A nation obsessed Is Australia’s appetite for true crime hampering the right to a fair trial? Never stop striving Five lawyers share their reasons for pursuing further non-legal study There’s an app for that Discover what’s hot and what’s not when it comes to mental health apps Defamation dilemma Why social media poses serious challenges to defamation laws
ISSUE 54 APRIL 2019
The burnout profession Are you on the brink?
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ISSUE 54 I APRIL 2019 I LSJ 51
26 Hot topic
36 Skills to succeed
48 A day in the life
Alana Schetzer considers the case for a nationwide public register for child sex o enders 28 A lengend in our ranks Follow the story of ANZAC veteran and Sydney solicitor Arthur Hyman, who forged the path for lawyers in the military
Flirting with the idea of further study? It might be just the ticket to future-proof your legal career 40 The threat podcasts pose Justice and the public thirst for true crime make odd bedfellows. Read how this popular genre is challenging fair trials
Nyadol Nyuon is a proud Aussie who is sick of calling out the media’s “African gang” beat-up
51 Career coach
Performance coach Anna Hinder has some solutions for the dreaded workplace conundrum of the open-plan o ce
30 Cover story
They say if you can’t stand the heat, get out of the kitchen. Kate Allman examines why so many lawyers succumb to burnout
Not everything is a competition, but there are some ways to rest your brain that are better than others. Thea O’Conner explores
Settle into the bright lights of Seattle, as Ute Junker explores some of the must-see sights of this buzzing destination
ISSUE 54 I APRIL 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career matters 46 Mindset 50 Doing business 52 Life outside the law 54 Health 56 Fitness 64 Books 66 The case that changedme
83 Employment law
The latest key developments in advocacy and law reform
A recent FWC decision highlights the complex and contentious nature of negotiating greenfields agreements
Our experts examine ASIC’s approach to enforcement in the wake of the Banking Royal Commission
86 Wills and estates
Our resident specialist explains the practicalities of derivative actions for deceased estates
89 Compliance risks
With the national defamation review now underway, our expert outlines key areas in need of modernisation
The tools that all responsible principals need to manage their legal practice
77 Environmental law The Murray-Darling Basin
Why bilingual lawyers should think twice before taking on the role of interpreters for their clients
Authority receives a scathing report card from the Royal Commission
80 Environmental law
91 Case notes
NSW Land and Environment Court delivers a world-first judgment based largely on climate change considerations
A wrap-up and analysis of the latest key HCA, FCA, Family, Wills & Estates and Criminal judgments
88 Library additions 106 Avid for scandal
4 LSJ I ISSUE 54 I APRIL 2019
SHOWME THE FUNNY!
HOSTED BY JULIAN MORROW FROM ‘THE CHASER’, ‘THE CHECKOUT’
It’s Gavel Time! Join an audience of almost 800 legal professionals from firms across NSW as ten very brave young lawyers fight a war of words to do comedy battle over breakfast. Enjoy a laugh or two and cheer on your champion as they compete to take home the coveted Golden Gavel and secure a place in the National Competition.
FRIDAY 17 MAY 2019 . – .
T W S, N. M P TICKETS (includes breakfast and coffee/tea) $75 $710 Secure your spot today– tickets will sell out! lawsociety.com.au/goldengavel
ISSUE 54 I APRIL 2019 I LSJ 51
A word from the editor
Ah, burnout. Like so many others, I know it all too well. A good 13 years into a pretty full-on career (for those of you counting, I did a long degree and took a couple of gap years), I have teetered on the edge – if not fallen into the abyss – of burnout on more than one occasion. I feel the creep of burnout almost as inertia – an inability to move forward or resolve things. I find it difficult to make even the most basic decisions, and grumpiness
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
sits just under the surface, unleashed at nothing in particular. It’s a deep fatigue, a loss of motivation, a stare-at-the-ceiling-in-the-wee-hours kind of experience. As Kate Allman discovers in her cover story on page 30, burnout is a common experience for many lawyers. The triggers are numerous and the effects can be frightening – depression, anxiety, and panic attacks among them. The good news is that, for many, it’s manageable. For me, exercise and digital detox seem to be the keys out of impending burnout. The important thing is to recognise when I’m slipping. That’s why I’m so grateful we’re having the burnout conversation, and that those in our cover story were brave enough to share their stories.
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2019 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
KATE ALLMAN Cover story p30 Kate Allman has a double degree in journalism and law and is LSJ ’s Online Editor and podcast
KIRRILY SCHWARZ Trial by media p40 Kirrily Schwarz is a Young Walkley Award- winning journalist and producer with a double degree in journalism and law. In this issue, she examines Australia’s obsession with true crime and asks whether it’s having an effect on the delivery of justice.
RICHARDBEASLEYSC Environmental p77 Richard Beasley SC was Senior Counsel Assisting in the recent Murray- Darling Basin Royal Commission. Here he delivers a scathing report of the MDB Authority’s ‘unlawful’ and ‘incomprehensible’ mismanagement of the Basin.
PATRICK GEORGE Defamation p74 Patrick George is a leading defamation lawyer and Senior Partner with Kennedys. He examines the National Review of Model Defamation Provisions and the need to address the enormous impact of social media on the world of publication.
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host. In this issue, she exposes the scourge of stress-related burnout in the legal profession, and the factors driving lawyers to the brink.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 54 I APRIL 2019
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ISSUE 54 I APRIL 2019 I LSJ 7
President’s message T he publication of the final report of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry was a watershed moment for banking in Australia – one with may turn out to be transient, and its more enduring effect may well be in the specific legislative changes it recommends. As Dr Austin stated, in the aftermath of the Hayne Report, it is “vitally important for us to stay as lawyers, to be lawyers, to review the post-Royal Commission legislative proposals vigorously and impartially, and to make sure basic principles of justice continue to be respected”. As the body representing the state’s 35,000 solicitors, the Law Society has an important role to play in setting the agenda and shaping law reform in the aftermath of any Royal Commission, whether it be the Banking Royal Commission, the Royal Commission into Institutional Responses to Child Sexual Abuse, or the ongoing Royal Commission into Aged Care, Quality and Safety. Royal Commissions will always have an important role in giving a voice to the powerless, and recognising those who have been victims of unjust behaviour. The process of hearing from witnesses, and the recommendations arising from a Royal Commission, can have a profound impact on people’s lives, on improving systems, and generating substantial legal reform. The current Royal Commission into Aged Care, which is due to provide an interim report by 31 October 2019, has highlighted shocking allegations of elder abuse and mistreatment. Given the rise in Australia’s ageing population and the increasing number of Australians living with dementia, legal reform to prevent the growing reach of elder abuse has never been more vital. Despite the establishment of the Aged Care Royal Commission, the Law Society is still concerned about the lack of public awareness of the types of elder abuse, the ways financial abuse can be perpetrated, and the measures that should be adopted to prevent elder abuse. On another note, one of the most rewarding aspects in my role as President is speaking on behalf of the state’s solicitors at ceremonies for new appointments to the bench and those retiring from the judiciary. Speaking at the Federal Circuit Court ceremonial sitting at Parramatta on 8 April 2019 will be especially significant, as our Immediate Past President, Doug Humphreys OAM, is officially welcomed as a Judge of the Federal Circuit Court of Australia. As recognised by the award of a Medal of the Order of Australia in 2016, Judge Humphreys has made a significant contribution to the law and professional organisations. The Council, committees, staff, and members of the Law Society congratulate his Honour on a well-deserved appointment and wish him a successful career on the bench. considerable regulatory implications for the banking sector, government, and the legal profession. As leading academic, barrister and former corporations law judge Dr Robert Austin told the Law Society’s recent Thought Leadership event, the report made many useful recommendations, creating a public environment for legislative and regulatory change. According to Dr Austin, the report’s impact on changing culture and governance in large institutions
8 LSJ I ISSUE 54 I APRIL 2019
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ISSUE 54 I APRIL 2019 I LSJ 9
Vale Paul Wells The time has come when solicitors who
the sincere, a able friendship and company of Paul knew him as a person who was in every sense his own person, with a larger-than-life and boisterous personality, firm views and a highly developed work ethic. A man of many talents and inter- ests, which included politics, sport and a love of history, he was an excellent lawyer who fought vigorously in the inter- ests of his clients and gained the respect of all. He was uni- versally valued and respected by his clients, even after he gave them advice they did not want to hear, and freely gave of his time to mentor and share his experi- ence with others, albeit often in a passionate and long-winded manner. His door was always open to visitors, who risked being regaled with Paul’s latest account of an encounter with an opponent with whose views he did not agree. He did not su er fools gladly, and loathed try- ons. It may be that some who dealt with him in the course of a particularly di cult matter may not share these perceptions. There could have been no finer person and solicitor than Paul Wells. He retired in 2013 upon receiving a kidney trans- plant, which he saw as a new lease on life, and the firm tran- sitioned to the care of the son of a long-standing friend and solicitor, to be known as Wee and Wells. Paul died on 6 November 2018. His wife of over 40 years, Margaret, had predeceased him earlier in 2018. Their close and loving family of three children are testament to the qualities passed on to them by the two fine solici- tors who were their parents. The “baby boomer” solici- tors are reducing in numbers, replaced by generations of solicitors educated and prac- tising in progressively changing worlds, ruled by technology and constrained by the increasing regulation of the profession. Let us hope, however, that the ethics and values of the older generations, as exemplified by the life of Paul Wells, live on. Maria Linkenbagh, solicitor, with thanks to MalcolmOakes SC
ISSUE53 MARCH 2019
Thank you My sincere thanks to Peter Poulton for his explanation of the meaning of various terms used in my letter appearing in the February LSJ . It was very accurate and perhaps some- thing I should have done myself. Bill Caldwell Pro bono with a twist Vale Steven Glass, indeed ( LSJ March), and bravo! His admira- ble pro bono work, especially, reminded me, on a lighter note, of an occasion during an assess- ment once, when I asked a law graduate, in passing, whether she’d ever done any pro bono work. “I worked for a solicitor without being paid,” she replied. Pro bono with a twist! Edward Loong, Milsons Point Vale Paul Murphy Themembers of the Law Society Employment Law Committee and the Specialist Accreditation Committee for Employment and Industrial Law noted the recent passing of Paul Murphy. Paul had a distinguished legal career in employment and industrial Law. He was the instructing solicitor in seminal cases from Qantas Airways Limited v Christie (1998) 193 CLR 280 to ROC v Mijatov  FAC 939. Paul joined the Employment Law Committee in 1999 and was always a vocal and active member. He strongly believed that laws should be fair and just and that the Law Society should always strive to fulfil these ideals. He was a mentor and teacher to many and renowned for his honesty, integrity, gener- osity and kindness. Paul died on 19 December 2018. His commitment and contribution to the work of the committees, and to the legal profession more broadly, will be greatly missed. Law Society Employment Law Committee and the Specialist Accreditation Committee for Employment and Industrial Law
had the good fortune to be born in the post-World War II “baby boomer” era have already retired or are planning retirement, and many of our colleagues are already deceased. Most of us enjoyed the benefits of free university education via the Commonwealth Scholarship scheme (pre-Whitlam) and some were even paid a living allow- ance under that scheme. We were also paid a modest wage to serve Articles of Clerkship as a prerequisite to Admission, and The College of Law was in its infancy. Firms were small and very conservative, sole practitioners were common, and when a solicitor acted for a client he or she actually did the work personally, usually assisted only by a loyal secretary. The profession was small in number and female solicitors were few. When we became solicitors we were immediately held in high regard by all sectors of the community simply because we were uniquely privileged to use the title “solicitor”, and that sen- timent was reciprocated by the profession in all levels of society. Many excellent solicitors came from that era. One was Paul Leonard Wells. The son of a plumber and a musical mother, Paul was educated after the death of his father – when Paul was aged 10 – at a Masonic School in Baulkham Hills and later at Northmead and Cleveland Street High Schools. Graduating in law from the Uni- versity of Sydney in 1972, Paul’s early professional years were spent in the New Hebrides (now Vanuatu) and in London. On his return to Sydney he worked at Allen Allen & Hemsley before setting up his own practice and assuming responsibility for the practice of a deceased solicitor. Paul Wells & Co was born, and it remained for over 40 years, with the assistance of Paul’s wife, Margaret, who transitioned to the law from a teaching career to support and assist Paul in the practice. Those of us who enjoyed
Insideour legalaidcrisis Why the failure to raise thehourly ratemeans rural lawyersarebattling Small lawand legaltech Amatchmade inheavenora disasterwaiting tohappen?
Theproblemwithperfect Why rampantperfectionism in the profession isno laughingmatter BankingonHaynepain Where tonow forASICandAPRA after theBankingRoyalCommission?
Arockandahardplace How theRoyalCommissionhasunearthedanethicalminefield
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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Maria Linkenbagh has won lunch for four. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 54 I APRIL 2019
Judging the judges I was fascinated by the title chosen by the Chief Justice for his speech on 30 January last. A slightly obscure traditional Jewish translation of the open- ing words of the biblical book of Ruth is: “It was at the time of judging the judges when there was famine in the land.” In other words, in any society if the judi- cial system breaks down, then everything breaks down and that is why there was famine in the land. Ancient wisdom is not always wrong. Andrew Samuel You don’t say! Today I received an email from a mortgage broker in relation to a standard form of convey- ancing contract that has already exchanged. The email said, in part: “Unfortunately AMP have stipulated that in line with stan- dard practice they require the Contract of Sale to have both parties’ signatures for it to be acceptable as in their opinion a contract cannot exist without two parties signing the same legal document.” If you are a solicitor who acts for AMP, would you mind giving them a quick lesson in contract law. Those of us who have to deal with them will be most grateful for your assistance. Wake up, Council If the Council of the Law Society of New South Wales, by its lead article in Monday Briefs of 18 February 2019 titled “Legal aid funding, integrity of our judicia- ry”, seems to imply that all 34,000 of the state’s solicitors accept that “the science is settled” on the issue of global warming/cli- mate change then, once again, the Council is misrepresenting many of its members as it did on the question of same-sex marriage. Next the Council will be proclaiming that all solicitors support two doctors having the right to decide who gets asylum in Australia. Roger Butler, Cole & Butler, Moree Andrew Knight, Director, Laycock Burke Castaldi Lawyers Newcastle
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“Thank you, Anita. This should be for all schools!” – Tam T. Tran, Facebook
ISSUE 54 I APRIL 2019 I LSJ 11
“Thank you for the invitation! What a wonderful way to start #IWD2019 this morning.” – Kirstin Ferguson, Twitter
“Thoroughly enjoyed this morning’s breakfast. Inspiring and uplifting #BalanceForBetter.” – Kelly Witts, LinkedIn
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12 LSJ I ISSUE 54 I APRIL 2019
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ISSUE 54 I APRIL 2019 I LSJ 13
Domestic violence victims cry out for additional court resources
BY KATE ALLMAN
experiencing a steady decline per capita. “[South-west Sydney] is going to be a city the size of Adelaide, right next to Sydney’s second airport,” Espinosa said. “The current court system cannot cope with the demand now.” Residents in south-west Sydney currently must travel to Wollongong, Parramatta or the Sydney CBD for divorce or parenting proceedings, as there is no closer sitting location for the Family Court of Australia. Criminal matters relating to domes- tic violence can be heard in Camden, Penrith or Campbelltown courts. But McGrath explained that dedi- cated domestic violence listing days in Camden are only held on two days every month. The court list has been known to schedule up to 100 matters on one day – an impossible number for the single judge and courtroom to plough through. The result for applicants is delay after delay. “My clients are constantly asking, ‘Why is this taking so long? Why is it so expensive?’ All I can say is that this is the system,” said McGrath, who was the 2018 President of the Macarthur Law Society and is uniquely acquainted with the region’s justice demands. “Just the other day, a magistrate in the Federal Circuit Court told me he is listing matters for 2023,” he added. At least two in five assaults reported to police in 2017were family or domestic vio- lence-related, according to the Australian Bureau of Statistics. And the landmark Family, Domestic and Sexual Violence in Australia 2018 report by the Australian Institute of Health and Welfare found that more than 110,000 men, women and children sought homelessness services in 2016-17 due to domestic violence.
Domestic violence victims are being forced to live out abusive and dan- gerous situations as they wait for their matters to be heard in Sydney’s over- flowing courts, according to lawyers campaigning for a new justice pre- cinct in south-west Sydney. LSJ has heard how one terrified victim, a client of family lawyer and Law Society councillor Brett McGrath, endured an 18-month delay as an appre- hended violence order (AVO) against her husband was being finalised. Another victim, a mother of five from south-west Sydney, has publicly shared how she waited four years for justice to be served on her abusive husband. He was charged with 96 counts of sexual assault on the woman’s children – his step-daughters. “I would organise my kids, take time off work, and spend three hours of my day getting to and from court – only to find that the hearing was put off for another six weeks,” Rachel (real name withheld) wrote in a compelling opinion editorial for The Sydney Morning Herald . “To get justice took me at least 30 weeks of my time over four years.” Rachel, who is a small business owner struggling to pay her mortgage on a single income, shared her story as part of a community-led campaign calling on the state government to build a new court precinct in south-west Sydney. The Southwest Sydney Justice Pre- cinct campaign was launched by the Law Society of NSW in March and is backed by 12 other organisations and law societies including the Macarthur Regional Law Society, NSW Bar Asso- ciation, Campbelltown City Council, NSW Police Association, and the Greater Sydney Commission.
(From left) Lawyers Anthony Gordon, Elizabeth Espinosa, and Sarah Reid outside Camden court, which sits only two days a month.
High-profile members of the NSW legal community, including McGrath and Law Society of NSW President Elizabeth Espinosa, have thrown their weight behind the movement, hoping politicians would take a stand on the issue before the March election. “The inadequacy of court resources in south-western Sydney has reached a tipping point,” said Espinosa, speaking on behalf of the Law Society of NSW in March. “Three courts in the region, – Camden, Campbelltown and Picton – are either at capacity or not equipped to manage the current backlogs in criminal and civil cases.” Espinosa said the dramatic rate of population growth in the area meant a new court building was becoming increasingly urgent. Data from the Bureau of Crime Statistics and Research (BOCSAR) shows domestic violence-re- lated assaults have increased by 45 per cent between April 2016 and March 2018, despite other crime categories
14 LSJ I ISSUE 54 I APRIL 2019
NEWTHISMONTH Just Art 2019 – entries open 10 April The Law Society’s Just Art charity visual arts competition is back by popular demand in 2019. Let your inner artist out by submitting an artwork on the theme of “justice”. Have an eye for art but not the artistic touch? Support your colleagues by attending the Just Art Exhibition in August. Finalist artworks will be for sale, with proceeds supporting the 2019 President’s Charity, Our Watch. lawsociety.com.au/justart FLIP Regional Roadshow in Byron Bay Can’t come to the city? The Law Society of NSW is bringing the Future of Law and Innovation in the Profession (FLIP) to the re- gions. Join President Elizabeth Espinosa at the second instalment of the FLIP Regional Roadshow, to be held at Elements of Byron hotel on Friday 5 April from 2pm. lawsociety.com.au/events
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ISSUE 54 I APRIL 2019 I LSJ 15
What led you to practise in Hong Kong and then the Cayman Islands?
I have been fascinated by the laws that govern international commerce, especially dispute resolution. In early 2017, I started looking at opportunities in Hong Kong given its status as an international city and as a place that would allow me to use my Chinese language skills. After two interviews, I was offered a position in the Hong Kong dispute resolution team at Appleby, with a focus on insolvency and restructuring. Whilst working in Hong Kong, a secondment opportunity to work in the Cayman Islands came up. I thought this was a great chance to experience dispute resolution in the Caribbean first- hand. I am currently in my second month here at Appleby’s Cayman office, and the team, led by Peter McMaster QC, has welcomed me with open arms. They have not only helped me professionally, but also helped my wife and I to settle into our Cayman life. What is a typical day at work like for you? One of the main differences between practising as an associate in an offshore jurisdiction like Cayman and say, Sydney, London or New York, is the responsibility that you get. You trade the city for Caribbean beaches and the drudgery of narrow focus, cog- in-the-machine-work for cutting-edge litigation experience that you might have to wait years for in an onshore magic circle firm. A typical day starts just before 8.30am, dealing with emails from jurisdictions in time zones ahead of the Cayman Islands. The day will involve work such as drafting advice and court documents, reviewing and ensuring that you are up to date with the law, and communicating with clients. Court hearings here are more common than may be the case “onshore”. As a British Overseas Territory, the Privy Council is the final court of appeal in the Cayman Islands. It is quite important to be well informed with up to date law both in Cayman and in the English courts. There is always the risk of working overseas too early in one’s career, but the right timing is different for everyone. For young lawyers who wish to work overseas, it would be very beneficial to first work in Australia and check the PQE requirements of the jurisdiction you wish to work. In the Cayman Islands, expa- triates can currently only work as an attorney once they have reached three years PQE, and if the firm demonstrates that it has not been able to identify a local candidate with the same skills and experience. Work experience as an Australian lawyer is highly valued in most common law jurisdictions, particularly the Cayman Islands. What advice do you have for others with aspirations to pursue a legal career overseas?
DAVID JIN ASSOCIATE, APPLEBY
David Jin spends his days dealing with com- plex financial disputes in the Cayman Islands office of international law firm Appleby. But his professional life hasn’t always been white sand and offshore investments. The University of Wollongong engineering and law gradu- ate worked for the Australia China Business Council after being admitted to the profes- sion in NSW in 2011. He went on to spend four years as a solicitor in Sydney, developing his understanding of Chinese business cul- ture and putting his language skills to use. MELISSACOADE speaks with Jin about landing work among the big fish of dispute resolution in the Caribbean.
16 LSJ I ISSUE 54 I APRIL 2019
NEWPODCAST EPISODE Off theRecord tackles burnout
Lawyers report work- ing 15-hour days, suf- fering panic attacks and waking from nightmares about cli- ents’ trauma in a new
BY LINDEN BARNES, SENIOR ETHICS LAWYER
efforts. Why doesn’t the headline in the paper scream, ‘Lawyers – our unsung heroes’? It certainly should. But while it is admirable, it is also dangerous to our health and therefore to our clients. We must “deliver legal services competently, diligently and as promptly as reason- ably possible ... in the best interests of a client” (Conduct Rule 4). That is not possible if we are burnt out. It has financial, professional and health implications. Take care and may you never need to explain these implications to any fellow solicitor, boss or oth- erwise.
I am a high performer at work but feel like I am constantly slogging it out and making no headway. Is there something in the pro- fessional rules that I can use to explain tomy boss that the quality of my work will suffer if my team is under-resourced and our dead- lines are unrealistic? This is such a common situation – a solicitor at the point of burnout still thinking of their client. I am constantly amazed how the solicitors who call the ethics line are battling on for clients despite the personal impact. They are overworked and underpaid and even abused for their
episodeof LSJ ’s podcast series Off theRecord . Episode three of the podcast will be available for download on 2 April and tackles the reasons behind work-related burnout among lawyers.The issue was put under a spotlight in January 2019 when Buzzfeed journalist Anne Helen Petersen wrote a column about millennials and burnout. “Millennials are not the only ones suffering,” says host Kate Allman. “And I’m going to tell you why professions like law are at a higher risk.” Read about burnout in our cover story on page 30 and visit lsj.com.au/multimedia_ types/podcasts to listen to the new episode on 2 April.
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ISSUE 54 I APRIL 2019 I LSJ 17
Alex Er Promoted to Senior Associate Vardanega Roberts Solicitors
AdamKennedy Promoted to Special Counsel Vardanega Roberts Solicitors
Carrie Nicol Opened new criminal firm Karim + Nicol Lawyers
Nadia Karim Opened new criminal firm Karim + Nicol Lawyers
LindaMacKinlay Joined as Special Counsel Bartier Perry
Susanna Khouri Joined as Head of Investment Operations (Sydney) Augusta Ventures
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Tracey Hayman Joined as Senior Associate Vizzone Ruggero Twigg Lawyers
Katherine Ruschen Joined as Partner Bartier Perry
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On 13 February 2019 pursuant to s.82(1 )(d) of the Legal Pro- fession Uniform Law (NSW), the Council of the Law Soci- ety resolved to suspend the practising certificate of Hyung Rak Matthew Son, for the year ending 30 June 2019, until 30 June 2019. On 13 February 2019 pur- suant to s.327 (2)(b)(iii) of the Legal Profession Uniform Law (NSW), the Law Society Coun- cil appointed Richard Gerard Flynn, Solicitor, as manager of
the law practice known as MS Law & Attorney Pty Ltd for a period of two (2) years. On 21 February 2019 pursuant to s.82(1 )(c) of the Legal Pro- fession Uniform Law (NSW), the Council of the Law Society resolved to suspend the practis- ing certificate of Christina Helen Cassidy, for the year ending 30 June 2019, until 30 June 2019. On 27 February 2019 , the NSW Court of Appeal ordered that the name of Ugo Parente be
removed from the Local Roll of Lawyers of the Supreme Court of New South Wales. On 1 March 2019 pursuant to s.77 of the Legal Profession Uniform Law (NSW), the Coun- cil of the Law Society resolved to immediately suspend the practising certificate of Mark Leo O’Brien. On 1 March 2019 pursuant to s.327 (2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council
appointed Neary Walker, Solicitor, as manager of the law practice known as Michael Ghobrial for a period of two (2) years. On 11 March 2019 pursuant to s.327 (2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Coun- cil appointed Richard Gerard Flynn, Solicitor, as manag- er of the law practice known as Commcomp Pty Ltd for a period of two (2) years. Anthony
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BUSINESS Talent retention a major challenge for lawfirms: flexible work can help
the biggest challenge for their business. Attracting talent at both sta and partnership levels, and retaining that talent, was reportedly a regular source of stress for partners. However, the report noted that exible work arrange- ments could help solve this sta ng issue. e nearly 90 per cent of rms that reported introducing exible work arrangements found those arrange- ments have had an overwhelmingly positive impact on rm culture. “With more than 20 per cent of rms saying they are unsure of the potential impact of exible working, perhaps the
challenge of measuring an improvement in culture is one of the issues holding these rms back from embracing exi- bility,” the report noted. e second-highest worry for law rms was nancial: pricing legal services competitively as well as maintaining cash ow in a rapidly diversifying busi- ness environment. Many rms reported struggling to nd a balance between being cost competitive and generating a pro t that re ected an appropriate return on investment. Sixty-three per cent still measured billable hours in calculating their fees.
Striking a balance between keeping lawyers busy while feeling engaged and happy is the biggest challenge facing Australian law firms today, ac- cording to the results of a new survey of 140 medium-sized law firms. e Pitcher Partners’ Legal Survey 2018, results of which were shown to LSJ in March, found that sta ng and people represent “by far the greatest challenges faced by law rms”. More than 30 per cent of rms that responded to the survey agreed that keeping lawyers busy and e cient while main- taining a healthy workplace culture was
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ISSUE 54 I APRIL 2019 I LSJ 19
FLIP FLIP Regional Roadshow kicks off in Newcastle
PEACE AND SECURITY Kirby: chances of global nuclear disaster greater now than ever The world’s nuclear non-proliferation regime is un- der threat and, according to experts, we may not have enough time to solve the problem. Former High Court Justice Michael Kirby and for- mer Australian Foreign Minister Gareth Evans spoke on the issue at a special event hosted by the Lowy Institute in March. Reflecting on the way geopolitics had changed since the 1980s, Kirby said progress had been slow. In fact, there are more nuclear weapon states today than there were during the height of the Cold War. “The increase in the number of states that are nuclear armed is particular worrying, because some of them, par- ticularly North Korea, [are] very unstable ... And we have also come to know more clearly the dangers of accidents and mistakes,” Kirby said. “We have to have a serious sense of urgency, otherwise nothing will be done. And if nothing is done, I think it’s a real question as to whether our species will still be on this planet in 100 years’ time – or maybe 20 years’ time.” With the global tally of nuclear weapons totalling about 14,500, Evans said that in his view it was a mat- ter of “sheer dumb luck” that a more serious incident had not already wiped the world out. One of the main reasons being that approximately 2,000 nuclear weapons are on “hair-trigger alert” – a military term meaning capability for rapid launch. “We have learned over and over again, as the archives are unopened from the Cold War years, just how close we came,” Evans said. “My judgment is that it is just sheer dumb luck rather than anything to do with statesmanship or inherent stabil- ity of the system that we have survived as long as we have.” Evans urged the international community to address the issue of nuclear weapons with more vigour, noting the potentially “catastrophic” consequences of a nuclear disas- ter due to human or system error. “The truth of the matter is that nuclear weapons are the most indiscriminately inhumane weapons ever invented and they do have capacity to destroy life on this planet as we know it.” Kirby, who is a supporter of the Treaty on the Prohi- bition of Nuclear Weapons (the ban treaty) that currently has 70 signatories and 22 State parties, said delegitimising nuclear weapons was an important moral stance. “Those who oppose the ban treaty have got to say what they will put in its place,” Kirby said.
More than 80 solicitors attended the first instalment of the FLIP Regional Roadshow, hosted by the Law Society of NSW in Newcastle on 15 March. Fortuitously, the event was held just three days after the 30th anniversary of the internet being invented by Sir Tim Berners-Lee on 12 March 1989. Law Society President Eliza- beth Espinosa reflected that the anniversary served as a com- pelling reminder of how technology has changed every aspect of our lives, including the ways in which lawyers work. “Thirty years on, the way we use technology in every aspect of our lives has changed beyond recognition,” said Espinosa. The way solicitors practise law is undergoing change at a pace never experienced and in unforeseenways. And the pace of that change is increasing exponentially. ELIZABETH ESPINOSA, PRESIDENT OF THE LAW SOCIETY OF NSW “More than 50 per cent of the world’s population is online, and, worldwide, more than two billion websites exist. “The way solicitors practise law is undergoing change at a pace never experienced and in unforeseen ways. And the pace of that change is increasing exponentially.” Espinosa remarked that solicitors need to understand and anticipate how technology could affect the ways in which they practised law. To that end, she said the Law Society of NSW would endeavour to support its members in fast-chang- ing times, through key publications and events like the FLIP Regional Roadshow and annual FLIP Conference. The next Roadshow will be held in Byron Bay on Friday 5 April.
COURTS Former Law Society President appointed to Federal Circuit Court
TERRORISM Lawyers respond to Christchurch attack
Australian lawyers have expressed their support for New Zealand in the aftermath of a terrorist attack in Christchurch in which 50 people were killed. Law Society of NSW President Elizabeth Espinosa urged unity in opposing hatred and intolerance. “On behalf of the NSW legal profession, I would like to o er my deepest condolences and sympathies to the people of New Zea- land for the horri c and tragic terrorist attacks that took place in Christchurch,” Espinosa said. e executive committee of the Asian Australian Lawyers As- sociation (AALA) also issued a statement, extending condolences to all those a ected. e statement underscored the importance of fostering diversity and inclusion in society. “As an association, we value the contribution of Muslim Aus- tralians to our community and Muslim members to our associa- tion, and we stand with you in grief and prayer. We are pleased to see the almost universal support for the Muslim community of Christchurch and the utter condemnation of these despicable acts of terrorism,” the AALA said.
Immediate Past-President of the Law Society of NSW, Doug Humphreys OAM, has been appointed a judge of the Federal Circuit Court of Australia. Federal Attorney-General Christian Porter announced
the appointment on 11 March, alongside three other new appointments to the Federal Circuit Court bench including former family law barrister Monica Neville, Victorian barrister Anna Boymal, and Parramatta-based barrister Anthony Dillon Morley. Humphreys will be based in the Parramatta registry. His swearing-in ceremony will be held at 4.30pm on Monday 8 April at Gar eld Barwick Commonwealth Law Courts in Parramatta.
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For the full round-up of Law Society advocacy, see page 68.
Delegated legislation needs better structural scrutiny The public law committee has endorsed a senate committee submission calling for improvements to the structural scrutiny of delegated legislation. The committee suggested that core human rights treaties as set out in the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth) should be used to scrutinise delegated legis- lation against. The submission observed that the contemporary practice of skeleton-style primary legislation, which leads to dealing with matters of detail, policy and substan- tive issues in delegation, demands a better way to scrutinise the structure of delegated legislation. Bushfire offence standard non-parole period ‘appropriate’ The criminal law committee has taken the view that bushfire offences under section 203E of the Crimes Act 1900 have an appro- priate standard non-parole period. The Law Society told the NSW Sentenc- ing Council there was no evidence to justify an increase in the current maximum penalties, that penalties were already high and offered adequate scope for the sentencing court. Citing a 2009 review of the laws undertaken by the Attorney General’s Department, the submis- sion added that where a property offence is committed by fire it would almost double the maximum penalty available to the court. Caution urged for mandating simple- language explainers about general insurance The business law committee has warned against a “one size fits all” approach to information about insurance products in a submission to treasury. The Law Society has called for caution in mandating what must or could be explained in more simplified terms in response to Trea- sury’s consultation paper, Disclosure in general insurance: Improving consumer understanding .
Bin chicken sculpture to be installed in Sydney park A recent Surry Hills Council decision to build a 30-foot-high statue of an ibis in a local reserve is simultaneously a garbage idea and hugely popular. Local support for the towering bird sculpture made from recy- cled garbage sky-rocketed in a matter of weeks with more than 200,000 signatures collected in an online petition. The news is all the rage in Sydney’s legal circles, which have dubbed a feathered ibis friend that frequents the steps of the King Street court complex as “Bin Chicken SC”. Bronco Djura, who came up with the design for the sculpture, told The Surry Hills Times the bird symbolised acceptance of one’s lot in life and getting on with it. “It’s a survivor. It’s a toiler,” he said. A centrist approach Flipping the bird to a police officer does not warrant a speeding ticket, a US federal appeals court has found. According to Huffpost , the court ruled that when Michigan woman Debra Cruise-Gulyas was issued a speeding ticket for sticking up her middle finger to a suburban policeman, her constitutional rights had been violated. Matthew Minard, the officer at the centre of the decision, had given Cruise-Gulyas a ticket for a lesser violation when she flipped him the bird. The officer chose to pull her over again and change her ticket to a more serious speeding offence. In a unanimous decision, all three judges said the policeman “should have known better”, even if the driver was rude. As a result of the find- ing, a lawsuit brought by Cruise-Gulyas can now proceed. Some people catch zzzs, others shoot them A woman has allegedly shot her partner for snoring too loudly. Florida police were called to a home in March where officers were initially told the victim had accidentally suffered a bullet to the belly, 10 Daily reports. When the victim was taken to hospital it emerged that his 47-year-old de facto, Lorie Morin, had snapped during the night, allegedly taken out a shotgun, and pulled the trigger. Police say the couple had been drinking before the incident. While Morin is waiting to appear in court for charges of attempt- ed murder and aggravated battery, her boyfriend remains in a stable condition in hospital.
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