R Piccolo

M Jones

G Biddle

Country Members

S Minney

(Northern and Western Region)

P Ryan

(Central Region)

J Kyrimis

(Southern Region)

Metropolitan Council Members

D Colovic E Fah

N Harb L MacNichol

L Polson M Young

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)

Kiley Rogers

krogers@lawguard.com.au

Manager (LAF)

Annie MacRae

annie.macrae@lawsocietysa.asn.au

Programme Manager (CPD)

Natalie Mackay

Natalie.Mackay@lawsocietysa.asn.au

THE BULLETIN

Editor

Michael Esposito

bulletin@lawsocietysa.asn.au

Editorial Committee

A Bradshaw P Wilkinson

S Errington D Sheldon

J Arena A Douvartzidis

C Borello B Armstrong

D Misell M Ford

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

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3/288 Glen Osmond Road,

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Email: admin@boylen.com.au

Studio Manager: Madelaine Raschella

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Advertising

Email: sales@boylen.com.au

Junior Members

A Douvartzidis

A Kenny

Programme Manager (GDLP)

Desiree Holland

Desiree.Holland@lawsocietysa.asn.au

Ex Officio Members

The Hon K Maher, Prof V Waye,

Prof T Leiman

Proj J McNamara


FROM THE EDITOR

Removing barriers

relating to age and

disability

MICHAEL ESPOSITO, EDITOR

IN THIS ISSUE

One of the many takeaways from the

Law Society’s recent half day CPD

on disability access in profession was that

disability is not binary.

Barrister Mark Douglas, one of the

presenters at this session, noted that as

a person who was born almost entirely

blind, he was actually among the minority

of people in the disability community

who had their disability from birth. Most

people who have a disability acquire one

at a later stage in their lives. And the major

predictor of disability? Age.

The most recent Australian Bureau

of Statistics report indicates that 7.6% of

Australians aged between birth to 14 have

a disability. Between the ages of 15-24,

9.3% of Australians have a disability. This

climbs to 13% of the population with

a disability for Australians ages 25-65.

But among the over 65s, about 50% of

people report having a disability. And 42%

per cent of people with disability would

describe their disability as profound.

So, you have a one in two chance of

having a disability after your 65 th birthday.

While progress has been made with

regard to disability access and services, it

is remarkable how lacking our society is in

disability access infrastructure when you

consider that almost 20% of Australians

have a disability, and almost half of

Australians over 65 have a disability. And

this does not include “hidden” disabilities.

At the Law Society’s CPD session,

Mark remarked that the session marked

the first time in his 25 years as a lawyer

that the profession was seriously grappling

with the issue of disability access in the

legal sector.

Disability access is an issue that should

concern all practitioners. Many clients of

legal services are in the older age bracket.

It is therefore almost certain that most

practitioners have served a number of

clients with a disability, quite likely in many

cases without even knowing it.

And lawyers themselves are, on

average, working until they are older.

This means more working lawyers with

disabilities. When you have two Supreme

Court rooms that do not provide access

for people with mobility issues, it is a clear

sign that much more needs to be done in

the profession to ensure lawyers, judges,

clients, litigants, witnesses and all other

participants in the justice sector do not

face these barriers to access.

How much better would it be for

both clients and practitioners if there was

some practice whereby the practitioner

would be availed of any particular access

requirements that the client had, and the

practitioner could accommodate them, or

at least have a greater understanding of

their particular circumstances?

The Society is working on a project to

address this very issue, and more details on

this will be revealed in the coming months,

but in the meantime, I think that a healthy

approach to interacting with others is to be

aware that not everyone navigates the world

the same way, and we should all be prepared

to make some adjustments in order to live

in an inclusive society, rather than expecting

one section of the community to adapt. B

ELDER ABUSE

The need for reform

YOUTH JUSTICE

Why youth detention is failing

SEEKING A STAY

Representing civil client charged

with criminal offences

6

18

27

4

THE BULLETIN September 2022


PRESIDENT’S MESSAGE

The law is serious business,

but great to see so many

people having fun

JUSTIN STEWART-RATTRAY, PRESIDENT

After a cold, wet, winter, I hope spirits

are being lifted by the extra sunshine

and daylight that now appear more

regularly.

Spirits were definitely high at the

Legal Profession Dinner at Adelaide Oval

on 19 August. After the strict mask and

seating restrictions of last year’s dinner,

and the unfortunate cancellation of the

2020 dinner due to Covid, it was amazing

to see members of the profession mingle,

dance and just enjoy themselves at this

year’s event.

I was so pleased that the Attorney

General was able to attend and present

the awards. The Honourable Kyam Maher

also stayed on after the formalities to

talk to guests, and I thank him for being

so generous with his time with the many

practitioners who were keen to meet and

speak to him.

Congratulations to all award winners –

Mark Douglas, Ruth Beach, David Kelly,

Amy Nikolovski, Madi McCarthy and

Professor Tania Leiman. All winners were

highly deserving and I thank them for

their contributions to the legal profession.

It was a thrill to interview former elite

tennis coach Roger Rasheed and hear

stories about his childhood and fascinating

journey from Lebanese migrant to the

top of his field in sports performance

coaching.

A huge vote to thanks goes to the

Law Society staff who organised the

event. What a great job they did! The

venue looked stunning and the night was

a success. And of course I am deeply

grateful to the sponsors – without whose

support this special event could not have

happened.

But the biggest thanks goes to

everyone who attended the dinner. To

all those who came, thank you for your

support of the event. I hope you had a

great time and you all looked fabulous!

I encourage you to check out our

social media (Facebook, Instagram and

LinkedIn) to see the many photos from

the night. A full wrap-up of the event will

be published in next month’s Bulletin.

At the dinner, I gave a brief snapshot

of some of the some of the issues we

have advocated for on behalf of the

profession. One of these issues, which is

very relevant to this “Ageing and the Law”

edition of the Bulletin, concerns the order

of signing of Advance Care Directives.

The Law Society started a petition

to remove the prescribed order of

signing requirements of Advance Care

Directives. The petition was circulated

among members of the legal profession

and received 878 signatures. The Society

presented the petition to the Hon Chris

Picton, Minister for Health and Wellbeing.

Of all the issues that Members raise

with the Society, the requirement that the

substitute decision maker signs before the

appointee of an Advance Care Directive

(ACD) is by far the issue that is raised the

most. This is because the mandated order

of singing causes a number of problems

for clients, such as unnecessary delays

in finalising documents, extra costs for

clients, and the increased risk of people

losing capacity before finalising their ACD.

The Society notes in its letter to

the Minister that the prescribed order

of signing could easily be revoked via

an amendment to Regulation 8 of the

Advance Care Directives Regulations

2014 (SA). This would permit ACDs to

be signed in any order, and thus resolve

a number of difficulties with the current

regime.

The Society has campaigned on

this issue for several years, and we will

continue to update the profession as to the

progress of this campaign. Enjoy Spring! B

September 2022 THE BULLETIN 5


AGEING & THE LAW

Reforms mut be made

to address elder abuse

TASS LIVERIS, PRESIDENT, LAW COUNCIL OF AUSTRALIA

According to the National Elder Abuse

Prevalence Study, published by the

Australian Institute of Family Studies in

December, 2021, almost one in six older

Australians reported experiencing some

form of elder abuse in the past 12 months.

What make elder abuse most

devastating is that the perpetrator is usually

someone the older person trusts and relies

on, such as a family member, friend or carer

and almost two-thirds of older people don’t

seek help when they are abused.

Incidents of abuse may be physical,

social, financial, psychological or sexual and

can include mistreatment and neglect.

Elder abuse in any form is

unacceptable. Financial abuse is the most

prevalent type of elder abuse and the Law

Council of Australia has focused resources

on addressing it.

Legal practitioners are in a key position

to recognise and prevent the abuse of older

persons, including financial abuse.

In 2020, the Law Council released a

Best Practice Guide for Legal Practitioners

in Relation to Elder Abuse. The Guide

is intended to assist legal practitioners

identify and address potential issues

regarding elder financial abuse in the

preparation and execution of wills and

other advance planning documents.

The Guide was developed by the

Law Council’s specialist National Elder

Law and Succession Law Committee in

consultation with Constituent Bodies in

response to a recommendation from the

Australian Law Reform Commission’s

report into elder abuse.

The Guide includes topics such as

setting up meetings effectively, taking

instructions, ensuring appropriate support,

communicating effectively with the client,

checking for decision making capacity,

being alert to the warning signs of

potential abuse, and keeping records.

While much of the lawmaking in

the area is made at the state and territory

level, the Guide provides overarching

principles to complement more detailed

guidance provided by the Law Council’s

Constituent Bodies.

The Law Council has also advocated

for the creation of nationally consistent

laws relating to the use of enduring power

of attorney instruments (EPOAs).

EPOA arrangements are intended to

ensure a person’s interests are protected

when they lose capacity to make decisions

for themselves. However, in the absence

of adequate legal safeguards, financial elder

abuse by appointed decision-makers may

be facilitated by such arrangements.

Therefore, the Law Council

welcomed the decision by the Meeting

of Attorneys-General in late 2021

to develop recommendations and a

timetable for developing more nationally

consistent enduring power of laws, to

effectively reduce financial elder abuse, for

consideration by Attorneys-General by the

end of 2022.

The Law Council is seeking changes

to ensure a person making an enduring

document makes an informed decision

about its content and the identity of the

appointed decision-maker, and that the

decision-maker understands and makes a

commitment to comply with their duties

and obligations.

With Australia’s population ageing and

one in every six Australians already over

the age of 65, stamping out elder abuse

must be a priority.

However, the Law Council remains

concerned that funding of specialist

legal assistance and aged care advocacy

services is inadequate in light of the acute

and widespread nature of elder abuse

within the community and has called

for substantial additional funds for legal

assistance services to provide specialist

advice, representation and education for

older persons.

These services play a fundamental,

often unrecognised role in ensuring

transparency and scrutiny of aged care.

The underfunding of legal assistance

services means that, for example, in the

2020-21 financial year, just over one per

cent of approved legal aid grants were

provided to assist persons aged 65 years

and over, despite this group constituting 16

per cent of the population.

Funding for civil legal assistance is

further limited with less than a quarter of

the approved grants for this group being

granted to civil law matters.

Given that effective implementation of

the National Plan to Respond to the Abuse

of Older Australians 2019-2023 requires

a coordinated approach across all service

providers, it is important appropriate and

sustained funding is provided to ensure

government agencies, tribunals and publicly

funded services are properly resourced.

Outstanding issues identified in the

Australian Law Reform Commission and

Royal Commission into Aged Care Quality

and Safety (Royal Commission) reports

and the National Plan to Respond must

also be addressed. This includes developing

a new Aged Care Act which is consistent

with the recommendations of the Royal

Commission report by 1 July, 2023; and

ensuring that those in residential aged

care facilities have legal redress to protect

them from abuse, whether perpetrated

by care providers (including in the use of

restrictive practices) or fellow residents. B

6

THE BULLETIN September 2022


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AGEING & THE LAW

Advice for young practitioners

in succession law navigating

issues in an ageing population

MIKAYLA WILSON AND JULIA WELTNER, SOLICITORS, SEDSMAN LEGAL

As practitioners in the area of wills

and estates, many of our clients

engage our services as they approach

their later years in life. In our experience,

ageing clients can be more susceptible and

vulnerable to influence, commonly from

their own friends and relatives. Accordingly,

when we are preparing documents for

ageing clients, it is necessary to keep

issues such as capacity, undue influence

and coercive control, in the front of our

minds. In our view, the older population

now have noticeably more wealth than in

the past, partly due to increasing property

prices and superannuation, therefore these

issues are unfortunately becoming more

common in the context of Australia’s

ageing population.

Whilst experienced practitioners in

this area are well versed in identifying

and navigating these issues in the course

of practice, we know from experience

that these issues can often be subtle and

require some gentle investigating by the

solicitor. As two young practitioners who

have the benefit of being guided by very

experienced solicitors in this area, this

article will endeavour to provide some

useful tips and tricks that we have learnt

so far, to assist emerging practitioners in

the field of succession law with advising

ageing and/or elderly clients.

TIP 1: BE ALERT TO CAPACITY ISSUES

It is widely known that people become

more susceptible to cognitive issues as

they age. In 2016, almost 1 in 10 people

aged 65 and over were suffering from

Dementia. 1 Dementia can cause memory

loss and cognitive impairment which

affects a person’s ability to reason and

rationalise complex matters, which may

affect their ability to understand their

estate planning documents. Accordingly, it

is important to carefully assess each client’s

capacity in the course of taking their

instructions.

While the test for assessing capacity

may be obvious to experienced

practitioners, the writers are aware that not

all graduates are familiar with the principles

found in Banks v Goodfellow. 2 Despite being

a case from 1870, it continues to be the

leading authority on assessing testamentary

capacity in Australia.

In Banks v Goodfellow, the Court

determined that in order to have

testamentary capacity, the testator must:-

• understand the significance of making

a will;

• be aware in general terms of the assets

comprising their estate;

• be able to retain the ability to

evaluate and discriminate between

the respective strengths of competing

claims demonstrating appreciation of

the consequence of their decision; and

• be free from delusional thought or

other disorders of the mind which may

influence decision making as to who

should (or should not) benefit from

the will.

It is not necessary to perform a mini

mental or have your client answer a myriad

of questions about current affairs of the

last decade to assess whether your client

has testamentary capacity. You could

simply start by asking your client about the

weather, asking how they travelled to your

office, or what they have been up to earlier

in the day. Often you will be satisfied of

the four fundamental requirements in

Banks v Goodfellow by asking your client the

usual will instruction questions i.e., asking

about their family situation, relationship

status, assets and liabilities and how they

wish to distribute their estate. However,

if any concerns do arise, make notes

regarding the same and discuss them

with a senior practitioner. If capacity is in

question, you should consider whether it

is necessary to request a letter of capacity

from a medical practitioner prior to

preparing or executing any documents.

TIP 2: TAKE YOUR CLIENT’S

INSTRUCTIONS ONLY

Often ageing clients need assistance

with arranging and travelling to and from

appointments and accordingly, clients

are regularly accompanied to our office

by their family members or friends. In

many instances, those in attendance may

be potential beneficiaries of their Will or

appointees on their other estate planning

documents. It is important to see your

client alone to take instructions.

If your client attends with a family

member/s, politely ask them to wait in

another meeting room for the duration

of the appointment. In the writers’

experience, most family members will

understand and respect the request.

However, if we are met with resistance,

we explain that it is our firm’s policy and

that we will not take instructions from the

client with others present. The presence

of others in the meeting can obviously

affect the client’s freedom to discuss their

true wishes and intentions and may also

lend to an inability to properly assess your

client’s capacity (i.e., if the family member

is answering questions about the client’s

8

THE BULLETIN September 2022


AGEING & THE LAW

family or assets on their behalf). In that

regard, if you are taking instructions from

a couple, ensure both clients are answering

your questions and consider whether one

is relying on the other to provide key

details such as details of family or assets.

In some circumstances, the client

themselves may insist on their child or

other relative sitting in the appointment,

as they are uncomfortable answering

questions by themselves. We would

recommend re-assuring the client that

their family member will be nearby

and can re-join them at the conclusion

of the meeting, if necessary. In those

circumstances, make an extra effort to

build rapport with the client so they feel

comfortable and open in their discussions

with you.

TIP 3: WATCH FOR SUBSTANTIAL

DEPARTURES FROM PAST DOCUMENTS

When clients are making drastic

changes to their existing estate planning

documents, practitioners should take

note of the reason for the changes. For

example, if a client’s current will leaves

everything equally between their children

and they now want to entirely remove one

child, question why the client is making

that decision. If the client is unable to give

an objectively rational explanation for the

changes, this may indicate that there is an

issue with capacity, or that they are being

influenced by a third party.

However, we accept that

unreasonableness does not always equal

incapacity or third-party influence – some

clients can just be unreasonable! You may

think it is irrational for them to write their

child out of the will because, say, they do

not like their child’s new partner. However,

you can only act in accordance with your

client’s instructions so ensure you advise

them accordingly (Hello Inheritance Family

Provision Act 3 ) and keep proper notes about

their instructions (more on that below).

TIP 4: KEEP THOROUGH FILE NOTES!

All of the above tips bring us to our

most important tip (for the practitioner

anyway) – keep thorough file notes!

It is crucial to keep thorough file notes,

especially when capacity or undue influence

may be in issue. Keep in mind that it can

often be years or even decades after a

document is executed that the testator’s

capacity or undue influence is called into

question. In those circumstances, your file

notes may be heavily relied on to provide

context of the client’s state of mind at the

relevant time, and your advice to them.

Accordingly, the writers endeavour to keep

detailed notes on anything that may be

relevant, including:

• Who made the appointment? Was it

the client or someone on their behalf?

• Where are you attending on the client?

In the office, in their home? In 2020, it

was reported that more than two-thirds

of aged care residents have moderate

to severe cognitive impairment. 4 When

attending on a client in an aged care

facility, pay particular attention to

capacity concerns, and keep a detailed

file note.

• Did someone bring the client to the

appointment? If so, who? If you

follow our advice in tip 2, make sure

you note that they were not in the

appointment room when you took

your client’s instructions.

• If there are concerns regarding

capacity, make notes accordingly –

what were your concerns, were they

dispelled? If so, how?

• If there are significant departures from

previous documents, note your client’s

reasons.

• Make notes of any advice given

pursuant to the Inheritance Family

Provision Act. 5

Overall, while these issues can apply

to any clients in this field, it is important

to be particularly vigilant with ageing

clients, especially where they have become

more reliant on others for support and

assistance. In addition, we note that whilst

the above matters are most relevant in

taking instructions for Wills, they are also

broadly relevant with respect to documents

such as Enduring Powers of Attorney

and Advance Care Directives and to other

transactions such as transfers of assets to

family members for less than market value.

Finally, our last tip for other young

practitioners is to always seek the advice of

a senior practitioner when necessary – do

not hesitate to take advantage of their years

of experience. On that note, the writers

would like to thank Michael Rizzuto of our

office for settling our above advice. B

Endnotes

1 Australian Institute of Health and Welfare,

Australia’s Health 2016 (Web Report, 13

September 2016) Ch 3.

2 (1870) LR 5 QB 549.

3 1972 (SA).

4 Royal Commission into Aged Care Quality and

Safety, Research Paper 8 - International and National

Quality and Safety Indicators for Aged Care (Report,

24 August 2020) p161.

5 1972 (SA).

September 2022 THE BULLETIN 9


AGEING & THE LAW

INTERVENING IN ELDER ABUSE: THE

OVERLOOKED ROLE OF INTERVENTION

ORDERS IN ADDRESSING ELDER ABUSE

JEMMA HOLT, RESEARCHER, AND DR DAVID PLATER, DEPUTY DIRECTOR, SOUTH AUSTRALIAN LAW REFORM INSTITUTE

The significant incidence of the abuse

of older persons 1 in Australia and

the acute problems posed by the apparent

inability of the civil and criminal law to

effectively respond has been the subject

of extensive concern and commentary, 2

including in South Australia. 3

Five elder abuse subtypes are

commonly recognised: 4

• financial; 5

• physical;

• sexual;

• psychological (emotional); and

• neglect.

Elder abuse is typically carried out

by a close family member, often an adult

child, 6 and can have a ‘devastating effect’ 7

on older persons. The fact that such abuse

may also amount to domestic or family

violence has also been highlighted. 8

The suggestion of intervention orders 9

(“IOs”) to address such abuse, though

largely overlooked, has been raised. 10 It

is argued that the option of an IO under

the Intervention Orders (Prevention of Abuse)

Act 2009 (SA) (“the IO Act”), though

not a universal remedy, may be of utility

to address elder abuse and is worthy of

closer consideration by lawyers, police and

relevant agencies.

The Intersection of Psychological and

Financial Abuse

Financial abuse is often said to be

the most common form of elder abuse. 11

Such abuse has been noted as increasing

and described as ‘significant, insidious and

frightening’; victims can lose their home or

the entire resources that they’ve set up for

their later life. 12

There is also mounting disquiet

over the significant incidence and

implications of psychological abuse

(including ‘gaslighting’) 13 in relation to

older persons. 14 Indeed, this may extend to

‘coercive control’ 15 by family members and

others close to the victim in the context of

elder abuse. 16 There has been considerable

recent discussion of coercive control, 17

typically in an intimate or domestic partner

context. 18 However, the application of

coercive control beyond domestic partners

and its application to both older persons

and persons with disability in a family

situation been noted. 19

The psychological and financial abuse

of older persons is often interrelated.

The close intersection between financial

and psychological abuse or coercive

control in relation to older persons has

emerged in recent research. 20 One study

observed the link between psychological

and financial abuse, noting that the former

is a grooming behaviour for the latter. 21

Psychological abuse ‘seems to frequently

co-occur with financial abuse, suggesting

a pattern of behaviour analogous to

grooming in the sexual abuse context.’ 22

Current Issues with Intervention

Formal redress where abuse does

occur both protects the victim and deters

potential wrongdoing. 23 However, despite

the availability of existing civil and

criminal remedies, there are a multitude

of legal, social and practical reasons

why these remedies are inadequate to

address elder abuse, and, in particular, the

psychological and financial abuse of older

persons. 24 A NSW Parliamentary Report

noted the individual and external barriers

to victims of elder abuse reporting such

abuse and seeking help are ‘substantial and

numerous’. 25

Victims are often reluctant to report

abuse as they do not want to risk their

relationship with the abuser. 26 The

victim may well have a disability or a

lack of capacity that prevents them

from seeking legal advice 27 and/or may

make it impossible to satisfy the onerous

evidentiary requirements in any court

proceedings. 28 The abuse may involve a

close family member such as an adult child

and the victim and/or the family may be

unwilling to seek redress for this reason. 29

In a civil context, any legal action in

the higher courts would undoubtedly

prove a costly 30 and time-consuming

process and victims may be unwilling or

unable to bring such an action. 31

The criminal remedy is similarly

problematic. Even if reported to the

police, the police may be reluctant

to become involved 32 and regard any

complaint of wrongdoing as a civil or

‘private’ issue that is outside their role. 33

The victim is likely to either have died

before the abuse comes to light or be

unable or unwilling to make a complaint

and/or testify. 34 There are particular

difficulties for the police in responding to

claims of financial elder abuse; 35 with a

number of particular ‘significant’ practical

and evidential challenges arising. 36

Further, there remains the more subtle,

yet equally harmful, ‘grooming’ conduct

that precipitates overt acts of abuse and

which presents a unique challenge that is

largely unmet by existing civil and criminal

remedies. Namely, in cases involving

coercive control and/or gaslighting, when to

intervene and how?

Intervention Orders

Arguably, a widespread misconception

about the current IO framework of the IO

Act is that ‘domestic abuse’ is confined to

domestic partner abuse. 37 Whilst domestic

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AGEING & THE LAW

partner abuse represents the majority of

IOs in practice, the definition of ‘domestic

abuse’ under the IO Act is far broader.

It requires there to be a relationship or

former relationship. However, whilst

‘relationship’ includes marriage or a

domestic partnership, 38 it also includes: 39

• two people related to each other by or

through blood, marriage, a domestic

partnership or adoption; and

• where one is the carer 40 of the other.

The definition of ‘domestic abuse’

under the IO Act encompasses the

relationships within which many older

persons suffer, or are at risk of suffering,

abuse. Older persons may be particularly

vulnerable to abuse by relatives and/or

those who provide them with care.

Even in circumstances where the abuse

of older persons does not fall within the

definition of ‘domestic abuse’, the IO Act

extends to protect against ‘non-domestic

abuse’. 41

Psychological Abuse: Coercive control

and ‘gaslighting’

Coercive control and ‘gaslighting’ are

recognised forms of abuse under the IO

Act. Section 8 of the IO Act provides that

‘abuse’ may take many forms including

emotional and psychological abuse. An

act is an ‘act of abuse’ if it results or

is intended to result in emotional or

psychological harm, or an unreasonable

and non-consensual denial of financial,

social or personal autonomy. Further,

emotional or psychological harm includes:

mental illness, nervous shock, and distress,

anxiety, or fear, that is more than trivial.

The IO Act provides a range of

‘examples’ of acts of abuse against

a person, many of which are directly

applicable to older persons:

• threatening to withhold a person’s

medication or preventing the person

accessing necessary medical equipment

of treatment; 42

• threatening to institutionalise the

person; 43

• threatening to withdraw care on which

the person is dependent. 44

• denying the person the financial

autonomy that the person would have

had but for the act of abuse; 45

• withholding the financial support

necessary for meeting the reasonable

living expenses of the person…in

circumstances in which the person is

dependent on the financial support to

meet those living expenses; 46

• causing the person through coercion or

deception to:

° relinquish control over assets or

income;

° claim social security payments;

° sign a power of attorney enabling

the person’s finances to be managed

by another person;

° sign a contract for the purchase of

goods or services;

° sign a contract of guarantee;

° sign any legal document for the

establishment or operation of a

business. 47

The Case for Intervention Orders

It is imperative to respect an older

person’s autonomy, but ‘autonomy and

safeguarding are not mutually inconsistent;

safeguarding responses also act to support

and promote the autonomy of older

people’. 48

The various legal mechanisms and

frameworks which seek to protect

vulnerable adults through a range of

powers, duties and/or obligations such

as Powers of Attorney, or Guardianship

and/or Administration orders are largely

ineffective when it comes to restraining the

conduct of another person who is actively

undermining these efforts.

Traditionally, IOs are overlooked in

this context. However, in some cases of

the psychological abuse of older persons,

IOs present as an appropriate means of

early and effective intervention to either

cease and/or prevent such abuse.

In cases involving psychological abuse,

there are likely to be evidentiary issues,

that is, an absence of evidence of any

overt act of abuse. The grounds required

for the issuing of an IO are flexible in

this respect. The grounds are anticipatory;

there is no requirement to prove an act

of abuse before an IO is issued. Grounds

exist if it is reasonable to suspect that

the defendant will, without intervention,

commit an act of abuse against a person,

and the issuing of the order is appropriate

in the circumstances. 49 Moreover, in

dealing with applications under the IO Act,

the court need only be satisfied of factual

matters to the lesser civil standard of

proof, on the balance of probabilities. 50

There is also a broad discretion as

to the terms that may be included in an

IO. Whilst the IO Act provides for some

mandatory terms (i.e. regarding firearms 51 )

and a range of other suggested terms, 52 it

otherwise states that an IO may impose

any requirement for a person to take, or

to refrain from taking, specified action. 53

It further provides that an IO may specify

conditions under which a prohibition

imposed by the order does not apply, and

conditions that must be complied with in

relation to a requirement imposed by the

order. 54 The court has much latitude when

it comes to the terms of an IO, including

September 2022 THE BULLETIN 11


AGEING & THE LAW

making orders with in-built flexibility by

way of imposing conditions in relation to

general terms.

It is often the case that the relationships

in which elder abuse arises are multifaceted.

For example, an individual may need to be

restrained from interfering with an older

person’s finances, whilst being permitted

to remain in contact with the older person

to provide them with company, care and/

or assistance; or being permitted to assist

the older person with the weekly grocery

shop. Conceivably, the flexibility and

discretion afforded by the IO Act could

allow for an IO to be tailored with specific

terms and conditions to accommodate

such circumstances. The clear objective

would be to preserve and encourage the

positive aspects of such a relationship with

the older person, whilst ensuring necessary

intervention is made to safeguard the older

person.

The use of IOs in elder abuse cases

may also present as an avenue for court

ordered programs of rehabilitation and/

or community education in the area of

elder abuse, should such referral pathways

be established between the courts and

relevant support service providers. 55

However, given the subtle nature of

psychological abuse it is unlikely that the

police would become involved in these

matters in the way that they would by

responding to an ‘incident’ of physical

abuse. Any application for an IO in such

cases is therefore likely to be a private

application to the court (that is, not a

police order or an application to the

court by police 56 ). This means that any

application for an IO would need to be

made to the court by the older person

themselves or a ‘suitable representative

of such a person given the permission to

apply to the court’. 57

A potential difficulty in the context of

older persons is the implicit requirement

that any application made by a suitable

representative is made with the consent

of the older person. 58 Issues of consent

and capacity are not only complex issues

when dealing with vulnerable adults, 59 but

they are also matters that may be impacted

by the very psychological abuse which is

sought to be addressed by intervention.

However, a query is whether older person

support/advocacy services may potentially

play a role in assisting to bring private

applications on behalf of older persons,

whether as representatives themselves or

assisting others to represent the interests

of the older person. The role of older

person support/advocacy services might

also extend to referring matters to police

in appropriate cases for police to make

applications to the court in the absence of

an older person’s consent or capacity. 60

Closing remarks

There is a need not to ‘abuse’ 61 the

broad jurisdiction of the IO Act, nor

unnecessarily add to the already lengthy

lists of the Magistrates Court. However,

the prevalence and nature of abuse which

falls within the ambit of the IO Act should

not deter the pursuit of intervention

where it is appropriate.

There seems little, if any, material in

the public domain which addresses the use

of IOs in the context of elder abuse in

South Australia. However, the role of IOs

to address elder abuse has been discussed

elsewhere. The consensus is that it is ‘not

common’, 62 subject to ‘limitations’, 63 is of

varied effectiveness 64 and there is a general

reluctance to use IOs in this context for a

variety of reasons. 65

Although an IO may not be a solution

in the majority of cases of elder abuse,

their use and utility should not be

discounted. They may offer an accessible

means of intervention when other existing

remedies are not available or not suitable.

They may provide for a flexible and casespecific

intervention in cases where there

is a complex and multifaceted relationship

not only between the relevant parties,

but also between the actual and potential

psychological and financial abuse at play.

The application for an IO may be

within the expertise and established role

of the police. However, the ability of

other agencies to become involved and

seek or support such orders should not

be overlooked. The option of an IO

to address at least some forms of elder

abuse, namely psychological and financial

abuse, is worthy of closer consideration by

lawyers, police and relevant agencies.

This article arises from the context of

the present independent review by the South

Australian Law Reform Institute (SALRI)

of the operation of the Ageing and Adult

Safeguarding Act 1995 (SA). Any views of

the authors are expressed in a purely personal

capacity. The authors acknowledge the erudite

input of Dr Mark ‘Matt’ Gianacaspro, Holly

Nicholls, Divya Narayan, Associate Professor

Beth Nosworthy, Olga Pandos, Rachel Portelli

and Dr Sylvia Villios.

Jemma Holt is currently working

as a Researcher for SALRI. She also

works as a Researcher for the Tasmania

Law Reform Institute and in the role

of Clinic Supervisor for two of the free

legal advice clinics based at the University

of Adelaide Law School: the Adelaide

Legal Outreach Service (ALOS) and the

Equal Opportunity Legal Advice Service

(EOLAS). She has been involved in

teaching undergraduate Criminal Law and

Evidence and Advocacy at the University

of Adelaide since 2020. She has worked

as a Prosecutor with the Office for the

Director of Public Prosecutions since

2013. She has previously worked for

the Crown Solicitor’s Office (2018), the

Independent Commissioner Against

Corruption (2020-1), and the Office

for Public Integrity (2022). She has also

worked as a Prosecutor with Tasmania

Police (2019) and the Office for the

Director of Public Prosecutions in Hobart

(2019-20).

Dr David Plater is an Associate

Professor at the Adelaide University Law

School and is the Deputy Director of

SALRI. He is an Adjunct Senior Lecturer

at the University of Tasmania Law School.

SALRI is an independent law reform body

based at the Adelaide University Law

School. B

12

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AGEING & THE LAW

Endnotes

1 There are conflicting figures as to the prevalence

of elder abuse, but the most recent study found

15% of older persons in Australia experienced

some form of abuse. See Lixia Qu et al,

Australian Institute of Family Studies, National

Elder Abuse Prevalence Study (Research Report,

December 2021) 30–35. The abuse of persons

with disability has also gained much concern.

See Disability Royal Commission (Interim Report,

October 2020).

2 See generally Wendy Lacey, ‘Neglectful to the

Point of Cruelty? Elder Abuse and the Rights

of Older Persons in Australia’ (2014) 36(1)

Sydney Law Review 99; Australian Law Reform

Commission, Elder Abuse: A National Legal

Response (Report No 131, May 2017); Select

Committee into Elder Abuse, Legislative Council

of Western Australia, ‘“I Never Thought It Would

Happen To Me”: When Trust is Broken’ (Final

Report, September 2018); 44 [2.42]–[2.60].

3 See Wendy Lacey et al, University of South

Australia, Prevalence of Elder Abuse in South

Australia: Current Data Collection Practices of

Agencies (Report, February 2017); Parliament of

South Australia, Joint Committee on Matters

Relating to Elder Abuse, ‘Final Report of the

Joint Committee on Matters Relating to Elder

Abuse’ (Report, October 2017).

4 Lixia Qu et al, Australian Institute of Family

Studies, National Elder Abuse Prevalence Study

(Research Report, December 2021) 1.

5 See also Dale Bagshaw et al. ‘Financial Abuse

of Older People by Family Members: Views

and Experiences of Older Australians and their

Family Members’ (2013) 66(1) Australian Social

Work 86.

6 Jo Wainer, Peter Darzins and Kei Owada,

Prevalence of Financial Elder Abuse in Victoria:

Protecting Elders’ Assets Study (Report, Monash

University, 10 May 2010) 15; Kelly Purser, Tina

Cockburn and Elizabeth Ulrick, ‘Examining

Access to Formal Mechanisms for Vulnerable

Older People in the Context of Enduring Powers

of Attorney’ [2019] 12 Elder Law Review 1–32, 21.

A recent study found 90% of elder abuse was

carried out by a family member, most often an

adult son or daughter. See Melanie Joosten et al,

Senior Rights Victoria, Seven Year of Elder Abuse

Data in Victoria (Report, August 2020).

7 Adam Graycar and Marianne James, ‘Crime

and Older Australians: Understanding and

Responding to Crime and Older People’

(Conference Paper, Family Futures: Issues in

Research and Policy, Australian Institute of

Family Studies Conference, Sydney, 24–26

July 2000), 7. See also Georgia Lowndes et al,

Financial Abuse of Elders: A Review of the Evidence

(Report, Monash University, June 2009) 5, 12.

8 John Chesterman, ‘Taking Control: Putting

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DISABILITY

Older People at the Centre of Elder Abuse

Response Strategies’ (2016) 69 (1) Australian

Social Work 115, 117; Rosemary Croucher and

Julie MacKenzie, ‘Framing Law Reform to

Address Elder Abuse’ (2018) 18 Macquarie Law

Journal 5, 8–9.

9 Or their interstate equivalent.

10 Barbara Hamilton, ‘Be Nice to Your Parents: or

Else!’ (2006) 4 Elder Law Review 8, 10.

11 Rae Kaspiew, Rachel Carson and Helen Rhoades,

Australian Institute of Family Studies, Elder

Abuse: Understanding Issues, Frameworks and Responses

(Research Report No 35, 2016) 5–7, 46–7.

12 Norman Hermant, ‘“Significant, Insidious”

and Often Unreported, Financial Elder Abuse

is Increasing, Lawyers say’, ABC News (online,

5 August 2022), https://www.abc.net.au/

news/2022-08-05/lawyers-say-financial-elderabuse-in-families-significant/101300242.

13 Paige Sweet, ‘The Sociology of Gaslighting’

(2019) 84(5) American Sociological Review 851.

Coercive control against an older person is also

described as ‘gaslighting’. Gaslighting is a form

of psychological abuse that regularly takes place

over a prolonged period of time and consists

of small, seemingly insignificant actions or

conversations that lead to a reduced sense of

autonomy in a person causing them to question

their beliefs and actions. Gaslighting can be seen

as a form of coercive control. It is designed

to make a person doubt their self-worth and/

or cognitive ability and aims to dominate and

degrade a person and deprive them of their

freedom and sense of autonomy.

14 Parliament of New South Wales, Joint Select

Committee on Coercive Control, Coercive Control

in Domestic Relationships (Report, 2021) 95–96

[5.75]–[5.81]. This theme has regularly emerged

in SALRI’s present reference.

15 See generally Parliament of New South Wales,

Joint Select Committee on Coercive Control,

Coercive Control in Domestic Relationships (Report,

2021).

16 NSW Ageing and Disability Commission,

Submission to Parliament of New South Wales,

Joint Select Committee on Coercive Control (2 February

2021) 7–8, .

17 See, for example, Heather Douglas, ‘Do We

Need a Specific Domestic Violence Offence?’

(2015) 39(2) Melbourne University Law Review

434; Parliament of New South Wales, Joint

Select Committee on Coercive Control, Coercive

Control in Domestic Relationships (Report, 2021);

House Standing Committee on Social Policy and

Legal Affairs, Parliament of Australia, Inquiry

into Family, Domestic and Sexual Violence (Report,

September 2021). Various Bills have been

introduced in South Australia to introduce such

a crime in relation to domestic partners. See, for

example, Criminal Law Consolidation (Coercive

Control Amendment) Bill (SA) (see further

South Australia, Parliamentary Debates, House of

Assembly, 2 December 2020, 3601–3603 (Katrine

Hildyard)); Criminal Law Consolidation (Abusive

Behaviour) Amendment Bill 2021 (see further

South Australia, Parliamentary Debates, House of

Assembly, 27 October 2021, 8379–81 (Vickie

Chapman, Attorney-General). These Bills did not

proceed and lapsed with the 2022 State election.

18 Evidence to Parliament of New South Wales,

Joint Select Committee on Coercive Control,

Sydney, 23 February 2021, 47–8 (Margaret

Duckett).

19 Queensland Law Society and Queensland Public

Advocate, Elder Abuse (Joint Issues Paper,

2022) 86-–87; Parliament of New South Wales,

Joint Select Committee on Coercive Control,

‘Coercive Control in Domestic Relationships’

(Report, 2021) 95–96 [5.75]–[5.81]. Of the 156

submissions to the NSW review, only a handful

raised the situation of persons with disability and

older persons beyond domestic partners.

20 A 2010 study based on an analysis of data from

a range of agencies with close contact with

elder financial abuse in Victoria found similar

themes. The study confirmed that financial abuse

was accompanied by psychological abuse that

was intimidating, controlling and fear inducing.

Among the ways in which financial abuse was

carried out were misuse of powers of attorney,

coerced changes to wills, unethical trading in title

to property, and the coercion of people without

capacity into signing documents in relation to

assets that would result in financial gain for the

perpetrator. See Jo Wainer, Peter Darzins and

Kei Owada, Monash University, Prevalence of

Financial Elder Abuse in Victoria: Protecting Elders’

Assets Study (Report, 10 May 2010).

21 Kylie Miskovski, Alzheimers Australia NSW,

‘Preventing Financial Abuse of People with

Dementia (Report, 2010), See also, for example,

Rae Kaspiew, Rachel Carson and Helen Rhoades,

Australian Institute of Family Studies, Elder

Abuse: Understanding Issues, Frameworks and Responses

(Research Report No 35, February 2016) 8, 10, 47.

22 Rae Kaspiew, Rachel Carson and Helen Rhoades,

Australian Institute of Family Studies, Elder

Abuse: Understanding Issues, Frameworks and

Responses (Research Report No 35, February

2016) 47.

23 Kelly Purser, Tina Cockburn and Elizabeth

Ulrick, ‘Examining Access to Formal

Mechanisms for Vulnerable Older People in

the Context of Enduring Powers of Attorney’

(2019) 12 Elder Law Review 1–29, 11.

24 Legislative Council General Purpose Standing

Committee No 2, Parliament of New South

Wales, Elder Abuse in New South Wales (Report No

44, June 2016) xiv, 84 [6.22]–[6.23], 86–88 [6.28]–

[6.37], 99–101 [6.94]–[6.102]. See also Kelly

Purser, Tina Cockburn and Elizabeth Ulrick,

‘Examining Access to Formal Mechanisms for

Vulnerable Older People in the Context of

Enduring Powers of Attorney’ [2019] 12 Elder

Law Review 1–29 and Cassandra Cross, Kelly

Purser and Tina Cockburn, Examining Access to

Justice for Those With an Enduring Power of Attorney

(EPA) Who are Suffering Financial Abuse (Report,

Crime and Justice Research Centre, Queensland

University of Technology, 2017).

25 Legislative Council General Purpose Standing

Committee No 2, Parliament of New South

Wales, Elder Abuse in New South Wales (Report No

44, June 2016) 121 [8.1]; 121–2 [8.2]–[8.4].

26 Kelly Purser et al, ‘Alleged Financial Abuse of

Those Under an Enduring Power of Attorney:

An Exploratory Study’ (2018) 48(4) British Journal

of Social Work 887, 895; Rae Kaspiew et al, Elder

Abuse in Australia (Report No 98, Australian

Institute of Family Studies, 2016) 71.

27 Rosslyn Monro, ‘Elder Abuse and Legal

Remedies: Practical Realities?’ (2002) 81 (Spring)

Reform 42, 46.

28 Carolyn Dessin, ‘Financial Abuse of the Elderly’

(2000) 36(2) Idaho Law Review 203, 212–13;

Natalia Wuth, ‘Enduring Powers of Attorney:

With Limited Remedies: It’s Time to Face the

Facts’ [2013] 7 Elder Law Review 1–30, 14; Rosslyn

Monro, ‘Elder Abuse and Legal Remedies:

Practical Realities?’ (2002) 81 (Spring) Reform 42.

29 Rosslyn Monro, ‘Elder Abuse and Legal

Remedies: Practical Realities?’ (2002) 81 (Spring)

Reform 42; Natalia Wuth, ‘Enduring Powers of

Attorney: With Limited Remedies: It’s Time to

Face the Facts’ [2013] 7 Elder Law Review 1–30;

Legislative Council General Purpose Standing

Committee No 2, Parliament of New South

Wales, Elder Abuse in New South Wales (Report No

44, June 2016) 121–2 [8.1]–[8.4].

30 Cassandra Cross et al, Examining Access to Justice

for Those With an Enduring Power of Attorney

(EPA) Who are Suffering Financial Abuse (Report,

Crime and Justice Research Centre, Queensland

University of Technology, 2017) 44.

31 Natalia Wuth, ‘Enduring Powers of Attorney:

With Limited Remedies: It’s Time to Face

the Facts,’ [2013] 7 Elder Law Review 1–30,

14; Rosslyn Monro, ‘Elder Abuse and Legal

Remedies: Practical Realities?’ (2002) 81 (Spring)

Reform 42, 45; Legislative Council General

Purpose Standing Committee No 2, Parliament

of New South Wales, Elder Abuse in New South

Wales (Report No 44, June 2016) 87 [6.31];

Kelly Purser, Tina Cockburn and Elizabeth

Ulrick, ‘Examining Access to Formal Justice

Mechanisms for Vulnerable Older People in

the Context of Enduring Powers of Attorney’

[2019] 12 Elder Law Review 1–29, 25–6.

32 Legislative Council Select Committee into Elder

Abuse, Parliament of Western Australia, ‘I

Never Thought It Would Happen to Me’: When Trust

is Broken (Final Report, September 2018) vii

finding 25, 50 Rec 10, 51 Rec 11, 61 Rec 55, 70

Rec 17. One party told the NSW Parliamentary

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DISABILITY

Report that police may be unwilling to become

involved in an allegation without clear evidence

of physical mistreatment: Legislative Council

General Purpose Standing Committee No 2,

Parliament of New South Wales, Elder Abuse in

New South Wales (Report No 44, 2016) 126 [8.20].

33 Select Committee into Elder Abuse, Parliament

of Western Australia, ‘I Never Thought It Would

Happen to Me’: When Trust is Broken’ (Final Report,

September 2018) 61 [6.25], 67 [6.51]; Legislative

Council General Purpose Standing Committee

No 2, Parliament of New South Wales, Elder

Abuse in New South Wales (Report No 44, June

2016) 85–86 [6.25].

34 Select Committee into Elder Abuse, Parliament

of Western Australia, ‘I Never Thought It Would

Happen to Me’: When Trust is Broken’ (Final Report,

September 2018) 65 [6.42].

35 Legislative Council General Purpose Standing

Committee No 2, Parliament of New South

Wales, Elder Abuse in New South Wales (Report No

44, June 2016) 126–7 [8.19]–[8.23].

36 Ibid 126 [8.19]. See also at: 124–8 [8.12]–[8.28].

37 When the current IO framework of the IO Act

was introduced, despite the broad potential ambit

of the scheme, it was conceded that ‘there is a

strong emphasis on domestic abuse and there is

no doubt that these laws will mostly be used by

people seeking to protect themselves and their

children from domestic abuse’: South Australia,

Parliamentary Debates, Legislative Council, 28

October 2009, 3793 (Hon GE Gago).

38 Intervention Orders (Prevention of Abuse) Act 2009

(SA), sub-s 8(8)(a), (b).

39 Intervention Orders (Prevention of Abuse) Act

2009 (SA), sub-s 8(8)(i) and (k). Sub-s 8(8)(j)

also includes: two people related according to

Aboriginal or Torres Strait Islander kinship rules

or are both members of some other culturally

recognised family group.

40 Carers Recognition Act 2005 (SA), s 5. Relevantly,

‘carer’ is defined in general terms as a person

who provides ongoing care or assistance to: a

person who has a disability (within the meaning

of the Disability Inclusion Act 2018), a chronic

illness (including a mental health illness, within

the meaning of the Mental Health Act 1993);

or a person who, because of frailty, requires

assistance with the carrying out of tasks.

Notably, it does not include a person who is

contracted to provide care or assistance, nor

a person who provides care or assistance in

the course of community work organised by a

community organisation.

41 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(9).

42 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(4)(m).

43 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(4)(n).

44 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(4)(o).

45 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(5)(a).

46 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(5)(b).

47 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 8(5)(e).

48 Australian Law Reform Commission, Elder

Abuse: A National Legal Response (Report No 131,

May 2017) [1.17].

49 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 6.

50 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 28.

51 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 14.

52 Intervention Orders (Prevention of Abuse) Act 2009

(SA), ss 12 and 13.

53 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 12(1)(l).

54 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 12(2)(a), (b).

55 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 13.

56 Intervention Orders (Prevention of Abuse) Act 2009

(SA), div 2 and s 20.

57 Intervention Orders (Prevention of Abuse) Act 2009

(SA), s 20(1)(b).

58 See, for example, Department of Human Services

(Cth) v Fitzpatrick [2018] SASC 180, [32]

(Kourakis CJ).

59 David Lock, ‘Decision-making, Mental Capacity

and Undue Influence: Action by Public Bodies

to Explore the Grey Areas between Capacity and

Incapacity’ (2015) 20(1) Judicial Review 42.

60 Intervention Orders (Prevention of Abuse) Act 2009

(SA), ss 7(2), 20(1)(a).

61 See Rana v Gregurev [2015] SASC 37, [15] (Peek

J): ‘…because the concept of abuse is so

broadly defined, it is…necessary for the courts

to ensure that this broad jurisdiction is not

itself abused by specious or unwarranted claims

with their associated detrimental consequences

to both the limited resources of the courts

and to persons the subject of unmeritorious

applications. The necessary balance is achieved

by investing the Magistrates with a great deal

of discretion in the course they may take in any

given case.’

62 The 2021 AIFS study found that a ‘personal

protection order’ (what in South Australia would

be called an ‘intervention order’) was obtained

against the perpetrator in 3.8% of cases of elder

abuse, breaking down as in cases of financial

abuse (4.4%), physical abuse (9.3%), sexual abuse

(0.7%), psychological abuse (3.8%) and neglect

(0.9%). See Lixia Qu et al, National Elder Abuse

Prevalence Study: Final Report (Research Report)

(Australian Institute of Family Studies, 2021)

86. It also to be noted that the West Australian

Police conceded in evidence before the

Parliamentary Committee that police only very

rarely sought an intervention order in cases of

elder abuse and identified that such orders had

been sought by police in Western Australia in

only three instances during 2017/2018 on behalf

of parties aged over 65: See Legislative Council

Select Committee into Elder Abuse, Parliament

of Western Australia, ‘I Never Thought It Would

Happen to Me’: When Trust is Broken (Final Report,

September 2018) 64. Indeed, the Western

Australian Police Commissioner had doubted

such orders were even available in respect of

financial elder abuse or without the victim’s

consent: See Transcript, Evidence, Legislative

Council Select Committee into Elder Abuse,

Parliament of Western Australia, ‘I Never Thought

It Would Happen to Me’: When Trust is Broken, 7

May 2018, 2-5 (Mr Dawson).

63 Queensland Law Society and Queensland Public

Advocate, Elder Abuse: Joint Issues Paper (2022)

54-55, 53-54 [6.2.4]. The 2022 Queensland study

identified an apparent police reluctance to utilise

such orders in relation to elder abuse and noted

their ‘limitations’ in the context of elder abuse.

64 On the one hand, in the 2021 AIFS study, they

were seen in some instances as putting a stop

to the abuse and also providing a deterrent

going forward. But it was also noted in the 2021

AIFS study that ‘in some cases legal action was

ignored or not understood by the perpetrator

or restraining orders were flouted and did not

prevent the perpetrator from reoffending.’

Substantial minorities of the victims in the

2021 AIFS study considered such actions were

ineffective. See Lixia Qu et al, National Elder

Abuse Prevalence Study: Final Report (Research

Report) (Australian Institute of Family Studies,

2021) 3, 88 and 89.

65 Legislative Council Select Committee into

Elder Abuse, Parliament of Western Australia,

‘I Never Thought It Would Happen to Me’: When

Trust is Broken (Final Report, September 2018)

63 [6.312], 64 [6.38], 65 [6.43]. The Committee

noted that, despite the broad statutory powers,

it had heard of a ‘distinct reluctance’ by the

Western Australia Police to exercise these powers

either where the older person in question did

not consent to the order or did not want the

orders in place. The Committee observed that

the tension between the police duty to protect

vulnerable older people in the community and

the duty to respect the inherent dignity and

autonomy of adults in terms of the decision

to apply for orders under the Restraining Orders

Act 1997 may ‘sometimes result in a lack of

appropriate action being taken to protect an

older person from continued or greater harm’.

The Committee, whilst the appreciating the

difficult position that this tension may create,

was of the view ‘that Western Australia Police’s

duty to protect vulnerable older people in the

community should take precedence where to

take no action could result in continued or

greater harm.’

September 2022 THE BULLETIN 15


AGEING & THE LAW

Aged care law reform since

the Royal Commission

HELENA ERREY-WHITE, HUMAN RIGHTS COMMITTEE MEMBER AND ASSOCIATE AT O’LOUGHLINS LAWYERS

At the end of the Royal Commission into

Aged Care Quality and Safety (Aged

Care Royal Commission) in early 2021,

the Final Report: Care, Dignity and Respect

(Final Report) handed down by the Royal

Commissioners the Honourable Gaetano

(Tony) Pagone and Ms Lynelle Briggs AO

contained 146 recommendations. Since

the handing down of the Final Report

three key Acts have commenced that have

sought to reform aged care law, with a

particular focus on protecting the human

rights of the most vulnerable in our

community receiving aged care.

Serious Incident Response Scheme

The Aged Care Legislation Amendment

(Serious Incident Response Scheme and Other

Measures) Act 2021 sought to address issues

identified in the final submissions of

Counsel Assisting the Royal Commission

and commenced on the day the Final

Report was tabled. 1 This Act introduced

to residential aged care the Serious

Incident Response Scheme (SIRS). As is

becoming a common theme of law reform

in aged care, SIRS took inspiration from

the National Disability Insurance Scheme

(NDIS).

SIRS has two key components:

incident management and reporting

‘reportable incidents’.

For incident management, SIRS

put in place detailed requirements on

recording and responding to incidents

and continuous improvement to prevent

further such incidents.

For reporting, SIRS replaced the

concepts of ‘reportable assault’, being

unlawful sexual contact and unreasonable

use of force, and ‘unexplained absences’

with ‘reportable incident’. The concept

of a reportable incident has been

defined broadly to include eight different

categories of serious incidents ranging

from physical and sexual abuse and

unexplained absences to psychological and

financial abuse and neglect. Reportable

incidents are required to be reported to the

Aged Care Quality and Safety Commission

(Aged Care Commission) within a

certain timeframe. The Aged Care

Commission then assesses the incident and

engages with the provider to take further

action if required.

In addition to reporting reportable

incidents to the Aged Care Commission,

within the incident management

requirements there is also a requirement to

report incidents to the police where there

are reasonable grounds to do so (ie the

incident is of a criminal nature).

Addressing restrictive practices

The Aged Care and Other Legislation

Amendment (Royal Commission Response No

1) Act 2021 introduced the first stage of

law reform formally in response to the

Final Report. The most significant reform

arising from this Act for persons receiving

aged care was the enhancement of

requirements around the use of restrictive

practices in residential aged care. 2

Again looking to the NDIS for

inspiration and alignment, the definition

of restrictive practice was reformed to

largely align with that used in the NDIS.

The previous brief definition of ‘physical

restraint’ was replaced with the more

detailed definitions of ‘environmental

restraint’, ‘mechanical restraint’, ‘physical

restraint’ and ‘seclusion’, which give

greater guidance to providers and

persons receiving aged care as to what is

a restrictive practice. The definition of

‘chemical restraint’ was largely unchanged

but already substantially aligned with the

definition used in the NDIS.

The reform also put in place stricter

and more detailed requirements for

the use of restrictive practices. These

requirements address the criteria that

must be satisfied before a restrictive

practice can be used, with the exception of

emergency use, and what providers must

do during the use of a restrictive practice

such as monitoring the effects, necessity

and effectiveness of the restrictive

practice. The Act also introduced detailed

requirements for behaviour support

plans to be developed where restrictive

practices are used. However, the Act did

not implement the recommendation of

the Royal Commission that ‘the use of

restrictive practices must be based on an

independent expert assessment’. This

is an approach more closely used in the

NDIS, which requires behaviour support

plans to be developed by an approved

NDIS behaviour support practitioner. A

less direct approach has been taken in

aged care where there is an obligation

on providers to consult with health

practitioners with expertise relevant to

the person’s behaviour when preparing,

reviewing or revising the behaviour

support plan.

16

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AGEING & THE LAW

The most substantial law reform yet

The recent Aged Care and Other

Legislation Amendment (Royal Commission

Response) Act 2022 implements the second

stage of law reform formally in response

to the Final Report. 3

The Act introduces the most

substantial law reform yet arising from the

Royal Commission. It addresses a range

of areas in aged care law from the funding

model for residential aged care, star ratings

of providers, governance standards for

providers, banning orders for workers,

information sharing between relevant

government bodies and departments to

the direct protections of the human rights

of persons receiving aged care.

While much of this reform will

be behind the scenes changes within

providers or within the Government,

two areas of reform that will directly

impact persons receiving aged care are the

expansion of SIRS into home care and the

introduction of a Code of Conduct.

SIRS will be expanded to apply to aged

care provided in the home (eg persons

receiving home care packages) from 1

December 2022. The details of how it will

apply in this different environment have

not been released at the time of writing

but it is reasonable to expect that there

will need to be some variation to account

for the different nature of home care

compared to residential care. 4

From 1 December 2022 there will also

be a Code of Conduct in aged care that

providers and their workers must comply

with when delivering aged care to persons. 5

Again drawing inspiration from the NDIS,

the Government has indicated that the

aged care Code of Conduct will be based

on the NDIS Code of Conduct. 6 The

NDIS Code of Conduct is not dissimilar

to the current Charter of Aged Care

Rights, which forms part of a person’s

contract for aged care. Both documents

seek to explicitly recognise and protect

the human rights of persons receiving

care by setting out broad obligations on

providers and those they engage to deliver

care and services. 7 Despite the obligations

being broad in nature, there are significant

financial penalties for providers if the

Code of Conduct is breached.

Other reforms being implemented by

the Act also aim to improve the aged care

persons receive. For example, the reform

to the funding model for residential aged

care will include additional funding for

minimum care minutes for residential aged

care residents, including minimum minutes

of registered nurse time, and a focus on

incentivising rehabilitation. 8

Summary

The introduction of SIRS and

the reform of the restrictive practices

requirements as a priority addressed two

important areas where the human rights

of persons receiving aged care could be

better protected. The second stage of

law reform recently passed in August this

year makes the most substantial reforms

to aged care law since the Final Report. In

addition to the law reform arising from the

Final Report of the Royal Commission,

there is also another Bill currently before

Parliament that seeks to implement the

new Federal Labor Government’s election

promises of a registered nurse onsite in

residential aged care 24/7 and capping

administration charges in home care. 9

Aged care will continue to be an area

subject to significant and fast paced law

reform in the coming years. B

Endnotes

1 The details of the Serious Incident Response

Scheme are set out in Part 4B of the Quality of

Care Principles 2014 (Cth), implemented by the

Aged Care Legislation Amendment (Serious Incident

Response Scheme) Instrument 2021 (Cth).

2 See Schedule 1 of the Aged Care and Other

Legislation Amendment (Royal Commission Response

No 1) Act 2021 (Cth). The requirements for

restrictive practices are detailed in Part 4A of the

Quality of Care Principles 2014 (Cth), implemented

by the Aged Care Legislation Amendment (Royal

Commission Response No 1) Principles 2021 (Cth).

These reforms arose from Recommendation

17 of the Final Report and the Independent review

of legislative provisions governing the use of restraint in

residential aged care.

3 The Aged Care and Other Legislation Amendment

(Royal Commission Response) Act 2022 (Cth) was

passed by both Houses of Parliament on 2 August

2022 and received Royal Assent on 5 August 2022.

4 See Schedule 4 of the Aged Care and Other

Legislation Amendment (Royal Commission Response)

Act 2022 (Cth). This reform responds to

Recommendation 100.

5 See Schedule 3 of the Aged Care and Other

Legislation Amendment (Royal Commission Response)

Act 2022 (Cth). This reform responds to

Recommendation 77 in the Final Report.

6 The NDIS Code of Conduct is set out in the

National Disability Insurance Scheme (Code of Conduct)

Rules 2018 (Cth).

7 The Charter of Aged Care Rights is set out in

Schedule 1 of the User Rights Principles 2014 (Cth).

8 This reform is discussed in Recommendation 86.

9 See Schedules 1 and 2 of the Aged Care Amendment

(Implementing Care Reform) Bill 2022 (Cth).

September 2022 THE BULLETIN 17


OPINION

Youth in detention – a failing system

KATJA DALY, MEMBER, ABORIGINAL ISSUES COMMITTEE, & SOLICITOR, ABORIGINAL LEGAL RIGHTS MOVEMENT

The overuse of pre-trial detention in

the youth criminal justice system is

a critical issue across Australia. In South

Australia, almost all children held in

detention are on remand and have therefore

not been found guilty of any crime 1 .

Aboriginal children are severely

overrepresented in the criminal justice

system, and therefore also in the remand

population 2 . Although Aboriginal children

comprise only around 5% of the South

Australian population, 50% of the total

admissions into Kurlana Tapa Youth

detention centre identified as Aboriginal

during 2018-19 3 . Aboriginal children are

overrepresented in other aspects of the

criminal justice system too. According

to data recorded in the Guardian for

Children and Young People and Training

Centre Visitor’s Report 2021, Aboriginal

children are significantly more than likely

than their non-Aboriginal peers to be

referred to court rather than receive a

caution or diversion. This means only

25.3% of Aboriginal offenders are being

diverted away from court compared to

55.6% of non-Aboriginal youth being

diverted away 4 . These figures are cause for

concern because it shows that Aboriginal

children are more likely to be arrested;

spend time in police custody; enter bail

agreements; and be remanded in detention.

Consequently, they have a greater risk

of becoming institutionalised into the

criminal justice system.

The cost per day for holding a child

in detention far exceeds the cost of

community based rehabilitative focused

Youth Justice supervision. In South

Australia, detention costs 32.3 times

more per day per child than community

supervision. 2021 data shows holding a

child in detention costs $3,121.25 per day

compared to community supervision at

$96.59 per day 5 .

It is clear the current model of youth

detention does not work. However

State and Federal governments are not

prioritising a focus on this issue; and nor

are they pursuing beneficial reform. In fact,

rather than adopt community-led initiatives

recommended by the Royal Commission

into the Protection and Detention of

Children in the Northern Territory Report

2017, State governments have toughened

youth bail legislation and expanded

detention centres. Detention is not a good

solution. The Australian government must

instead prioritise funding and legislative

change to integrate recommendations by

law and justice groups working across

youth justice and child protection systems 6 .

Australia could benefit from initiatives

that have been developed and tried in other

jurisdictions. Native Nation Rebuilding

for self-determined self-governance is

emerging in the United States of America

and Canada as a distinctive field of enquiry

which holds tremendous potential to

contribute valuable and timely legal reform

in Australia 7 . Indigenous-led initiatives in

jurisprudence have demonstrated capacities

for improving equitable access to justice 8 .

The ‘Ontario Model’ of youth detention

is a model Australia could adopt. Ontario

has transformed its youth justice system

“from a custody-focused system to one

that offers a broad range of communitybased

options” 9 . The Ontario model is

a realistic and proven effective pathway

to promote community control and legal

reform towards self-governance, enabling

increased jurisdictional powers that better

guarantee Indigenous people the enjoyment

of their human rights. Due to diverse and

preventative measures introduced across

the province of Ontario, there has been an

81% decrease in custody admissions for

youth detention. This has also resulted in

$39.9 million annual cost savings.

South Australia’s current regime

of youth detention fails to uphold

international standards of human

rights - including Australia’s obligations

as a signatory of the United Nations

Convention on the Rights of the Child -

and further fails to prioritise the objectives

of the Young Offenders Act 1993 (SA).

State and Federal governments must

prioritise reform of the youth justice

system to fulfil legislated responsibilities

and uphold internationally agreed legal

commitments. Further, from an economic

viewpoint, such reform has the potential

to significantly reduce the current high

cost of youth detention. B

Endnotes

1 Office of the Guardian for Children and Young

People, May 2021, ‘Snapshot of South Australian

Aboriginal Children and Young People in Care and/

or Detention from the Report on Government Services

2021’, page 25

2 see Outcome 11 - Aboriginal children and young

people should not be overrepresented in the

criminal justice system

Australian Government (Department of the

Prime Minister and Cabinet, 2018, ‘Closing the

Gap – Prime Minister’s Report 2018’,

3 Ibid, Office of the Guardian for Children and

Young People, May 2021, page 1.

4 Ibid, page 1

5 Ibid, page 25.

6 North Australian Aboriginal Justice Agency,

2017, ‘Submissions of Pre and Post Detention-

Royal Commission into the Protection and Detention

of Children in the Northern Territory’, page 2

< https://www.naaja.org.au/wp-content/

uploads/2020/03/North-Australian-Aboriginal-

Justice-Agency-Pre-Post-Detention.pdf>

7 Jorgensen, Miriam (2007). Rebuilding Native

Nations. Tucson: University of Arizona Press.

8 Ibid, North Australia Aboriginal Justice Agency,

2017, pages 3-4

9 M Rampersaud and L Mussell: ‘Ontario

closes half of its youth detention centres’,

The Conversation, (6 May 2021)

18

THE BULLETIN September 2022


EVENTS

Nyland lunch celebrates power

of women in law & leadership

About 315 guests packed the Adelaide

Convention Centre on 1 July for the

annual Margaret Nyland AM Long Lunch,

which celebrated the achievements of

women in the law and the trailblazing legacy

of the Hon Margaret Nyland AM, who was

in attendance.

Guests were honoured to hear from

guest speaker, AFL’s General Manager of

Inclusion and Social Policy, Tanya Hosch

who is a trailblazer in her own right as

the first Indigenous person on an AFL

Executive Board.

Tanya’s speech was equal parts hilarious

and poignant, as she spoke not just of

her role in a traditionally male dominated

area and the importance of using power

responsibly, but also spoke passionately

about the need to engage in meaningful law

reform to address the appalling rates of

Indigenous incarceration.

In particular, Tanya powerfully advocated

for raising the age of criminal responsibility.

The Law Society extends its thanks

to Marissa Mackie, Chair of the Women

Lawyers’ Association (SA) and Chair of the

Society’s Women Lawyers’ Committee, for

expertly MC’ing the event, and Adeline Lim,

also a member of the WLC and WLA (SA)

for her help in organising the event.

The Society also thanks major sponsors

Notable Imprint and LK Law for their

generous support of the event. B

Brooke Hall-Carney (left), Tanya Hosch, The Hon Margaret Nyland, Marissa Mackie and Nick Gormley

Jessica McNamara (left), Kylie Dunn, Shelley O’Connell, Adeline Lim, Thea Birss and Fiona Trethewey

NOTICE TO MEMBERS

Annual General Meeting

Law Society Members are advised that the Annual General Meeting of the Society will be

held at the Law Society, Level 10, 178 North Terrace, Adelaide on

Monday, 24 October 2022 at 5.15pm CDT

Information about the AGM (including how to participate via videoconference), nominating for positions

on the Council and any required election/s will be forwarded to Members in due course.

Nominations for Office-bearers and designated positions on Council close on Thursday 1 September 2022 at 5.00pm.

Notice of any business to be brought forward at the Annual General Meeting must be delivered to the Chief Executive by Thursday 1 September 2022 at 5.00pm.

September 2022 THE BULLETIN 19


RISK WATCH

Don’t trust emails - even internal

emails: Always verify payment details

KATE MARCUS, RISK & CLAIMS SOLICITOR, LAW CLAIMS

Cyber criminals are targeting small

to medium businesses and legal

practitioners.

Cyber frauds pose a major risk to

the profession and to your clients. Email

accounts and attachments have been

targeted and bank account details changed.

This risk is real and a number of claims

have been notified to Law Claims in the

past two months. The claims are alarming

both in terms of the number of claims

notified and also in terms of the quantum.

Simply put, emails are an easy target.

Emails and email attachments should

never be trusted. Practitioner emails and

client emails are being intercepted. The

details are changed and the emails arrive

at the recipient with new bank account

details, with the recipient being none the

wiser.

Likewise, email attachments such

as PDFs are being altered and account

details provided in any attachments should

not be trusted.

Don’t be fooled by something which

looks legitimate. If it involves a payment it

must be checked.

This is not an IT issue, but it is a

user issue.

Recent instances where moneys have

been transferred to a fraudster could have

been avoided entirely if the practitioner

and staff members had performed the

simple task of verifying the BSB and

account number directly with the clients.

All staff need to be alert to the risks of

email/email attachments.

WHAT SHOULD YOU DO?

If you are making payments to clients

or third parties:

1. On opening the file get the client’s BSB

and account number. If you cannot

obtain this in person use a secure,

verified method;

2. If payment is not anticipated for some

time or payment will be made to other

parties whose details may be unknown

(e.g. beneficiaries) make it clear than

you will never ask for BSB and account

details by email;

3. If you need to get details later – ring or

write, using a secure, verified method;

4. If you receive any details by email you

must ring and verify the details with

the client or the intended party;

5. Do not ring the phone number on the

email –the number on the email is likely

to be the fraudster’s number;

6. Check any phone numbers with the

original file and written instructions

provided directly by the client.

7. Train all of your staff not to trust any

email instructions for payments - this

includes emails from within the firm.

RECEIVING PAYMENTS

If you anticipate receiving moneys

from clients:

1. On opening the file, provide your trust

account details to the client. If you

cannot provide this in person, use a

secure, verified method;

2. Provide your trust account details in

your retainer letter and advise that your

bank account details will not change

during the course of a transaction, and

you will never notify of any changes to

your bank details via email;

3. Always advise your client to

independently confirm bank account

details and provide instructions to you

in person or via a telephone call to a

trusted and verified phone number;

4. All letters and emails should contain

a simple reminder to clients that the

law practice will never ask for bank

account details by email and that clients

should not:

a. act on any emails that request their

bank account details; or

b. act on any demands for payment

without verifying details.

WHAT ABOUT INTERNAL EMAILS?

Even after verifying details with a

client do not email bank account details

within the firm.

Emails forwarded within a firm

have proved to be just as susceptible as

those coming from outside a firm. If

you are working remotely, do not send/

rely on emails with bank account details.

These must be checked again with the

practitioner or support staff who sent

the email.

Again, instruct all of your staff that

they must not follow any email instructions

for payment. This includes internal emails.

WHAT SHOULD YOU DO IF YOU HAVE A

CYBER INCIDENT?

If you do experience a cyber incident:

1. Call the bank immediately – some

funds may be recovered if you act

quickly;

2. Report the incident to the

Australian Cyber Security Centre:

www.cyber.gov.au/report. This

informs SAPOL of the incident

and gives you a Report Reference

Number. You can provide this number

to financial institutions or other

organisations as proof that a report

has been submitted to the police;

20

THE BULLETIN September 2022


RISK WATCH

3. If it involves trust account moneys,

report the defalcation to Ethics &

Practice on 8229 0229;

4. If it involves a claim or potential

claim, notify Law Claims on

8410 7677;

5. Contact your IT providers – your IT

system is vulnerable;

6. Obtain a report from your IT

provider or a cyber investigator

with confirmation as to the fraud or

malware etc.;

7. If you have cyber insurance – notify

your cyber insurer.

Trust account obligations:

If moneys have been sent in error to

any third party – remember you are

under an obligation to replenish your

trust account.

For further information and resources

on cybersecurity, see the cyber document

package available free to practitioners

insured under the SA PII Scheme.

ON THE RADAR — PHISHING GETS EASIER

One of the easiest ways for

cybercriminals to gain access to your

systems is to go phishing. Phishing emails

appear to be from legitimate senders

but will usually involve an email or

website address which is ever-so-slightly

different. They look legitimate and even

the savvy can be tricked. Up to 70% of

email attacks are by phishing. Hovering

over hyperlinks and email addresses and

checking them for authenticity before

clicking is a good practice to avoid

unintentional breach of your systems. All

staff should be trained to do so.

Be aware though that in the coming

months, there may be increased phishing

activity with the release of a new

category of domain name registrations.

The new category allows registration of

.au domain names for any business with

an Australian presence. For example,

where a business currently holds a

registration for mybusiness.com.au, they

can also register mybusiness.au. Existing

domain name licence holders have

until September 20 to obtain priority

registration of the equivalent .au domain

name, after which the domain names will

become available to the public.

There is potential for uncertainty and

confusion in the domain name space,

as businesses could be susceptible to

impersonation or be phished or scammed

for domain name registration fees.

Increased vigilance and caution should be

exercised in relation to email, particularly

unsolicited email.

Further information in relation to the

new domain name registrations can be

found on the auDA website.

- By Mercedes Eyers-White, PII Risk

Management Coordinator

YOUNG LAWYERS

Young Lawyers host premium dinner with Attorney General

The annual Young Lawyers’ Premium

Dinner was held on Thursday, 28 July

2022 at Pizza e Mozzarella Bar on Pirie

Street. This year’s attendees had the privilege

of hearing from The Honourable Kyam

Maher MLC (Minister for Aboriginal Affairs,

Attorney-General, Minister for Industrial

Relations and Public Sector). The Attorney

provided attendees with valuable insight into

his involvement and experience in the legal

profession as well as Parliament, and his

views on fostering an inclusive community

within and beyond legal profession.

The Young Lawyers’ Committee would

like to thank Pizza e Mozzarella Bar for

their hospitality and generous portions

of porchetta, our major sponsor Burgess

Paluch Legal Recruitment, who continues to

make our events possible, as well as all those

who attended and continue to support the

events held by the Committee.

Most of all, the Committee wishes to

thank facebook.com/YLCSA

The Attorney for taking the time out

of his undoubtedly busy schedule to speak

at the Premium Dinner.

We look forward to seeing you all at the

2022 Christmas Drinks!

September 2022 THE BULLETIN

21


INTERVIEW

Skip the pleasantries and get

on with it: An interview with

former judge David Smith QC

Law Society Advocacy Committee Member Richard

Hoang interviews former District Court Judge David

Smith QC, who is currently pracitising as a mediator,

about courtroom etiquette, antiquated conventions, and

the increasing unaffordability of legal action.

Richard Hoang: Perhaps I might start

with “Good morning Your Honour”. Say I

am appearing before you, thirty years ago,

and began by saying “Good morning Your

Honour”. What are your thoughts?

David Smith: I have no memory of

being greeted like that when I was on the

Bench. It is trivial but Counsel should be

deflected from doing that in the interests

of ensuring that the courts remain free

from any hint of favouritism.

However, as Counsel, I have a memory

of instances of overly familiar and even

cringeworthy exchanges between the Judge

and Counsel.

In one instance, my opponent wished

the Judge “a happy birthday”.

In another, the Judge embarked upon

a long personal discussion with Counsel

about that Counsel’s recent attempt at

some long-distance swimming feat. This

continued for a number of minutes in the

courtroom in front of other barristers,

solicitors and members of the public.

At best it was rude, at worst it raised a

perception of favouritism and bias.

Accordingly, although the greeting

“Good Morning Your Honour” is a small

and common place pleasantry, it has a ring

of some personal connection. Lawyers,

and the Judge for that matter, should avoid

such salutations and get on with the matter

in hand.

RH: Right. So, the jurisdiction wouldn’t

matter too much as well, do you think?

For example, in a Magistrate’s Court or

Supreme Court of Appeal setting?

DS: The jurisdiction doesn’t make a

difference. The problem is that such a

greeting has a familiarity about it which

can raise a perception of personal

connection in the mind of a reasonable

bystander, and perhaps therefore, a

perception of bias.

Let me give you an example – a

Supreme Court Case.

In 1975, there was a case of Garrihy, 1

which concerned a traffic light offence

which was being prosecuted in a suburban

court. The two Justices of the Peace, who

were hearing the case, adjourned to view

the intersection. They travelled to and

from the intersection in a Police Car with

the Prosecutor and a Prosecution Witness.

The Defendant travelled to and from the

view, by himself, in his own car. He was

convicted of the offence. On Appeal,

his conviction was set aside on grounds

that it would not be unreasonable for a

right-minded person to think that there

was a possibility of bias on the part of the

Justices. The Appeal Court made it clear

that the principle applied to all persons

who sit in a judicial capacity.

RH: What about the practice where

instead of the usual “Your Honour”

practitioners use “Sir” or “Madam”? What

are your thoughts on that?

DS: I welcome the shedding of the

archaic and sycophantic court language

we inherited from the English Courts.

“Sir” and “Madam” would suffice. In

particular, I would like to see the end of

“My Learned Friend,” “With respect”,

and “With the Greatest Respect”, and the

rest. Indeed “Your Honour” is sometimes

repellent.

RH: Speaking of English Traditions, what

are your thoughts on phasing our wigs and

gowns?

DS: I would approve of phasing out wigs.

For a while I did think it was not a bad

disguise. On one occasion when I was out

looking for some lunch in the Market, a

large threatening guy walked up to my side

and said, “Good afternoon, Judge Smith”.

I replied, “Do I know you?” He replied

“Yes, you do. You refused me bail two days

ago but I had your decision overturned in

the Supreme Court.” My wig and gown

were not a great disguise.

I still think the wig should be

abandoned. Some years ago, that proposal

was rejected by the profession – that was

a shame.

Some people like to dress up. A plain

gown would be good for identification

purposes.

RH: What first drew you to the Bar?

DS: When I first started work as a lawyer

in Adelaide, there was no formalised

division between barristers and solicitors.

some people called it an amalgam

practice. By 1974, two or three small sets

of chambers had started up. In 1981,

after seven years of enjoyable practice

at Wallman and Partners, I joined eleven

others to form Jeffcott Chambers.

The original members were engaging

personalities. It wasn’t a difficult decision.

We opened at 7 Gouger Street, in 1982.

The Chambers thrived as the legal

profession embraced the notion of the

separate Bar. The separate Bar had the

support of Chief Justice King. Like other

chambers, we rode a wave of success, for

the better part of twenty years.

22 THE BULLETIN September 2022


INTERVIEW

RH: Over the years you spent at the

Bar and on the Bench, have you noticed

any change in the “skill set” of legal

practitioners?

DS: I offer the following rough and ready

perceptions:

In 1967, when I first appeared in Court

as an Articled Clerk, the legal profession

was small, and male dominated. I witnessed

some Hollywood style flamboyance,

which gradually diminished over the years.

The fees charged by lawyers seemed to

be received, as reasonable. As the years

rolled on, lawyers seemed to become more

“corporate”, and, for the better, more

women began joining legal practice.

Then, in 1999, when I was appointed

to the District Court, it became obvious to

me that many great ordinary people could

not afford a lawyer. In consequence, the

civil list slowly reduced. Like some elite

sportsmen, some lawyers charged obscene

daily fees, and still do so. It was rare that

“Party and Party Costs” would meet a

party’s legal bill and so it was not unusual

for the legal bill to eat into any damages

award. On more than one occasion,

when I emerged from my Chambers, in

the District Court, I was confronted by

a person, draped in a sandwich board,

advertising a protest that a sizeable

damages award had all but been consumed

by legal fees.

In a sense, the growing popularity of

such measures as Mediation is testament

to the failure of the ordinary legal

action. The threat of the ongoing cost

of litigation is used by a Mediator to

encourage parties to resolve their legal

dispute. I think more needs to be done to

give ordinary people access to the Courts.

To get back to your question about

“skill sets”, I think not much has changed

in the course of my time in the law. There

were good and bad advocates in practice,

and good and bad judges on the Bench.

RH: What are your overall reflections of

your time in the law?

DS: At the time of the presentation of

my Commission in September, 1999, I

spoke about the importance of the Rule

of Law. That is still my position in that

respect. In many countries around the

world, the courts do the bidding of those

in power, that is the Government. In

the result, those countries can be fearful

places to be.

Of allied importance is the

independence of the judiciary. The

judiciary in Australia is independent

however, I think that the appointment

process could be more transparent.

Though judicial appointments will

remain the prerogative of the Executive

Government, I think they should not

be wholly within the benefit of the

sitting Government. Rather, I think

that the judicial appointments should

be made on the recommendation of an

independent and impartial body with

some expertise and broad community

representation. In this respect, the Law

Society’s Advocacy Committee, (of which

you and I Richard are both Members),

made a recommendation along those lines

to the Society, for reference on to The

Law Council of Australia for its policy

statement. Of paramount importance in

our submission was that appointments

be made on merit. We also recommended

that diversity should play a part in the

Attorney’s choice.

The Committee’s submission drew

on a number of academic papers, some

of which complained that the process

of appointment had sometimes been

somewhat “opaque”. The submission

by the Advocacy Committee embodies

my view. I consider, like a number of

commentators, that it is time for some

change. A judicial appointment should not

be a reward for service.

I have another political complaint

which has been borne from my

experiences in the law. Our Federal System,

enshrined as it is in the Constitution, is

stifling and wasteful. We are in a country

of only about 25 million people, yet we

have multiple governments, legislatures,

and legal systems – all of them jealously

guarding their apportionment of power.

The “Tyranny of Distance” is no longer

any excuse.

About 40 years ago, when I was

Chairman of the Criminal Law Committee

of the Law Society, one of our tasks was

to contribute to the nationwide effort

to formulate a Uniform Criminal Code

across Australia. There is still no Uniform

Criminal Code operating in Australia. We

have the ludicrous situation of a person,

who commits a crime in Victoria, after

which he flees home to South Australia,

requiring extradition to Victoria to face

charges.

I am sure a civil war or similar

cataclysmic event will be necessary to

make any substantial change – more is

the pity. Perhaps we can change slowly,

for example, uniform laws – we copy one

another anyway – and then one Court

system.

One final comment – of course there

should be a robust corruption watchdog

both State and Federally – amongst other

institutions our democratic system requires

vigilance.

I have had what I regard as a lucky and

happy life in the law – I treasure it. B

Endnotes

1 Garrihy v Wyatt (1975) 10 SASR 476

September 2022 THE BULLETIN 23


TAX FILES

Payroll tax for medical practices

PAUL INGRAM, MINTERELLISON

The Payroll Tax legislation in each

jurisdiction has provisions aimed at

treating payments to ‘contractors’ as wages,

so that they are subject to tax.

The South Australian provisions are

contained in ss 31-36 of our Act.

Section 35(1) relevantly provides as

follows:

‘For the purposes of this Act, amounts paid or

payable by an employer during a financial year

for or in relation to the performance of work

relating to a relevant contract…. are taken to

be wages paid or payable during that financial

year’ (emphasis added).

Section 32(1) then relevantly provides:

‘In this Division, a “relevant contract”

in relation to a financial year is a contract

under which a person (the “designated

person”) during that financial year, in the

course of a business carried on by the

designated person –

(a) supplies to another person services for

or in relation to the performance of

work; or

(b) is supplied with the services of

another person for or in relation to the

performance of work …’ (emphasis

added).

Section 32(2) then sets out a series of

key exemptions.

Where there is a ‘relevant contract’, the

person to whom services are provided is

taken to be an employer (section 33), and

the person who supplies the services is

taken to be an employee (section 34).

The question is whether these

provisions capture the service

arrangements commonly entered by

medical practitioners and other health

practitioners. Two recent decisions:

• CCSR v The Optical Superstore Pty Ltd

[2019] VSCA 197; and

• Thomas and Naaz Pty Ltd v CCSR [2021]

NSWCATAD 259, and on appeal

24 THE BULLETIN September 2022

[2022] NSWCATAP suggest that

they do apply, exposing such service

arrangements to Payroll Tax.

This article examines those two

decisions.

1. THE OPTICAL SUPERSTORE PTY LTD

The Optical Superstore dealt with

arrangements between Optometrists

and The Optical Superstore Pty Ltd

(TOS), being the entity that owned the

premises from which each Optometrist

practised. The Optometrists provided

services to the public, fees were collected

by TOS (but expressly held on trust for

the Optometrists), with TOS deducting

an ‘occupancy fee’ (a percentage of the

gross fees) before passing on the rest to

the Optometrist. The Victorian Court of

Appeal held that:

• the arrangements were ‘relevant

contracts’; and

• the amounts distributed by TOS, back

to the Optometrists were ‘amounts paid

or payable for or in relation to work,

and were therefore subject to PRT;

• the fact that the amounts were held by

The Optical Superstore as trustee was

not relevant:

‘[64] At no point does the statute

articulate as a relevant inquiry whether

the flow of money in question is

beneficially owned by the recipient ...

[67] The ordinary meaning of ‘payment’

readily embraces a payment of money

to a person beneficially entitled to that

money…’

The taxpayer’s subsequent application

for special leave to appeal to the High

Court was refused.

It was hoped that the decision was an

‘outlier’ that could be confined to its own

facts. In particular, the documentation did

contain some reference to hourly rates,

which is unusual, and perhaps did make

the Optometrists look a bit more like

employees than would otherwise have been

the case. However, worse was still to come.

2. THOMAS AND NAAZ PTY LTD

a. The facts of this case were quite

similar:

ii. the applicant company operated

three medical centres. Various

doctors ran their practices from

each. Each had an agreement with

the applicant for the provision of

rooms, and various medical and

administrative support services;

iii. each Doctor billed his or her

patients, but most got the applicant

to make the claims with Medicare.

Funds went into a central account,

with the Doctor receiving 70%, and

the applicant retaining the other

30%. Unlike in The Optical Superstore,

there was no express reference to

the company holding the funds on

trust for the doctors.

b. The NSW CAT held for the

Commissioner:

iii. the Doctors mainly provided

services to patients, but could also

be said to be providing services to

the applicant;

iv. those services were provided for

or in relation to work as they were

‘work-related’;

v. the payments made by the applicant

to the doctors were ‘for or in

relation to the performance of

work’:

• there was a clear relationship

between the provision of

services and the payments,

albeit indirect; and

• whether or not the payments

represented the Doctor’s own


TAX FILES

money was irrelevant - neither

the capacity in which the

employer receives the amount

which is paid to the employee,

nor the amount of the funds

transferred, is a relevant

consideration in applying the

words of the statute, for the

reasons that were explained in

The Optical Superstore.

c. The Taxpayers’ appeal was also

unsuccessful:

iv. the key point raised on appeal

was that the Doctors were only

providing services to their patients,

and were not providing services to

the applicant company. However, the

Appeal Panel viewed this as nothing

more than an attack on the Tribunal’s

findings of fact, from which there

was no appeal as of right;

v. the taxpayer’s attempt to rely on the

decision in Homefront Nursing Pty

Ltd v CCSR [2019] NSWCATAD

145, which had been delivered on

the same day as the decision in The

Optical Superstore, also failed (but

apparently on the basis that there

was no finding of fact in Homefront

Nursing that services were provided

to the applicant company).

CONCLUDING COMMENTS

It is submitted that taxing the

payments made to medical professionals

under these arrangements is a poor

outcome, and one which may need to

be addressed by policy reform (whether

administrative or legislative in nature).

The reality is that these payments

are simply a return of the medical

professional’s own money, and are not

properly seen as ‘wages’. In this regard, it

should be noted that neither the rejection

of this argument in The Optical Superstore,

or the following of that decision in Thomas

and Naaz, have been properly tested on

appeal.

It is further submitted that the

payments made to medical professionals

under these arrangements should not

be seen as being made ‘for or in relation

to the performance of work’. It is

unfortunate that an adverse finding of fact

in Thomas and Naaz meant that this point

wasn’t fully considered on appeal in that

case.

It is understood that various

professional bodies are already preparing

submissions on the need for policy reform.

In the meantime, affected clients should

be considering the potential impact of the

decisions on their existing structures, and

what action may need to be taken in the

event that a better policy outcome is not

achieved.

Tax Files is submitted on behalf of the

Adelaide-based members of the Taxation

Committee of the Law Council of Australia B

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September 2022 THE BULLETIN 25


BANKSA

Financial wellbeing top of the agenda

DAVID BROWNIE, CORPORATE PARTNER MANAGER, BANKSA AND WESTPAC

In June, 1995, BankSA and the Law

Society of South Australia came together

to provide an exceptional banking offer for

Law Society Members.

Some 27 years later, that strong

relationship continues. Members can still

access many superior banking and financial

benefits, which have now extended to

include offers from Westpac.

Westpac and BankSA State General

Manager, Consumer, Ben Owen, said

the relationship with the Law Society has

been one of the most lasting and stable

member-benefit partnerships for both

organisations.

“Over the years we have refined the

benefits available to members, enabling

the partnership to grow from strength to

strength,” Mr Owen said.

“An extended focus for the partnership

this term, in addition to existing monetary

cashback benefits, is on financial education

and wellbeing - equipping members with

the right tools to tackle financial hurdles,

particularly with the complex economic

environment and rising costs at the front

of people’s minds.”

Law Society Chief Executive,

Stephen Hodder, said the Society and its

Members had greatly benefitted since the

partnership was established – not only in

financial terms but also through the sheer

convenience of having a direct and single

point of contact with the bank.

“I’m delighted that we’ve maintained

26 THE BULLETIN September 2022

this effective partnership for 27 years,

having now extended it to include another

option for Members with Westpac, and

hope it will continue to grow, benefitting

even more Members in the coming years,”

Mr Hodder said.

BankSA and Westpac have committed

to working with Law Society Members

to help achieve their financial goals and

improve their financial wellbeing.

An example of this could be reducing

your home loan through additional

repayments, which could have a big impact

in the long term.

By putting surplus spare funds into

extra mortgage repayments, Members

can reduce the length of a loan by years

and save thousands of dollars in the

process. Similarly, changing a payment

frequency from monthly to fortnightly,

means you effectively end up paying

the equivalent of 13 monthly repayments

in a year instead of 12. Likewise,

weekly repayments will help repay your

loan even faster.

BankSA Corporate Partner Manager,

David Brownie, is the Law Society’s

dedicated partnership manager and has

assisted many Members make their money

work better for them. He is particularly

passionate about financial education, and

together with his team, regularly provides

member education sessions for first home

buyers, property investors, small business

banking and equipment finance.

Contact David Brownie on 0466 404 074

or david.brownie@banksa.com.au for

more information about BankSA and

Westpac’s current home loan options, and

to discuss what other measures may help

reduce your home loan more quickly and

save money in the long term. B


FEATURE

STAYS OF CIVIL PROCEEDINGS IN

THE CASE OF CIVIL DEFENDANTS

WITH CRIMINAL PROCEEDINGS

PENDING: GETTING THE BALANCE

OF JUDICIAL DISCRETION RIGHT

ALEXANDER LAZAREVICH, CHAIR, AND MARGARET CASTLES, MEMBER, CIVIL LITITGATION COMMITTEE

Ask a lawyer representing a defendant

in civil proceedings what they would

do if their client was charged with criminal

acts relating to the civil case, and they’d

immediately say, “seek a stay”. After all

that is the only way to protect the client

from revealing material in the civil case that

might compromise their criminal defence.

Ask the plaintiff ’s lawyer and they

might say “not so fast – what about the

interests of my client to have their civil

case heard expeditiously – it might be years

before the criminal proceedings are heard,

by which time any assets the defendant

has left will be spent on the criminal

proceedings or otherwise dissipated”.

Granting a stay of civil proceedings

to protect the criminally accused civil

defendant involves a careful balancing of

interests by the court, and it is not such a

straightforward option as it seems.

This article looks at recent

developments in the law for granting a stay

in these circumstances and asks whether

the courts are getting the balance right for

the parties affected.

The right to silence, and the associated

privilege against self-incrimination, are

key protections in the Anglo/Australian

legal system. No criminal accused can be

compelled to speak or proffer information

against their interests, and as a result

uncommunicative accused persons are a

typical feature of criminal proceedings.

In civil proceedings, it is a very different

story. Defendants in civil cases are

required to engage with and actively

respond to the allegations against them in

pleadings, via discovery of documents, and

affidavits. They may also be compelled to

disgorge documentation via search orders.

This contradiction arises because the

criminal system requires the Crown alone

to prove that the offence is proven beyond

reasonable doubt, whereas the civil system

seeks to determine the truth of the matter by

evaluation of all the evidence available. In

criminal proceedings there is a significant

power imbalance between state/defendant,

whereas there is a notionally level playing

field between parties to a civil dispute.

Increasingly, civil defendants charged

with fraud, theft from employers or other

organisations, or similar crimes will also

be investigated to determine whether

the acts might give rise to criminal or

regulatory prosecution (for example, by

ASIC, Safework SA or the Fair Work

Ombudsman), and charges might be

laid, or civil penalty proceedings might

eventually be brought.

Take the example of an employee

who has been siphoning funds from an

employer’s accounts over a period of time.

The employee has accumulated assets that

are still accessible. The employer has a

civil claim for breach of fiduciary duty and

conversion and can claim an interest in any

assets accumulated.

At the same time, the employee may be

investigated by police or other authorities,

and ultimately charged with criminal

offences arising from the theft. The

defendant is in a dilemma. If they decide

not to disclose any defence in the civil

proceedings for fear of foreshadowing a

criminal defence, they will be defending the

civil claim with one hand tied behind their

September 2022 THE BULLETIN 27


CIVIL LITIGATION

back and may lose as a result. On the other

hand, if they disclose all of the information

that they are required to through various

civil court processes (defence or other

court documents, discovery, interrogation,

or via the above protective orders) this may

lead investigators to evidence, witnesses

or arguments that will count against them

in criminal prosecution. The criminal

defendant will seek a stay of the civil

proceedings for fear that they can’t actively

defend the civil case without compromising

a future criminal defence.

A stay leaves the civil applicant with

nowhere to go in terms of prosecuting

their case in a timely manner. By the time

criminal proceedings conclude (assuming

even that they are commenced which is

not always the case), assets may have been

liquidated or removed (not least to pay for

legal fees) and the civil plaintiff will have

been denied access to the normal court

process to recover their loss. Freezing

orders might provide a measure of

protection for a plaintiff at the start of a

civil case, but they are often only as good

as the defendant’s respect for the Court

process, with issues of enforcement often

being problematic (and where the privilege

against self-incrimination might apply).

And the plaintiff cannot get access to any

assets until the criminal case is determined,

which may be years in the future by which

time the plaintiff may themselves have

become insolvent by reason of being out

of their money.

Courts in Australia are charged with

balancing the competing interests of

the parties in this event. An oft applied

test was articulated in McMahon v Gould

1

where the Supreme Court of Victoria

ruled that the court had inherent power

to stay civil proceedings if criminal

proceedings could be commenced against

a defendant in respect of substantially

the same conduct and continuing the

civil case would result in prejudice to the

defendant in the criminal matter. McMahon

v Gould involved the Plaintiff liquidator of

a company suing the directors including

Gould for fraud and conversion involving

company funds. Gould was then charged

with conspiracy and other matters related

to his directorship of the company.

The Court outlined a range of factors

to be considered, including the risk and

severity of prejudice to the accused, the

cost of dual proceedings, and the impact

on forthcoming criminal proceedings,

the possibility of miscarriage of justice

by disclosure of a defence enabling the

fabrication of evidence by prosecution

witnesses, or interference with defence

witnesses by prosecutors. The Court

concluded that the stay would not be

granted. This turned in part on the fact

that Gould had already disclosed his

defence to the civil claims, and that he had

himself instigated other civil proceedings

on the same topic.

The Court concluded that in all of

these circumstances in this case there was

nothing about the civil proceedings that

would further compromise his criminal

defence.

The Court set out a number of

principles to be considered. These have

been added to by numerous courts since

and are summarised below:

1. The Plaintiff is entitled to have its

action tried in the ordinary course of

the procedure and business of the

court, and there is no presumption that

a stay will be granted merely because

there are parallel criminal proceedings 2 .

A tactical advantage will not be

sufficient to warrant a stay 3 . There must

be a “real risk” of prejudice to the

accused. What must be considered is

the ‘requirements of justice overall.’ 4

MEMBERS ON

THE MOVE

The directors of Adelaide specialist

workplace law firm KJK Legal are

pleased to announce the promotion

of Suzana Jovanovic to the role of

senior associate at the firm from 1 July

2022. Following her joining of the firm

several years ago, Managing Director of

KJK Legal, Mark Keam, noted Suzana

continues to flourish as a lawyer both

within the firm, as well as external to the

firm. During the COVID-19 pandemic,

Suzana was recognised as a leader in

legal innovation by providing interstate

mentoring in the TFL Connect virtual

mentoring program.

Law Society of SA Young Lawyer of

the Year in 2022, David Kelly was called

to the Bar and joined Anthony Mason

Chambers in August this year. He accepts

briefs in a wide range of areas.

David previously practised for

7 years as a solicitor in Adelaide

working primary in civil, commercial,

and corporate litigation and alternative

dispute resolution. During that time,

he represented a broad range of

SUZANA JOVANOVIC

DAVID KELLY

clients in State and Federal Courts and

Tribunals.

Before practising as a solicitor, David

was an Associate to Peek J of the SASC. In

addition, since 2015, he has been a member

of the Civil Litigation Committee and

headnote writer (SASR, FCR, FLR, and IR).

He has also been a casual tutor at Flinders

University where he completed his studies as

Dux of Law, graduating with the University

Medal, double First Class Honours in Laws

and Legal Practice, and Psychology, and

winning seven subject prizes.

28 THE BULLETIN September 2022


CIVIL LITIGATION

2. The burden is upon the applicant for

the stay to show that the plaintiff ’s right

to an expeditious hearing should be

deferred because of potential injustice

to the defendant in criminal proceedings

3. As an alternative to granting a stay,

the court may give directions

designed to ensure that the

hearing of the civil proceedings

occurs after the determination of

the criminal proceedings 5 , or make

other orders to limit prejudicial impact

of civil steps, which might include

proceeding to a certain point, or

deferring some aspect of proceedings.

Whilst the McMahon factors are still

used as guidelines in stay decisions, the

case has at various times been criticised

and distinguished over the years, although

it has not yet been expressly overruled 6 .

However, authorities applying (or perhaps

misapplying) two recent cases in the High

Court have thrown serious doubt on the

ongoing applicability of the case.

Courts have questioned the implication

in McMahon v Gould that all of the factors

mentioned would be put into the balance

to determine the outcome is flawed, and

that one factor, in favour of the principle

that privilege of the defendant against

self incrimination must outweigh all the

others. This is based on the proposition

that the privilege against self-incrimination

is a cardinal principle, and should not just be

thrown into the balance along with a range

of other factors 7 .

The High Court case of Commissioner

of the AFP v Zhou and Jin 8 has influenced

this trend. Zhou was a criminal accused

charged with people trafficking. At

the same time as the criminal charges

proceeded, the AFP commenced civil

proceedings under Proceeds of Crime Act

2002 (Cth). In staying the civil penalty

proceedings, the court noted that if

the proceedings were not stayed, the

prosecution would be informed, in advance

of the respondent’s criminal trial, of his

defence because he could not realistically

defend the forfeiture proceedings without

telegraphing his likely defence. In a similar

case, involving concurrent criminal and

asset forfeiture proceedings by the Crown 9 ,

the NSW Court of Appeal noted that the

in prosecuting both cases at the same time

the Crown would be advantaged in a way

that would fundamentally alters its position

vis-à-vis the accused and therefore render

the trial of the criminal proceedings unfair,

a decision that was affirmed by the High

Court.

Whilst the High Court in Lee expressly

declined to comment on the applicability

of McMahon v Gould on other cases, this line

of reasoning has influenced subsequent

cases, having the effect of elevating the

protection against the privilege of selfincrimination

to a determining factor in the

balancing, process, rather than considering

it as one (albeit very important) factor to

be considered.

Without in any way questioning the

importance of protecting the interests

of accused persons, our contention is

that using Zhou and Lee to significantly

elevate the bar for plaintiffs to avoid a

long stay of proceedings, fails to recognise

the unique context of the cases, in that

the prosecuting authority was the same in

both the civil recovery and the criminal

cases. In both cases the court determined

that flagging or foreshadowing possible

defence to the criminal proceedings in the

civil process which was prosecuted by the same

authority as the criminal case was basis enough

to warrant a stay.

Clearly this is a different situation to

that of a citizen plaintiff (whether an

individual or corporation) taking action in

a civil case, with no involvement (perhaps

other than as an informant or witness)

in potential criminal proceedings. In

McLachlan v Browne the Court considered

that the weight given to the to the privilege

against self-incrimination must be paramount

in any balancing of the McMahon factors,

emphasising the primary importance of

the liberty of accused persons. The Judge

also stated that the applicant could not be

asked to justify the nature and extent of

the prejudice because this would infringe

on the very right sought to be protected by

the application for stay (25).

In Adelaide Brighton Cement Ltd

v Burgess 10 the Plaintiff took action (cause

of action) in relation to $12 m defrauded

by the Defendant employee. The employee

had not yet been charged for the theft. The

privilege against self incrimination applies

though not just when criminal charges

are laid, but where it there is a reasonable

possibility that charges might be laid.

In considering an application for stay

of the civil proceedings by the Defendant,

Judge Dart considered that the law had

evolved since McMahon v Gould, and

emphasised the fundamental importance

of the privilege against self-incrimination:

“In my opinion, it is not appropriate to read

the more recent authorities in a narrow way.

What the High Court has made clear is that

the privilege against self-incrimination is a

“cardinal principle” laying at the heart of the

administration of criminal law. To accede to

the plaintiff’s submission would be to relegate

that “cardinal principle” to simply one of a

basket of issues to be considered in the balance

when determining whether or not to stay a

matter.” In considering the prejudice to the

plaintiff His Honour described the delay in

finalisation of the civil matter as relevant, but

“not a significant prejudice”.

An illustration of the readiness to

grant a stay perhaps going too far was

a matter where winding up proceedings

against a company were stayed on the basis

of an assertion by directors that they could

provide evidence that the company was

solvent, but in doing so might incriminate

themselves of an offence, leading to the

Court staying the winding up application. 11

This situation can be contrasted with

that in the United Kingdom. Whilst the

foundational principles that require a

balancing of interests with due attention to

the significant risk to the accused are the

same, the weight given to the factors differs.

In FM Conway v Sugget 12 , the Court

determined that being required to disclose

a civil defence that may foreshadow the

criminal defence was not a basis for a stay,

and that in seeking a stay the criminal

defendant would have to explain in the

civil process how they may be prejudiced.

The decision whether to file a defence and

engage in further documentary exchange

etc in the civil case was a strategic decision

for the Defendant. If the Defendant

chose not to file a defence, adverse

inferences could be drawn by the Court,

and by inference any negative effect on the

defendant’s civil case was a consequence

of that choice.

In Barrowfen Properties v Patel and Ors 13

the Court affirmed that the availability of

the right to silence in criminal proceedings,

September 2022 THE BULLETIN 29


CIVIL LITIGATION

and the right not to give notice of the

criminal defence, carried little weight in

civil proceedings, where the defendant is

expected to serve a defence, although the

privilege could subsequently be invoked

where the defendant is being interrogated,

compelled to produce documents, or cross

examined 14 (similar protection is provided

by the UCR in SA).

And in Dacorum Sports Trust Limited

v Connolly 15 the Judge confirmed that

the Defendant has a choice whether or

not to remain silent in civil proceedings,

but “harshness of such a choice did

not provide a good ground for staying

civil proceedings”, and even if there is

a real risk of serous prejudice leading to

injustice if the civil proceedings continued,

the proceedings should not be stayed if

safeguards can be put in place.

Thus the UK courts take a different

approach – firstly, that prejudice to the

criminal defendant arising from a decision

not to plead any or a full civil defence is a

strategic decision and no basis for a stay;

secondly that revealing possible bases for

future criminal defence in a civil defence

is of little importance and thirdly, that if a

defendant argues that they will be seriously

prejudiced if the civil case proceeds, they

must explain how and why.

Our concern is that applying the

principles devised in cases involving

defendants being attacked by the same

prosecuting authority in both civil and

criminal proceedings to more typical

cases where the civil plaintiff and the

prosecuting authority are not in any way

connected has skewed the balance in these

decisions in a way that presumptively

demands a stay. In our view there is a clear

distinction between punitive recovery

action imitated by the same authority that is

pressing criminal charges, but in the normal

case where the civil plaintiff is not in any

way connected to or involved in such

action. That is not to infer that it should

be difficult for a defendant to obtain a stay,

rather, that the unique circumstances of

the prosecuting authority being the same

in both criminal and civil cases with exactly

overlapping facts should be seen as a “high

point” of the discretion to grant a stay.

Our proposition is that the legal

culture of determining when stays should

be granted in Australia has drifted to

implicit assumptions that stays should be

readily (and at times even automatically)

granted when there is serious risk of

criminal investigation or charge. We

contend that the more rigorous approach

taken in the UK, including the use of

varied means of protecting the criminal

accused whilst not absolving them of the

responsibility of pleading the civil case,

creates a more equitable balance in this

increasingly important area of civil law. B

Endnotes

1 1982 ACLR 202

2 Elliot v Australian Prudential Regulation Authority

[2004] FCA 586 at [15]

3 (1993) 12 ACSR 69 at 77

4 Hurley v FCT (1992) 37 FCR 11 at [13]; see also

Australian Securities Commission v Kavanagh

(1993) 12 ACSR 69

5 Silbermann v CGU Insurance Ltd (2003)

48 ACSR 231

6 Lee v DPP 2009 75 NSWLR 581

7 Adelaide Brighton Cement Ltd v Burgess [2018]

SASC 134

8 [2015] HCA 5

9 2009 NSWCA 347

10 [2018] SASC 134

11 In the matter of Plutus Payroll Australia Pty Limited

[2017] NSWSC 1854

12 [2018] EWCH 3173 (QB)

13 [2020] EWHC 2536

14 Citing V v C [2002] C.P Rep. 8, Waller LJ at

paras 37 and 38.

15 Employment Tribunal 3301877/2020;

3302639/2020 (V)

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30 THE BULLETIN September 2022


WELLBEING & RESILIENCE

Ageing Well in the Law – A professional

wellbeing perspective

COLIN BROWN, DIRECTOR, LEGAL & LEGISLATIVE POLICY, SA HEALTH

ith age comes wisdom, but

“Wsometimes age comes alone!”

Oscar Wilde could have been reflecting

on the importance of wellbeing and

appropriate stress-management as we

age through life. Professionally, as we

gain experience through the years, we

tend to engage with increasingly more

stressful roles, matters, and responsibilities.

Exploring and developing self-awareness

and self-care is a piece of wisdom to

keep us balanced as we age and grow

professionally.

Demographically, the South Australian

solicitor workforce tends to be slightly

older than other jurisdictions, 1 consistent

with South Australia’s higher proportion

of older people generally. 2 Nonetheless,

with a mean age of just 43 in 2020, it still

seems we have youthful solicitors! Perhaps

more important than our workforce’s

increasing statistical mean-age is the

way in which it handles the increasing

responsibility and pressure of legal-related

work; at both individual and group levels.

Biologically and otherwise, ageing is

complex. And perhaps unsurprisingly,

psychological stress has been identified

as a possible risk factor for accelerating

ageing. 3 Our political leaders certainly

appear to age exponentially after taking the

stress of top-office! (think of the beforeand-after

photos of Tony Blair and Barack

Obama). We probably all have relatable

examples within our own professional

experience where our colleagues, or indeed

ourselves, have felt the exhaustion (if not

apparent ‘ageing’) from sustained stressful

workloads and responsibilities. While the

pandemic also created additional stress

for the Australian legal profession, 4 it

highlighted the importance of strong local

leadership for establishing and maintaining

workplace cultures that support

managing chronic stress of increased

work responsibilities in unpredictable

environments.

Across the nation, South Australia

has one of the largest proportions

of solicitors in sole-principal private

practice. 5 Helping sole-principal colleagues

support themselves as well as their staff is

therefore of importance - particularly in

circumstances where the funding apparatus

found in larger private or government legal

practices may not exist. The Law Society’s

various wellbeing offerings, such as the

Small Practice Committee’s Coffee-Break for

Sole & Small Practitioners, are a helpful way

of staying connected to other practitioners

and debriefing about stressors in legal

practice and approaches to managing those.

South Australia, compared to other

jurisdictions, has a large proportion of

newly-admitted solicitors (a year or less).

Importantly, South Australian universities

continue to supply quality legal education

and law graduates to the profession.

Graduates find work in private practice,

government, and other areas adding

excellent value to business and society.

These workplaces must strive to provide

suitable scaffolds for new lawyers as they

begin on their journey of ageing well in

the profession. Nurturing and growing

their self-care skills is critical for practising

law for career sustainability and longevity.

The Law Society offers through its

membership additional profession-long

support, assisting all lawyers to gain and

retain the wisdom of self-care. Various

networks and opportunities are available,

including helpful wellbeing resources and

tools, Young Lawyers’ Support Group,

as well as Dr Jill’s confidential support

service as part of LawCare.

Ageing well in the Law is everyone’s

responsibility; to ourselves and each other.

Please keep an eye out for future events

from the Society’s Wellbeing and Resilience

Committee.

Endnotes

1 2020 National Profile of Solicitors, p.13.

2 Office for Ageing Well, SA Government.

3 Okereke O, Anxiety Linked to Shortened

Telomeres, Accelerated Aging, PLoS ONE, 2012

4 K Allman, Pandemic mental health toll on lawyers

revealed, Law Society of NSW Journal, 2021.

5 2020 National Profile of Solicitors, p.30.

September 2022 THE BULLETIN 31


FAMILY LAW CASE NOTES

Family Law Case Notes

CRAIG NICHOL & KELEIGH ROBINSON, THE FAMILY LAW BOOK

CHILDREN – ASSESSMENT OF

UNACCEPTABLE RISK IS A PREDICTIVE

EXERCISE THAT INCLUDES MERE

POSSIBILITIES

In Isles & Nelissen [2022] FedCFamC1A

97 (1 July, 2022), the Full Court

(Alstergren CJ, McClelland DCJ,

Aldridge, Austin & Tree JJ) dismissed

a father’s appeal from orders made by

McGuire J that four children live with the

mother and spend supervised time with

the father.

The father had been charged with rape

of the eldest child in criminal proceedings

that had been discontinued for “lack of

specificity” in the evidence ([63]).

McGuire J found he could not make a

specific finding of sexual abuse; but found

the father presented an unacceptable risk

of harm.

The Full Court noted cases had gone

so far as to posit that (from [6]):

“[T]he risk of … abuse … must be

proven on the balance of probabilities

according to the civil standard of proof

…We consider that statement of principle

to be incorrect …

[7] … [I]t is an oxymoron to expect …

possibilities to … be forensically proven

on the balance of probabilities … By

definition, possibilities are not, and could

never be, probabilities. ( … )

[56] … [T]he principles enunciated

in M v M (1988) 166 CLR 69 about

‘unacceptable risk’ were woven into

the fabric of family law in instances of

alleged actual and prospective child sexual

abuse. The Full Court later extended such

32 THE BULLETIN September 2022

principles to cases involving allegations

of children being at risk of physical or

emotional harm for other reasons (A v A

[1998] FamCA 25 … ) ( … )

[59] … The provisions of the Act

are [now] wide enough to embrace most,

if not all, assertions of an ‘unacceptable

risk’ of harm … and so it is preferable

for litigants to conduct their parenting

disputes by reference to the express

provisions of the Act. ( … )

[85] The assessment of risk is an

evidence-based conclusion and is not

discretionary. … The finding about

whether an unacceptable risk exists, based

on known facts and circumstances, is

either open on the evidence or it is not.

It is only the overall judgment … which

entails an exercise of discretion. …”

PROPERTY – TRUST PROPERTY EXCLUDED

FROM ASSET POOL – DESPITE HER

ROLE AS APPOINTOR, WIFE NEVER HAD

CONTROL OF THE TRUST

In Barrett & Winnie [2022]

FedCFamC1A 99 (1 July, 2022), the

Full Court (McClelland DCJ, Baumann

& Hartnett JJ) dismissed with costs

a husband’s appeal against a decision

of Kent J declining to make property

adjustment orders in the context of a 14

year marriage.

Subsequent to their separation,

there was an informal settlement

whereby the husband demanded and

received the wife’s interest in a jointly

owned property ([91]); where the wife

was also removed as appointor of a

trust called “the Winnie Family Trust” in

February 2008 ([100]).

The husband unsuccessfully sought to

set the wife’s removal aside pursuant to s

106B. Kent J excluded the trust’s property

from the matrimonial asset pool, otherwise

finding that the husband already retained

property 95.61% of the existing net asset

pool.

The Full Court said (from [99]):

“The … judge accepted the evidence

of … [the] respondents as to the

adverse impacts of the … global financial

crisis … The … judge accepted the

evidence that … the … respondents …

took effective action including by way of

selling properties at a loss. … [T]he …

judge found that a substantial part of the

asset base that currently exists in the trusts

… accrued in the period subsequent to

the global financial crisis and … post the

separation of the parties to the marriage.

( … )

[137] … [T]he … judge found, as a

matter of fact, that the Winnie Family

Trust had never operated as or been

treated as the alter ego of the [wife] ( … )

[145] … [T]he … judge …

appropriately had regard to the interests

of other third parties and the significant

contributions that they made to the trust

property in determining whether it was

appropriate to exercise his discretion to set

aside the Deed. ( … )

[155] … [T]he judge, appropriately

… excluded the trust property from the

property pool but had regard to the trust

assets as being a significant financial

resource available to the [wife] …”


FAMILY LAW CASE NOTES

PROPERTY – INJUNCTION – FREEZING

ORDERS ARE TO PRESERVE THE STATUS

QUO, NOT CHANGE IT IN FAVOUR OF THE

PARTY WHO SEEKS THE ORDER

In Qian & Xue [2022] FedCFamC1A 93

(21 June, 2022), Aldridge J set aside a “suite

of interim freezing orders”, including an

order that the wife pay $850,000 to the

husband’s solicitors trust account.

Contested property proceedings

had been on foot since 2019; where

the husband brought an application for

injunctions in anticipation of the wife

receiving monies on 24 August, 2021; the

wife received the $850,000 on 30 August

2021, but transferred $735,000 to her

brother, sister and father in China, prior to

the listing of the application in November.

The wife said the transfers were

to repay loans; the husband seeking

injunctions on the basis that “the

disposition of the funds would put them

beyond the jurisdiction of the court and

diminish the property pool” ([15]).

Aldridge J said (from [22]):

“A freezing order ‘operates to preserve

the status quo and not to change it in

favour of the party who seeks the order’

per Gageler, Keane, Gordon and Gleeson

JJ in Deputy Commissioner of Taxation v

Huang [2021] HCA 43; (2021) …

[23] The order made … for the

payment of $850,000 exposed the wife to

the risk of punishment for contempt in

the event it was not complied with …

[24] … [T]he purpose of a freezing

order is … not to improve the security

position of the applicant or to render the

respondent liable for imprisonment for

debt. The order should only have been

considered if it was clear that it could be

complied with ( … )

[26] … [W]hilst there may have been

a basis to prevent the funds from being

transferred, absent an order from the Court

preventing her from doing so, the wife was

free to deal with her funds … ( … )

[29] The fact that an injunction

could have been obtained preventing …

[a] person from transferring funds, but

was not, does not automatically lead the

proposition that, having permissibly done

so, they must now reacquire the funds …”

PROPERTY – WIFE RECEIVES 100 PER

CENT OF NET ASSET POOL WHERE NET

EQUITY IN HOME WAS $38,000 – NO

ORDER MADE AS TO JOINT DEBT

In Chan & Lee [2022] FedCFamC1A

85 (3 June, 2022), the Full Court (Tree,

Gill) allowed an appeal from a decision

of Rees J, where the wife appealed orders

where she was to receive 100% of the net

asset pool, where the effect of the further

order that she indemnify the husband as

to debts was that she would retain a net

deficit overall. Wilson J dissented.

The net pool was primarily comprised

by a $570,000 property (at Suburb

C); subject to a mortgage; there being

conflicting evidence of loans owed to the

wife’s parents.

Tree & Gill JJ said (from [96]):

“Although the wife sought … that

an obligation should be placed upon the

husband to pay the mortgage for that

property, this is not a sustainable position.

If the husband were to be required to

hold the obligation for … the … debts

in relation to that property he would

effectively be required to bring property

into existence that does not at present

form a part of the parties’ pool of

property. ( … )

[98] The debt related to the property

is constituted by $440,000 secured by

mortgage and $92,000 unsecured but

owed to the wife’s parents, totalling

$532,000 in relation to a property valued

at $570,000, leaving a net equity of

$38,000. Where the wife is to retain the …

Suburb C property, she should indemnify

the husband in respect of all debt

associated with the property …

[99] The balance of the debts total a

$26,826 student loan taken out by the wife

and $30,500 borrowed from her parents

for various living expenses and supports

for the parties. ( … )

[101] … [I]nsofar as the orders required

the wife to indemnify the husband in

respect of the non … Suburb C property

related debt to the parents, this should not

be the case … [N]o provision should be

made for indemnification in respect of this

debt. This leaves the husband also indebted,

and both parties in a net debt position. …

[102] Whilst this may seem a minor

benefit to the wife, given her parlous

financial circumstances, it is potentially

significant, and not mere tinkering.

Moreover, it properly reflects the reality of

the position arrived at (correctly) by the

primary judge that the orders should reflect

a 100 per cent adjustment to the wife … ” B

September 2022 THE BULLETIN 33


GAZING IN THE GAZETTE

3 JUL 2022 – 2 AUG 2022

A MONTHLY REVIEW OF ACTS, APPOINTMENTS,

REGULATIONS AND RULES COMPILED BY MASTER ELIZABETH

OLSSON OF THE DISTRICT COURT OF SOUTH AUSTRALIA

ACTS PROCLAIMED

Statutes Amendment (Local Government Review)

Act 2021 (No 26 of 2021)

Commencement ss 150(5) and (8); 150(9)

but only insofar as it inserts subsection (8)

into s 6 of Local Government (Elections) Act

1999; 151; 160; 174: 7 July 2022

Gazetted: 7 July 2022, Gazette

No. 46 of 2022

Civil Liability (Institutional Child Abuse

Liability) Amendment Act 2021 (No 52

of 2021)

Commencement: 1 August 2022

Gazetted: 28 July 2022, Gazette

No. 52 of 2022

Return to Work (Scheme Sustainability)

Amendment Act 2022 (No 4 of 2022)

Commencement except ss 3; 4; 5; 8; 9;

10; 11(1), (2) and (5); 12; 14; 15; 16; 18;

19; Schedule 1, clause 1(1), definitions

of Category 1 seriously injured worker,

Category 2 seriously injured worker,

designated worker, interim seriously

injured worker and relevant day; Schedule

1 clauses 2-5: 1 August 2022

Gazetted:

ACTS ASSENTED TO

28 July 2022, Gazette

No. 52 of 2022

Return to Work (Scheme Sustainability)

Amendment Act 2022, No. 4 of 2022

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

South Australian Motor Sport (Miscellaneous)

Amendment Act 2022, No. 5 of 2022

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

Civil Liability (BYO Containers) Amendment

Act 2022, No. 6 of 2022

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

Animal Welfare (Jumps Racing) Amendment

Act 2022, No. 7 of 2022

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

Cross Border Commissioner Act 2022, No. 8

of 2022

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

Statutes Amendment (Child Sex Offences) Act

2022, No. 9 of 2022

(amends Child Sex Offenders Registration Act

2006, Criminal Law Consolidation Act 1935

and Sentencing Act 2017)

Gazetted: 14 July 2022, Gazette

No. 49 of 2022

APPOINTMENTS

Legal Profession Conduct

Commissioner

(commencing on 1 August 2022 and expiring on

31 July 2025)

Anthony John Keane

Gazetted: 21 July 2022, Gazette

No. 51 of 2022

Coroner

for a term commencing on 11 August 2022 and

expiring on 10 August 2023

Naomi Mary Kereru

Gazetted:

RULES

Nil

28 July 2022, Gazette

No. 52 of 2022

REGULATIONS PROMULGATED (3 JULY 2022 – 2 AUGUST 2022)

REGULATION NAME REG NO. DATE GAZETTED

Primary Produce (Food Safety Schemes) (Plant Products) Regulations 2022 52 of 2022 7 July 2022, Gazette No. 46 of 2022

Plant Health Regulations 2022 53 of 2022 7 July 2022, Gazette No. 46 of 2022

Local Government (Elections) (Miscellaneous) Amendment Regulations 2022 54 of 2022 7 July 2022, Gazette No. 46 of 2022

Local Government (General) (Electoral Advertising Posters) Amendment Regulations 2022 55 of 2022 7 July 2022, Gazette No. 46 of 2022

History Trust of South Australia Regulations 2022 56 of 2022 21 July 2022, Gazette No. 51 of 2022

Evidence Regulations 2022 57 of 2022 28 July 2022, Gazette No. 52 of 2022

Criminal Law (Clamping, Impounding and Forfeiture of Vehicles) Regulations 2022 58 of 2022 28 July 2022, Gazette No. 52 of 2022

34

THE BULLETIN September 2022


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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

7 days a week

LawCare is a member service

made possible by the generous

support of Arthur J. Gallagher

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.

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

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blackwoodfamilylawyers.com.au

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September 2022 THE BULLETIN 35


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