LSB October 2018_Web

THE
BULLETINOctober 2018
Volume 40 - Issue 9
6
False advertising
No returns policy
7
Coercive contracts
Defective products
CONSUMER LAW

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This issue of The Law Society of South Australia: Bulletin is
cited as (2018) 40 (9) LSB(SA). ISSN 1038-6777
CONTENTS
CONSUMER LAW
FEATURES
REGULAR COLUMNS
12 Penalties increased under Australian
Consumer Law – By Rachel Waye
14 The increasing cost of bad behaviour:
misleading or deceptive conduct
under the ACL – By Julia Bidstrup
17 Unfair contract terms & small business
contracts: Lessons from initial
enforcement actions – By Josh Simons
20 The case for class actions (DePuy
ASR class action)
By Floyd Bakewell & Fiona Campbell
22 When the company line is unlawful: an
overview of systemic unconscionable
conduct – By Thyme Burdon
24 Global reach of the Australian
Consumer Law: full steam ahead
By Johanna Croser
6 State Budget overview
9 Event wrap-up: Margaret Nyland
Long Lunch – By Marisa Mackie
10 Event wrap-up: Legal profession
Dinner – By Michael Esposito
26 Council Q&A: SA’s three law deans
Q&A with Prof Melissa de Zwart,
Prof Tania Leiman, & Prof Wendy
Lacey
30 Oral histories profile: John Doyle
AC QC – By Lindy McNamara
36 The implications of Burns v Corbett
in tribunal proceedings against
interstate residents – By Eliza Bergin
37 Retirements & appointments: Dr
Andrew Cannon, Judge Steven
Millsteed & Judge Patrick O’Sullivan
4 President’s Message
5 From the Editor
7 Dialogue
32 Get in on the Act: Entitlement to
practice law
34 Risk Watch
38 Tax Files
40 Wellbeing & Resilience
41 Bookshelf
43 Gazing in the Gazette
44 Family Law Case Notes
Executive Members
President:
Tim Mellor
President-Elect: A Nikolovski
Vice President (M): T White
Vice President (F): R Sandford
Treasurer:
A Michaels
Immediate Past President: A Rossi
Council Members: M Frayne QC
S Hooper
Metropolitan Council Members
T Dibden
S Gibbons
M Janus
A Lazarevich
L Polson
T Vozzo
M Frayne SC V Gilliland
F Bell
M Mackie
M Boyle
M Smith
E Shaw
R Shaw
Country Members
S Minney
(Northern and Western Region)
P Ryan
(Central Region)
J Kyrimis
(Southern Region)
Junior Members
R Piccolo S Hooper
Ex Officio Members
The Hon V Chapman, Prof W Lacey,
Prof M de Zwart, Ass Prof T Leiman
KEY LAW SOCIETY CONTACTS
Chief Executive
Stephen Hodder
stephen.hodder@lawsocietysa.asn.au
Executive Officer
Rosemary Pridmore
rosemary.pridmore@lawsocietysa.asn.au
Chief Operations Officer
Dale Weetman
dale.weetman@lawsocietysa.asn.au
Member Services Manager
Michelle King
michelle.king@lawsocietysa.asn.au
Director (Ethics and Practice)
Rosalind Burke
rosalind.burke@lawsocietysa.asn.au
Director (Law Claims)
Geoff Thomas
gthomas@lawguard.com.au
Manager (LAF)
Annie MacRae
annie.macrae@lawsocietysa.asn.au
Programme Manager (CPD)
Natalie Mackay
Programme Manager (GDLP)
Desiree Holland
THE BULLETIN
Editor
Michael Esposito
bulletin@lawsocietysa.asn.au
Editorial Committee
D Barnfield E Olsson
S Kljun R Earles
P Wilkinson S Errington
E Belperio A Siow
B Grant A Bradshaw
E Moran J Napier
T Shueard
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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Studio Manager: Madelaine Raschella
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Camden Park SA 5038.
Ph: (08) 8376 1188

PRESIDENT’S MESSAGE
Legislative extensions needed to
protect lawyers against those who
illegally undercut the profession
TIM MELLOR, PRESIDENT
visit to the hairdresser these days is an
A increasingly depressing prospect. In
the course of the 20 years during which I
have been visiting my barber, the challenge
more and more is in finding enough hair to
justify the price of the service. Hairdressing,
like many other occupations, is regulated
by an act of parliament which compels
practitioners to demonstrate adequate
qualifications, training or experience and,
thereby, obtain an approval from the
Commissioner for Consumer Affairs for
undertaking hairdressing work. The Act
goes on to provide an offence for any
unqualified person who carries on the
practice of hairdressing for fee or reward.
As legal practitioners, we are also the
recipients of legislative protection in the
form of section 21 of the Legal Practitioners
Act 1981. Most of you will be aware of
the provisions of that section, which
prohibits a person who is not a legal
practitioner from practising the profession
of the law under the threat of a hefty fine
(a maximum of $50,000). The areas of
reserved practice are set out in the section.
However, when one reads through those
categories of work, one immediately thinks
of clear examples of work of this type
being undertaken by non-lawyers. This
may be by other professions or as a service
offered in association with other work.
In the course of my consultation with
members of the profession during this year
one of the most common concerns relates
to legal work being undertaken by nonlawyers
in breach of Section 21.
This is, of course, not simply a matter of
protecting the interests of the profession.
The primary purpose of the legislative
4
THE BULLETIN October 2018
provision (as with the Hairdressers Act!)
is to provide a level of protection for
consumers and the public generally. The
obvious concern is that where nonpractitioners
provide legal services there
is no protective fiduciary relationship, nor
the existence of legal professional privilege.
There is also no protection from the
indemnity insurance scheme in the event
of acts of negligence.
The Law Society is constantly drawing to
the attention of the Crown, through the
Attorney-General of the day, to various
instances of breaches of the section. These
fall into two main categories, being work
undertaken by non-practitioners and also
work undertaken by former practitioners
who, for one reason or another, have been
precluded from practice.
It is highly desirable that these
prosecutions be undertaken by the
Crown rather than by the Law Society
in its own capacity. The prospect of the
Society pursuing such prosecutions would
inevitably (no matter how inaccurately)
be characterised as the pursuit of selfinterest
in crushing trade competitors. It
is not always easy to explain the greater
considerations of consumer protection in
that circumstance.
Over the last seven years, the Society has
referred some 21 suspected breaches of
the Act to the Attorney-General. In that
period, there has only been one prosecution
launched and successfully concluded, this
being against a struck-off practitioner (see
Jordan v Persse [2017] SASC 133).
The main areas of law affected appear
to be family law, wills and migration.
These areas of law, perhaps more than
“There is also no protection from the indemnity
insurance scheme in the event of acts of
negligence.”
others, enliven the concern for consumer
protection, in that the parties involved are
often vulnerable and unsophisticated.
In investigating the lack of success
in pursuing these breaches, the Society
has had discussions with some of
the government lawyers involved in
considering these matters. They point to
a number of issues inherent in both the
nature of the offences and the legislative
scheme, all of which make the process
of prosecuting and obtaining convictions
difficult.
The main barriers to successful
prosecution include (obviously) the
criminal burden of proof, the fact that
“clients” are often reluctant to give
evidence, and the fact that information
collected by the Society and passed on, may
not always be admissible as evidence of a
breach but only provides the evidence of
a suspected breach. The task of pursuing
a prosecution still involves the normal
process of gathering of evidence, including
obtaining fresh statements from witnesses
who are often reluctant to engage in that
process.
Another difficulty which exists in relation
to section 21 is that it applies only to
natural persons. This makes it difficult to
pursue a wrongful act where the evidence
of is provided in a website or other form
of promotion involving a company. A
legislative amendment to address this
situation might well be of some assistance.
This will be pursued further.
People with legal problems ought to be
serviced by people with appropriate legal
expertise. It is one of the most important
forms of consumer protection. It is why
the Society will be pushing for stronger
safeguards against legal “imposters” and
greater vigilance in enforcement. In the
meantime, the difficulty in the operation
of this intended legislative protection is
enough to make you pull you hair out! B

FROM THE EDITOR
‘Efficiency’ dividends a misnomer
MICHAEL ESPOSITO, EDITOR
Each year, representatives of the Society
attend the State Budget lock-up,
an event which gives key stakeholders a
chance to pore over the budget papers
before the treasurer makes their traditional
budget speech in Parliament.
At the end of the lock-up, most people
rush out to retrieve the electronic devices
that they reluctantly surrendered prior to
being voluntarily detained in the Playford
Adelaide’s Ballroom, while other attendees
line up in the foyer to give their two
cents on the budget in front of television
cameras and radio mics.
While the Society has avoided the
immediate soundbite reaction, we have
in recent years closely analysed the
budget and provided Members with a
summary of key measures that impact
the legal profession, as well as making a
statement to media on the pros and cons
of the budget from a legal perspective.
An overview of the budget is also in this
month’s Bulletin.
It can feel like a bit of a Groundhog Day
situation with the underwhelming reaction
to the budget sadly becoming somewhat
predictable. It can be tempting to punch
out a pre-prepared statement expressing
disappointment with the budget’s
allocation of monies to the justice system,
but we resist such an urge and perennially
hold out hope for an extra injection of
funding to important institutions of
justice.
Given the Liberal Government’s promise
to make widespread cuts to the public
sector, it was not a complete shock to see
“efficiencies” made to agencies such as
the Courts Administration Authority and
Legal Services Commission, however the
measures were still deeply disappointing
considering that these were two vital
agencies that were the opposite of bloated.
They were already under-resourced, and
the reduction in funding will have a serious
impact on access to justice.
“It can be tempting to punch out a pre-prepared
statement expressing disappointment with the
budget’s allocation of monies to the justice system,
but we resist such an urge and perennially hold out
hope for an extra injection of funding to important
institutions of justice.”
Several other smaller agencies,
such as the SA Native Title Service,
Communication Partner Service and
Sentencing Advisory Council, lost its
State funding, and there is real concern
about how these cuts will affect vulnerable
people.
It’s not all bad news. There’s more money
for solicitors to run prosecutions, which
we hope will improve the throughput of
criminal matters in the courts. There were
positive measures in the area of child
protection and justice, including money
to enable the Government to participate
in the National Redress Scheme,
extra funding for foster care, and the
establishment of an Aboriginal Children’s
Commissioner.
But it is disheartening to see our courts
be once again targeted for cuts when they
are already struggling under the strain
of backlogs and suburban and regional
court services have been discontinued or
diminished.
Despite the resourcing issues, we do
acknowledge planned upgrades to the
courts that will include three new criminal
jury courtrooms in the Sir Samuel Way
Building, the conversion of six civil
courtrooms into criminal courtrooms
in the Sir Samuel Way Building, and the
refurbishment of six civil court rooms
in the Supreme Court Building. We look
forward to the extra physical space,
combined with the introduction of a
new electronic filing system to improve
efficiency productivity in the courts.
The new Electronic Case management
System (ECMS) will be a learning
curve for practitioners, and the
Society in conjunction with the Courts
Administration Authority has been
working hard to ensure that the profession
is up to speed with the changes, with
information sessions and articles in this
publication explaining how the system and
transition process will work.
A number of practitioners have raised
concerns about delays in the approval
of grants of probate, and the Society
has relayed these concerns to the Courts
Administration Authority and has been
pushing for extra resourcing of the
registry to deal with backlogs.
The Society will host more information
sessions to address questions about
the lodgement of probate documents
that have been raised by Members.
On 17-18 October, Registrar Steve
Roder will demonstrate the process of
lodging probate documents under the
new electronic lodgement system. On 8
November, the Society will host a session
tailored to sole practitioners, practice
managers and administrative staff, which
will explain how firms, organisations and
individuals create accounts with CourtSA,
who in a firm or organisation can see and
access CourtSA documents, and who can
have an account and lodge documents,
notifications, payment and receipts.
Hop on the Law Society website to
register or find out more about these
sessions. B
October 2018 THE BULLETIN
5

STATE BUDGET
State Budget: A law & order overview
The following is a summary of law and
order related measures in the 2018-19
State Budget, which was handed down on 4
September.
COURTS FUNDING
The Courts Administration Authority will
face a reduction in Government funding of
$1.42 million in 2019-20, $1.44 million in
2020-21, and $4.9 million per annum from
2021-22.
The efficiency measures will result in the
reduction of 81 full time equivalent positions
by 2021-22.
According the Budget Measures Statement,
the reduction in operating expenditure will
be achieved through efficiencies gained by
the introduction of the Electronic Courts
Management System (ECMS).
Judicial registrars
Two Magistrate vacancies will be replaced
by two judicial registrars, resulting in a
saving of $849,000 over three years, with
ongoing savings of $466,000 from 2021-
22. The judicial registrars will preside over
less complex matters and interlocutory
proceedings in the Magistrates Court.
ACCESS TO JUSTICE
Legal Services Commission
State Government funding for the Legal
Services Commission will be reduced by
$1.2 million (indexed) per year, amounting to
$6 million over years. This is on top of the
$6 million in cuts imposed by the previous
Government (plus $4 million in Federal cuts).
Community Legal Centres
The State Government has allocated
$150,000 per annum to reinstate a
community legal centre in the Riverland.
A restructure of community legal services
instituted by the previous Government
forced the Riverland Community Centre
in Berri to close last year. Since then the
Southern Justice Centre has been providing
outreach services to the Riverland region.
SA Native Title Service
The South Australian Native Title Service
will lose all of its State Government funding,
which will result in a budget saving of
$550,000 per annum. The SA Native Title
Service helps Aboriginal people in South
Australia to have their native title rights and
interests recognised and protected. The
service receives Federal Government funding
and will continue to perform its statutory
functions.
Communication Partner Service
The Communication Partner Service,
run by Uniting Communities, will be cut
from 2020-21, saving $319,000 per annum.
The service provided communication
partners to support people with complex
communication needs, such as the
cognitively impaired, to provide accurate and
coherent accounts of their experiences in
police interviews and court proceedings. A
program that provides specialist training in
the interviewing of vulnerable witnesses will
also be discontinued.
Sentencing Advisory Council
The Sentencing Advisory Council will be
defunded, saving the budget $100,000 per
annum. The Council provides information
and recommendations to the Attorney
General on sentencing matters.
PROSECUTIONS
Investment of $9.3 million over four years
will fund solicitors to undertake prosecutions
of summary and minor indictable offences,
as well as major indictable matters until the
DPP makes a charge determination in the
Magistrates Court.
CORRECTIONAL SERVICES
Adelaide Remand Centre
The Government will seek to privatise the
Adelaide Remand Centre. This is expected to
save $10 million per annum from 2021-22.
Reducing recidivism
The budget states that the Government will
continue to deliver against the Action Plan
to Reduce Reoffending 10 per cent by 2020
and continue to increase vocational training
and employment opportunities for prisoners
through Work Ready, Release Ready. There
is also a commitment to developing an
Aboriginal Strategic Framework and to
continue to include programs for domestic
violence perpetrators.
Prison beds
The budget includes a significant financial
commitment to upgrade the Yatala Labour
Prison, including 270 additional high security
beds. There has also been a commitment
to the construction of 40 new beds at the
Adelaide Women’s Prison.
CHILD PROTECTION
Foster & kinship care
The budget provides an extension of
payments to foster and kinship carers of
young people in their care until 21 years of
age. The Department of Child Protection
is progressing a strategy to further grow
the number of placements in family-based
care and consequently reduce reliance on
residential and commercial care.
Matters under the Children and Young
People (Safety) Act 2017
Additional funds allocated to the SACAT,
which will now hear matters concerning
reviewable decisions under section 158 of
the Children and Young People (Safety) Act 2017.
National Redress Scheme for child
sexual abuse survivors
The Government has allocated $146.4
million to support South Australia’s
participation in the National Redress Scheme
for survivors of institutional child sexual
abuse.
Aboriginal Children’s Commissioner
$1.3 million over four years has been
committed to establish a Commissioner for
Aboriginal Children and Young People.
YOUTH JUSTICE
There will be cuts and a restructure of
services in relation to the Marni Wodli Youth
Accommodation Services which provides
youth accommodation services for at risk
Aboriginal young people between 15-18
years age. A 2018-19 target will be to finalise
the Connected Youth Justice Strategy that
will have a particular focus on addressing
the over-representation of Aboriginal young
people in the youth justice system.
DOMESTIC VIOLENCE
The Government has committed to a
domestic violence package which includes
40 additional domestic and family violence
beds, a 24-hour Women’s Safety Services SA
crisis hotline, a 12-month statewide trial of
the Domestic Violence Disclosure Scheme,
the development of a personal protection
app and funding for the Women’s Domestic
Violence Services peak body.
SOUTH AUSTRALIAN EMPLOYMENT
TRIBUNAL
The SAET will transfer from the Attorney-
General’s Department to the Department of
Treasury and Finance on 1 October 2018.
INDEPENDENT COMMISSIONER AGAINST
CORRUPTION
The ICAC will receive $14.5 million to
enable ICAC to hold public hearings. B
6
THE BULLETIN October 2018

A round-up of recent Society
meetings & conferences
ROSEMARY PRIDMORE, EXECUTIVE OFFICER, THE LAW SOCIETY OF SOUTH AUSTRALIA
“Get in on the Act” is a regular
column from the Law Society’s
Ethics & Practice Unit which
details practitioners’ statutory
professional obligations and
responsibilities.
15 AUGUST 2018
Regional
T
visit to Port Lincoln
he President, Tim Mellor and
Chief Executive, Stephen Hodder
travelled to Port Lincoln to meet with
local Members. Key matters discussed
included probate issues, the Probate
Registry to be the first cab off the rank
for the Electronic Court Management
System at the end of November; Advance
Care Directives, the order of signing
being of particular concern; family
violence matters, including the difficulty
of retaining lawyers in the area and issues
with participation via video conference;
the difficulties clients face in travelling to
face to face family court matters; issues
with PEXA for e-conveyancing matters.
Eloise Burge and Wendy Wakefield, of the
Courts Administration Authority delivered
a presentation on the operation of the
ECMS and received feedback from the
practitioners on the particular issues they
may face, including available bandwidth.
22 AUGUST 2018
Registrar-General’s Forum –
e-conveyancing
The Chair of the Property Committee,
Theo Kadis represented the Society on a
panel of industry stakeholders at a public
forum convened by the Registrar-General
on the topic of further mandating of
e-conveyancing in South Australia.
4 SEPTEMBER 2018
Managing Partners’ Luncheon
The President of the Law Council of
Australia (LCA), Morry Bailes addressed
a gathering of Managing Partners of
large law firms, on the framework and key
issues to be examined at a Legal Futures
Summit to be held in Sydney on 13
September 2018. Areas of focus included
legal services of the future and ethical and
regulatory implications of new technology
and unbundling of legal services.
Please note: The Society’s advocacy work is
reported to Members via the Advocacy Notes
e-newsletter. B
Book now at www.adelaidecc.com.au or call 08 8210 6734

EVENTS
New award launched at
Nyland Long Lunch
MARISSA MACKIE, TREASURER, WOMEN LAWYERS ASSOCIATION OF SA
On 22 June, the Women Lawyers
Association of South Australia
(WLASA) and Law Society of South
Australia hosted the annual Margaret Nyland
Long Lunch at the National Wine Centre.
In its sixth year, the lunch is fast
becoming one of the premier events on
the profession’s calendar with 250 people
attending – the second highest attendance
since its inception.
The WLASA and the Society are grateful
to our major sponsors, Lipman Karas, who
have provided ongoing support to the Long
Lunch for a number of years, and Notable
Imprint.
We heard from Law Society President
Tim Mellor, while WLASA President Leah
Marrone emceed the event and updated
guests on the important policy work that
the WLASA have been lobbying towards.
Ms Marrone launched the WLASA’s Hon
Dr Robyn Layton AO QC award, aimed at
recognising and promoting women in the
law in South Australia. This award will be
presented for the first time at the WLASA’s
annual Christmas drinks with the Judiciary
on November 22 at Mrs Q Asian Kitchen
Bar.
We were honoured to have the
Honourable Justice Judy Hughes as our
keynote speaker, who discussed issues
of unconscious bias in decision making.
Her Honour spoke of matters relating
to unconscious bias, confirmation bias
and age bias, and related her experiences
since becoming the President of SACAT.
She noted the great difficulties faced by
decision-makers in dealing with their own
bias and emotional responses in decision
making.
She reminded guests that unconscious
bias is not a dark secret and it’s for all of
us, and discussed her own realisations
about her perceptions when completing
implicit association tests through Harvard
University’s Project Implicit. This prompted
me to try out a couple of the tests and
I was confronted with my own results
particularly in relation to gender-career bias.
I encourage you all to give them a shot at
www.implicit.harvard.edu. B
Women Lawyers Association of SA President Leah Marrone (left),
The Hon. Justice Judy Hughes, Law Society President Tim Mellor,
and the Hon. Margaret Nyland AM QC.
Bimaya De Silva (left), Leah Marrone, Alice Ashby, Adeline Lim,
and the Hon. Robyn Layton AO QC.
Marissa Mackie (left) and Shannon McMenamin
Lauren Roberts (left), Joanna Andrew, and Candice Scott
8
THE BULLETIN October 2018

Sell-out success at
profession night of nights
MICHAEL ESPOSITO, EDITOR
Law Society Executive Members Andrea
Michaels (left), Tim White and Rebecca Sandford
The Law Society’s marquee annual event,
the Legal Profession Dinner, was a
spectacular, fun, and thought-provoking
occasion.
Held in the majestic Adelaide Town Hall
on 10 August, more than 300 guests gathered
to catch up with colleagues, celebrate the
work of the profession, congratulate the
Society’s major award winners, and listen to
a captivating and timely speech by awardwinning
journalist Professor Greste.
But despite the news breaking credentials
of Prof Greste and MC Mike Smithson, it
was Law Society President Tim Mellor who
gave the audience the biggest scoop of the
night, announcing that his daughter had just
given birth to a baby girl, his first grandchild.
The joyful announcement added to the
celebratory atmosphere of the night, but
Prof Greste’s enthralling speech, in which he
detailed his ordeal as an Egyptian prisoner
and warned of the dangers of laws that
threaten freedom of the press, lent a serious
and urgent tone to the evening and served
as an important reminder that the legal
profession must stay vigilant and steadfast in
defending the rule of law.
The Society acknowledged the 100 th
anniversary of the armistice with Dr
Margaret Bakker playing World War I era
songs on the Town Hall organ as guests
entered the Auditorium.
The war years were among the few in
which a Law Society dinner was not held.
This year’s dinner marked the 105 th legal
profession dinner since the inaugural one
in 1901.
The Society thanks those who made the
night such a success, including MC Mike
Smithson, whose professionalism and
humour made the night run smoothly,
musical entertainment The Cast (with
Aaron), who kept the dance floor full, major
sponsors TIMG and Notable Imprint, wine
sponsor Wine Direct and Young Lawyer of
the Year sponsor Law in Order.
LAW SOCIETY AWARD WINNERS
BRIAN WITHERS AWARD:
RALPH BONIG
Member of Law Society Executive from
2006-13
Law Society President from 2010-12
Mental health & wellbeing advocacy
led to formation of the Wellbeing
& Resilience Committee and Young
Lawyers Support Group
Chaired the Society’s Committee on the
National Legal Profession Project.
Instrumental in revision of the Legal
Practitioners Act in 2013.
Led the implementation of the
Limitation of Liability Scheme (now
known as Professional Standards
Scheme)
Inaugural member of a Justice
Reinvestment Working Group
Instrumental in formation of the GDLP
Working Group, culminating in joint
delivery of the GDLP course with
University of Adelaide
SA representative on Law Council’s
Indigenous Issues Committee
JUSTICE AWARD: ALAN LINDSAY
Member of the Society’s Aboriginal
Issues Committee for over 20 years;
inaugural Member of the Reconciliation
Action Committee
Established a mentoring program for
indigenous law students at both Adelaide
University and Flinders University (and
then UniSA)
Instrumental in TAFESA commencing
Certificate IV course in Legal Studies
for indigenous students at Port Augusta
campus
YOUNG LAWYER OF THE YEAR AWARD:
MICHAEL PAGSANJAN
Finalised Australia’s first successful
native title compensation determination
Involved in confidential negotiation of a
large-scale native title settlement in WA
involving several thousand traditional
owners.
Provided many hundreds of hours
of pro bono services to unfunded
indigenous clients.
GENDER EQUITY IN LAW AWARD: LEAH
MARRONE
Member (and former Chair) of the
Women Lawyers’ Committee
President of Women Lawyers’
Association of SA
Member of Premier’s Council for Women
Board member of Australian Women
Lawyers & Law Council of Australia’s
Equal Opportunity Committee.
Passionate & effective advocate on
numerous justice issues including:
decriminalisation of sex work; female
prisoners with infants; workplace gender
equity.
Mentor to young law students
transitioning into the profession.
Organiser of Reclaim the Night events &
International Women’s Day marches.
BULLETIN ARTICLE OF THE YEAR AWARD
“Trial advocacy tips for Young Lawyers”,
by James Caldicott
BULLETIN SPECIAL INTEREST ARTICLE
OF THE YEAR AWARD
“Poems for the Citizenship Seven”, by
Stephen McDonald
October 2018 THE BULLETIN 9

2018 LEGAL PROFESSION DINNER
Aidan Parsons (left) of Law in Order, Young Lawyer of the Year
award winner Michael Pagsanjan, fellow finalists Suzana Jovanovic
and Mitchell Simmons, and Tom Bennett-Mitrovski of Law in Order.
Law Society President Tim Mellor flanked by Justice Award
Winner Alan Lindsay (left) and Brian Withers Award winner Ralph
Bonig.
Bulletin Committee Chair Alison Bradshaw
(left) with Special Interest Article of the
Year winner Stephen McDonald.
Article of the Year Award winner James
Caldicott (left) with father Craig Caldicott.
The Hon. Andrew McLachlan CSC
MLC (left) Anne Trengove, and Doug
Humphreys OAM
Sue Frayne (left), Loretta Polson, and
Martin Frayne SC
Emma Tummel (left), Duncan Soang,
Janelle Borlace, Amy Sanders, and Jean Foo
Mark Douglas (left), Victoria Gilliland,
Henry Ringwood, and Andrew Goode
Peter Hagias (left), Meghann Cannon,
Catherine Evans, and Andrea Michaels.
Morry Bailes (left), Tony Rossi, Deborah
Garland, John Goldberg, and Lilian Rossi.
Eszter Owen (left) and Ben Owen of Bank
SA
10
THE BULLETIN October 2018

2018 LEGAL PROFESSION DINNER
Legal Services Commission staff members Susan Gallina (left),
Leah Marrone, Eilise Sullivan, Christopher Boundy, George
Hatzirodos, Paula Meegan, Jeremy Boylen and Ella Pak Poy.
Legal Services Commission staff members Carla Martelli (left),
Amber Russell, Wei Xin Lee, Raffaele Piccolo and Rachel Lane
Nick Gormley (left) and Louisa Gormley of
Notable Imprint (Major Sponsor)
Dr Natasha Molt (left) and Jonathan
Smithers
Tony Nikolovski (left) and President-Elect
Amy Nikolovski
Sam Hooper (left) and Bec Butcher
Natalie Mackay (left), Josh Davies, and Tim
Dibden
Eliza Harvey (left), Imogen Basedow, and
Carolina Nebbiai
Professor Peter Greste (left) with Mike
Smithson
Dr Margaret Bakker playing World War I era
songs on the organ
Bryan Kim of major sponsor TIMG (left)
with Kate Walkley
October 2018 THE BULLETIN 11

CONSUMER LAW
Penalties increased under
Australian Consumer Law
RACHEL WAYE, INVESTIGATOR, WESTERN AUSTRALIA & SOUTH AUSTRALIA
ENFORCEMENT, AUSTRALIAN COMPETITION & CONSUMER COMMISSION
It is well established that the primary
purpose of civil pecuniary penalties is
to achieve deterrence, both general and
specific. As noted by the High Court
of Australia’s Chief Justice French and
Justices Kiefel, Bell, Gageler, Keane, Nettle
and Gordon, the proper function of a civil
penalty is “primarily if not wholly protective in
promoting the public interest in compliance”. 1
In August this year, Federal Parliament
passed legislation to introduce significantly
higher penalties for breaches of the
Australian Consumer Law (ACL). 2
The provisions came into effect on
1 September, 2018. The reform was the
result of a government-initiated review of
the ACL. This article assesses the limits
of the previous penalty provisions and
considers the potential impact of the new
penalty provisions.
MAXIMUM PENALTIES BEFORE 1
SEPTEMBER, 2018
Many contraventions of the ACL may
attract a pecuniary penalty. Before 1
September, 2018, the penalties available
under the ACL for certain contraventions
– including unconscionable conduct and
false or misleading representations – were
capped at $1.1 million for a corporation
and $220,000 for an individual per
contravention. These penalties had been
in place since the ACL commenced in
2011 and were considerably lower than the
maximum penalties available for breaches
of the Competition and Consumer Act’s
(CCA) competition provisions, which
allow for a penalty of the greater of
$10 million per contravention, three
times the value of the benefit reasonably
attributable to the conduct (where that
can be ascertained) or, where the benefit
cannot be ascertained, 10% of the annual
turnover of the contravening corporation
during a period of 12 months ending at
the month in which the contravention
occurred. 3
The ACCC has strongly advocated
for higher maximum penalties under
the ACL to enable courts to impose
more substantial penalties. Other
Commonwealth agencies have found that
the maximum financial penalties are small
relative to the benefits that a business can
accrue by breaching the ACL and there was
a strong case for increasing these penalties. 4
Judicial commentary in several cases has
also pointed to potential difficulties with
the penalty regime in effect before
1 September, 2018, as set out below.
EXAMPLES OF JUDICIAL COMMENTARY ON
ACL PENALTIES
ACCC v Coles Supermarkets Australia
Pty Ltd 5
In 2014, the Federal Court made findings
(by consent) that Coles Supermarkets
engaged in unconscionable conduct in
its dealings with suppliers and ordered
that Coles pay a penalty of $10 million.
Although this penalty represented one
of the highest penalties ever awarded
under the ACL’s previous penalty regime,
Justice Gordon remarked that “it is a
matter for the Parliament to review whether the
maximum available penalty of $1.1 million for
each contravention of Pt 2-2 of the ACL by a
body corporate is sufficient when a corporation
with annual revenue in excess of $22 billion acts
unconscionably. The current maximum penalties
are arguably inadequate for a corporation the size
of Coles”. 6
ACCC v Apple Pty Ltd (No 4) 7
In June, 2018 the Federal Court ordered
(by consent) Apple Inc to pay a $9
million penalty for making misleading
representations to customers with faulty
iPhones and iPads about their rights to a
remedy under the ACL. The trial Judge,
his Honour Justice Lee was tasked with
assessing the appropriateness of the
proposed penalty amount and remarked
that “it is difficult to escape the conclusion
that a penalty of $9 million to a corporation
such as Apple Inc [whose net income was
estimated to be over USD $48 billion
in the preceding year] might be regarded as
12
THE BULLETIN October 2018

CONSUMER LAW
loose change”. 8 Justice Lee observed that
“one might think that this case is a paradigm
example of the difficulties that can arise when
a penalty regime fixes maximum penalties as to
body corporates, without reference to size of the
contravener”. 9 His Honour also observed
that “where the penalty does not impose a sting or
burden on a contravener, it is less likely to achieve
the deterrent effect that is the raison d’être of its
imposition”. 10
Consumer Affairs Australia and New
Zealand (‘CAANZ’) Review
In June, 2015, consumer affairs ministers
of Australian States and Territories and
New Zealand requested that CAANZ
initiate a broad review of the ACL and the
effectiveness of its provisions. As part of
its review, CAANZ assessed the adequacy
of the $1.1 million maximum. CAANZ
considered over 260 submissions and
found that the penalties were “insufficient to
deter highly profitable non-compliant conduct”. 11
CAANZ concluded that “penalties must be
sufficiently high that a trader, acting rationally
and in its own best interest, would not be
prepared to treat the risk of such a penalty as a
business cost”. 12 In its final report, CAANZ
recommended the maximum penalties
for a breach of the ACL be raised to the
greatest of the following for a corporation:
• $10,000,000;
• three times the value of the benefit
obtained from the contravention
or offence (where the value can be
calculated); and
• If the benefit cannot be determined,
10% of Australian connected group
turnover within the 12 months
preceding the contravention.
This is in line with maximum penalties
available for breaches of the CCA’s
competition provisions. The highest
penalty the Federal Court has ordered for
breaches of the competition law is $46
million (in an action against Yazaki, which
is currently on appeal to the High Court). 13
CAANZ further recommended that
penalties against individuals increase from
$220,000 to $500,000 per breach. 14
MAXIMUM PENALTIES FROM 1
SEPTEMBER, 2018
On 23 August, 2018, Federal Parliament
passed the Treasury Laws Amendment
(2018 Measures No. 3) Bill 2018, which
amended the CCA to increase consumer
law maximum penalties as recommended
by CAANZ, bringing them in line with
the financial penalties available under
the competition provisions of the CCA.
The Bill received royal assent on Friday,
31 August, 2018 and came into effect on
1 September, 2018. The new maximum
penalties will help deter companies from
breaching consumer laws and “make the
risk/benefit equation less palatable to a
potential wrongdoer”. 15 Importantly, the
maximum penalty is likely to be higher
where the benefits gained from the
conduct are large (and can be calculated)
or the contravening corporation has a high
turnover.
However, there is still room for further
reform of penalties under the ACL.
Currently, the ACCC cannot seek penalties
where the court has declared an unfair
contract term void (nor can the ACCC
issue an infringement notice for a contract
term that is likely to be unfair). This is
out of step with other provisions in the
ACL. Allowing the ACCC to seek penalties
for unfair contract terms would create
stronger deterrence and help prevent such
terms being included in contracts in the
first place.
Provision for custodial sentences (which
are not currently available for ACL
beaches) may further help to prevent
misconduct by repeat offenders who show
ongoing disregard for the law and may
remain undeterred by civil penalties. A
custodial sentence in these circumstances
may provide an effective tool to stop the
misconduct from reoccurring.
The recent penalties reform creates
significant financial consequences
for those breaching the ACL and will
hopefully alter corporate behaviour to the
benefit of Australian consumers. As noted
recently by ACCC Chairman Rod Sims
“penalties need to be high enough to be
noticed by boards and senior managers so
that compliance with the law is a higher
priority.” 16 This space will certainly be one
to watch in the future as action continues
to be taken against companies that
contravene Australia’s consumer laws.
The views expressed in this article are those
of the author alone and do not necessarily reflect
the views of the Australian Competition and
Consumer Commission. B
Endnotes
1 Commonwealth of Australia v Director, Fair Work
Building Inspectorate; Construction, Forestry, Mining
and Energy Union v Director, Fair Work Building
Industry Inspectorate [2015] HCA 46 [55].
2 The ACL is contained in Schedule 2 of the
Competition and Consumer Act 2010 (Cth) (‘CCA’).
3 See section 76(1A) of the CCA.
4 See, eg, Productivity Commission Research
Report, Consumer Law Enforcement and
Administration (2017) p. 19.
5 [2014] FCA 1405.
6 Ibid [106].
7 [2018] FCA 953.
8 Ibid [57].
9 Ibid [65].
10 Ibid [3].
11 Consumer Affairs Australia and New Zealand,
Australian Consumer Law Review: Final Report
(2017), available at https://cdn.tspace.gov.au/
uploads/sites/86/2017/04/ACL_Review_Final_
Report.pdf
12 Ibid.
13 ACCC v Yazaki Corporation [2018] FCAFC 73
14 Ibid.
15 ACCC v Reckitt Benckiser (Australia) Pty Ltd [2016]
FCAFC 181 at [151]
16 ACCC Media Release, Consumer law penalties set
to increase (23 August 2018), available at https://
www.accc.gov.au/media-release/consumer-lawpenalties-set-to-increase
October 2018 THE BULLETIN 13

CONSUMER LAW
The increasing cost of bad
behaviour – misleading or
deceptive conduct under the ACL
JULIA BIDSTRUP, LEGAL ADVISOR IN CONSUMER LAW, LEGAL SERVICES COMMISSION SA
The Australian Competition and
Consumer Commission (ACCC)
is known to most practitioners as the
consumer watchdog, tasked with the role
of ensuring that individuals and business
comply with consumer protection laws, in
particular the Australian Consumer Law
(ACL). 1
Misleading or deceptive conduct is often
at the heart of litigation by the ACCC.
Section 18 of the ACL prohibits a person
from engaging in misleading or deceptive
conduct. However, a breach of the section
does not result in a pecuniary penalty
or criminal sanction. Instead, Chapter
3, Part 3-1, Division 1 sets out many of
the specific types of conduct that will
attract a pecuniary penalty. The prohibited
behaviour is wide ranging, including false
or misleading statements about goods or
services, and misleading conduct regarding
the nature of goods or services. The
pecuniary penalties are found in section 224
of the ACL, which also sets out the factors
a court must have regard to when imposing
those penalties, including the nature and
extent of the conduct and any loss or
damage suffered as a result.
Until recently, penalties were relatively
low at a maximum of $1.1 million
for corporations and $220,000 for an
individual, depending on the type of
conduct. On 23 August, the Federal
Parliament passed legislation increasing the
maximum pecuniary penalties for breaches
of the ACL 2 to align with breaches of the
competition provisions of the Competition
and Consumer Act 2010 (Cth). This new
regime came into effect on 1 September.
In a recent speech, 3 ACCC Chair Rod
Sims outlined recent litigation by the ACCC
against various well-known companies in
Australia. He questioned why this “bad
behaviour” might be occurring and what
should be done about it. His thesis, namely
that at present there is a greater financial
incentive to put shareholder returns ahead
of the interests of customers, is not
surprising.
The following cases dramatically highlight
Mr Sims’ thesis regarding the sufficiency of
the previous penalty regime. The cases also
highlight the effect on consumers in their
day to day lives – some have been at risk
of personal injury, some are left uncertain
about their contractual rights, and others
left out of pocket.
APPLE
During 2015/16, software Error 53
disabled iPhones and iPads that had a
screen repair done by a non-Apple business.
Affected consumers were told to contact
Apple for pricing information regarding
out of warranty repairs, effectively denying
consumers their rights under the ACL
consumer guarantees regime. Eventually,
Apple commenced a remediation program
for the 5,000 or so consumers affected.
In 2018, Apple admitted that the
conduct breached section 29(1)(m) which
prohibits the making of false or misleading
representations in relation to the supply of
goods or services concerning, among other
rights, the effect of the statutory consumer
guarantees. 4
The penalty was set at $9 million following
a joint submission by the ACCC and Apple.
While the amount caused Lee J some
“considerable hesitation” given the size of
Apple (he also later described the amount as
“loose change”), he also observed at [60] that
Apple’s admission was significant and that
it was important that the Court recorded its
disapproval of the conduct in order to deter
from doing the same.
In discussing the factors the Court needed
to take into account when determining the
appropriate penalties, although no evidence
was put to the Court regarding the harm
suffered by affected consumers, Lee J also
observed at [55]:
“it takes little imagination to reach the conclusion
that the vexation occasioned must have caused
real (and potentially significant) disruption to
the personal and business activities of numerous
consumers.”
OPTUS
From about October 2015, Optus
Internet Pty Ltd (Optus) told 14,000 of
its customers that their service would be
disconnected and that, as a result, many of
the customers were told that they would
need to sign up to the National Broadband
Network (NBN) with Optus in order to
maintain phone and internet services. In
fact, Optus Internet had no contractual
right to disconnect its customers despite the
assertions, and its customers were also free
to choose their own NBN provider.
The representations were made over an
18-month period and communicated via
letter and SMS. They were part of a business
strategy to migrate Optus customers
over to the NBN. In March, 2017 Optus
commenced a remediation program, which
included paying out approximately $833,000
in compensation and helping affected
consumers change to alternative providers.
In proceedings commenced by the ACCC
in December, 2017, Optus admitted that
the conduct contravened section 18. In
addition, Optus also admitted that the
representations concerning the need
for services (namely to sign up to the
NBN) and the effect of their customers’
contractual rights were false or misleading
and therefore breached section 29(1)(l) and
(m) respectively. 5
Moshinsky J considered the conduct
“serious and extensive” at [60] and
observed that the size of Optus and
the resources available to it should have
prevented the conduct from occurring
at the outset at [64]. Following a joint
submission on the appropriate penalties,
Optus was ordered to pay $1.5 million plus
the ACCC’s costs. It is also required to
undertake an enhanced regime for NBN
complaints.
Again, echoing the observations made
in relation to Apple, it is not difficult to
imagine the confusion and inconvenience
caused to Optus customers, who may have
been anxious to sign up to the NBN to
ensure continuous service.
14
THE BULLETIN October 2018

CONSUMER LAW
THERMOMIX
Thermomix in Australia Pty Ltd
(Thermomix) manufactures and distributes
food processors of the same name that
measure, chop and cook food in the one
appliance. It is a relatively expensive type
of appliance.
In around 2014, Thermomix knew of
a safety issue with one of its models that
caused the lid of the appliance to blow off
before boiling liquid could settle which
was caused by a sealing ring fault. As a
result, some users suffered burns.
Thermomix continued to sell the affected
model (nearly 10,000 units were sold) and
did not disclose the issue until September,
2014, despite the injuries. Thermomix
commenced a voluntary recall in October,
2014 and provided its customers with new
sealing rings for the appliance. However,
in 2016, it told the public through a media
release that there was no recall, and that
the appliance was perfectly safe to use.
Thermomix also told a number of
consumers that they were not entitled to
a remedy under the consumer guarantee
provisions of the ACL, and went so far
as to ask one consumer to sign a nondisclosure
agreement as a condition of a
refund.
In 2017, the ACCC commenced
proceedings against Thermomix alleging
misleading or deceptive conduct, false
or misleading representations, as well
as breaches of the mandatory reporting
requirements regarding the safety of its
products. 6 In April, 2018, a Statement of
Agreed Facts and submissions on penalties,
orders and costs were filed to bring the
proceedings to a conclusion. The final
penalty was $4.6 million, a consumer
compliance program and the publication
of safety information on its website.
Murphy J expressed his concern about
the conduct of Thermomix, particularly
in relation to safety. He observed that
Thermomix had exposed consumers
to serious risk of injury and that it had
made a “deliberate decision not to inform
consumers” at [21]. This justified a higher
penalty than was agreed between the
parties.
LG ELECTRONICS
In 2015, the ACCC took action against
LG Electronics Pty Ltd (LG) in the Federal
Court, alleging that LG made statements
that were false and misleading in relation to
consumers’ rights under the ACL. 7
A number of consumers complained to
LG about televisions which had developed
faults and asked for a remedy. The faults
were likely to be covered by the statutory
consumer guarantees under the ACL
regarding acceptable quality, which in turn
meant that LG should have met the cost
of repair.
ACCC’s case was based on allegations
that LG represented to the consumers
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October 2018 THE BULLETIN 15

CONSUMER LAW
that their rights were limited only to those
under the manufacturer’s warranty and that
LG had no obligations to the consumers
under the ACL. LG had made offers to
pay for parts but the consumers had to pay
for labour.
At first instance, the Court disagreed
that LG’s statements were misleading and
considered that LG was merely making
offers to resolve a problem, rather than
mispresenting the rights of the consumers
under the ACL.
On appeal, 8 the Full Federal Court
agreed with the trial judge (namely, that
some of the statements by LG were
offers to resolve a problem), with two
exceptions. These exceptions were where
LG stated to consumers that it would not
repair the television other than under the
manufacturer’s warranty because it had
expired, effectively denying the consumer’s
rights under the ACL.
In particular, LG had a policy of training
staff not to mention the ACL unless a
consumer specifically mentioned it. The
Court observed at [57] that the policy was
risky and could result in consumers being
misled regarding their specific rights.
At the time of writing, no penalty has
been determined.
RECKITT BENCKISER
From about 2007 to 2015, Reckitt
Benckiser (Australia) Pty Ltd (RB)
marketed Nurofen to the public in four
different product types, representing
that each would treat different types of
pain (migraine, period, back and tension
headache) despite the fact that the active
ingredients were exactly the same for each
product. These products sold for nearly
double the price of the standard Nurofen,
which again had exactly the same active
ingredients.
In proceedings brought by the ACCC in
the Federal Court in 2015, RB admitted
that the representations were false or
misleading. 9 In 2016, a penalty of $1.7
million was imposed, 10 against which the
ACCC appealed. 11
Ultimately, the penalty was increased to
$6 million. In considering the ACCC’s
16
THE BULLETIN October 2018
appeal, the Full Court referred to the
principles to be used in determining the
appropriate civil penalty, including the
comments in Commonwealth v Director, Fair
Work Building Industry Inspectorate [2015]
HCA 46 at [55]:
“whereas criminal penalties import notions
of retribution and rehabilitation, the purpose
of a civil penalty…is primarily if not wholly
protective in promoting the public interest in
compliance.”
Nearly 6 million packets of the product
were sold between 2011 and 2015, which
caused loss to consumers (and gain
to RB) of approximately $25 million.
Section 224(2)(a) of the ACL requires
consideration of the loss suffered as an
element in determining penalty. The Full
Court at [176] described it as the “single
most important numerical benchmark”
and a “real and meaningful way” to
determine the extent of deterrence
required.
INCREASED PENALTIES
Consumers may be left wondering what
needs to happen to ensure that they are
not misled about their consumer rights
or the nature and safety of the goods or
services they buy.
The new penalty regime applies to
conduct after the commencement of the
amendments. The maximum penalties for
corporations are:
• $10 million; or
• if the court can determine the value
of the benefit obtained from the
offence, or act or omission, by the
body corporate and any related bodies
corporate - three times the value of the
benefit; or
• if the court cannot determine the value
of the benefit – 10% of the annual
turnover of the body corporate for the
previous year.
For individuals, the new maximum is
$500,000.
However, these penalties may only be
one part of the solution.
Brands are very important in today’s
market and customer loyalty can be very
strong, even in the face of poor behaviour.
Consumers may not always recognise
they are being misled, depending on what
has happened, or be as informed about
their rights to complain. Many consumers
(particularly vulnerable ones) may feel that
it is impossible to take on a business or
that it may not be worth the effort.
Mr Sims suggests that the “race to the
bottom” may also be a factor in causing
bad behaviour. Businesses may copy
the behaviour for fear of losing market
share. He also believes that shining a
light on poor behaviour is another way
to ensure that a business does the right
thing to maintain the reputation of its
brand. Clearly this relies on identifying the
behaviour, continuing to take enforcement
action and seeking the increased penalties
that stack up better against any benefit
gained by the business.
As consumers, we can only hope that
the increased penalties will be sufficient to
deter the “bad behaviour”. Perhaps then
we may have some confidence in what we
are told about the goods and services we
buy. B
Endnotes
1 Australian Consumer Law (Schedule 2 of the
Competition and Consumer Act 2010 (Cth))
2 Treasury Laws Amendment (2018 Measures
No. 3) Act 2018 (Cth) Sch 1
3 Sims, Rod “Companies behaving badly?” (Speech
delivered at 2018 Giblin Lecture, University of
Tasmania, 13 July 2018)
4 Australian Competition and Consumer Commission v
Apple Pty Ltd (No 4) [2018] FCA 953
5 Australian Competition and Consumer Commission v
Optus Internet Pty Limited [2018] FCA 777
6 Australian Competition and Consumer Commission v
Thermomix in Australia Pty Limited [2018] FCA 556
7 Australian Competition and Consumer Commission v
LG Electronics Australia Pty Ltd [2017] FCA 1047
8 Australian Competition and Consumer Commission v
LG Electronics Australia Pty Ltd [2018] FCAFC 96
9 Australian Competition and Consumer Commission v
Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015]
FCA 1408
10 Australian Competition and Consumer Commission v
Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016]
FCA 424
11
Australian Competition and Consumer Commission
v Reckitt Benckiser (Australia) Pty Ltd [2016]
FCAFC 181

CONSUMER LAW
Unfair contract terms & small
business contracts: Lessons
from initial enforcement actions
JOSH SIMONS, PARTNER, THOMSON GEER
On 12 November 2016, the “unfair
contract terms provisions” of
the Australian Consumer Law (which
previously only applied to “consumers”
contracting for personal or domestic
purposes) were extended to also apply to
standard form small business contracts.
Following an initial education campaign,
the ACCC has now initiated a number of
enforcement actions, including two matters
which have been the subject of judgment
in the Federal Court. This article offers
some observations as to the key lessons
that can be learned from the actions to
date, and the likely focus of enforcement
action going forward.
WHAT IS A STANDARD FORM SMALL
BUSINESS CONTRACT?
The unfair contract terms provisions
only apply to a limited category of
business to business contract.
For a business contract to be regulated,
the following criteria must apply:
• at least one of the parties to the contract
must have less than 20 employees
(including casual staff employed on a
regular or systematic basis);
• the “upfront price” payable under the
contract does not exceed $300,000, or
$1 million where the contract term is
greater than 12 months;
• the contract must be for the supply of
goods or services or the sale or grant of
an interest in land; and
• the contract must be “standard form”,
which broadly means that it must be
presented on a “take it or leave it”
basis, with no genuine opportunity to
negotiate the terms.
If a contract meets the above criteria,
any term in that contract is at risk of being
deemed “unfair” if it:
• causes a significant imbalance in the
parties’ rights and obligations;
• would cause detriment (financial or
otherwise) to a party if relied on; and
• is not reasonably necessary to protect
the interests of the party advantaged by
the term.
In assessing a term for unfairness, regard
will also be had to the transparency of the
contract (i.e. if the term is expressed in
reasonably plain language, is legible and
presented clearly to the affected party) and
the contract as a whole.
Terms of a standard form small business
contract which are deemed unfair will be
void and unenforceable.
LESSONS FROM ENFORCEMENT ACTIONS
TO DATE
As at the date of this article, there have
been three enforcement actions brought
by the ACCC in the Federal Court, with
two having proceeded to final judgment.
Both concluded cases involved consent
judgments, where liability was admitted,
but the cases nonetheless provide a useful
insight into the enforcement approach
of the ACCC, and (to a lesser extent) the
attitude of the Court.
ACCC v J J Richards [2017] FCA 1224 1
In the lead up to the unfair contract
terms protections being extended to
small business customers, the ACCC had
published a report in which it identified
a number of common terms used in
standard form contracts in a number
of industries (including the waste
management industry) which the ACCC
was concerned might be unfair contract
terms under the Australian Consumer
Law. The ACCC’s report discussed ways
to avoid including unfair terms in standard
form contracts.
In December 2016, the ACCC wrote to
JJ Richards to draw its attention to the
ACCC’s report and inform JJ Richards that
the ACCC was investigating whether terms
in contracts being offered by providers of
waste management services gave rise to
concerns under the Australian Consumer
Law. The ACCC also requested copies
of JJ Richard’s relevant standard form
contracts, which were ultimately provided
to the ACCC in April 2017. On review of
October 2018 THE BULLETIN 17

CONSUMER LAW
the contracts provided by JJ Richards, the
ACCC formed the view that JJ Richards’
standard form contracts contained a
number of contract terms that were
likely to be unfair under the Australian
Consumer Law. The ACCC also formed
the view that, despite being aware that
the unfair contract terms protections had
been extended to small businesses and
that the ACCC was investigating whether
JJ Richards’ standard form contracts
contained unfair contract terms, JJ
Richards had not addressed the ACCC’s
concerns. This led to the ACCC issuing
proceedings against JJ Richards.
JJ Richards settled the matter with the
ACCC, and the Federal Court was asked
to find (by consent) that 18 terms of
JJ Richards’ standard form contracts
were unfair, and to declare them void.
While the Court did not need to evaluate
contested evidence, it was nonetheless
required to make findings on the evidence
sufficient to support the declaratory and
injunctive relief that had been sought. As
such, the judgment is more than merely an
indication of the ACCC’s views as to what
constitutes an “unfair” term.
The terms declared by the Court to be
unfair, and therefore void, were as follows:
• Automatic Renewal – this clause had
the effect of automatically renewing
the contract unless the customer
cancelled it at least 30 days before the
end of the term. It is notable that, on
its face, this clause in fact empowered
the customer to choose whether the
contract would renew. However, the
Court found the clause to create a
significant imbalance to the detriment
of the customer, because “JJ Richards
was more likely to be aware of when
customers’ contracts are coming
up for renewal than small business
customers, who as small businesses
have limited resources and competing
demands that mean they may not have
effective systems in place to identify
the termination period for their waste
management contract”.
• Price Variation – this clause had
the effect of allowing JJ Richards to
unilaterally increase its prices. The
Court noted that JJ Richards’ costs may
increase for reasons beyond its control,
but found that “the price variation
clause goes beyond what is reasonably
necessary in order to protect JJ
Richards’ legitimate interests”.
• Agreed Times – this clause had the
effect of removing any liability for JJ
Richards where its performance was
prevented or hindered ‘in any way’.
The Court noted that “JJ Richards is
better placed than the JJR Customer
to manage or mitigate the risk of the
prevention or hindrance occurring”.
• No Credit without notification –
this clause had the effect of allowing
JJ Richards to charge customers for
services not rendered.
• Exclusivity – this clause had the effect
of giving JJ Richards exclusive rights
to remove waste from a customer’s
premises. The Court found that
“Restricting JJR Customers from
contracting with other parties for
additional services causes a significant
imbalance in the parties’ rights and
obligations under the contract, because
it limits JJR Customers’ general
right to contract with whomever
they want.” This was found to not
be reasonably necessary to protect
JJ Richards’ legitimate interests
because “JJ Richards does not need
to have exclusivity in relation to waste
management in order to conduct its
business”
• Credit Terms – this clause had the
effect of allowing JJ Richards to
suspend its service but continue to
charge the customer if payment had
not been made after seven days.
• Indemnity – this clause had the effect
of creating an unlimited indemnity in
favour of JJ Richards.
• Termination – this clause had the
effect of preventing customers from
terminating their contracts if they have
payments outstanding and entitling
JJ Richards to continue charging
customers equipment rental after the
termination of the contract.
ACCC v Servcorp [2018] FCA 1044
The second action initiated by the ACCC
was against Servcorp Limited, and two
of its subsidiaries. The ACCC sought
declaratory and other relief on the basis
that Servcorp’s standard form business
contracts with small businesses contained
numerous unfair terms.
In a statement to the ASX, Servcorp had
initially indicated it intended to defend
the action, stating: “[Servcorp] maintains
that its serviced office agreements are
negotiable contracts and do not constitute
standard-form contracts regulated by the
unfair contract terms regime under the
Australian Consumer Law”. However,
the matter was subsequently settled, and
the Federal Court was asked to find (by
consent) that 12 terms of Servcorp’s
standard form contracts were unfair, and
to declare them void.
The terms declared by the Court to be
unfair, and therefore void, were as follows:
• Automatic Renewal – similar to the
automatic renewals clause in the JJ
Richards standard form terms, this
clause had the effect of automatically
renewing the contract unless the
customer gave the required notice to
terminate before the end of the term.
The court found that: “[Servcorp]
are more likely to be aware of when
contracts are due for renewal than small
business customers.”.
• Limitation of Liability – this clause
required the counterparty to insure all
goods held in the relevant premises and
provides that Servcorp would not be
held responsible for any loss, theft or
damage to the goods howsoever caused.
• Price Variation – this clause gave
Servcorp the ability to vary the pricing
of certain services at their discretion.
The contract also provided that, where
Servcorp did so, the counterparty had
the right to terminate the contract on
giving 30 days’ notice. However, the
clause was nonetheless deemed unfair.
The Court noted, in particular that “[t]
here is no limitation on the face of
the clause requiring [Servcorp] to act
fairly or reasonably in any decision to
18
THE BULLETIN October 2018

CONSUMER LAW
change the pricing of the Services or
indeed consult with the counterparty”
and that the clause would “at least in
the short term”, cause detriment to the
counterparty if relied on by Servcorp.
• Termination for Breach – one of
the bases on which Servcorp could
terminate the contract was if the there
was a breach of “any regulations or
procedures issued or required by the
landlord under the Headlease”. In
declaring this unfair, the Court noted
that “any asserted breach may not be a
material breach, the counterparty may
not have been notified of, or aware of,
the breach or given an opportunity to
remedy the breach, or the counterparty
may have already remedied the breach”.
• Termination for No Breach – under
this clause, Servcorp had a right to
terminate the contract without cause,
on giving 30 days’ notice. The Court
made a number of comments in
finding this to be unfair, including:
“That right can be exercised without
cause or reason and without giving
compensation to the counterparty. The
period of one month is not determined
by reference to the length of the
relevant Service Contract. In contrast,
the counterparty has very limited
termination rights under each of the
Service Contracts and does not have
a corresponding right of termination
which can be exercised without cause
or reason on one month’s written
notice.”
• Limitation of Liability –these clauses
sought to limit Servcorp’s liability except
in the case of gross negligence or wilful
misconduct, and in some cases included
an unlimited indemnity in favour of
Servcorp. In deeming these clauses
unfair, the Court noted that “there is no
corresponding clause which limits [the
counterparty’s] liability to [Servcorp] in
this way”.
• Non-solicitation – this clause restricted
counterparties from enticing or
persuading clients of Servcorp to move
to a competitor business. In deeming
this to be unfair, the Court noted that
“the client is unlikely to know whether
an entity is a client of one of the 25
offices managed by Servcorp”.
ACCC v Mitolo
The third action initiated by the ACCC is
against Mitolo Group Pty Ltd. The action
was commenced in June 2018, and remains
before the Courts.
While there is no judgment at the date
of this article and the full terms of the
relevant contract have not been made
public, the ACCC has stated that “[t]hese
are some of the most egregious terms we
have seen in agricultural contracts, and are
key examples of the contracting practices
in the sector that we want to address”.
The terms the ACCC has sought to have
declared unfair, allow Mitolo to:
• unilaterally determine or vary the price it
pays farmers for potatoes;
• unilaterally vary other contract terms;
• declare potatoes as ‘wastage’ without a
mechanism for proper review;
• prevent farmers from selling potatoes to
alternative purchasers; and
• prevent farmers from selling their
own properties unless the purchaser
enters into an exclusive potato farming
agreement with Mitolo
What is noteworthy about this case, is
that many of these provisions appear (as
described) to be commonplace across
many agricultural industries – particularly
where the crops being grown are registered
varieties under the Plant Breeders Act 1994.
It will be interesting to see the full context
and clauses once the matter is resolved or
judgment is entered.
LESSONS & OBSERVATIONS FROM
ENFORCEMENT ACTIONS
It appears from the action taken to date,
that particular kinds of clauses are likely to
be a focus of the ACCC, namely:
• automatic renewal provisions;
• clauses allowing unilateral determination
or increase of prices;
• exclusivity provisions, where customers
are restricted from contracting with
other parties for other goods or
services;
• the inclusion of unlimited indemnities;
• unreasonable restrictions on termination
of contracts.
Another noteworthy aspect of the cases
to date, is that they have all focused on
contracts at a system-wide level, rather than
looking at the particular circumstances of
individual counterparties to those contracts.
This appears somewhat inconsistent with
the requirement to assess the circumstances
of the counterparty in determining if
there is a significant imbalance between
the parties, or if an offending clause is
reasonably necessary to protect legitimate
business interests.
Finally, it should be noted that the ACCC
has indicated that enforcement of the
unfair contract terms provisions in relation
to small business contracts will continue to
be a significant focus of its enforcement
activities. Moreover, ACCC Chairman Rod
Sims has recently been strongly advocating
for the introduction of civil penalties where
unfair contract terms are used, stating:
‘[w]hat we want is unfair contract terms to
be made illegal and we want huge penalties to
apply.”
While the government has yet to indicate
if it will implement such changes, it should
be noted that the introduction of civil
penalties for inclusion of “unfair” terms
would be a major departure from the
current policy underlying the laws. The
government’s intention in introducing the
prohibition was not to prevent the use of
such clauses in all standard form contracts,
but simply to ensure that for a particular
category of counterparties (i.e. small
businesses), that such clauses could not be
relied on.
Whether or not civil penalties are
introduced, it is clear that the unfair
contract terms regime is already having a
significant impact on the approach taken
to drafting “standard terms” and will no
doubt continue to do so as further judicial
guidance is received. B
Endnotes
1 The author notes for transparency that Thomson
Geer acted for the ACCC in this matter
October 2018 THE BULLETIN 19

CONSUMER LAW
A CLASS ABOVE THE
REST – THE CASE
FOR CLASS ACTIONS
FLOYD BAKEWELL AND FIONA CAMPBELL, DUNCAN BASHEER HANNON
Often, problems with products or
services affect more than one person.
In such situations, it may be attractive for
the group of affected people to bring an
action together.
CLASS ACTIONS
A representative group action (class
action) can be brought in the Magistrates,
District, Supreme or Federal Courts.
Each Court’s rules set out the process
by which a group of affected people can
commence a class action.
Usually the group representative, or lead
Plaintiff issues proceedings and applies for
authorisation to bring the claim on behalf
of the group (see Magistrates Court Civil Rule
23 (5), Supreme Court Civil Rule/District Court
Civil Rule 80 and/or Federal Court Rule 9.21).
Bringing a class action may be attractive
to people who have suffered loss due to
the same product or service failing. This
is because the facts regarding the failing
of the product or service are the same
for each member of the group, meaning
resources with respect to undertaking
liability investigations can be pooled,
reducing disbursement costs for each
group member. Further, Defendants
may view a group of claimants as more
formidable than individual Plaintiffs,
due to the greater resources that may be
available.
DEPUY ASR CLASS ACTION
DePuy International Limited (DePuy)
manufactured the DePuy ASR hip
prostheses (product). The products were
supplied by DePuy to Johnson & Johnson
Medical Pty Limited (Johnson & Johnson).
Johnson & Johnson sold the products to
hospitals and orthopaedic surgeons in
Australia and internationally.
The products were marketed as being
longer lasting and higher functioning than
other hip replacement prostheses on the
market. They were designed to operate
with metal components, directly touching
or moving, with or against, other metal
components.
From approximately 2004 to 2009, the
product was used in total hip replacements
and hip resurfacing surgeries performed in
Australia. It was also used globally.
Following the introduction of the
product, evidence began emerging that it
was, amongst other things, leaching cobalt
and chromium into the blood of the
implanted.
On 24, August 2010, DePuy issued
a worldwide recall of the product. By
reference to the Australian Government,
Department of Health website, the recall
notice was received by approximately
93,000 people across the globe.
Following the recall notice, many
of those implanted with the product
underwent blood metal testing and
radiological investigations, to ascertain the
impact of the faulty product on their body.
As a result of the complications posed
by the product, a large number of those
implanted underwent revision surgery.
The issuing of the recall notice led to
a large number of those implanted with
the product contacting law firms, with a
view to pursuing compensation. Given the
number of enquiries, the situation leant
itself suitably to a class action.
Our firm, Duncan Basheer Hannon
(DBH), received a great many enquiries
and ultimately a group of approximately
200 interested people wished to pursue a
claim as part of a class action.
In 2011, DBH filed a Statement of Claim
in the Supreme Court of South Australia,
on behalf of two clients who were
implanted with the product and suffered
injury, loss and damage as a result. The
pleadings were filed on the basis that the
two individual Plaintiffs represent a group
of people also implanted with the product,
with an interest in the outcome of the
action (the Group Members).
Both actions were against DePuy and
Johnson & Johnson (the Defendants).
The Statement of Claim pleaded that the
Plaintiffs were claiming compensation on
the basis that Defendants had breached
the Trade Practices Act 1974 (Cth) (the
TPA), and on the basis that they had
acted negligently. Given the focus of this
month’s Bulletin, the action in negligence
will not be discussed further.
The Plaintiffs claimed that the product
was not reasonably fit for purpose
pursuant to Section 74B, and/or in the
alternative, not of merchantable quality
pursuant to Section 74D.
The TPA was repealed on 1 January,
2011, meaning that any similar class
actions in the future concerning whether
goods are reasonably fit for the purpose
20 THE BULLETIN October 2018

and/or of merchantable quality, will need
to be brought under section 236 of the
Australian Consumer Law, contained in
Schedule 2 of the Competition and Consumer
Act 2010 (Cth) (the ACL), for a breach of
sections 54 and 55.
In 2012, the South Australian Supreme
Court action was joined with a larger
group action against DePuy and Johnson
& Johnson, issued in the Federal Court of
Australia.
The Defendants denied the allegations
that they breached the TPA and acted
negligently, and a trial on the issue of
liability commenced in 2015. The trial ran
for 17 weeks.
Before a judgment on liability was
delivered, the parties reached a negotiated
settlement of $250 million plus interest.
The settlement was then approved by the
Federal Court.
A Settlement Scheme was then drafted
by the solicitors for the Plaintiffs, which
was approved by the Federal Court. This
document addressed the administration of
the $250 million settlement sum.
REGISTRATION
In accordance with the Settlement
Scheme, in order for a person to receive
compensation as a result of the failure of
their product, it was first necessary for
them to “register” their claim. This was
done online, or via hard copy registration
form.
Pursuant to the Scheme, anyone
satisfying the eligibility criteria could
register their claim against the scheme,
even if they were not involved in the
Court proceedings.
According to the latest figures published
by Maurice Blackburn and Shine Lawyers
(lead Settlement Scheme Administrators)
on the class action website, 1,748 people
registered as members of the class action.
ELIGIBILITY
Once registered, it was necessary for
Group Members to be found eligible to
receive compensation.
The eligibility criteria were satisfied
where:
1. The Group Member had undergone
actual revision of their product; or
2. The Group Member satisfied the
“deemed revision criteria” (i.e. they had
been told by their orthopaedic specialist
that revision surgery was necessary, but
could not be performed due to other
medical comorbidities and the risk that
those comorbidities posed in the face of
surgery).
Group Members have 13 years from the
date of their implant surgery to satisfy the
eligibility criteria, otherwise their interest
in the Settlement Sum lapses.
FAST TRACK V INDIVIDUAL ASSESSMENT
Once eligibility was determined, Group
Members were given the option of
electing a fast-track resolution ($55,000
lump sum per hip, in addition to fixed
legal costs, reasonable disbursements and
any amounts owing to third parties), or to
undergo an individual assessment (a full
assessment of damages).
FINAL THOUGHTS
Bringing an action in the Federal Court
against international giants, DePuy and
Johnson & Johnson, and progressing
the matter to a 17-week trial, was only
possible because a large number of people
suffered harm as a result of the failure of
the product, and therefore had a common
interest in the action.
Had a claim been brought by an
individual (rather than a group), the legal
costs and disbursements incurred in
proving liability would have been likely to
far outweigh any compensation received.
Further, the risk of being unsuccessful at
trial and the cost implications that would
have followed, would have likely been
too great for any individual to bear. For
the Courts, if a volume of similar actions
proceeded against DePuy and Johnson &
Johnson, as individual or smaller group
actions, the actions would have likely
overwhelmed the system, ultimately
causing delays and backlogs.
Now, in the latter stages of the
administration phase of the DePuy hip
class action, it is difficult to imagine the
matter proceeding in any way other than
a class action. The Settlement Sum of
$250 million plus interest demonstrates
the power of the group members when
joined together. Given the effectiveness of
class actions, we consider they will become
more prevalent in the future. B
October 2018 THE BULLETIN 21

CONSUMER LAW
When the company line is
unlawful: an overview of
systemic unconscionable conduct
THYME BURDON, SENIOR LAWYER, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION 1
Unconscionable conduct is an area
of the law that should be front of
mind for any lawyer advising on business
practices around dealing with consumers
and suppliers. Importantly, unconscionable
conduct prohibitions under both the
Australian Consumer Law (ACL) 2 and the
Australian Securities and Investments Commission
Act 2001 (Cth)(ASIC Act) are capable of
applying to “systems” or “patterns” of
conduct as well as conduct in relation to
specific individuals.
This article provides an overview of
systemic unconscionable conduct under
the ACL and ASIC Act.
KEY POINTS
• The statutory prohibitions are broad:
Systemic unconscionable conduct may
encompass a wide range of conduct,
often incorporating conduct that
constitutes stand-alone contraventions
of other consumer laws, and is highly
fact-specific.
• Penalties can be significant:
“Systems” cases have attracted large
financial penalties, most recently $10
million in ACCC v Ford [2018] FCA
703. Penalties are likely to grow with
the recent increase to maximum
financial penalties under the ACL.
Disqualification orders are also common
where senior managers are closely
involved.
• The law is still developing:
Practitioners should be particularly
mindful that the concept of
systemic unconscionable conduct is
comparatively new and still evolving. 3
ASIC and the ACCC continue to bring
more “systems” cases and private
enforcement via consumer class actions
is increasing. 4
22 THE BULLETIN October 2018
MEANING OF STATUTORY
UNCONSCIONABLE CONDUCT
Subsection 21(1) of the ACL prohibits
a person from engaging in conduct in
trade or commerce in connection with the
supply or acquisition, or possible supply
or acquisition, of goods or services to
or from another person that is, in all the
circumstances, unconscionable. Section
12CB(1) of the ASIC Act replicates this
prohibition for financial services.
Both statutes do not define
“unconscionable conduct”, but state that
it is not limited by the common law. 5 Case
law does not provide any determinative
interpretation, but makes clear that
statutory unconscionable conduct goes
beyond “unfairness” or “unjustness”,
although this may exist in conduct that is
also unconscionable. 6
The range of conduct that may fall
foul of the prohibitions is ‘…wide and can
include bullying and thuggish behaviour, undue
pressure and unfair tactics, taking advantage of
vulnerability or lack of understanding, trickery or
misleading conduct.’ 7 Importantly, dishonesty
is not a necessary requirement. 8 Courts
have previously sought to impose notions
of moral obloquy, but recently have
moved away from this terminology as it is
not found in the statutory wording. 9
The legislation provides a non-exhaustive
list of matters that a court may consider
when determining whether a person has
engaged in unconscionable conduct,
including the parties’ relative bargaining
strengths, the terms of the relevant
contract and whether it was negotiated,
whether conduct was reasonably
necessary to protect a party’s legitimate
interests, whether relevant documents
were comprehensible and whether undue
influence or unfair tactics were used. 10
MEANING OF ‘SYSTEM OF CONDUCT OR
PATTERN OF BEHAVIOUR’
The statutory prohibitions are “capable
of applying to a system of conduct or
pattern of behaviour, whether or not a
particular individual is identified as having been
disadvantaged by the conduct or behaviour”. 11
There is little authority on the terms
“system of conduct” or “pattern of
behaviour” despite the growing number
of contested cases. However, the Full
Federal Court has recently stated that
“a “system” connotes an internal method of
working, a “pattern” connotes the external
observation of events” and that no “gloss” is
to put on these phrases. 12
Many successful “systems” cases point
to formalised internal documents as
evidence of systemic unconscionable
conduct, such as marketing scripts,
training materials and written policies. 13
Evidence of similar examples of
unconscionable conduct in regard to
particular individuals can also be used to
demonstrate the features of a system or
pattern, without requiring any proof of
disadvantage to a particular individual. 14
However, it is insufficient to prove
that each critical feature of an impugned
process is present “in a number of ”
interactions with consumers, rather it is
necessary to show that ‘the critical features
are present in combination in a sufficient
number... [of those interactions such] that it
was more likely than not… [that the respondent
] had designed and operated that combination
as a… system”. 15 The Full Federal Court
has recently stated that “the more generic the
alleged conduct and the less the unconscionability
depends on the attributes of consumers, the more
probative evidence about what happened to a
number of consumers may be.” 16

CONSUMER LAW
WHEN SYSTEMIC UNCONSCIONABLE
CONDUCT MAY ARISE
Systemic unconscionable conduct may
arise in a variety of contexts and will be
“highly fact-specific”. 17 In some cases,
unconscionability may rely heavily on
vulnerability of the class of persons to
whom the conduct was directed. Where
the characterisation of conduct as
unconscionable relies on the vulnerability
of a group, the particular vulnerability of
the group must be proved. 18
The majority of successful systemic
unconscionable conduct cases have
involved marketing practices, often
involving high pressure sales and failures
to adequately explain contracts, 19 as well
as the assertion of contractual rights and
obligations thereafter, often involving
elements of harassment or coercion. 20
The recent decision ACCC v Ford Motor
Company of Australia Ltd [2018] FCA
703 also demonstrated that systemic
unconscionable conduct may arise in the
handling of consumer complaints about
products with known quality issues.
Importantly, to determine whether
conduct is unconscionable in all the
circumstances it is necessary to look
at the “the whole episode” in which it
occurs and other related contraventions
may be included in the mix. 21 Often
unconscionable conduct is closely linked
to other contraventions of consumer
protection laws, such as misleading or
deceptive conduct.
There is also some authority indicating
that for a system or pattern of conduct to
be unconscionable it is relevant to look at
whether or not it is unique in the relevant
market. 22
PENALTIES
Financial penalties for systemic
unconscionable conduct can be significant,
especially when cases often involve
other contraventions of consumer laws
attracting separate penalties. A $3 million
penalty was imposed in ACCC v Get
Qualified and $10 million penalty in ACCC
v Ford for the systemic unconscionable
conduct contraventions alone.
Maximum financial penalties per
contravention of 12CB(1) of the
ASIC Act are currently $2.1 million
for a corporation and $420,000 for
an individual. On 1 September 2018,
maximum financial penalties for
breaches of s 21 of the ACL for a
corporation increased from $1.1 million
per contravention to the greater of
$10 million, three times the value
of the benefit received or where the
benefit cannot be calculated 10% of
annual turnover in the preceding year.
For individuals, the maximum per
contravention has increased from $220,000
to $500,000.
It will be interesting to see how these
increases to the ACL maximums impact
penalties imposed, particularly given that
the question of whether multiple penalties
are available for systemic unconscionable
conduct is not settled. 23
It is also worth noting that orders
disqualifying persons from managing
corporations are common penalties in this
area where senior managers are closely
involved with the relevant conduct. 24 B
Endnotes
1 Views expressed are my own and do not
necessarily reflect the ACCC’s.
2 Schedule 2, Competition and Consumer Act 2010
(Cth).
3 Notably, the High Court recently granted special
leave to appeal Kobelt v ASIC [2018] FCAFC 18.
4 Class actions involving allegations of systemic
unconscionable conduct are currently on
foot against Radio Rentals in relation to
rent to buy lease agreements (https://www.
mauriceblackburn.com.au/current-class-actions/
radio-rentals-class-action/ ) and Aveo in
relation to retirement village contracts (http://
levittrobinson.com/class-actions/aveo-classaction/).
5 s 21(4)(a) ACL and 12CB(4)(a) ASIC Act.
6 Attorney-General (NSW) v World Best Holdings Ltd
[2005] NSWCA 261 at [121], approved in Paciocco
v Australia and New Zealand Banking Group Ltd
[2015] FCAFC 50 at [356] (Allsop CJ)
7 Tonto Home Loans Australia Oty Ltd v Tavares
[2011] NSWCA 389 at [291] (Allsop P). See
also Kobelt v ASIC [2018] FCAFC 18 at [192]
(Besanko & Gilmour JJ).
8 See Paciocco v Australia and New Zealand Banking
Group Ltd [2015] FCAFC 50 at [262] (Allsop CJ).
9 Kobelt v ASIC [2018] FCAFC 18 at [93] (Besanko
& Gilmour JJ) and Ipstar Australia Pty Ltd v APS
Satellite Pty Ltd [2018] NSWCA 15 at [195]-[199]
(Bathurst CJ) and at [275]-[278] (Leeming JA).
10 S 22 ACL and s 12CC ASIC Act.
11 S 21(4)(b) of the ACL and s 12CB(4)(b) of the
ASIC Act.
12 Unique International College Pty Ltd v Australian
Competition & Consumer Commission [2018] FCAFC
155 at [104] (Allsop CJ, Middleton & Mortimer
JJ).
13 See eg., ACCC v ACN 117 372 915 Pty Ltd (in
liq) (formerly Advanced Medical Institute Pty Ltd)
[2015] FCA 368; ACCC v Get Qualified Australia
Pty Ltd (in liq)(No 2)[2017] FCA 709 and ACCC v
Excite Mobile Pty Ltd [2013] FCA 350.
14 ACCC v Get Qualified Australia Pty Ltd (in liq)(No
2)[2017] FCA 709 at [65] (Beach J).
15 ACCC v E-Direct Pty Ltd [2012] FCA 1045 at [91]
(Reeves J).
16 Unique International College Pty Ltd v Australian
Competition & Consumer Commission [2018] FCAFC
155 at [135] (Allsop CJ, Middleton & Mortimer
JJ).
17 Ibid at [150].
18 Kobelt v ASIC [2018] FCAFC 18 at [69] (Besanko
and Gilmore JJ) and Unique International College
Pty Ltd v Australian Competition & Consumer
Commission [2018] FCAFC 155 at [133] & [153]
(Allsop CJ, Middleton & Mortimer JJ).
19 See e.g. ACCC v Get Qualified Australia Pty Ltd
(in liq) (No 2) [2017] FCA 709 (sale of program
to assist people obtain nationally recognised
qualifications) and ACCC v ACN 117 372 915
Pty Ltd (in liq) (formerly Advanced Medical Institute
Pty Ltd) [2015] FCA 368 (sale of treatment for
male erectile dysfunction).
20 See e.g. ACCC v ABG Pages Pty Ltd [2018] FCA
764 (sale of advertising to small businesses);
ACCC v Excite Mobile Pty Ltd [2013] FCA 350
(sale of telecommunications services).
21 ACCC v Lux Distributors Pty Ltd [2013] FCAFC
at [41]-[44] and ACCC v Get Qualified Australia
Pty Ltd (in liq) (No 2)[2017] FCA 709 at [61]-[62].
22 Paciocco v Australia and New Zealand Banking Group
Ltd [2016] HCA 28 at [290] (Nettle J); Kobelt v
ASIC [2018] FCAFC 18 at [261] and ACCC v
Woolworths Limited [2016] FCA 1472 at [75] –
[80], [142], [194] and [210] (Yates J).
23 ACCC v Harrison (No 2) [2017] FCA 182 at [20]
(Moshinsky J), ASIC v Kobelt [2017] FCA 387
at [33] – [36] (White J), but see ACCC v Get
Qualified Australia Pty Ltd (in liq) [No 3] [2017]
FCA 1018 at [47] (Beach J) cited with approval in
ACCC v Ford Motor Company of Australia Limited
[2018] FCA 703 at [54] (Middleton J).
24 See, e.g., ACCC v ABG Pages Pty Ltd [2018] FCA
764 and ACCC v Titan Marketing Pty Ltd [2014]
FCA 913 (5 year disqualifications imposed in
both).
October 2018 THE BULLETIN 23

CONSUMER LAW
Global reach of the Australian
Consumer Law: full steam ahead
JOHANNA CROSER, DIRECTOR, WESTERN AUSTRALIA AND SOUTH AUSTRALIA
ENFORCEMENT, AUSTRALIAN COMPETITION AND CONSUMER COMMISSION
In late 2017, the Full Federal Court
provided useful guidance about the
global reach of the Australian Consumer
Law (ACL) by:
• confirming that the ACL can apply to
transactions involving sales to Australian
consumers by a foreign company, even
if the “proper law” of the supplier’s
contract is a foreign law; and
• clarifying when a foreign company will
be regarded as engaging in conduct or
“carrying on business” in Australia for
the purposes of the ACL.
The decision is particularly important
for overseas companies – especially those
providing internet-based services to
consumers in Australia. Their sales may
be subject to ACL statutory obligations
even if the business is not incorporated
in Australia, has no staff or premises in
Australia, and its contracts contain an
express choice of law clause, which is a
foreign law.
ACCC PROCEEDINGS & FIRST INSTANCE
FEDERAL COURT DECISION
In 2014, the Australian Competition and
Consumer Commission (ACCC) instituted
proceedings in the Federal Court of
Australia against Valve Corporation (Valve)
alleging false or misleading representations
regarding the application of the consumer
guarantees in the ACL.
Valve is a video game developer
incorporated in and operating from
Washington State in the USA. Steam is its
digital distribution platform that services
consumers worldwide. Consumers are
able to purchase downloadable video
games made by both Valve and thirdparty
developers. Valve is not registered
in Australia and does not have any
subsidiaries registered locally.
In the proceedings, the ACCC alleged
that Valve made false or misleading
representations to Australian customers
that consumers were not entitled to a
24 THE BULLETIN October 2018
refund for any games sold by Valve via
Steam in any circumstances and the
statutory consumer guarantees did not
apply to games sold by Valve.
Valve defended the proceedings on a
number of bases including by taking several
jurisdictional points. These included:
• that the consumer guarantees in the
ACL (and hence the refund provisions
associated with those guarantees) did not
apply to the supplies. Valve contended
that, on the proper construction of the
ACL, the consumer guarantees do not
apply where a supply is made pursuant
to a contract and the objective proper
law of the contract (i.e. the law with
which the contract has its closest and
most real connection) is the law of a
country other than Australia;
• the ACL was inapplicable because the
representations, if made, were not made
in Australia and therefore the conduct
fell outside the ordinary operation of the
statutory provisions; and
• that Valve did not “carry on business
within Australia” and therefore the ACL
did not apply.
On 24 March, 2016, Justice Edelman
(who has since been appointed to the High
Court) delivered judgment on liability
in favour of the ACCC on all claims
(except for certain false or misleading
representations to individual consumers). 1
His Honour found that, notwithstanding
that the law with which Valve’s contracts
had their closest and most real connection
was the law of Washington State, the ACL
applied to Valve’s conduct and Valve was
“carrying on business” in Australia.
APPEAL & FULL FEDERAL COURT DECISION
On 14 February, 2017, Valve filed
an appeal contesting the whole first
instance judgment, including each of the
jurisdictional points it was not successful
on. In December, 2017, the Full Federal
Court upheld Justice Edelman’s decision
that Valve made false or misleading
representations about the availability of
rights under the ACL in Valve’s subscriber
agreements and refund policies. 2 It
provided welcome guidance on the three
jurisdictional points as follows:
ACL applies despite proper law of the
contract being a foreign law
The Full Court rejected Valve’s
contention that the ACL does not apply to
a supply that takes place under a contract,
the proper law of which is the law of a
country other than Australia (in this case,
the law of Washington State). In reaching
this finding, the Court considered the
proper construction of s 67 of the ACL
which states:
Conflict of laws
If:
a. the proper law of a contract for the supply of
goods or services to a consumer would be the law
of any part of Australia but for a term of the
contract that provides otherwise; or
b. a contract for the supply of goods or services
to a consumer contains a term that purports
to substitute, or has the effect of substituting,
the following provisions for all or any of the
provisions of this Division:
i. the provisions of the law of a country other
than Australia;
ii. the provisions of the law of a State or a
Territory;
the provisions of this Division apply in relation to
the supply under the contract despite that term.
Valve submitted among other things that
s 67 “preserves and respects” the objective
proper law of the contract, in the sense of
the system of law with which the contract
has its closest and most real connection. 3
It submitted that where the objective
proper law of the contract is foreign, the
ACL does not apply to supplies under that
contract.
However, the Full Federal Court –
applying the principles of statutory
construction – found that s 67 was

Video game developer Valve was involved in a dispute with the ACCC in relation to misleading representations.
designed to ensure that the operation
of the consumer guarantees cannot be
avoided. Their Honours stated “it would
be inconsistent with the statutory scheme and
statutory purpose to read s 67 as limiting the
scope of the operation of [the relevant parts of
the ACL] such that a supply of goods or services
is not covered where the supply is pursuant to a
contract the objective proper law of which is the
law of another country”. 4
Valve’s representations were made in
Australia
It was accepted by the parties that for
the ACCC to be successful, the ACCC
must establish either that Valve engaged
in the relevant conduct in Australia
(first alternative) or that Valve carried on
business in Australia and therefore was
subject to the extended operation of the
ACL in section 5 of the Competition and
Consumer Act 2010 (Cth) (CCA) 5 (second
alternative).
In relation to the first alternative, Valve
argued that the impugned conduct did
not occur in Australia. It relied on High
Court authority 6 that it is “the act of the
defendant, and not its consequences, that must be
the focus of attention” in arguing that Valve’s
conduct occurred in Washington State
because that was where the material was
uploaded. 7 Valve pointed to the fact that
its representations were made to the world
at large and did not change depending
on the location from which a consumer
accessed them.
In rejecting this argument, the Full
Federal Court stated that in cases where it
is alleged that a respondent has, by making
representations on the internet, engaged
in misleading and deceptive conduct,
it is necessary to ask “where in substance
the representations were made”. 8 The Court
found that in cases where the respondent
is based overseas and has a relationship
with customers in Australia, it is likely
the representations will be taken to have
been made in Australia, being the place
where the customer accesses and reads the
representations on his or her computer. 9
This is so, even if the representations are
available to be accessed by consumers in
other countries around the world.
Valve “carrying on business within
Australia”
In relation to the second alternative,
the Full Federal Court found that Valve
carried on business in Australia. (These
comments were obiter because having
found that the conduct occurred in
Australia, it was not strictly necessary for
the Full Federal Court to consider this
point). However, the Court provided
useful guidance about the test for carrying
on business in Australia and its application.
Their Honours stated that the test to be
applied is whether there are “acts within the
relevant territory that amount to, or are ancillary
to, transactions that make up or support the
business”. 10 In applying the test to Valve, the
Full Court pointed to the following factors
which establish that Valve had a business
presence in Australia:
• Valve had approximately 2.2 million
customers in Australia
• Valve had personal property and servers
in Australia
• Steam content was “deposited” to
servers in Australia
• Valve incurred expenses in Australia for
rack space and power for its servers
• Valve had relationships with businesses
in Australia, such as content delivery
providers. 11
Overall, the Court was satisfied that “there
was a series or a repetition of acts in Australia
that formed part of the conduct of Valve’s
business”. 12 The Court’s reasoning, while
obiter, provides welcome guidance about
the extraterritorial effect and application
of the ACL to overseas conduct. Some
commentators have noted that the Full
Court’s decision may need to be reconciled
in the future with other judicial authority
on the notion of “carrying on business in
Australia” in different statutory contexts,
such as under s 21 of the Corporations Act
2001 (Cth). 13
CONCLUSION
The Full Federal Court’s decision
provides welcome clarity on the global
reach of the ACL. This is particularly
important in circumstances where
Australian consumers increasingly buy
goods and services from overseas entities
– a trend which is only expected to
increase into the future.
Valve’s application to the High Court for
special leave was dismissed in April, 2018.
The views expressed in this article
are those of the author alone and do
not necessarily reflect the views of the
Australian Competition and Consumer
Commission. B
Endnotes
1 ACCC v Valve Corporation (No 3) [2016] FCA 196
2 Valve Corporation v ACCC [2017] FCAFC 224
(Valve Appeal Decision)
3 Valve Appeal Decision, [98]
4 Valve Appeal Decision [114] (emphasis in original)
5 Section 5(1)(c) of the CCA provides that
the ACL (other than Part 5-3) extends to the
engaging in conduct outside Australia by bodies
corporate carrying on business within Australia
(s 5(1)(g)).
6 Such as Voth v Manildra Flour Mills Pty Ltd (1990)
171 CLR 538
7 Valve Appeal Decision, [120]
8 Valve Appeal Decision, [134]
9 Valve Appeal Decision, [134]
10 Valve Appeal Decision, [149]
11 Valve Appeal Decision, [150]
12 Valve Appeal Decision, [151]
13 See, for example, P Stevenson and W Bartlett,
“Valve v ACCC: welcome guidance on the meaning
of “carrying on business within Australia” under the
Australian Consumer Law — however, questions
remain about this concept under other Acts” (2018)
22(2) IHC 27.
October 2018 THE BULLETIN 25

COUNCIL Q&A
Leading the charge: A
Q&A with SA’s 3 law deans
In this special Q&A, we get to know the State’s three law deans,
who are all ex-officio members of the Law Society Council.
Momentously, it is the first time in SA history that the deans
of all the State’s law schools are women. Professor Melissa de
Zwart (University of Adelaide), Professor Tania Leiman (Flinders
University), and Professor Wendy Lacey (University of SA) provide
their thoughts on the state of legal education, the future of the
profession, the major challenges facing lawyers and the best ways
to sustain and nurture the legal profession.
BULLETIN: Can you please give a
brief overview of your career to date?
PROF MELISSA DE ZWART:
I completed the LL B (Hons) and BA
(Hons) at the University of Melbourne,
whilst working part time at what was
then Arthur Robinson and Hedderwicks.
I was an Undergrad for six years and
was very happy to extend my time at
University, I loved studying and really
enjoyed the Honours Year in History. I
went on to complete my articles at Arthur
Robs, then left to work at a smaller firm,
and via that firm, which specialised in
technology and intellectual property, to be
Legal Manager, Corporate Legal Service,
CSIRO. I managed a small legal team in
Melbourne and Canberra and focused on
protection and commercialisation of new
technologies. We had the internet in the
early days of email and discovered what
a source of work for lawyers that would
be… and made the decision to complete
my LLM and transition to an academic
career. I worked at Monash University
for 13 years, before moving, with my
family, to Adelaide. I was appointed as
Dean of the Adelaide Law School in 2016
and took up the role at the beginning of
2017.
PROF TANIA LEIMAN: In August
2017, I was appointed Dean of Law in the
new College of Business, Government &
Law here at Flinders.
Following my admission in 1986, I
worked in private legal practice with a
medium sized plaintiff firm in Adelaide,
focussing primarily on civil litigation,
and returned part time to private practice
26 THE BULLETIN October 2018
during 2010-11. I continue to hold an
unrestricted practising certificate.
I taught as a casual academic at Flinders
Law School from 1994-2009, at UniSA
from 2005-2009, and at Adelaide Law
School in 2009. In 2010, I was appointed
part time as Director of First Year Studies
at Flinders Law School, with a focus
on legal education. I was appointed full
time as an academic at Flinders in 2012,
teaching tort law, and as a supervising
solicitor in our Flinders Legal Advice
Clinic from 2010-2016. In 2015, I was
appointed Associate Dean of Teaching &
Learning at Flinders Law School.
My current research interests include
emerging technologies and the law,
particularly automated vehicles, disruption
in the legal profession, and the future
of legal education. I have published and
presented widely on these and other
topics. I sit on the Policy & Risk Group
of the Australian Driverless Vehicles
Initiative, the peak body in Australian
bringing together government, industry,
insurer, regulators and researchers working
on the safe implementation of automated
vehicles in Australia. I co-founded the
Flinders Blockchain Alliance, designed
to bring together multi-disciplinary
researchers, students and industry with an
interest in potential uses and challenges of
blockchain technology.
I have been awarded Faculty, Vice
Chancellor’s and national Australian
Government teaching excellence awards
for my work both as an individual
academic and as part of our clinical legal
education team.
Professor Melissa de Zwart
PROF WENDY LACEY: I hold
Honours degrees in both Law and Arts
(Political Science) and a PhD from the
University of Tasmania. In 2001, while
undertaking my PhD and lecturing
part-time, I successfully applied for a
lectureship at the Adelaide Law School,
which I commenced in July 2002. In 2007
I commenced as an Associate Professor of
Law at the University of South Australia,
where I was a member of the foundation
academic team. In 2010, I became the
Deputy Dean of Law, was promoted
to Professor in 2013, and commenced
my term as the Dean of Law in April
2014. While never admitted to practice,
I have provided legal opinions in a range
of High Court and governmental legal
matters. Most recently, I was heavily
involved in the design and development
of South Australia’s proposed Adult
Safeguarding Laws. I continue to teach
and research in the areas of constitutional
law, administrative law, human rights and
public international law. The focus of my
current research is in the rights of older
persons and the prevention of elder abuse.
What drew you to a career in law &
academia?
MDZ: I was fascinated by areas of law
such as intellectual property. I loved, and
still love, questions that don’t have any
clear answers and in particular, where new

COUNCIL Q&A
technology creates new issues. I had some
wonderful teachers in my undergraduate
degree, such as Professor Sam Ricketson,
Professor Sally Walker and Professor
Sandy Clark. They inspired me to pursue
the big questions and the research side of
the law. I also feel very privileged to work
with such talented students and that keeps
me engaged and wanting to explore new
opportunities for them, in the same way I
was inspired by my teachers.
TL: A commitment to justice and seeking
to service the community led me to
study law. When I fell into academia
serendipitously after my first child was
born, I realised how much I enjoyed the
intellectual stimulation and excitement of
engaging with the next generation of legal
professionals. Although I loved returning
to practice, academia called full time in
2012, offering an opportunity for me to
invest in the future legal leaders of our
community.
WL: I was teaching law to international
students at the University of Tasmania
in my final year at Law School and was
offered a full PhD scholarship at the
end of my LLB. With a passion for legal
research, it struck me as a perfect fit for my
interests and skills. I also had the benefit of
being mentored by a number of successful
law professors, who encouraged me to
move into academia. As a single parent at
the time, the flexibility afforded through an
academic career was also appealing.
What are some of the biggest changes
you have seen in the legal profession/
legal education during your career?
MDZ: Well, the obvious one is the capacity
for Big Data, AI and automation to get
rid of the most tedious and boring jobs.
As an articled clerk I was one of a large
team of people who spent months reading
through boxes and boxes of documents
in the context of a large corporate matter.
Legal education has become much more
engaging. Now we have amazing study
tours overseas (I would never have
dreamt of going into the Pentagon as
a student, nor working on international
projects such as the Woomera Manual on
the International Law of Military Space
Operations with world leading experts, or
travelling overseas as part of a mooting
team, which our students have been able to
do). The opportunities are so vast. Clearly,
you still need to work hard and there are
serious pressures on students regarding
finding employment, but I hope we provide
better support to students now than we
had when I was at Law School.
TL: The growth of technology and how it is used
in the profession and in legal education. When
I was first admitted, none of the lawyers
had computers on their desks, files were all
hard copy, there were no mobile phones
or devices, legal research meant pulling
big heavy books from the shelves of the
library. That has changed dramatically,
completely transforming what lawyers do
and how they do it. More change is on the
horizon, with developments in artificial
intelligence, big data and predictive
analytics.
Legal education has changed too. Now,
resources are all available online via
learning management system platforms,
lectures are livestreamed and recorded,
staff can meet virtually with students
using video-conferencing tools, students
produce videos, audio, interactive online
materials and apps as well as written
material as part of their legal studies.
Changing models of legal service delivery.
‘Many larger law firms now have dedicated
legal technology development teams that
combine legal, project management, data
analytics and IT skills.’ The growth of
in-house legal departments, especially
recently those in Big 4 accounting firms is
all part of this changing picture of what
being a legal professional is.
Need for willingness to discuss mental health
and wellbeing issues for lawyers and law students.
While there have been some important
recent initiatives, there is still much to be
done to address the high rates of mental
distress reported by both lawyers and law
students.
The lack of down time. Digital connectivity
means it is hard to switch off – for
practitioners, academics and students.
Deadlines are much shorter and
responses are expected immediately
irrespective of day of the week or time
of the day presenting new challenges for
appropriately managing professional and
private boundaries.
WL: I would have to say the use of
technology in both the study and practice
of law, and the proliferation of double and
combined degrees with Law.
How do you view the relationship
between the academic world and legal
practice? Are there opportunities for
links to be strengthened?
MDZ: I believe that the relationship
between academia and the profession is
Professor Tania Leiman
vital. We are educating members of the
legal profession, our students are members
of the profession from the day they enter
the Law School. We are also partners in
upholding the core standards and values of
being a lawyer. It is vital that we recognise
that law is not just the new generalist
degree, it involves much more than a
different way of thinking (although that is
important).
TL: It’s a very important relationship. We
can learn from each other, enriching both
the profession and the academy, but we
won’t always agree – that’s healthy and
as it should be. While practitioners and
academics share the discipline of law,
we have divergent goals. Together, the
academy and the profession have a shared
responsibility for training, developing
and supporting the next generation of
legal practitioners. But the academy is
about much more than just equipping law
graduates for employment in law firms.
Many of our students will not follow
traditional pathways to legal practice,
but will use their legal knowledge and
skills in diverse ways. Our research and
teaching needs to be at the cutting edge
of our discipline, pushing boundaries,
creating new knowledge and pursuing
best practice learning and teaching. It is
also about critiquing the law, our society,
the profession and the legal services
sector, offering an independent view, for
the benefit of the legal sector and our
community at large.
At Flinders, we value our close
connections with the profession, as adjunct
lecturers, guest speakers, as sponsors
of academic prizes for our students, as
members of our Flinders Law Board
October 2018 THE BULLETIN 27

COUNCIL Q&A
of Advisors, as volunteer supervisors in
our Flinders Legal Advice Clinic, and as
practical legal training placement providers
for our legal practice management students.
WL: Certainly at UniSA, we have
established the Law School with a strong
emphasis on practical skills and close
engagement with the profession. However,
with the rise in the number of students
doing double degrees, the academy also
needs to prepare graduates for a range of
legally related professional careers that
extends beyond traditional legal practice.
From my experience, both students
and legal practitioners get immense
benefit from having practitioners in the
classroom as well as students having the
opportunity to engage in internships and
other professional placements throughout
their studies. At UniSA, we recently
introduced a new Honours program,
which requires students to participate in
a range of capstone courses that provide
such opportunities. There is always more
that we could be doing, however, and
one of the challenges that Law Schools
face is in providing a quality student
experience which strengthens professional
opportunities following graduation.
What do you see as the key issues
affecting the legal profession/legal
education?
MDZ: The key pressures at the moment
come from overstated claims about the
impact of technology on the need for
lawyers. Lawyers need to understand and
relate to their clients, they need sound
legal knowledge and good emotional
intelligence. Lawyers need to be able to
work with and help people, so the people
skills are vital It is not an easy profession
but one that is very rewarding.
TL: The key issues I see relate to emerging
technologies such as big data mining,
predictive analytics, artificial intelligence
and blockchain have the potential to very
significantly disrupt what lawyers do and
how they do it, requiring new knowledge
and skills from lawyers, graduates and
students.
Other emerging technologies will disrupt
whole areas of existing practice –these
include driverless cars and motor vehicle
personal injury practice, robotics and
industrial, employment and work health
& safety law, to name just two. There are
many more.
One of the most pressing issues for both
the profession and legal education is how to
respond to the challenges and opportunities
presented by these technologies.
These technologies blur the boundaries
28 THE BULLETIN October 2018
between legal advice and legal information,
and between conduct that is regulated
(which requires recognised legal
qualifications) and conduct outside existing
current regulatory frameworks. What does
this mean for existing business models of
legal services delivery? What qualifications
will be needed to carry out this work or
deliver these services?
Another equally pressing issue is how
to make legal services more accessible.
Growing numbers of our community
cannot afford to access legal services at
all. Increasing the availability of legal
information and the capacity to scale
provision of legal services has the potential
to increase access to justice for the many
people for whom legal advice is currently
out of reach. But how can the accuracy,
reliability and quality of that information
or those services be assured so that the
public is protected? How should regulators
respond?
The profession and the academy need
to work together to identify the skills and
knowledge lawyers already in practice and
new legal graduates will need to navigate
and thrive in this new environment. A
pressing challenge for legal education is
how to add these new skills into an already
very crowded and prescribed curriculum.
In turn, legal educators will need new skills
and knowledge to teach effectively in this
new context. Admitting authorities will
need to respond to these pressures on the
legal curriculum.
WL: I think we have only just started to see
the significant impact of digital disruption
and the influence of technology on the
profession and law schools. The lawyers of
tomorrow will need to be digitally literate
and quite adaptable to frequent change
throughout their careers. Yet, at the same
time we are also seeing the increasing call
for the soft professional skills that make
someone a great employee and colleague.
Neither of these trends is likely to cease or
wane into the future.
How can the Law Society address these
key issues?
MDZ: The Law Society provides
networking events and support for new
practitioners. It is a good advocate for the
specific interests of the profession. It is
important that the legal academy and the
Law Society continue to work together on
these issues.
Professor Wendy Lacey
TL: The Law Society should seek to lead
and facilitate conversation among the
profession and between the profession and
the academy about the disruptive changes
already being experienced. The recent reestablishment
of the Law Society’s Legal
Technology committee is a good start.
South Australia can draw on resources and
recommendations developed elsewhere, for
example:
• Law Society of NSW’s 2017 FLIP
Report ‘Future Of Law And Innovation
In The Profession’,
• Law Society of WA’s 2017 ‘The Future
of the Legal Profession’ report,
• Singapore Academy of Law has
established a Future Law Innovation
programme (also called FLIP)
• Law Society of England and Wales 2016
‘The Future of Legal Services’ report
• Canadian Bar Association’s 2014
‘Futures: Transforming The Delivery
Of Legal Services In Canada’ report
• International Bar Association’s Task
Force on the Future of Legal Services
WL: There is probably a need to consider
the range and breadth of the Law Society’s
committees and whether the Society is
adequately placed to respond to future
challenges facing South Australia. Here
I am thinking of the growth of SMEs
and their critical role in the economic
prosperity of the State. Another challenge
stems from our significant ageing
population. The Society already makes
a very significant contribution to the
State but it will be important to ensure
that it preserves its ability to contribute
and respond in a timely manner. Having
the Law Deans represented on Council
also ensures regular and ongoing
communication between the professions
and the three Law Schools.
As a law dean and ex-officio member,
do you feel you have a unique
perspective on the issues that are
considered by the Law Society Council?
MDZ: I enjoy bringing my perspective
from practice and from the University to

COUNCIL Q&A
the Council and am glad to be a part of
the work of the Council.
TL: Wearing both hats allows me to ensure
that what we teach at Flinders is informed
by current issues the profession is facing
here in SA and more widely. It also is an
opportunity to bring a broader perspective
to the Council, informed by the research
my colleagues and I are undertaking, and
to share the most recent issues facing
legal education. All three Deans also sit
on the Legal Practitioners Education and
Admission Council [LPEAC], giving us
insight across the legal lifecycle.
WL: I believe that the Deans do make
an important contribution at Council.
While not every matter discussed at
Council will have direct relevance to
legal education, ensuring a high level of
engagement between the Society and the
universities is of benefit to everyone. The
academic expertise that the Deans bring
to a discussion can also be an advantage,
as is the insight that the Deans have
through being members of LPEAC, the
Law Foundation and CALD (Council of
Australian Law Deans).
What do you think will be the key
attributes of the future generation of
lawyers? Are they being addressed by
the current legal education structures?
MDZ: We are trying to provide our
students with skills that will enable them
to thrive in workplaces of the future, such
as technological literacy, resilience and
flexibility.
TL: No one set of skills will fit the
numerous career paths our graduates
follow.
Legal education in the 21 st century needs
to be developing legally literate leaders who
are innovative ‘T shaped’ professionals,
with ‘a depth of knowledge in [law] (the
vertical stroke of the T) and a breadth of
knowledge across multiple disciplines that
allows for collaboration (the horizontal
stroke of the T)’.
Strong interpersonal, business and
technological skills will all be necessary.
This is in addition to a solid grounding in
legal research, legal analysis and problem
solving. Learning large slabs of content
will be less important than learning how
to locate the relevant information, digest
it effectively, think critically and creatively
to use it to generate solutions to legal
problems. The capacity to innovate and
be enterprising will be crucial. Flinders
has always been committed to developing
these skills across our law degrees, and
particularly in our practical legal training
topics in final year.
WL: My comments above probably
already cover the first part of this
question. However, the second part of
the question – whether current legal
education structures enable universities to
adequately equip graduates with those key
attributes – is a different question. I think
all three South Australian Law Schools
produce outstanding graduates. However,
given the extent to which the curriculum is
prescribed for us (particularly, through the
Priestley 11), it can be difficult to innovate
and differentiate from other providers. I
would be very uneasy if the Priestley 11
got expanded too far and with insufficient
consultation involving higher education
providers. There must be a point where
universities should be encouraged to
innovate and continuing professional
development must also be effectively
utilised to ensure that practitioners
continue to up-skill throughout their
careers. At times it can feel like certain
parts of the profession expect the law
degree to be all things for everyone,
when that is almost impossible to realise
in a 3-4 year degree. It is important to
remember that Law Schools engage in
regular review and auditing through their
own institutions, as well as by the national
higher education regulator (TEQSA). This
comes in addition to our five-yearly cycles
of LPEAC accreditation (focussed on the
curriculum) and the CALD certification
process (which is broader in scope and
looks to matters such as faculty profile,
teaching and learning resources and
internal governance).
For the first time ever, all three SA law
deans are women. What are your views
on the progress of gender equality in
the legal profession and academia?
MDZ: This is a great achievement. It
reflects the gender balance in law and legal
academia. We still have a long way to go
in truly embracing diversity and equity
issues and we need to keep working on
it. Having women in the law is one thing,
but removing gender as an issue would be
even better. I am still treated differently
from my male colleagues and it would be
wonderful if I didn’t have to battle for
equivalent treatment.
TL: We have certainly come a long
way since October 1917 when Mary
Kitson was the first woman admitted to
practice in SA. The demographics of
the profession have changed significantly.
The Law Society of NSW’s National Profile
of Solicitors 2016 showed that ‘female
lawyers slightly outnumbered males in
2016’. This hasn’t yet translated into
equal representation at senior levels of
the profession and judiciary. Law Society
figures show that there are now more
women members of the profession than
men. At Flinders, female law students
outnumber male students (approximately
60/40) and have done so every year since
at least 2008. Very real challenges continue
to exist regarding the gender pay gap, with
women earning less than men in the same
roles, and in relation to appointment of
women in senior roles. Finding a workable
balance between parenting and career is a
constant issue. How can we make re-entry
to the workforce easier for women who
have had children, and how can both
women and men be better supported to
work flexibly or have time out from career
to parent their children? I was privileged to
be able to choose to work sessionally while
my children were young, but I could not
have made that decision without the very
significant support of my partner. Not
everyone has that choice, and sessional
or casual work is amongst the most
vulnerable types of employment.
WL: I think it is wonderful to see three
women running our three Law Schools,
just as it is pleasing to see female leaders
throughout the profession. Gender
statistics for the profession tend to
demonstrate that we still have some way
to go with respect to gender diversity.
Family friendly policies and addressing
entrenched sexism are two areas where
more needs to be done. However, it was
personally satisfying to see the support for
gender diversity policy changes at Council
in recent years.
What are some of your interests
outside of the law?
MDZ: Sport: soccer, ice hockey, hockey
and baseball; outer space and science
fiction.
TL: Most evenings and weekends I
can be found walking my border collie
somewhere in a park, the Hills or along
a beach. I make large abstract paintings,
puddle in the garden, and play various
musical instruments. I consume nonfiction
books and podcasts voraciously
with a keen interest in history and
politics. I am actively involved in a faith
community, regenerated and enriched by
the diversity of those I connect with there.
WL: When I get the time, I love to read,
paint and garden. Being an academic and a
Dean can make reading novels seem like a
guilty pleasure, however! B
Endnotes on page 45
October 2018 THE BULLETIN 29

ORAL HISTORIES
Service at the highest level:
John Doyle AC QC
LINDY MCNAMARA
As the State’s highest judicial
officer for 17 years, John Doyle
AC QC gained the respect of
the legal profession in South
Australia and nationally. He
reflects on his illustrious career
in an oral history interview with
Lindy McNamara.
When John Doyle AC QC decided to
go to the Bar in 1976 he thought he
had found his niche.
He was being briefed in plenty of cases
in commercial litigation and administrative
law to test his astute mind, the money
was good and the camaraderie with
his five fellow barristers in Hanson
Chambers provided a supportive and fun
environment.
By the age of 36, he had been appointed
Queen’s Counsel and his talents as
a barrister were much sought after,
which meant his decision to accept the
appointment as Solicitor General in 1986
took many in the profession by surprise.
He admitted that when initially
approached to take on the job he had no
hesitation in turning down the offer.
“I actually thought about it quite briefly
and said no because it was going to be
quite a step down in income and I was
perfectly happy doing what I was doing.
So I said no and I really thought no more
about it,” the former Rhodes Scholar
explained.
But another attempt to secure his services
in a few months later proved successful.
About four or five months later, one
morning Cathy Branson called in – she
used to walk to work from the southeastern
corner of Adelaide – and she
said, ‘the Attorney asked me to ask
you one more time will you accept the
appointment?’
“As far as I can remember, I didn’t say yes
then and there, but I just felt yes, I wouldn’t
mind giving it a crack. So just as I almost
out-of-hand said no the first time, almost
out-of-hand I said yes the second time.
30 THE BULLETIN October 2018
John Doyle AC QC
“I realised that if I wanted to get into the
area of constitutional law in a significant
way, that was the only way to do it. I could
get some at the private Bar, but I would
never get the experience in the High Court
that I would as Solicitor-General…I do not
know if I realised it would be an excellent
way to get experience in crime. It was,
because I did a lot of criminal appeals, but
I am not sure whether that was in my mind
at the time or not.”
Mr Doyle added that he took on the job
just as the role of Solicitor General was
changing throughout Australia.
“It was an era when, rightly or wrongly,
there were some judges on the High
Court whom they called ‘activists’. The
High Court was doing a lot of significant
decision-making at that time. I think
they supported the change in the role of
the Solicitors-General because it meant
they were getting, in effect, a group of
specialists on Constitutional Law which
probably never existed before.
“The Solicitors-General were doing
the bulk of the High Court work in their
respective States whereas previously a lot
of that work had been done in Sydney or
Melbourne at the private Bar, the Crown
briefed out. But starting about my time, the
Solicitors-General started doing that work
themselves and so did develop expertise.
“I appeared in a lot of significant cases,
but just one that stands out was within
about six to eight months of me being
appointed, Cole v Whitfield, in which the
Court undertook a review of all the cases
on Section 92 and set the law relating to
Section 92 on a completely different tack.
That was a very significant case because
it involved the High Court abandoning
probably 60 years of decision-making to go
in a new direction.”
Mr Doyle’s service to South Australia
continued with his appointment as Chief
Justice in 1999. He went into that job with
a list of items that he thought he should
focus on and upon reflection said two-

ORAL HISTORIES
thirds were “spot-on”, while the other third
“turned out to be ideas of someone who
did not really know what the job involved”.
One of the top items on his to-do list
was engaging with the general public
through the media.
“I had come to realise that the Courts
needed to work more with the media…
that we needed to make more of an effort
to explain to the people what we were
doing and how the law worked. I think
up until then the idea of a Chief Justice
fronting a press conference or going on
radio was something that many, perhaps
most, thought you should not do.”
Coming into the job after Len King
AC QC, Mr Doyle said he learnt quickly
that he had been wrong in criticising his
predecessor over written judgments.
“I felt there were times when Len could
have written more on topics than he did
and could have written a bit of an essay.”
“Within a few months of being there, I
realised that I agreed with Len, because if
you write unnecessarily the next thing you
find a year later, someone cites it to you
and you think, ‘Well, why did I say that?’
you know, there was no need to say it. I
hadn’t thought it through fully because
I just thought I could elaborate a bit. So
that’s one thing I did learn and came to
agree with Len – don’t write on things
that you don’t really need to write on, just
decide the case and move on.”
Looking back on his time as Chief Justice
– which ended in 2012 when he retired
early following a diagnosis of Parkinson’s
disease – Mr Doyle said he was proud
of the improvements he implemented to
the listing system for the Full Court and
the Court of Criminal Appeal, and also
his pastoral support of members of the
judiciary.
“I think I probably encouraged a slightly
more pastoral aspect within the Court as
a whole. I set up what was called a buddy
committee, a small committee comprising
a Supreme Court judge, a District Court
judge and a magistrate, which any judge
could go to, in anonymity, and talk about
problems they’re having and things like
that.”
However, one of the items on his list that
remained a thorn in his side and continues
to irk those in the legal profession was the
state of disrepair of court buildings.
“It was frustrating that the Courts
couldn’t get the funds they needed.
There’s still the problem with the Supreme
Court building, which is probably the
biggest frustration in my life, because for
about 15 years we were trying to get the
government to do what it should do in
relation to the Courts and we couldn’t and
still can’t.”
Overall, he said any legacy from his time
as Chief Justice would be determined by
others.
“I think Len probably was more formal
than I was. I think because I was younger,
you know, I didn’t expect that everyone
would call me ‘chief ’ or ‘sir’. So I think
I probably relaxed things in a way that it
was time to do, the times were changing.
“But I don’t think there’d be one
single thing I’d say that this is my legacy
because we are all working together,
judges and chief justices to improve the
administration of justice.
To read the full transcript of Mr Doyle’s 2017
oral history interview, including memories of his
early years in the law, involvement with the Law
Society and the importance of his family, go to
www.lawsocietysa.asn.au. B
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October 2018 THE BULLETIN 31

GET IN ON THE ACT
Entitlement to Practise the
Profession of the Law
ADRIANA MAINAS, LEGAL OFFICER, ETHICS & PRACTICE UNIT
The Society takes this opportunity
to educate practitioners about the
importance and impact of section 21 of
the Legal Practitioners Act 1981 (SA) (the
Act), particularly in the context of wills
and Powers of Attorney (General and
Enduring).
The purpose of section 21 of the Act
is the protection of the public, making
it an offence for any persons without
a Practising Certificate to practise the
profession of the law or hold themselves
out or permit others to hold themselves
out as being entitled to practise the
profession of the law.
It has come to the Society’s attention
that some practitioners may be engaging
unqualified persons to take will
instructions.
Section 21(1) of the Act states as follows:
“A natural person must not practise the
profession of the law, or hold himself or
herself out, or permit another to hold him
or her out, as being entitled to practise the
profession of the law unless the person—
a. is a local legal practitioner; or
b. is an interstate legal practitioner.
Maximum penalty: $50 000.”
Section 21(2) of the Act clarifies some
of the activities that constitute “legal
practice”, as follows:
“Without limiting the generality of subsection
(1), but subject to subsections (3) and (3a), a
person practises the profession of the law, if
acting for fee or reward on behalf of some other
person he or she—
• prepares any will or other testamentary
instrument; or
• prepares an instrument creating,
transferring, assigning, modifying or
extinguishing any estate or interest in
real or personal property; or
• prepares any instrument relating to the
32 THE BULLETIN October 2018
formation of a body corporate, any
amendment to the constitution, rules
or regulations of a body corporate, any
prospectus or take-over scheme relating
to a body corporate, or any instrument
affecting the rights of shareholders or
debenture holders in a body corporate
or any scheme of arrangement in
respect of a body corporate; or
• prepares any other instrument creating,
transferring, assigning, modifying or
extinguishing any right, power or liability
at law or in equity; or
• represents any party to proceedings in a
court or tribunal.”
Section 21(4)(ba) of the Act states, very
clearly, that “a person prepares an instrument if
the person takes instructions for the preparation
of such an instrument.”
Therefore, whilst an unqualified person
can prepare his/her own will, he/she
cannot prepare a will for or on behalf of
anyone else, except in accordance with the
exception contained in section 21(3)(s) of
the Act which states as follows:
“This section does not prevent—
a body corporate authorised by a special Act
of Parliament of this State to administer the
estates of deceased persons from preparing
a will or other testamentary instrument for
fee or reward provided that, if the body
corporate or a related body corporate (within
the meaning of the Corporations Act 2001
of the Commonwealth) is to be named as
the executor, or one of the executors, of the
will or instrument, any commission or other
remuneration that will, or might, become payable
in consequence of that appointment must be
disclosed to the person on whose instructions the
will or instrument is to be prepared;”
Practitioners who engage unqualified
persons for the preparation of wills
expose themselves, their clients and the
unqualified persons to significant risk.
The risk is very similar for the
preparation of Powers of Attorney. In
accordance with section 21(2) of the Act,
the preparation of a Power of Attorney
constitutes “legal practice”. As in the case
of wills, whilst an unqualified person can
prepare his/her own Power of Attorney,
he/she cannot prepare a Power of
Attorney for or on behalf of anyone else,
except in accordance with the exception
contained in section 21(3)(o)(i) of the Act
which states as follows:
“This section does not prevent—
(o) a conveyancer registered under the
Conveyancers Act 1994 from preparing for
fee or reward—
(i) an instrument registrable under the Real
Property Act 1886, the Community
Titles Act 1996 or the Strata Titles Act
1988;”
Therefore, a registered conveyancer
may prepare a Power of Attorney (an
instrument registrable under the Real
Property Act 1886 (SA)) for another,
however a person who is not a legal
practitioner nor a registered conveyancer
cannot prepare a Power of Attorney for or
on behalf of another.
Any suspected breaches of section 21
of the Act are considered by the Ethics &
Practice Committee and are referrable to
the Attorney-General for investigation and
possible prosecution. Where suspected
breaches involve practitioners, they may
also be referred to the Legal Profession
Conduct Commissioner pursuant to
section 14AB(1)(c) of the Act.
Practitioners should also be aware of
“unlawful representation” which is an
offence pursuant to section 23 of the Act,
which states as follows:
“(1) If any person (whether or not a legal
practitioner) with a view to attracting
business, falsely pretends to be the holder
of any degree, diploma or certificate in law

GET IN ON THE ACT
or adopts any style that leads reasonably
to the false inference that the person holds
any degree, diploma or certificate in law, the
person is guilty of an offence.
Maximum penalty: $10 000.
(2) If a person (whether or not a legal
practitioner) holds out an unqualified person
as being entitled to practise the profession
of the law, the person is guilty of an offence.
Maximum penalty: $10 000.
(3) If a legal practitioner—
(a) permits or aids an unqualified person to
practise the profession of the law, or acts
in collusion with an unqualified person
so as to enable that person to practise the
profession of the law; or
(b) enters into an agreement or an
arrangement with an unqualified person
under which the unqualified person is
entitled to share in the profits arising
from the practice of the law (otherwise
than as permitted by this Act, or as
may be authorised by the Society), the
practitioner is guilty of an offence.
Maximum penalty: $10 000.”
Practitioners engaging unqualified
persons to undertake any tasks that
constitute or may constitute “legal
practice” should refrain from doing so as
there are serious consequences. This can
include:
• a financial penalty as per the above
sections of the Act;
• a referral to the Attorney-General (for
the unqualified person and practitioner);
and
• a referral to the Legal Profession
Conduct Commissioner (for the
practitioner).
Furthermore, legal services provided by
unqualified persons, prima facie, will not
be indemnified under the Professional
Indemnity Insurance Scheme, which may
give rise to a claim in negligence against
the practitioner concerned.
The Society reminds practitioners of
the Guidelines on the Society’s website
regarding the Employment of Paralegals/
Specialist Law Clerks. Those Guidelines
contain examples of tasks that may be
undertaken by unqualified persons and
tasks reserved only for practitioners.
There are also Guidelines for Law Clerks
and Practical Legal Training Students
Appearing in Court with reference to the
exception in section 21(3)(g) of the Act
and the various issues to consider when
relying on same.
Practitioners seeking clarification on the
operation of sections 21 and 23 of the Act
may contact the Ethics & Practice Unit for
further information. B
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RISK WATCH
Shifting Sands for Workers
Compensation Lawyers
GRANT FEARY, DEPUTY DIRECTOR, LAW CLAIMS
The ramifications of changes to
the Return to Work Act 2014 are
being worked through by the
SAET and the Supreme Court.
Practitioners need to keep
abreast of these decisions.
The full ramifications of the changes
made to the SA system of workers
compensation by the Return to Work Act
2014 (RTWA) are still being worked
through by the SA Employment Tribunal
(SAET) and the Supreme Court.
A good example of this process is the
recent case of Return to Work Corporation
of South Australia v Preedy [2018] SASCFC
55 (15 June, 2018). In this case a worker
injured his left shoulder in 2012 during the
course of his employment. Unfortunately,
whilst receiving physiotherapy for his
shoulder injury in April 2013, Mr Preedy
sustained a neck injury, being a fracture of
his C5 vertebrae.
In relation to the shoulder injury, the
Return to Work Corporation (RTWC)
determined that the injury resulted in
a combined whole person impairment
of 11% and that therefore Mr Preedy
was entitled to non-economic loss of
$21,792 pursuant to s.43 of the Workers
Rehabilitation and Compensation Act 1986.
At the time of suffering the neck
injury, Mr Preedy did not know that he
in fact had multiple myeloma, a cancer
of blood cells in bone marrow. There
was medical evidence from Dr Porteous
to the effect that the underlying cause
of the C5 fracture was the myeloma and
that more likely than not the myeloma
would have eventually resulted in a
fracture of the vertebrae. Dr Porteous
considered however that the physiotherapy
contributed to the fracture and Mr
34 THE BULLETIN October 2018
Preedy’s claim was accepted by the RTWC
on that basis.
In January, 2016 the RTWC determined
Mr Preedy’s claim for a lump sum for
non-economic loss in respect of the C5
fracture. It determined that Mr Preedy’s
entitlement in this regard was $71,985,
based on an impairment assessment of
27%.
Mr Preedy challenged that determination
arguing that the shoulder injury and the
C5 fracture were the same injury or arose
from the same cause and that (pursuant to
s.22(8)(c) of the RTWA) the impairments
resulting from the various injuries should
be assessed together or combined to
determine his degree of impairment.
No doubt this was important because of
s.21 (2) of the RTWA, which provides
that a worker whose work injury has
resulted in permanent impairment and
which impairment has been assessed to
be 30% or more will be “a seriously injured
worker”. Being characterised as a seriously
injured worker allows that worker access to
additional benefits under the RTWA (see
for example s.41 of the RTWA).
At first instance a Judge of the SAET
ruled against Mr Preedy who appealed to
the Full Bench of the SAET. The appeal
was successful, the Full Bench holding
that the two assessments of impairment
should be combined. The RTWC appealed
from that finding to the Full Court of
the Supreme Court and was successful in
overturning the Full Bench’s decision.
Stanley J wrote the principal judgment
in the Full Court (Kourakis CJ and Parker
J agreeing). His Honour conducted an
extensive analysis of the relevant sections
in the RTWA including a comparison with
the position under the previous legislation.
All practitioners involved in workers
compensation matters should carefully
consider the detail of this analysis.
One of the critical issues in this case was
an apparent conflict between s.22(8)(c) and
s.58(6)(a) of the RTWA. Stanley J found
that those provisions could be reconciled
so that the Act functions in a harmonious

RISK WATCH
and coherent fashion by recognising the
different work each performs. His Honour
found:
“Section 22 (8) (c) requires that, under the Act
in assessing the degree of WPI, impairments
from the same injury or cause are to
be assessed together or combined to determine
the degree of impairment or the worker (using
any principle set out in the Guidelines). Section
58(6) (a) provides that for the purposes
of assessing an entitlement to lump sum
compensation for non-economic loss, where
a worker suffer two or more injuries arising
from the same trauma the injuries may
together be treated as one injury to the extent set
out in the Impairment Assessment Guidelines
(assessed together using any combination or
other principle set out in the Guidelines) (para
[50]) (emphasis added).
The critical finding of Stanley J is at para
[71] of His Honour’s judgment. It is as
follows:
“The Judge at first instance found that the
worker’s left shoulder injury and is neck injury
did not arise from the same trauma
and therefore those impairments should not
be combined…. The Full Bench’s conclusion
that the [injuries] arose from the same trauma
in infected by error…. [T]he question of
whether the worker is entitled to have those
impairments assessed together or in combination
to determine the degree of impairment depends
either on whether the worker [s.58(6)] from
the same trauma or whether the workers
impairments are from the same injury or
cause [s.22 (8) (c)] That later issue was not
considered by the Full Bench given the approach
it took.” (emphasis added).
In the result, the Full Court allowed the
appeal and remitted the matter to a single
presidential member of the SAET to
determine the factual question of whether
the worker’s impairments are from the
same injury or cause in light of the Full
Court’s reasons.
The Preedy case is but one of a number
of cases on the RTWA and, in particular,
on the changes made in recent times: See
also Return to Work Corporation v Robinson
[2018] SASCFC 32 (11 May, 2018), Return
to Work Corporation v Karpathakis/ Return
to Work Corporation v Rudduok [2018]
SASCFC 45 (1 June, 2018), Return to Work
Corporation v Watkins [2017] SASCFC 149
(10 November, 2017). Practitioners who
practice in the area need to keep abreast
of these, and further developments or they
will be left behind.
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ADMINISTRATIVE LAW
The implications of Burns v
Corbett in tribunal proceedings
against interstate residents
ELIZA BERGIN, ANTHONY MASON CHAMBERS
If you are considering filing an
application in the South Australian Civil
and Administrative Tribunal (SACAT)
against an inter-state resident, or if you are
a not a resident of the State in which you
wish to bring a proceeding, you should
seek advice regarding the implications of
the recent High Court decision in Burns v
Corbett. 1
An issue arises as to whether the tribunal
is exercising judicial power over a matter in
making a decision on your proceeding.
WHAT IS THE ISSUE?
In April, the High Court decided that the
New South Wales Civil and Administrative
Tribunal (NCAT) did not have jurisdiction
to decide a proceeding between a resident
of New South Wales, a resident of
Queensland and a resident of Victoria.
The High Court decision related to
two complaints of anti-discriminatory
statements made against Mr Burns,
a resident of NSW, by Ms Corbett, a
resident of Victoria and by Mr Gaynor,
a resident of Queensland. The High
Court considered that as NCAT was not
a Chapter III court, and not a State court
invested with Federal jurisdiction, it did
not have jurisdiction.
Whether or not a tribunal has jurisdiction
will turn on findings of fact as to where
the parties are resident.
The principle is limited to natural
persons. However, it must be applied
outside the anti-discrimination context. It is
common for proceedings in the SACAT to
include natural persons as parties. Advisors
and clients should be aware that it cannot
be assumed that the SACAT will have
jurisdiction over a matter where there are
non-South Australian residents as parties.
Accordingly, the new Attorney-General,
the Hon V A Chapman, has introduced a
bill to amend the jurisdiction of SACAT
by Statutes Amendment (SACAT Federal
Diversity Jurisdiction) Bill 2018 (SA). This
provides for matters where SACAT does
not have jurisdiction to be referred to the
Magistrates Court.
36 THE BULLETIN October 2018
HOW HAS THE HIGH COURT’S DECISION
BEEN APPLIED?
In South Australia, Raschke v Firinauskas 2
involved an application for vacant
possession by the landlord who was
an interstate resident. The Tribunal
considered that it did not have jurisdiction
to decide a dispute between landlords and
tenants where one party is an interstate
resident.
In construing the exercise of jurisdiction
as judicial rather than administrative,
SACAT considered “the nature of the
task of the Tribunal is to supervise the
compliance of the parties with the terms
of their agreement and make orders that
largely mimic the remedies that flow from
the enforcement of the agreement as if it
were the subject of a contractual dispute
in a court”. 3
SACAT 4 has made a statement regarding
the limits of what they can and cannot
decide. They are able to decide:
• applications in which one party is
resident overseas;
• applications in which a landlord is
resident in a territory.
Of significance:
• only natural persons may be residents -
that is, corporations cannot be residents;
• a person’s state of residence is
determined at the date a proceeding
commences, not at the date of the
conduct that led to the dispute or claim.
It should be expected that when SACAT
is exercising original jurisdiction, this
issue may be raised if a non-SA resident
is a party. This is because an exercise of
original jurisdiction may be considered to
be a “matter” and an exercise of judicial
power.
If one of the parties to such a
proceeding is a resident of a State other
than SA, then the adjudication of the
matter may involve an exercise of Federal
judicial power. SACAT can exercise State
judicial power but not Federal judicial
power.
WHAT ARE THE NEXT STEPS?
At the time of publication, SACAT
has issued a statement on the potential
ramifications of the High Court decision.
It would be prudent to seek legal advice
on this issue if you have any doubts about
the implications for you or your clients. B
Endnotes
1 [2018] HCA 15
2 [2018] SACAT 19
3 At [27]
4 SACAT, ‘Frequently asked questions about the
impact of the decisions in Burns v Corbett and
Raschke v Firinauskas´15 June 2018

RETIREMENT
Dr Cannon leaves legacy of
innovation, empathy & fairness
Dr Andrew Cannon AM’s retirement
on 6 July as Deputy Chief Magistrate
of South Australia marked the end of a
prominent career as a champion of equality
and justice in the legal system. Michael
Abbott QC encapsulated Dr Cannon’s
strong commitment to legal reform, stating
that he “did not just merely fill a position
but … would actively try and change the
way those organisations and institutions
acted.” Dr Cannon’s legal career spanned
over five decades, including 40 years as a
Magistrate.
Dr Cannon was admitted to practice
in 1965, and started his career as a
private practitioner before a brief stint in
criminal defence. He was appointed to the
magistracy in 1979. His fight for a system
that better represented the interests of
the most marginalised communities saw
Dr Cannon establish the first Domestic
Violence Court, Mental Health Court,
and Aboriginal Courts. He also played a
prominent role in establishing the gambling
intervention program. He was also the
Senior Mining Warden in the SA Mining
Court.
Dr Cannon introduced a number of
policies and procedures which have helped
vulnerable people gain access to justice and
has significantly improved court processes,
particularly in relation to encouraging the
non-adversarial resolution of matters.
Contemporaries such as Chief
Superintendent Doug Barr and Magistrate
Millard, who both spoke at Dr Cannon’s
special sitting in July, spoke of the longserving
magistrate’s deep understanding of
the human condition and his empathetic
nature, noting that his decisions were
consistently tempered with humanity and
fairness.
Dr Cannon’s other notable achievements
include co-authoring with Magistrate Garry
Hiskey the Magistrates Court Civil Rules,
which has become the definitive guide for
practitioners working in the Magistrates
Court.
He also advocated for the mandatory
retirement age for Magistrates to be
extended from 65 to 70 - a cause which
delayed his own impending retirement.
Several of Dr Cannon’s initiatives
have been adopted in other Australian
jurisdictions, following their significant
success in South Australia.
“In numerous areas, Andrew’s leadership
meant the South Australian Magistrates
Court was an Australia-wide ground
breaker in accessibility to cost effective,
fair and timely resolution of civil disputes,”
Magistrate Millard said.
Dr Cannon’s service to the legal
profession was recognised with an Order
of Australia in April 2005.
Dr. Cannon emphasised the importance
of a morally upstanding judiciary, stating
that “courts need to be ever vigilant to
maintain their integrity and independence,
and [..] need to develop our own direct
discourse with the public to defend the
community values we stand to protect.”
Dr Cannon is an Adjunct Professor of
Law at Adelaide, Flinders and Muenster
(Germany) universities, where he intends
to continue lecturing, publishing research
papers and mentoring. B
Judge O’Sullivan appointed to District Court
The Law Society congratulates Judge
Patrick O’Sullivan on his appointment
to the District Court. His appointment
follows a career as a highly respected
Queen’s Counsel.
Judge O’Sullivan comes from a diverse
legal background, having worked in both
international and local commercial law.
Some of his notable achievements
include his involvement in several major
infrastructure projects, including the $60
million Flinders Medical Centre Private
Hospital, and his appearance as Senior
Crown Counsel for the Hong Kong
Government in the Hong Kong High
Court and Court of Appeal.
He has also served as president of both
the national Australian Bar Association
and the South Australian Bar Association.
Judge O’Sullivan replaces Judge Steven
Millsteed, who resigned on 17 August
from a judicial career spanning 14 years.
Prior to his judicial appointment, Judge
Millsteed worked for the Director of
Public Prosecutions for 24 years, where
he prosecuted some of the most complex
cases in the State.
He was appointed Queen’s Counsel in
1996 and appeared in both the criminal
and civil jurisdictions of the Supreme
Court up until he assumed his District
Court position in 2004.
The Society congratulates Judge Millsteed
on his esteemed career. B
October 2018 THE BULLETIN 37

TAX FILES
Reforming Deductible Gift
Recipient laws
PAUL INGRAM, PARTNER, MINTERELLISON
On 22 August, 2018, the Minister
for Revenue and Financial Services
released a Consultation Paper seeking views
on the design of two key changes to the
treatment of Deductible Gift Recipients
(DGRs), namely:
• the requirement (from 1 July, 2019) for
non-government DGRs to either be
a registered charity or operated by a
registered charity;
• the abolition of some of the public
fund requirements.
Further details are set out below.
Importantly, these are only two of
the DGR reforms announced by the
Government in late last year. In particular,
the Consultation Paper does not deal
with the proposed integration of the
“Departmental Registers” (which cover
Harm Prevention Charities, Environmental
Organisations, Cultural Organisations
and the Overseas Aid Gift Deduction
Scheme). That measure will presumably be
the subject of further consultation in due
course.
CHARITY REQUIREMENT
There are 51 “general” DGR categories
in the legislation, of which 40 already
have a charity requirement. Accordingly,
the new requirement for non-government
DGRs to register as charities, or be
operated as charities, will primarily affect
the remaining 11 general categories.
The new requirement will also affect any
ancillary funds (private or public) that are
not currently registered as charities.
The full list of affected DGRs is set
out in Table 2 of the Consultation Paper,
which is reproduced below:
Some of the affected DGRs will already
be registered as charities, but others may
not, including:
• building funds that are operated by a
related foundation that does not have
charitable status (rather than the school,
which probably does);
• “necessitous circumstances funds” run
by community service organisations and
sporting clubs;
• ancillary funds (public and private) that
are not restricted to distributing to DGRs
that are also registered as charities.
DGR ITEM DGR CATEGORY DESCRIPTION
1.1.3 A public fund maintained for the purpose of providing money for
hospitals with DGR status.
1.1.8 A public fund established and maintained for the purpose of providing
money for public ambulance services with DGR status.
2.1.8 A public fund established and maintained solely for the purpose of
providing religious instruction in government schools in Australia.
2.1.9 A public fund established and maintained by a Roman Catholic
archdiocesan or diocesan authority solely for the purpose of providing
religious instruction in government schools in Australia.
2.1.10 A public fund established and maintained solely for providing money for
the acquisition, construction or maintenance of a building used, or to be
used, as a school or college by a society or association which is carried
on otherwise than for the purposes of profit or gain to the individual
members of the society or association.
2.1.11 A public fund established and maintained solely for providing money for
the acquisition, construction or maintenance of a *rural school hostel
building.
3.1.1 A university, college, institute, association or organisation which is an
approved research institute for the purpose of the ITAA 1936.
4.1.3 A public fund established and maintained for the purpose of relieving the
necessitous circumstances of one or more individuals who are in Australia.
6.1.1 A public fund that, when the gift is made, is on the register of *
environmental organisations.
12.1.1 A public fund that, when the gift is made, is on the register of * cultural
organisations.
12A.1.3
Item 2
Item 2
A public fund which satisfies all of the following requirements:
a. the fund is established and maintained by a non-profit entity;
b. the principal activity of the entity is the provision of volunteer based
emergency services that are regulated by a * State law or a * Territory
law;
c. the fund is established and maintained solely for the purpose of
supporting the volunteer based emergency service activities of the entity.
Public ancillary funds
Private ancillary funds
Non-complying DGRs that can qualify
as a charity will need to register as
such. In that regard, the legislation will
contain transitional rules which will allow
registration to take place between 1 July,
2019 and 30 June, 2020, sometimes on a
“streamlined” basis.
However, non-complying DGRs that
cannot qualify as a charity – for example,
because they have non-charitable purposes
– will lose their DGR status unless
they can rely on the Commissioner’s
discretion to exempt them from the
charity requirement. The indications are
that this will only be in the “exceptional
circumstances” noted in Table 4 of the
Consultation Paper, which is reproduced
below:
ABOLITION OF CERTAIN PUBLIC FUND
REQUIREMENTS
Of the 51 general DGR categories,
24 require entities to establish a “public
fund” to receive tax deductible donations.
The requirements for a public fund
are set out in a very old ruling – TR
95/27 – and have long been viewed as
anachronistic.
38 THE BULLETIN October 2018

TAX FILES
CIRCUMSTANCE 1
CIRCUMSTANCE 2
CIRCUMSTANCE 3
CIRCUMSTANCE 4
The entity was established to pursue a principal purpose that is
not recognised as charitable, but is eligible for DGR status.
Example: An Approved Research Institute with a principal
purpose that is not considered charitable under the Charities Act.
This would apply to DGRs with a separate legal identity and
DGRs operated by an entity.
The DGR with charitable purposes was endorsed prior to 1 July
2019 and is operated by an entity with a principal purpose that is
not recognised as charitable.
The entity must also have established the DGR to further its notfor-profit
purpose and not use the DGR as its principal vehicle to
achieve its non-charitable purpose.
Example: Necessitous circumstances funds operated by Lions
clubs, sporting clubs and Rotary clubs. For these types of cases,
the number and total size of the DGR funds operated by the
entity may also be relevant.
Other unusual and rare circumstances that prevent charity
registration.
Example: Trusts and bequests established prior to 1 July 2019,
which prevent amendments to the trust deed or those responsible
from separating a public fund from the sponsoring entity.
A private ancillary fund or public ancillary fund that wishes
to distribute deductible funds to DGRs that are exempt from
charity registration, including DGRs specifically listed in the law.
These reforms will do two things:
• remove the requirement for the public
fund to be managed by a committee a
majority of whom have a ‘degree of
responsibility to the general community’
(so-called ‘Responsible Persons’), and
replace it with a requirement that the
managing committee comply with
ACNC governance standards; and
• allow entities to set up one public fund
with multiple DGR purposes (rather
than a separate fund for each purpose),
but with a continuing requirement to
separately account for donations made
to each DGR purpose.
These reforms are most welcome, and
will assist the establishment and operation
of public funds.
Submissions on the Consultation Paper
were due by 21 September, 2018. Further
details are available on the Treasury
website.
Tax Files is contributed on behalf of the South
Australian based members of the Taxation
Committee of the Business Law Section of the
Law Council of Australia. B
October 2018 THE BULLETIN 39

Why we should write about our failures
DR BOB MURRAY, PRINCIPAL, FORTINBERRY MURRAY
A study shows for the first time
that writing critically about past
setbacks leads to lower stress
responses, better choices and
better performance on a new
stressful task.
Insights from past failures can help boost
performance on a new task – and the
study is the first, as far as I know, to explain
why. The researchers report that writing
critically about past setbacks leads to lower
levels of the “stress” hormone cortisol and
more careful choices when faced with a
new stressful task, resulting in improved
performance.
The study, published in the journal
Frontiers in Behavioral Neuroscience, is the first
demonstration that writing and thinking
deeply about a past failure improves the
body’s response to stress and enhances
performance on a new task.
WHAT THE RESEARCHERS SAY
People are often advised to “stay
positive” when faced with a challenging
task. However, a vast body of research
suggests that paying close attention to
negative events or feelings – by either
meditating or writing about them – can
actually lead to positive outcomes.
But why does this counter-intuitive
approach lead to benefits? To investigate
this question, the researchers examined
the effect of writing about past failures on
future task performance in two groups of
volunteers.
A test group wrote about their past
failures while a control group wrote about
a topic not related to themselves. The
researchers used salivary cortisol levels
to provide a physiological readout of the
stress experiencead by the people in both
groups. These levels were comparable
across the test and control groups at the
start of the study.
They then measured the performance of
the volunteers on a new stressful task and
40 THE BULLETIN October 2018
continued to monitor their cortisol levels.
They found that the test group had lower
cortisol levels compared to the control
group when performing the new challenge.
“We didn’t find that writing itself had
a direct relationship on the body’s stress
responses,” says the lead author. “Instead,
our results suggest that, in a future stressful
situation, having previously written about
a past failure causes the body’s stress
response to look more similar to someone
who isn’t exposed to stress at all.”
The researchers also found that
volunteers who wrote about a past failure
made more careful choices on a new task,
and overall performed better than the
control group.
“Together, these findings indicate that
writing and thinking critically about a past
failure can prepare an individual both
physiologically and cognitively for new
challenges,” the researchers observe.
While everyone experiences setbacks
and stress at some point in their lives,
this study may provide insight about how
one can use these experiences to better
perform in future challenges.
“It provides anyone who wants to
utilize this technique in an educational,
sports, or even therapeutic setting with
clear-cut evidence of expressive writing’s
effectiveness,” says the lead author.
SO WHAT?
The researchers are careful not to say that
people learn from their failures—too much
research has disproved that. What they’re
saying, essentially, is that normalizing the
failure—by writing about it—mitigates the
brain’s stress reaction and allows someone
to face the risk of failure with less stress. In
other words, they’ll have less anxiety. That
seems a logical conclusion given what we
know about contemporary neuroscience.
The only real problem with this study
is an issue that the researchers have not
covered—the link between writing about
a failure and people with depression,
rather than anxiety. In the 1980s, there was
a fad for diarizing as a way of relieving
depression that was shown—after much
research—to be a blind alley. Some
people were helped. But writing about a
bad experience, like a failure, tended to
lock it in and make the cortisol reaction
in depressives worse. Depressed people
tend to ruminate about the past (anxiety
is about fear of the future) and I fear
that having those people write about it
is, perhaps, not a good idea since it will
inevitably increase rumination.
This article was originally published
on www.wellnessdaily.com.au. It is republished
with permission.

BOOKSHELF
Hon JD Heydon AC QC
The Federation Press 2018
HB $180.00
HEYDON: SELECTED SPEECHES AND PAPERS
Abstract from Federation Press
This insightful, rewarding and highly
readable volume is a generous selection of
the best of Dyson Heydon’s speeches and
papers. Most have a legal theme, although
the book is of broader interest. As the Hon
Ian Callinan observes in his foreword, in
these papers the author “combines the arts
of the essayist, historian, orator, obituarist,
reviewer, critic, teacher and advocate”.
Contact Federation Press: 02 9552 2200
info@federationpress.com.au
www.federationpress.com.au
P Sutherland, J Oman Ballard
and A Anforth
11 th ed The Federation Press 2018
PB $155.00
ANNOTATED SAFETY, REHABILITATION AND COMPENSATION ACT 1988
Abstract from Federation Press
The 11th edition of this well known
reference book provides the full text of
the Safety, Rehabilitation and Compensation
Act 1988 (SRCA) current as at 1 April 2018
and annotations of Court and Tribunal
decisions to 1 March 2018.
The book contains an up-to-date discussion
of recent litigation concerning the SRCA,
including “injury” and “disease”, “reasonable
administrative action taken in a reasonable
manner”, liability for injuries “arising out
of, or in the course of ” employment, and
construction of the approved Guide. It
includes a list of all legislative instruments
made under the Act, including those regulating
the coverage of licensees under the Scheme.
The 11th edition also includes a
comprehensive consideration of military
compensation under the SRCA, including the
1994 Military Compensation Scheme and the
new DRCA Scheme.
Contact Federation Press: 02 9552 2200
info@federationpress.com.au
www.federationpress.com.au
S A Christensen and W D Duncan
2 nd ed The Federation Press 2018
HB $180.00
THE CONSTRUCTION AND PERFORMANCE OF COMMERCIAL CONTRACTS
Abstract from The Federation Press
This book analyses the principles
underlying the construction and application
of a number of boilerplate and other clauses
commonly included in commercial contracts.
The second edition fully updates all
case and statute law since publication of
the first edition in 2014. Several chapters
have been extensively revised and updated
to incorporate analysis of significant
High Court and superior court decisions
concerning the construction of contracts,
penalties and liquidated damages, and unfair
terms. This edition adopts the same chapters
and internal format as the first edition so as
to maintain easy reader accessibility.
Contact Federation Press: 02 9552 2200
info@federationpress.com.au
www.federationpress.com.au
October 2018 THE BULLETIN 41

SUPER
Make a statement with your super
ANDREW PROEBSTL, CHIEF EXECUTIVE, LEGALSUPER
Your annual super fund statement
is the perfect opportunity to
review whether you – and your
fund – can do more to help
secure your financial future.
With super fund members across
Australia about to receive their annual
member statement, now is the perfect time
to reflect, review your fund’s performance
and make decisions about what you can do
to improve your future super outcomes.
YOUR INVESTMENT BALANCE
Understandably, the first thing most
people look at when they receive their
annual super statement is how much
money they have in their account.
This amount will be shown on your
statement. Ideally, your statement will
not only show your balance at the end of
2017-18 but also your balance at the end of
previous financial years. That way, you can
see at-a-glance the changes in your balance
over time.
To help you forecast what your balance
total could be upon retirement, your super
fund should provide an online retirement
planner calculator. If they don’t, ASIC’s
MONEYSMART website provides such a
calculator. 1
Once you have determined your forecast
balance using a calculator, the next step
is to compare it to the Association of
Superannuation Funds of Australia (ASFA)
Retirement Standard.
The ASFA Retirement Standard
benchmarks, on a quarterly basis, the annual
budget needed by Australians to fund either
a “comfortable” or “modest” standard of
living in the post-work years. The latest
standard, issued in March 2018, states
that, in retirement, a single person aged
65 will need $27,368 per annum to lead a
“modest” lifestyle and $42,764 to lead a
“comfortable” lifestyle. Couples will need
$39,353 and $60,264 respectively. (These
figures assume the retiree/s own their home
outright and are relatively healthy). 2
TOPPING UP YOUR SUPER
If your analysis shows that you could fall
short of your desired retirement balance
target, you can consider making additional
voluntary contributions to your super.
42 THE BULLETIN October 2018
Your super balance includes both
compulsory contributions paid by your
employer (9.5 per cent of your salary
pursuant to the Superannuation Guarantee)
and any additional voluntary contributions
you have chosen to make.
If your Super Guarantee contributions
are less than $25,000 per financial year,
then you can choose to make additional
voluntary contributions to super up
to the $25,000 limit. These additional
contributions (known as concessional
contributions) are taxed at a concession
tax rate of 15 per cent compared to your
marginal tax rate, which in most cases will
be higher.
If you decide to pay voluntary
concessional contributions it is important
to first check with your super fund to
ensure these additional contributions do
not lead to you exceeding the $25,000
contribution limit. Contributions in excess
of this limit can be taxed at a higher rate.
As well as making voluntary concessional
contributions up to the $25,000 cap,
employees can also make what are called
non-concessional (after-tax) contributions.
While non-concessional contributions
are taxed differently to concessional
contributions, these types of contributions
also carry attractive taxation advantages.
Your super fund can provide further
information.
The current after-tax non-concessional
contribution cap is $100,000 for each
financial year. However, people under the
age of 65 on 1 July in a financial year can
contribute in excess of the $100,000 cap
up to an amount of $300,000 in a single
financial year pursuant to the “bringforward
rule”. This can be a valuable and
significant way to boost your savings for
retirement.
As the Australian Securities and
Investment Commission (ASIC)
MONEYSMART website says: “If you
can spare the money, you can really boost
your super savings by making after-tax
contributions. You will usually save more by
investing through super than by investing in
the same assets outside super.” 3
INVESTMENT OPTIONS
One other significant aspect to consider
when considering your current and future
balance is the investment option in which
your balance is invested. Your investment
option will be shown on your member
statement.
Most members are invested in their funds’
“default” investment option. Speak with
your fund to determine whether it is time
to make a change. Often, younger members
choose “aggressive” or “assertive”
options (e.g. more highly invested in
shares and property) while those nearing
or in retirement choose a “balanced” or
“conservative” approach (e.g. more highly
invested in fixed interest and cash).
INSURANCE TYPES AND LEVELS
Just as there are benefits in reviewing your
investment options, it is also worthwhile
reviewing each year the types and levels of
insurance. Your circumstances will change
and the appropriate level of death, disability
and/or income protection insurance for
you and your family will therefore also
change too.
Also, as part of looking after your
dependents, it is well worth checking to
ensure you have nominated a beneficiary
for your super in the event that you are to
die, and that you have indicated whether this
nomination is “binding” or “non-binding”.
FEES AND CHARGES
There has rightfully been a spotlight in
the media recently on the fees and charges
some super funds charge.
Most super funds will have competitive
and fair fees and charges and will readily
be able to explain the basis for the levels at
which these are set.
To help you evaluate the reasonableness
of the fees and charges described in your
annual member statement, the ASIC
MONEYSMART website provides an
excellent introduction to this topic at
https://www.moneysmart.gov.au/
superannuation-and-retirement/howsuper-works/super-fees
CHECK YOUR CONTACT DETAILS AND
CONTRIBUTIONS
Each time you receive your member
statement you should always check your
contact details to ensure they are up-todate,
complete and correct.
At the same time, make sure that your
employer has contributed the full amount
required under the Superannuation
Guarantee. Sadly, some employers, either

SUPER
through deliberate omission or oversight,
fail in this regard. If you are not sure how
to review your Superannuation Guarantee
contributions (and other contributions
such as your salary sacrifice contributions),
your super fund will be able to assist.
YOUR FUND’S PERFORMANCE
With superannuation being the bedrock
for retirement for almost all Australians,
people are entitled to know, and should
want to know, how well their fund has
performed compared to other super funds.
One independent superannuation ratings
agency is SuperRatings (http://www.
superratings.com.au/), which reports
that in 2017-18, the median MySuper
investment option returned 8.7 per cent.
By comparison, legalsuper returned an
impressive 9.4 per cent during this period. 4
As part of your review of your annual
member statement it is well worth checking
to see if the statement provides investment
performance information for your fund,
including how your fund performed
compared to other funds.
If your fund does not provide this
information, or if they have not met or
exceeded the median performance level,
ask them why. If you are not satisfied with
their response, it may very well be time to
think about changing super funds. Even
small differences in return can make a
material difference over time. B
Endnotes
1 See https://www.moneysmart.gov.au/
superannuation-and-retirement/is-your-super-ontarget
2 See https://www.superannuation.asn.au/
resources/retirement-standard
3 See https://www.moneysmart.gov.au/
superannuation-and-retirement/how-super-works/
super-contributions/contributing-extra-to-super
4 See https://www.superratings.com.
au/2018/07/19/super-members-can-expect-abetter-second-half-to-2018/
4 August 2018 – 3 September 2018
Acts Proclaimed
Criminal Law Consolidation (Dishonest
Communication with Children) Amendment Act
2018 (No 4 of 2018)
Commencement: 13 August 2018
Gazetted: 9 August 2018,
No. 50 of 2018
Criminal Law Consolidation (Children and
Vulnerable Adults) Amendment Act 2018 (No
6 of 2018)
Commencement: 6 September 2018
Gazetted: 30 August 2018,
No. 53 of 2018
Farm Debt Mediation Act 2018 (No 7 of 2018)
Commencement: 3 September 2018
Gazetted: 30 August 2018,
No. 53 of 2018
Acts Assented To
Criminal Procedure (Miscellaneous) Amendment
Act 2018, No. 9 of 2018
Gazetted: 9 August 2018,
No. 50 of 2018
Public Finance and Audit (Miscellaneous)
Amendment Act 2018, No. 10 of 2018
Gazetted: 9 August 2018,
No. 50 of 2018
Criminal Assets Confiscation (Miscellaneous)
Amendment Act 2018, No. 11 of 2018
Gazetted: 9 August 2018,
No. 50 of 2018
Statutes Amendment (National Energy Laws)
(Rules) Act 2018, No. 12 of 2018
(amends National Electricity (South
Australia) Act 1996, National Energy Retail
Law (South Australia) Act 2011 and National
Gas (South Australia) Act 2008)
Gazetted: 9 August 2018,
No. 50 of 2018
Evidence (Journalists) Amendment Act 2018,
No. 13 of 2018
(amends Evidence Act 1929)
Gazetted: 9 August 2018,
No. 50 of 2018
Appointments
Judge of the District Court of South
Australia
commencing on 27 August 2018
Simon Patrick O’Sullivan, QC
GAZING IN THE GAZETTE
A MONTHLY REVIEW OF ACTS, APPOINTMENTS, REGULATIONS
AND RULES COMPILED BY MELLOR OLSSON’S ELIZABETH OLSSON.
Gazetted: 16 August 2018,
No. 51 of 2018
Master of the District Court of South
Australia
on an auxiliary basis,
for a period commencing on 16 August 2018 and
expiring on 30 June 2019
Martin Keith
Gazetted: 16 August 2018,
No. 51 of 2018
Magistrate, Youth Court of South
Australia
member of the Court’s principal judiciary
for a term of 2 years commencing on 29 September
2018.
David John White
Gazetted: 16 August 2018,
No. 51 of 2018
Rules
Rules of the Legal Practitioners
Education and Admission Council 2018
Gazetted: 30 August 2018,
No. 53 of 2018
REGULATIONS PROMULGATED (4 AUGUST 2018 – 3 SEPTEMBER 2018)
REGULATION NAME REGULATION NO. DATE GAZETTED
Historic Shipwrecks Act 1981 198 of 2018 9 August 2018, Gazette No. 50 of 2018
Heavy Vehicle National Law (South Australia) Act 2013 199 of 2018 16 August 2018, Gazette No. 51 of 2018
Subordinate Legislation Act 1978 200 of 2018 16 August 2018, Gazette No. 51 of 2018
National Parks and Wildlife Act 1972 201 of 2018 16 August 2018, Gazette No. 51 of 2018
Ground Water (Qualco-Sunlands) Control Act 2000 202 of 2018 16 August 2018, Gazette No. 51 of 2018
Public Corporations Act 1993 203 of 2018 16 August 2018, Gazette No. 51 of 2018
Spent Convictions Act 2009 204 of 2018 23 August 2018, Gazette No. 52 of 2018
Construction Industry Long Service Leave Act 1987 205 of 2018 30 August 2018, Gazette No. 53 of 2018
Shop Trading Hours Act 1977 206 of 2018 30 August 2018, Gazette No. 53 of 2018
Southern State Superannuation Act 2009 207 of 2018 30 August 2018, Gazette No. 53 of 2018
West Beach Recreation Reserve Act 1987 208 of 2018 30 August 2018, Gazette No. 53 of 2018
October 2018 THE BULLETIN 43

FAMILY LAW CASE NOTES
Family Law Case Notes
ROB GLADE-WRIGHT, THE FAMILY LAW BOOK
PROPERTY – IN ISOLATING A
CONTRIBUTION TO A SPECIFIC ASSET IN
A GLOBAL APPROACH, COURT FAILED TO
HEED RISK OF IGNORING CONTRIBUTIONS
THAT LACKED SUCH A NEXUS
In Hurst [2018] FamCAFC 146 (8 August,
2018) the Full Court (Thackray, Ainslie-
Wallace & Murphy JJ) heard the wife’s
appeal against a property order relating
to a 38-year marriage where the husband
inherited land 14 years before trial (“the
Suburb C property”). The land was worth
$400,000 when acquired but $1.82m at
trial. The parties had three children. The
youngest child (13) and the eldest, an adult
child with psychiatric issues, lived with the
wife.
The net pool was worth $2.66m. Carew
J assessed contributions at 72.5:27.5 in the
husband’s favour, saying (at [14]) that
“[i]t cannot be said that the wife has made
any contribution to … [the inherited
land] other than indirectly by the rates
and slashing costs being paid”. A 12.5 per
cent adjustment under s 75(2) for the wife
produced an overall 60:40 division for the
husband. The Full Court said (from [15]):
“ … Within the context of [a global]
approach a broad assessment is made
of the contributions of all types made
by both parties across the whole of the
period of a very long marriage. Yet, the
reasons also evidence one exception
to that approach, namely the identified
indirect (financial) contributions made
to the Suburb C property.
[16] There is no error of itself in her
Honour considering separately any such
contributions …
[17] However, there is a danger in doing
so. Isolating indirect contributions to
but one part of the property interests
of the parties in the context of a
global assessment of contributions
risks ignoring significant contributions
made by both parties that do not have
a nexus with that particular property.
We consider … that her Honour did
44 THE BULLETIN October 2018
not heed that risk. The finding that the
wife has not made any contributions to
the Suburb C property other than the
specific indirect contribution to slashing
and rates is, in our … view, not open to
her Honour on the evidence before her.”
“further, the Court error in the trial
judge’s assessment of s 75(2) factors (see
[57]-[65]). The Court therefore allowed the
appeal, remitting the case for rehearing.”
CHILDREN – JUDGE AVOIDED
DETERMINING THE ISSUES PRESENTED BY
THE PARTIES AT AN INTERIM HEARING
In Matenson [2018] FamCAFC 133
(20 July, 2018) Murphy J, sitting in the
appellate jurisdiction of the Family Court
of Australia, allowed the appeal of an
unrepresented father against the dismissal
of his interim parenting application by an
unidentified judge of the FCC relating to
children aged 16, 13 and 11. His Honour’s
concern was the lapse of time since he
had seen his children despite an earlier
order granting time which he alleged the
unrepresented mother was contravening.
Despite all parties seeking an order
for some time (the father the removal of
supervision and the mother and ICL an
order that the eldest child see the father
as she wished but that the other children
spend some time with him) the Court,
referring to “an impasse” ([26]), dismissed
all interim applications and set the case
down for trial in 10 months. In allowing
the appeal and remitting the case for
rehearing, Murphy J said (from [33]):
“In the Federal Circuit Court at least,
interim proceedings are almost always
conducted within huge lists where large
numbers of cases seek a hearing. The
convoluted and conflicting assertions
common to many of those cases cannot
be tested. The exquisite difficulties in
fashioning interim orders in the best
interests of the subject child or children
pending a trial (which those same scarce
resources dictate may be significantly
delayed) is, or should be, obvious.
[34] Yet, it is a task which, with
all its inherent difficulties, must
be confronted not avoided. The
jurisdiction of the court has been
properly invoked and it must be
exercised, albeit it in significantly less
than ideal circumstances. ( … )
[36] At no time did her Honour identify
the competing proposals of the parties
or identify the issues necessary for her
determination. Her Honour makes
no reference to matters which she
considered uncontentious. Indeed,
the references to any evidence are …
extremely sparse. … [T]he family report
… was alluded to but her Honour did
not refer to any particular aspects of
that (albeit untested) evidence.”
CHILDREN – SECTION 65DAA NOT
TRIGGERED BY ORDER FOR EQUAL SHARED
PARENTAL RESPONSIBILITY AS TO SOME
BUT NOT ALL MAJOR LONG-TERM ISSUES
In Pruchnik & Pruchnik (No. 2) [2018]
FamCAFC 128 (11 July, 2018) the Full
Court (Ryan, Aldridge & Austin JJ)
dismissed with costs the mother’s appeal
against Hannam J’s parenting order
implementing a change of care for
children of 12 and 9 to the father from
the mother who was found to have been
intermittently withholding the children
since 2014 (three years after separation)
“without reason” ([2]). It was also found
that the children were at risk of rejecting
the father unless the family dynamics in
the mother’s household towards the father
changed ([3]). The mother was granted
supervised time.
Sole parental responsibility had been
sought by both parties (the father as to
medical and schooling decisions only) but
was granted to the father. On appeal the
mother argued that as the presumption of
equal shared parental responsibility had
not been rebutted under s 61DA(4) the
Court failed to apply s 65DAA (court to
consider equal time etc if an order is made
for such responsibility).

FAMILY LAW CASE NOTES
The Full Court (at [35]-[37]) applied
authority including Doherty [2016]
FamCAFC 182 which held that an order
for equal shared parental responsibility
need not be in relation to every aspect
of parental responsibility and that such
an order does not trigger s 65DAA. The
Court (at [49]-[50]) rejected submissions
by the mother and ICL that explicit and
cogent reasons (and thus evidence) why
the presumption should be rebutted were
necessary, given that the parents had agreed
that the conditions for the operation of s
61DA(4) were met. The Court added:
“It follows that against the background
of the mother’s concession as to the
application of s 61DA(4) (a concession
which, given the orders sought by
the father, he also adopted), it was
sufficient compliance with the provision
for the primary judge to declare herself
… satisfied that ‘in these circumstances
it is in the children’s best interests for
the parent with whom the children are
to primarily live to have sole parental
responsibility for them’ … ” B
New volume of essays explores
the concept of the Crown
One of the challenges Australian
lawyers have faced since Federation
is navigating the ambiguous notion of the
Crown. It is embedded in the Constitution
and integral in the exercise of public
power.
Yet, as the Honourable Justice Stephen
Gageler states in his foreword to this
volume of essays, “its contours have never
been mapped”. As His Honour also points
out, it “has shown itself to be capable
of providing a sense of stability and of
purpose and a moral compass not readily
found in more concrete sources.”
Three years in the preparation, The
Crown: essays on its manifestations, power
and accountability gathers over twenty law
academics, Senior Counsel, Supreme Court
Justices and Solicitors-General, including
former Commonwealth Solicitor-General
Justin Gleeson SC.
Edited by the Honourable Justice Martin
Hinton and Professor John M. Williams,
chapters explore various dimensions and
contours of the Crown in its relationships
with sovereignty, the first Australians, the
rule of law, executive power, offices such
as Solicitor-General, Attorney-General, and
considerations in advising and acting on its
behalf.
Publication is scheduled for October.
Copies can be purchased in advance
from the University of Adelaide Press for
$99. Net proceeds will contribute to the
Adelaide Law School’s student scholarships.
To order, or for a full list of chapters and
contributors visit adelaide.edu.au/press or
email press@adelaide.edu.au. B
Endnotes: A Q&A with SA’s 3 law deans
1. https://legalmosaic.com/about/
2. http://insight.thomsonreuters.com.au/posts/
top-9-legal-sector-trends-2017
3. https://www.australasianlawyer.com.au/news/
kpmg-laws-new-service-helps-remake-inhouselegal-departments-253169.aspx
4. https://www.lawsocietysa.asn.au/LSSA/
Lawyers/Support/Wellbeing_Online.aspx;
https://www.liv.asn.au/Professional-Practice/
Supporting-You/Your-Psychological-Wellbeing;
https://www.lawsociety.com.au/advocacy-andresources/mental-health-and-wellbeing
5. M. Weir, ‘The Dissonance Between Law School
Academics And Practitioners - The Why The
How The Where To Now’ (1993) 9 Queensland
University of Technology Law Journal 143 at
143 citing F Allen ‘The Causes of Popular
Dissatisfaction with Legal Education’ (1976) 62
ABAJ 447 at 449.
6. M. Weir, ‘The Dissonance Between Law School
Academics And Practitioners - The Why The
How The Where To Now’ (1993) 9 Queensland
University of Technology Law Journal 143 at 143
7. Partington, Martin, ‘Academic Lawyers and
Legal Practice in England: Towards a New
Relationship?’ (1992) 3(1) Legal Education Review
75 http://www.austlii.edu.au/au/journals/
LegEdRev/1992/4.html
8. https://www.lawsociety.com.au/advocacyand-resources/advocacy/flip;
https://
www.lawsociety.com.au/sites/default/
files/2018-03/1272952.pdf
9. https://www.lawsocietywa.asn.au/wp-content/
uploads/2015/10/2017DEC12-Law-Society-
Future-of-the-Legal-Profession.pdf
10. https://www.flip.org.sg/
11. http://www.lawsociety.org.uk/support-services/
research-trends/the-future-of-legal-services/
12. https://www.cba.org/CBAMediaLibrary/
cba_na/PDFs/CBA%20Legal%20Futures%20
PDFS/trends-isssues-eng.pdf
13. https://www.ibanet.org/Task-Force-on-the-
Future-of-Legal-Services.aspx#undefined
14. R. Amani Smathers, ‘The 21st-Century T-Shaped
Lawyer’ (2014) 40(4) Law Practice Magazine,
American Bar Association https://www.
americanbar.org/publications/law_practice_
magazine/2014/july-august/the-21st-century-tshaped-lawyer.html
15. https://www.lawyersweekly.com.au/
careers/21525-women-outnumber-men-inlegal-profession
October 2018 THE BULLETIN 45

CLASSIFIEDS
Family Law - Melbourne
Marita Bajinskis
formerly of
Howe Martin & Associates
is a Principal at
Blackwood Family Lawyers
in Melbourne
Marita is an Accredited Family
Law Specialist and can assist with
all family law matters including:
• matrimonial and de facto
• property settlements
• superannuation
• children’s issues
3/224 Queen Street
Melbourne VIC 3000
T: 03 8672 5222
Marita.Bajinskis@
blackwoodfamilylawyers.com.au
www.blackwoodfamilylawyers.com.au
CONSULTING
ACTUARIES
Brett & Watson
P TY. LTD.
For professional actuarial
advice on
• economic loss
• workers compensation
• all superannuation issues
Contact
Geoff Keen or Bruce Watson
Phone 08 8232 1333
Fax 08 8232 1324
Ground Floor
157 Grenfell Street
Adelaide SA 5000
VALUATIONS
MATRIMONIAL
DECEASED ESTATES
INSURANCE
TAX REALIGNMENT
INSOLVENCY
t. +61 8 431 80 82
m. +61 401 712 908
FURNITURE
ANTIQUES, COLLECTIONS
BUSINESS ASSETS
MACHINERY
MOTOR VEHICLES
CARS, BOATS, PLANES
e. ahi@andrewhillinvestigations.com.au
CITY & COUNTRY
ROGER KEARNS
Ph: 08 8342 4445
FAX: 08 8342 4446
MOB: 0418 821 250
E: auctions@senet.com.au
Certified Practising Valuer NO.346
Auctioneers & Valuers Association
of Australia
Andrew Hill Investigations
Investigating:
ABN 68 573 745 238
• inappropriate workplace
conduct including bullying
• fraud
• unprofessional conduct
• probity
Support services:
• forensic computing analysis
• transcription services
• information sessions, particularly
for HR practitioners on the
investigative process
PO Box 3626
• policy development.
NORWOOD SA 5067
Andrew Hill
Andrew Hill
Investigations
t. +61 8 431 80 82
m. +61 401 712 908
e. ahi@andrewhillinvestigations.com.au
EXPERT REPORTS &
LITIGATION SUPPORT
Accident Investigation &
Collision Reconstruction
Forensic & Safety Engineering
Transport & Workplace Safety
• DEPENDABLE
• DETAILED
• INSIGHTFUL
P 0418 884 174
E georger@netspace.net.au
www.georgerechnitzer.com.au
LITIGATION ASSISTANCE
FUND
The Litigation Assistance Fund (LAF) is a
non-profit charitable trust for which the
Law Society acts as trustee. Since 1992
it has provided funding assistance to
approximately 1,500 civil claimants.
LAF receives applications for funding
assistance from solicitors on behalf of
civil claimants seeking compensation/
damages who are unable to meet the
fees and/or disbursements of prosecuting
their claim. The applications are
subjected to a means test and a merits
test. Two different forms of funding exist –
Disbursements Only Funding (DOF) and
Full Funding.
LAF funds itself by receiving a relatively
small portion of the monetary proceeds
(usually damages) achieved by the
claimants whom it assists. Claimants who
received DOF funding repay the amount
received, plus an uplift of 100% on that
amount. Claimants who received Full
Funding repay the amount received, plus
15% of their damages. This ensures LAF’s
ability to continue to provide assistance
to claimants.
LAF recommends considering whether
applying to LAF is the best course in the
circumstances of the claim. There may be
better methods of obtaining funding/
representation. For example, all Funding
Agreements with LAF give LAF certain
rights including that funding can be
withdrawn and/or varied.
For further information, please visit
the Law Society’s website or contact
Annie MacRae on 8229 0263.
LawCare
The LawCare Counselling
Service is for members of
the profession or members
of their immediate family
whose lives may be adversely
affected by personal or
professional problems.
If you have a problem, speak
to the LawCare counsellor Dr
Jill before it overwhelms you. Dr
Jill is a medical practitioner
highly qualified to treat social
and psychological problems.
The Law Society is pleased to
be able to cover the gap
payments for two consultations
with Dr Jill per patient per
financial year.
All information divulged to the
LawCare counsellor is totally
confidential. Participation by
the legal practitioner or family
member is voluntary.
To contact Dr Jill 08 8110 5279
8am-8pm, 7 days a week
LawCare is a member service
made possible by the generous
support of Arthur J. Gallagher
Business
valuations
Simple, clear,
unbiased advice,
without fear or
favour.
Hugh McPharlin FCA
d +61 8 8139 1130
m +61 419 841 780
e hmcpharlin@nexiaem.com.au
w nexiaem.com.au
FAMILY LAW -
SYDNEY & NSW
IVY LAW GROUP
AGENCY AND REFERRAL WORK
Prompt and Efficient Service
Please contact Shane Neagle
of Ivy Law Group
Suite 401, 127 York Street,
Sydney, NSW, 2000
T (02) 9262 4003
M 0408 168 281
E info@ivylawgroup.com.au
Consulting Engineers
Australian Technology Pty Ltd
for expert opinion on:
• Vehicle failure and accidents
• Vehicle design
• Industrial accidents
• Slips and falls
• Occupational health and safety
• Statistical analysis
W. Douglass R. Potts
MAOQ, FRAI, FSAE-A, FIEAust,
CPEng, CEng, FIMechE
8271 4573
0412 217 360
wdrpotts@gmail.com
Licensed Investigation Agents
& Process Servers
Servicing the Mid North, Yorke &
Eyre Peninsula`s and Outback of
South Australia with:
• Process Serving
• Property Lockouts
• Investigations
• Missing Persons
OUTBACK BUSINESS SERVICES
P.O. Box 591,
PORT AUGUSTA. 5700
P: 0418 838 807
info@outbackbusinessservices.com.au
46 THE BULLETIN October 2018

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