LSJ April 2020

ISSUE 65 APRIL 2020

Business As Usual With the current news of closures of non-essential services, we would like to reassure our clients that Law In Order is still operating as usual. We have put in place some measures to ensure that in the event of a staff member becoming unwell, we are able to continue to support you with our full range of services. We see very little disruption in our eDiscovery and eHearings services as these can be provided by our experienced professionals working remotely. Document Production Services Our Production floors are fully operational and still providing uninterrupted Printing, Copying and Scanning services. We have split the team and now have siloed spaces in all our offices quarantined and ready in case one space needs to be closed and bio-cleaned then a separate space is ready for our second team to operate from. This will ensure that we keep delivering uninterrupted document production services to our clients while our people stay safe. Deliveries For deliveries, we will discuss the best place for delivery for minimal risk to both organisations and can arrange couriers to clients’ homes if required. Supporting Clients Working From Home If you’re working from home and need documents fast, we can pick up and deliver right to your door. Keep your FTP access turned on so you can send or receive materials wherever you are working. We will continue to support you during this

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ISSUE 65 I APRIL 2020 I LSJ 23

Contents

30 26

40

Features

16 COVID-19 latest news

36 Torts and prayers

50 Olympic dreams deferred

Important updates on how social distancing plays out in courts, and what lawyers need to know

Kirrily Schwarz asks how we strike a balance between free religion and anti-discrimination

Water polo champion and law student Amy Ridge tells Kate Allman about keeping her Tokyo dream alive

26 Hot topic

40 Virtual internships

54 Fitness

2020 is the year of remote working. Sam McKeith explores the merits of online interning

Young lawyers say they are unconvinced that new Fair Work rules on reporting hours will work 30 Pain in country practice After a summer of disaster, regional lawyers open up to Steph Gardiner about navigating trauma

Zara Michales reveals the perfect playlists to beat your exercise rut and get your blood pumping

46 Mindset

56 Travel

How can you stay happy in an era of social isolation? Rachel Setti shares her best tips

When international travel bans lift, the charm, beaches and beauty of Hawaii should be on your list, writes Amy Dale

ISSUE 65 I APRIL 2020 I LSJ 3

52

60

71

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 20 Members on themove 25 Expert witless 25 The LSJ quiz 28 Out and about 44 Career matters 48 Doing business 49 Career coach 52 Health 60 Youwish 62 Books and films 64 The case that changedme

66 Advocacy

80 Personal Injury

The latest key developments in advocacy and law reform

Can the High Court heal the wounds of a bad holiday? What’s at stake in Moore v Scenic Tours

68 Constitutional

82 Business

A fascinating look at the High Court’s 4-3 split in the Aboriginal deportation cases

A practical overview of new laws to tackle illegal phoenix activity

71 Employment

84 Wills and estates A learned but informal

The key issues confronting employers and employees during the pandemic

perspective on the issues around informal wills

74 Criminal

86 Risk

NSW tendency and coincidence evidence reforms edge closer in NSW

Keeping the focus on clients, communications and clarity

87 Taxation

76 Ethics

The importance of seeking tax advice on company distributions

Justice Kyrou explains the importance of justice and a lawyer’s duty of confidence in light of the Lawyer X scandal

88 Taxation

A helpful guide to NSW Revenue’s new ruling on the deceased estates duty concession

78 Sports law

Doping, cheating, bullying: the role of the new National Sports Tribunal explained

91 Case notes

85 Library additions 106 Avid for scandal

The latest High Court, Federal Court, family, criminal, and elder law and succession judgments

4 LSJ I ISSUE 65 I APRIL 2020

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A word from the editor

You will have noticed that our cover this edition is a little different. Since we started preparing this month’s magazine quite some time ago, the world has changed dramatically. As we began working on the cover to illustrate our important lead story on drought and trauma, we realised that it felt alien to not acknowledge how the pandemic is changing our lives. Hence the unusual cover.

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor

Here at LSJ we are working hard (and remotely) to stay across events and keep our readers up to date as the sands shift. Print media has limitations in this regard, so we encourage all readers to log on to lsj.com.au for more up-to-date content, as well as our lawsociety.com.au/COVID-19 web page. In the meantime, amid the chaos and unfolding crisis, we will continue to bring you stories that matter; content you can’t afford to miss, even if it might seem somewhat irrelevant against the backdrop of a health and economic emergency. We are already working on the May edition, which will have a heavier coronavirus focus and bring you a range of articles to help you understand and navigate the significant changes happening daily. It is a concerning time for us all. As we have stressed on the cover, now more than ever is the time for the profession to unite, be kind to and support one another, and work together to get through the mire. Take care.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2020 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.

Claire Chaffey

Contributors

STEPH GARDINER Feature p30 Steph is a freelance journalist and former court reporter based in NSW’s central west. She speaks with lawyers on the frontlines of drought and bushfire recovery about managing their mental health while supporting traumatised clients.

HEIDI FAIRHALL Employment law p71 Heidi is a special counsel at Corrs Chambers Westgarth. In this edition, she joins Corrs partner and regular LSJ contributor Jack de Flamingh to dissect the widespread and rapidly evolving employment implications of the COVID-19 pandemic.

STEPHENODGERSSC Criminal law p74

KIRRILY SCHWARZ Feature p36 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she explores the controversial religious discrimination bill and the difficulty in balancing competing sets of human rights.

Stephen is a Senior Counsel in Forbes

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Chambers and Adjunct Professor of Law at the University of Sydney. This month, he explains the complex tendency and coincidence evidence reforms set to be passed into law in NSW.

ISSUE65 APRIL 2020

ISSUE65 APRIL2020

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 journal@lawsociety.com.au. 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 65 I APRIL 2020

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ISSUE 65 I APRIL 2020 I LSJ 23

President’s message

We are living in extraordinary and unprecedented times. In years to come, when we look back at 2020, it will undoubtedly stand out as one of the toughest in modern times, for all Australians. The COVID-19 situation is moving very quickly. Each day brings additional restrictions and disruption to our lives. We are being asked to process vast amounts of

new information and to adapt to changes unimaginable just a few weeks ago. In the words of Prime Minister Scott Morrison, our nation is dealing with a health crisis, which has caused an economic crisis. We are acutely aware of the critical impact COVID-19 is having on our members’ livelihood and wellbeing at this time. For more than 175 years, the Law Society has existed to serve and support our legal community – the solicitors of NSW – through two World Wars, a Great Depression, a Global Financial Crisis, and now COVID-19. As the COVID-19 situation has unfolded, we’ve worked hard to keep our profession updated – whether it be in relation to Law Society services and events, online CPD, the operation of the courts, or practising certificate and membership renewal. This information sits on a dedicated page on the Law Society website (lawsociety.com.au/COVID-19) and is being disseminated through numerous communication channels, including a COVID-19 Daily Update, Monday Briefs, LinkedIn, Facebook and Twitter. In a world where social distancing has become the new normal, staying connected and maintaining a sense of community has never been more crucial. We’ve also created a new Wellbeing Portal, with guidance on remote working, looking after your mental health and wellbeing, accessing support, and dealing with “COVID-19 anxiety”. We want to make sure you have the information and support you need to make informed decisions during these challenging times. At the time of going to print, we were, as a matter of urgency, considering additional initiatives to support the profession during this crisis. In this uncertain world in which we find ourselves, our priority is to support our members, now and in the future. And to let you know that we will get through this together.

Richard Harvey , President, Law Society of NSW

8 LSJ I ISSUE 65 I APRIL 2020

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ISSUE 65 I APRIL 2020 I LSJ 9

Mailbag LETTERS TO THE EDITOR

is a bushfire is a bushfire etc. They are both naturally occur- ring disasters and have been for thousands of years and nothing to do with “climate change”. Has the good professor not read Dorothea MacKeller’s “I love a sunburnt country”, written over 100 years ago, “of droughts and flooding rains”? Councils and state government ministers are so terrified of the Greens and environmentalists that applications for hazard reduction action by sensible, practical people have been refused or delayed for so long that the fuel loads were allowed to build up to the recent excessive proportions, thereby worsening the intensity of the fires. Has the good professor left the metropolis to look at any of the problems? To link populist “climate change” (yet to be fully scientifically sup- ported and still contentious) to naturally occurring events such as floods and bushfires is fearmongering in the extreme (next it will be earthquakes and erupting volcanoes), but I suppose it is self-justifica- tion for the existence of the department she heads. It is not necessary of course because the four phases she refers to are basically covered by the study of torts and contracts. H R Cole, Solicitor, Bathurst The highest court in the land The Chief Justice’s reflection ( LSJ March) on the intersection between law and moral values brings to mind this quote by Mahatma Gandhi: “There is a higher court than courts of justice and that is the court of conscience. It supersedes all other courts.” Edward Loong, Lawyer Costs reserved As an experienced litigator, I had often thought disparagingly when in court mentions, whilst waiting to do a mention, other solicitors would ask that costs be reserved. I mainly practise in the state courts. I took the view that the attendance and cost could be included depending

upon the result of the litigation without any need to reserve costs. I recently learnt that is not the case in the Federal Court and the Federal Circuit Court. In bankruptcy proceedings, under the rules a short form bill and amount can be claimed on the making of a Sequestration Order for the sum of $2,718. Additional costs are allowable for any adjournment for which costs have been reserved by the court in accordance with a scale. That scale allows up to $650 per hour. In addition, the proper and reasonable disbursements are recoverable. Likewise, a short form bill and amount can be utilised on the dismissal of a petition, hope- fully where the debt is paid. The costs are $2,339. Again, additional costs are allowed for any adjournment in accor- dance with the scale subject to those costs being reserved. Disbursements are added to that figure. Even if a debtor raises objections and a large array of defences whereby the creditor incurs significant costs the short form bill and amount together with additional costs for any adjournment for which the costs have been reserved by the court apply. Unless the Short Minutes have the notation “costs reserved,” even though there is an adjournment, the creditor will not be entitled to recover those costs. On occa- sion, I prepared my own Short Minutes rather than utilise the court form or hard copy avail- able at the court in a desire to avoid court mentions and have consent adjournments. The standard court form has a “costs reserved” paragraph on them. By practice, I put noth- ing about costs reserved in my Short Minutes. This meant that not every adjournment, even when I attended court, result- ed in a costs order payable by the debtor because the form did not have that notation on it. Lesson for old and young players – each court has its own rules and check them to ensure the best recovery for your client. Stephen Titus

Gettingdiversityright Why lawfirms stillhavework todo when itcomes toLGBTQIequality Savingreputations Fixingouroutdateddefamation laws:wheredowego fromhere? Overtimeandawards Amodernaward forgraduates: howwill it impactemployers? Reportingonslavery Preparingclients forcompliance under theModernSlaveryAct

ISSUE64 MARCH 2020

How precious it might have been I was very grateful to read the article in the latest LSJ (“A very di cult marriage”, p36, February LSJ ) encouraging openness and courage in our profession in relation to sexual orientation and gender identity. I have written to my old pro- fessional friend Vice President Joe Catanzariti AM of the Fair Work Commission praising his forthright contributions – and I express praise and admiration for Rhian Mordaunt, Grace Wilkie and Nicholas Stewart. I look back and know how pre- cious such an article would have been for me when I was starting out in 1962. Congratulations! Michael Kirby AC CMG Grateful for the gratitude Thank you for this month’s article on gratitude. I recently had cause to reprimand a sup- port sta person for getting caught breaching the privacy of a fellow worker by reading their personal emails. The options included dismissal or an attempt at rehabilitation. I was grateful that the injured party did not seek retaliation and accepted a sincere apolo- gy, and the o ending party was introspective and truly contrite. The o ending employee has since left for greener career pastures, but not without reaching out in gratitude to thank the o ended co-worker for their forgiveness, and me for helping them grow into a better person. What could have been an acrimonious departure ended up in warm, positive farewell experience for all parties concerned. Your article reinforced that all we have to lose by being grateful (even in adversity) are worry, anxiety, and the opportunity to grow. Cecilia Castle, Principal, Castle Lawyers Emotive nonsense ? Climate Disaster Law. What emotive nonsense. A flood is a flood is a flood etc. A bushfire

ISSUE64 MARCH2020

Lawyersare joiningthespacerace butcantheykeepupwithtechnology? Star laws

PLUS: UPDATESONCLIMATE,EVIDENCE,RISK, LITIGATION,GUARDIANSHIP&MORE

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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.

E: letters@lawsociety.com.au

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.

/lawsocietyofnsw

/LawSocietyNSW

/law-society-of-nsw

CONGRATULATIONS! Anthony Jucha has won lunch for four. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

10 LSJ I ISSUE 65 I APRIL 2020

LETTERS TO THE EDITOR

Rocking theWorld Rockstacking Championships (yes, really)

Height” (10 minutes to scram- ble around the competition arena, select rocks and make the tallest rockstack). Measur- ing up at a little over six feet, my rockstack came second to that of a local man whose home- ground advantage yielded him a monster bottom-rock and a seven-foot stack. I then man- aged fourth place in “Balance” (everyone gets three minutes with the same rocks) and in “Quantity” (10 minutes for the most rocks, with no shims, in a stack). On day two, I spent the entire day competing in the “Artistic” category, making a rockstack art installation. The key to my creation was a large pyramid-shaped rock, on top of which I placed a V-shaped rock balanced on its point. All around, I placed other rocks, leaning in, as if worshiping the pyramid-stack. I embellished with driftwood and reeds, feeling myself growing into a

genuine land artist. “Artistic” is a subjective category, and I was delighted with my silver medal. I’m now counting down the days for when I can swap self-isolation for a di erent kind of solitude, down at the Glebe foreshore, where I’ll be training for Llano 2021. Anthony Jucha, Jucha Legal Why the triple? Knock three times! This hap- pens every time when a judge or magistrate or other judicial person enters a court room. No one seems to know the origin of this custom. Where does this ritual come from? Why knock three times? Why not once or twice? I have found the origin of the three knocks, but it only appears in relation to the English and Australian Parliaments. I have not looked into other foreign jurisdictions. A definition of knock in relation to this is “To strike a surface

noisily to attract attention, especially when waiting to be let in through a door”. I have trawled though legal history, including the archives available on English law. I also consid- ered the Magna Carta, basically a human rights declaration made in 1215. I was unable to find any legal reference that a person must knock three times on a door before entering a court. I have also consulted the Bible and there are references, in particular Matthew: “Behold, I stand at the door and knock. If anyone hears My voice and opens the door, I will come in and dine with him, and he with Me.” And Luke at 12:36: “Then you will be like servants waiting for their master to return from the wedding banquet, so that when he comes and knocks, they can open the door for him at once.” Three knocks first appears in reference to the Gentleman Usher of the Black

I write from self-isolation, having just returned from the World Rockstacking Cham- pionships in Texas. I bring back two silver medals for Australia! The World Rock- stacking Championships take place at the Llano Earth Art Festival each year. Land art- ists create installations from natural found-objects, and “rockstars” converge from all over the world to compete in categories such as ‘Height’, “Balance”, “Artistic”, “Arches” and “Quantity”. Rockstacking is all about peace, solitude and art. I’ve been rockstacking for a couple of years now, and regularly scatter rockstacks around the Glebe foreshore on my morning walks. Llano was my first competitive event. My first medal came in “Solo

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ISSUE 65 I APRIL 2020 I LSJ 11

Mailbag LETTERS TO THE EDITOR

Rod, an o ce of the British House of Lords. This appoint- ment was instituted in 1350. The Black Rod, in essence, is a personal attendant of the sovereign and functions as a sergeant at arms. His duties are to summon the House of Com- mons to the House of Lords to hear a speech from the throne or to the assent given to bills. On such occasions, the House of Commons closes its doors at the Black Rod’s approach, whereupon he or she must knock three times before being admitted. The apparent origin of this curious ceremony dates from the indignation of the lower house at the famous attempt of Charles the 1st to arrest John Hampden, John Pym, and three other members of the House of Commons in 1642. In Australia, the Parlia- ment Procedures states: Black Rod: Mr/Madam Pres- ident, His/Her Excellency the Governor-General approaches the Senate chamber. The Presi- dent will stand to the right of the vice-regal chair. President to bow to the Governor-General as he/she approaches the dais. Governor-General: Hon- ourable senators, please be seated. Black Rod, please let the members of the House of Representatives know that I desire their attendance in the Senate chamber. Black Rod will bow to the Governor-General and pro- ceed across the Members’ Hall and knock three times on the door of the House of Representatives. Having been announced by the Sergeant-at- Arms, Black Rod will advance to the Bar of the House where he/she will bow to the Speaker. I am unable to find out how and when this procedure crossed over into the Court system. However, I am sure that when any lawyer after reading this, will count the three knocks on the door before the judicial officer enters the Court. Jim Maspero

“Drug courts are the key. If you live outside the catchment you are ineligible. Ridiculous in 2020!” – Andrew Bide, Facebook “Early intervention is the key. Rates might reduce once the govt and general public embrace the concept of prison being about rehabilitation, not simply punishment. Drug courts are a won- derful start to reduce the rate of recidivism.” – CJ Scmulmar, Facebook

“This could help lower DV statistics too and help break the cycle.” – Elizabeth Robbins, Facebook

12 LSJ I ISSUE 65 I APRIL 2020

LETTERS TO THE EDITOR

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“And what about Will signing? I’ve updated mine a few times and each time my lawyer has insisted he, witness and me use the same pen. 1001 Uses for Handsan [sic] #1002” - @ICBubbleGum, Twitter “There are actually a lot of legal processes that can be done online these days! Lawyers can also ‘meet’ clients over Skype etc and virtual signatures are used for some things. However you are right about witnessing documents. Perhaps this crisis will spur faster innovation.” - @ KateAllman, Twitter “Agreed! There is no reason for anything lawyers do require F2F interaction. Zero. It’s another way the industry remains unnecessarily con- servative. Outdated, costly and ine cient in every way. Imagine the costs clients could save if meetings and travel were not factored in.” - @KillBillables, Twitter

“This was a marvellous event, and a wonderful way to start the week. I do not think any of us in the audience expected to find ourselves in sponta- neous laughter first thing on a drizzly Monday morning! Sincere thanks to you both, and to The Law Society of NSW, for a terrific start to the week :)” Thomas Russell, Piper Alderman

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ISSUE 65 I APRIL 2020 I LSJ 13

Briefs NEWS

vide support and information for our members. I recognise this is a time of enormous uncertainty and distress across the profession, and there will be profound disruptions to work, commu- nications, economic uncertainty, as well as the human cost. The Law Society is doing all it can to provide information and support.” Tidball emphasised the importance of maintaining a strong legal profes- sion to provide oversight, guidance and protection for the rule of law while many legal services, including court hearings, halted or went online to im- prove social distancing measures. This was even more important, he said, at a time when legislation was being rushed through parliament that could risk en- croaching too far on civil rights. “At times when society is strained, that is when it is more important than ever to have a strong legal profession. The profession needs to stand together to protect independence, civil liberties, the rule of law and our Australian way of life,” he said. The Law Society of NSW President Richard Harvey announced the news of Tidball’s resignation in an email to the profession and thanked Michael for his outstanding contribution to the Law Society, the legal profession and the wider community. He said the CEO would be sorely missed. “While I am incredibly sad to see Michael depart, I respect his decision to accept this new appointment – he goes with the Law Society Council’s gratitude for his tireless efforts and contribution,” Harvey wrote. “Michael will leave the Society in a strong financial position, with a robust membership and a clear business strategy. “A change of CEO leadership will be a vital step for the future of the Society and the opportunity for further growth and enhancement of what is one of the most resilient and highly regarded legal associations in the world. “I wish Michael every success in his new role at the Law Council of Australia.”

LEADERSHIP LawSociety CEO resigns post after 14 years BY KATE ALLMAN

The longest-serving Chief Executive Officer of the Law Society of NSW, Michael Tidball, has announced he will hand over the reins to the state’s peak legal body at the end of the 2020 financial year.

Michael Tidball has held the position of CEO for 14 years, during which time the number of solicitors in NSW has grown from about 21,000 to more than 35,000. Law Society membership numbers have continued to increase throughout his tenure, despite other law societies around Australia reporting de- clining figures in recent years. “I have a lot of sorrow in leaving, but I am particularly proud of the achieve- ments we have made as the peak legal body in NSW, and the largest state law society in Australia,” Tidball told LSJ . “The Law Society of NSW has re- tained strength through high member- ship take up, and this has enabled our committees and members of the legal profession to continue their essential

work as highly regarded government ad- visors, fearless advocates for the rule of law, and experts in the dynamics of the changing profession.” Tidball, who has also served as Sec- retary-General of LAWASIA for more than five years, will conclude his Law Society tenure around 30 June to take up the position of CEO of the Law Council of Australia. He announced his resignation on 16 March, prior to the unprecedented challenges of the esca- lating COVID-19 crisis. He agreed his final weeks at 170 Phillip Street could be the busiest and most important yet. “The President and I have been in the COVID-19 ‘war room’ since the crisis started,” Tidball said. “We are working tirelessly to pro-

14 LSJ I ISSUE 65 I APRIL 2020

NEWS

Influencer

NEWTHISMONTH Sydney lawyers clean up at Client Choice Awards Sydney lawyers and firms were among the big winners at the Beaton Client Choice awards on 19 March. Winners were told remotely after a gala dinner planned in Melbourne was cancelled due to the COVID-19 outbreak and travel restrictions. Gina Cass-Gottlieb, a senior partner in Gilbert + Tobin’s competition and reg- ulation practice in Sydney, took out the coveted Best Lawyer prize. The full list of winners can be viewed online at clientchoiceawards.net

by

Save the date – Annual Members Dinner 2020

Kate Jenkins Sex Discrimination Commissioner, who delivered her landmark report on workplace sexual harassment on 5 March.

President Richard Harvey and the Council of the Law Society of NSW invite members to save the date for the Annual Members Dinner on 22 October. This is an evening to catch up with colleagues and friends, and honour those who have contributed to the work of the Law Society over the course of the year. Solicitors who have reached 50 years of practice will be honoured, and the 2020 winner of the President’s Medal will be announced. lawsociety.com.au/events

Victims who have for too long been silenced have found their individual and collective voice. There is an urgency for change.

ISSUE 65 I APRIL 2020 I LSJ 15

Briefs NEWS

COVID-19 Events suspended; hearingsmove online, but rule of lawwill continue ‘to the extent possible’

BY KATE ALLMAN

Courts have suspended face-to-face hearings and asked they be heard via telephone or online in a bid to follow “social distancing” recommendations and stem the spread of coronavirus in NSW. As the Council of Australian Gov- ernments (COAG) agreed to strict new rules around social gatherings and shut down some types of indoor venues and services in an effort to enforce “social distancing”, the legal profession has re- sponded with procedures to limit con- tact among practitioners, clients and members of the community. Importantly, legal services, law firms and practices can continue to operate as they are not included on the list of social gathering places that have been restricted by the NSW Depart- ment of Health. On 23 March, the Supreme Court announced via its website that no per- sonal appearances were to be held from 24 March onwards. The court said this would apply to all matters “except for exceptional circumstances with the leave of the Chief Justice or head of ju- risdiction”. “It is essential for the wellbeing of the community and the maintenance of the rule of law that the Court continues to operate to the extent possible in the current challenging environment,” the announcement read. The Supreme Court’s public regis- try will close from 24 March, and the court will require all documents to be filed via electronic means – either via the online court, e-subpoena or online registry. Face-to-face court annexed mediations have been temporarily sus-

pended from Monday, but can proceed by way of teleconference. All defended hearings in NSW local courts from 23 March to 1 May have also been suspended, and the courts have advised that any hearing sched- uled during that time should continue via audio-visual link where practicable. The Family and Federal Circuit Courts are continuing operations but relying heavily on telephone hearings and video conferencing, as well as e-fil- ing new applications. Both courts have flagged that they will be rolling out the use of Microsoft Teams for use as vir- tual courtrooms, with trials of the pro- gram currently underway. The Federal Court announced it will close public facing counters from 24 March. The High Court last week an- nounced it would not sit through the months of April, May or June, and dis- trict trials in the Supreme and District Courts of NSW have been temporar- ily suspended as the courts review the empanelment process in order to limit close social contact among jurors. Cur- rent jury trials in NSW are continuing. Legal Aid NSW closed its pub- lic-facing offices but announced via Twitter that it will continue to operate and provide advice via its phone line 1300 888 529. Many large law firms are encour- aging their teams to work from home and remotely where possible. Mean- while, the Law Society of NSW has temporarily suspended all events at its premises at 170 Phillip Street, includ- ing continuing professional develop- ment (CPD) seminars and third-party events.

“The Law Society is continuing to closely monitor the COVID-19 situ- ation and, based on advice from gov- ernment and health authorities, taking all required action to protect the health and wellbeing of members of the pro- fession, Law Society staff, and anyone accessing 170 Phillip Street,” President Richard Harvey said. President Harvey urged practitioners to monitor the Law Society’s website page dedicated to COVID-19 updates for the most recent information affect- ing the legal profession. The President also committed to sending out a “daily update” email newsletter from the Law Society, with the first newsletter sent out on 24 March, summarising rele- vant and essential COVID-19 infor- mation for lawyers across NSW. “We are living through challenging and unprecedented times. We are being asked to process vast amounts of new information and being forced to adapt to changes unimaginable a few weeks ago,” Harvey said. President Harvey encouraged law- yers to look to the NSW Department of Health website for the most in- formed medical advice surrounding coronavirus. “In considering any possible work- place issues arising from COVID-19, it is important to have access to informa- tion from the appropriate sources. To this end, we would refer those in the legal profession to the NSW Health website – which has the latest updates, fact sheets and resources.”

Follow @LawSocietyNSW on Twitter, and bookmark lawsociety.com.au/COVID-19

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Where should I go for reliable information?

• The Law Society of NSW is constantly updating the changes to arrangements across all jurisdictions and providing links to wellbeing and mental health resources. It is also sending a “daily update” newsletter for members of the profession in NSW. See lawsociety.com.au/COVID-19 • The John Hopkins University of Medicine specialises in public health and infectious diseases and provides the most reliable graphs indication the spread and growth of each nation’s “COVID-19 Curve”. See coronavirus.jhu.edu/ • The NSW Department of Health provides a comprehensive list of the current rules and restrictions in NSW, tips on how to correctly do social distancing, and a breakdown of your rights regarding rentals, retail and event or tourism cancellations. See nsw.gov.au/covid-19 • The Federal Government Department of Health is giving regular updates about new infection rates in Australia, as well as information about payments and resources for those experiencing hardship. See health.gov.au/ The Law Society understands solicitors may need to complete their outstanding CPD units online to meet the 31 March 2020 deadline, and has relaxed the five-unit cap on private study of audio/visual material as set out in the Legal Profession Uniform Continuing Professional Development (Solicitors) Rules. The Law Society offers a vast online CPD library at lawinform. com.au with 250-plus courses to help meet your outstanding CPD units. Law Society members can access these courses at substantial discounts. How can I complete my CPD requirements? The Law Society offers support for legal professionals via a range of services, both in the immediate term and ongoing. We do this via: • Lifeline for Lawyers – a 24-hour, completely confidential support service for solicitors in distress with psychological, emotional or work-related health issues. Call 1800 085 062. • Lawcare – offers ongoing psychological treatment, completely professional and confidential. Call 0416 200 788. • The Specialist Panel – access to an independent panel of specialists appointed by the Law Society, in confidential wellbeing consultation services. See lawsociety.com.au/ resources/mental-health-and-wellbeing/seeking-support for a full list of recommended practitioners. I’m feeling anxious –who can I talk to?

“The Law Society is continuing to closely monitor the COVID-19 situation and, based on advice from government and health authorities, taking all required action to protect the health and wellbeing of members of the profession, Law Society staff, and anyone accessing 170 Phillip Street.” Richard Harvey, President of the Law Society of NSW

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Briefs NEWS

What made you pursue a career in criminal law? In my early twenties, my two older sisters were both lawyers. I had just commenced a career in law enforcement, so studying law seemed like the logical thing to do. I studied at the University of Technology part time while I was working two jobs. Because of my law enforcement background, I naturally gravitated towards criminal law. It was very difficult to juggle it all, but when you’re young you tend to cope better with such pressures. I was considering post-graduate study and wanted to try something that was different to mainstream law but that still had a connection with criminal law. From my experience as a criminal lawyer, I had encountered the mental health and forensic mental health system in my practice. Many years ago, when I was a Legal Aid solicitor, I used to appear in the magistrate’s mental health review hearings at a local mental health unit. That triggered my interest initially in how the mental health system interacts with the law, particularly when people are detained as involuntary patients. Can you tell us a bit about the course? There were not many lawyers doing this degree. It seemed to be mostly psychiatrists and psychologists. It was particularly interesting hearing the clinical perspectives of non-lawyers What made you decide to do a Master of Forensic Mental Health? John Weir is a partner at Pennicott Weir Lawyers and an accredited specialist in criminal law. After a lifelong interest in the intersection between mental health and the criminal justice system, Weir enrolled in a Master of Forensic Mental Health within the UNSW Faculty of Medicine. Having graduated first in his class, Weir tells FLOYD ALEXANDER- HUNT about his career and how his two passions have come to overlap. sixminuteswith JOHN WEIR

insofar as it related to the topic of forensic mental health. A central theme is the interrelationship between mental illness and mental conditions and the justice system. Doing this course has given me a greater insight into the operations of the forensic mental health system in NSW. I enjoyed it so much I am contemplating further postgraduate studies. How did it feel winning the David Greenberg Prize for Outstanding Academic Performance? It was a very pleasant surprise. I was unaware there was such a prize until I had completed the degree. I assumed, being one of the few lawyers in the course, that there would be a psychiatrist or psychologist that would achieve the best results. It was a great honour to receive the award. How did you juggle studying while remaining a partner? It was stressful at times. It required me to engage in effective time management. Ultimately, though, despite quite a few late nights, I managed to get through it. My advice to anyone contemplating post-graduate study on top of a busy career is to surround yourself with friends who can assist and distract you through the process. Outside of work, what keeps you happy and healthy? I try to exercise but the contingencies of work sometimes break that ritual. Certainly, when I can I try to adhere to the regimen of fitness and of course, having a good laugh!

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BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE

Internal matters like debtor recovery are often the last matters a busy practitioner will address – however, in costs disputes, time is of the essence. If it becomes apparent that you are going to need to take formal action to recover your costs, it is important to consider early on whether you will need to have your costs assessed prior to commencing recovery action. Pursuant to section 178(1) of the Legal Profession Uniform Law (LPUL), if a law practice has not complied strictly with all costs disclosure requirements–including the requirement to update costs

estimates–a client is not required to pay any costs at all until they have been assessed, or any costs dispute has been determined by the designated local regulatory authority (which, in New South Wales, is the Office of the Legal Services Commissioner). So why is time of the essence? Due to section 198(3) of the LPUL, a law practice only has 12 months to apply for assessment of its own costs. If this opportunity is not taken, and costs disclosure obligations have not been complied with, the combination of sections 178 and 198 may result in the costs becoming permanently irrecoverable.

Q: My client is refusing to pay my fees. What do I do?

A: Fee disputes can be very stressful and time-consuming, particularly for sole practitioners and practitioners in smaller firms.

OPPORTUNITIES LAWYER SEEKING

Senior lawyer with more than 25 years post admission experience (out of active practice for the last three years) is interested in suitable in-house roles or an attractive opportunity to start up a Sydney CBD practice with a like minded mid-level or senior lawyer in a similar position. He is particularly interested in less mainstream legal work, technology, AI, emerging markets, energy and resources. His last role was for an ASX listed mining company as in-house counsel in Brisbane. He has a broad knowledge of the law including experience in a wide variety of litigation (insurance, commercial, administrative law and specialist litigated matters), commercial work (commercial drafting, compliance and regulatory advice and representation), corporate matters (advice to the board of an ASX listed company) and more recently energy and resources law (with native title expertise).

(NB No portable practice but able to build and maintain a practice).

Please contact:

samcoupland@fmrc.com.au

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Briefs NEWS

Christine Blight Joined as Special Counsel

John Galea Promoted to Senior Associate Barker Henley

Richard Hobson Joined as Consulting Principal Keypoint Law Melbourne

Financial Services Corrs Chambers Westgarth

Mark Pistilli Joined as CEO Gadens Melbourne/ Sydney

MatthewThomas Williams Joined Colin Daley Quinn Kogarah

Ivy Tran Promoted to Associate Linden Legal

Ko Ko Aung Promoted to Associate Agape Henry Crux

Lauren Absalom Promoted to Associate Wills and Estates Rydge Evans Lawyers

BernardMcAuley Joined as Solicitor McAuley Hawach Lawyers

Cavelle Lindsay Joined as Senior Solicitor Mullane & Lindsay

Tony Tesoriero Joined as Mediator Banki Haddock Fiora

Avendra Singh Joined as Partner Johnson, winter & Slattery (JWS)

Know someone with a new position? Email us the details and a photograph (at least 1MB) at journal@lawsociety.com.au

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Climate Change and the Environment and the Centre for Climate Change Eco- nomics and Policy, climate change cases were brought in at least 28 countries around the world between May 2018 and May 2019, with 94 cases in Austra- lia alone. “ is Model Statute is intended to lower the procedural legal hurdles many citizens face when trying to access the courts,” said David Estrim LSM, Co-Chair of the IBA Model Statute Expert Working Group and a former head of the environmental law practice at multinational law rm Gowling WLG. A coalition of senior legal and environ- mental experts from the IBA’s Climate Change Justice and Human Rights Task Force worked on the statute. e group includes prominent UK barrister Bar- oness Helena Kennedy QC of Doughty Street Chambers, who co-chairs the task force with Estrin. Over 75 pages, the document asserts that citizens should nd an open

courthouse door (“standing”) to ask a judge to protect them from climate harm. is is already the case in NSW, where the New South Wales Crown Proceed- ings Act 1988 provides that the Crown can be sued in the same manner as any private person. is has been enforced in environmental proceedings against state entities brought in the NSW Land and Environment Court. e statute also asserts that govern- ments should not be able to defend their actions by saying they have only emitted a small quantity of greenhouse gases or are responsible for a small share of harm. It recommends that courts should have power to order that a government pay the costs of a successful plainti ; or even an unsuccessful plainti who has pur- sued a case in the public interest. e IBA has called the model statute an “unprecedented step forward” to pro- viding citizens around the world with tools to address climate change issues and disputes in their jurisdictions.

ENVIRONMENTAL LAW IBA releasesmodel statute for climate change litigation

BY KATE ALLMAN

e International Bar Association (IBA) has published an extraordinary directive for courts and judges to step in where governments may be failing to pro- tect their citizens from climate change. e “Model Statute for climate change litigation against governments” was launched to the public in London in late February and o ers guidance to citizens considering suing their governments for failing to act on climate change. It comes amid a urry of individuals and groups turning to the courts to settle climate change-related claims. Accord- ing to a report published in 2019 by the UK’s Grantham Research Institute on

CONTACT US: Suite 203, 46 Market St SYDNEY NSW 2000

ph: (02) 8399 2050 fax: (02) 8399 2080 email: info@mlp.com.au web: www.medicolegalpsychiatry.com.au

M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports

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Briefs NEWS

Employers may face higher standards under positive duty laws to prevent sexual harassment Employers should take a proactive approach to preventing workplace sexual harassment and discrimination, the Australian Human Rights Commission (AHRC) has urged. Introducing a positive duty for employers to show they are proactively working to prevent sexual harassment is one of several significant legal changes recommended by the AHRC in its report Respect@Work. The highly anticipated report was published on 5 March and is the culmination of an 18-month inquiry into the prevalence of sexual harassment in Australian workplaces. Positive duty requirements would be made possible under a proposed amend- ment to the Sex Discrimination Act. It is one of 55 recommendations stemming from the landmark inquiry, during which more than 10,000 people were interviewed. The Law Council of Australia said it supported the idea of positive duty. “We fully endorse the Report’s recom- mendation to introduce a positive duty to eliminate sex discrimination, sexual harassment and victimisation,” President Pauline Wright said in a statement. “However, we believe that separate duties to respond to allegations of sexual harassment and to report all such allega- tions to an independent statutory body should be considered. “The difficulty that victims have in navigating the options for taking action on sexual harassment, whether in the workplace, through the courts or other bodies needs to be addressed.” BY AMY DALE

CHARITY Sydney lawyers rally for Social Justice Dinner

From left: Ben Quilty, Julia Baird, and Jonathon Hunyor.

The Law Society of NSW was proud to once again be a major sponsor of PIAC’s annual Social Justice Dinner, held at Doltone House, Hyde Park on 27 February. The night was a great success, with more than 400 people attending to cel- ebrate and raise funds to support PIAC’s social justice and human rights work. Yvonne Weldon, Chair of the Met- ropolitan Local Aboriginal Land Council, shared a heart-felt Welcome to Country. The evening was hosted by award-winning journalist and author Julia Baird, and guests were entertained by acclaimed artist Ben Quilty, who gave a thought-provoking and wide-ranging speech that touched on his own activism and passion for justice. Quilty also paid tribute to a number of under-recognised Aboriginal artists from central Australia and lamented the undercurrent of racism and hate that can permeate Australian culture, particularly on social media. “If we want to make Australia a better place, we need to start talking about the

black heart that exists within our midst,” said Quilty. In his speech, PIAC CEO Jonathon Hunyor addressed the social justice chal- lenges of climate change and PIAC’s role in a time of “existential crisis”. “The pace and scale of climate change, the inevitable disruption and upheaval, will test our commitment to fairness, equality, human rights and ultimately the rule of law like never before,” he said. “In the face of human rights chal- lenges created by climate change, PIAC’s mission – to strive for a fair, just and democratic society – has never been more essential.” PIAC Chair Rebecca Gilsenan paid tribute to PIAC’s many supporters, friends and allies in the room and gave special thanks to major sponsors The Law Society of NSW and MinterEllison, and supporting sponsors Allen & Overy, Lawcover and Macquarie Group. Photos of the event are available on PIAC’s Facebook page, and a short video highlighting some of PIAC’s work can be viewed on PIAC’s website.

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