LSJ - December 2014
INTERNATIONAL LAW’S POWER COUPLE ON REFUGEES, CLIMATE CHANGE AND TERRORISM
SAYWHAT? WHY SOLICITORS ARE FAILING TO COMMUNICATE WELL TREE CHANGE THE PERKS OF REGIONAL PRACTICE A DIFFERENT APPROACH INSIDE CIRCLE SENTENCING OLDAGE ADAGE ADVANCE CARE DIRECTIVES IN VINOVERITAS THE TRUTH ABOUT ALCOHOL
FEBRUARY CPD PROGRAM Flagship programs to suit every need.
ANNUAL ONE DAY SEMINARS
ESSENTIAL HALF DAY SEMINARS
MANDATORY CPD SEMINARS WEBCASTS
PERSONAL DEVELOPMENT SKILLS
FUNDAMENTALS 1 Online Wills & Probate for Solicitors 4 Weeks (online) - 2 Feb - 1 Mar 2 Conveyancing for Solicitors 8 Weeks (online) - 2 Feb - 29 Mar 3 Conveyancing Fundamentals for Solicitors - 5 & 6 Feb
ESSENTIAL HALF DAY SEMINARS 4 Employment Law Essentials 5 Retail Leases Essentials MANDATORY CPD SEMINARS 6 Rule 57 Half Day Seminar 7 Regulation 176
8 Rule 57 Half Day Seminar PERSONAL DEVELOPMENT 9 Professional Effectiveness and Wellbeing Workshop 10 Lawyers Becoming Leaders - What They Didn’t Teach You At Law School 11 Building Better Legal Minds 12 Emotional Intelligence and Leadership WEBCASTS 13 Introduction to the 2014 Contract for Sale and Purchase of Land 14 Rule 57 - Ethics SKILLS 15 Advanced Negotiation - One Day Masterclass
At The Law Society, we are focused on reinvesting in our profession by bringing you the highest quality programs at affordable rates. We have almost 100 CPD seminars on offer during February and March. To view our full program visit lawsociety.com.au/cpd
02 9926 0250
MARCH CPD PROGRAM Flagship programs to suit every need.
ANNUAL ONE DAY SEMINARS
ESSENTIAL HALF DAY SEMINARS
MANDATORY CPD SEMINARS WEBCASTS
PERSONAL DEVELOPMENT SKILLS
Family Law Fundamentals for Solicitors
2 Conveyancing Fundamentals for Solicitors - 19 & 20 Mar ANNUAL ONE DAY SEMINARS
3 4 5 6
Workplace Safety Law
IP and Technology Law
Criminal Law Business Law
ESSENTIAL HALF DAY SEMINARS 10 The Indispensable Advocacy Workshop 11 Intellectual Property Development and Portfolio Building Essentials 12 Wills and Estates – Tips and Traps 13 Workers Compensation Essentials 14 Competition Law Essentials MANDATORY CPD SEMINARS 15 Regulation 176 16 Rule 57 Half Day Seminar 17 Rule 57 Half Day Seminar (Morning and Afternoon Seminar) 18 Regulation 176 PERSONAL DEVELOPMENT 19 Conflict Resolution - Every Lawyer Leaders’ Most Critical Skill WEBCASTS 20 Ask the Experts: Costs in the Federal Court 21 The Personal Property Securities Act - Essential Update
22 The New Contract for Sale of Business 23 An Overview of Trust Money and Records SKILLS 24 Fluff is for Pillows, not Legal Writing 25 Time Mastery for Lawyers 26 Advocacy Essentials MIX AND MATCH
27 Whether you need them all or just a few, our mix and match CPD session on 26 March will have something for everyone. • Wills-FamilyProvisionClaims
• MediationAdvocacy • SaleofLandUpdate • Current issueswitheConveyancing • LeasesUpdate • MortgagesUpdate • PropertyTaxesUpdate • HomeBuildingActUpdate
• Family law:ParentalResponsibility • Family law:Managingallegations ofchildsexualabuse inthe FamilyCourts • LocalCourt-TrafficLawUpdate • MandatorySentencing
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LAW SOCIETY CPD Your program. Your profession. Your Law Society. CPD for the entire profession. There is something for everyone in the 2015 February – March Program. Whether you are in a large firm or small practice, city or suburban, lawyer or support staff, our huge variety of seminars and courses cater for everyones needs.
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A s one of the most challenging and rewarding years of my career draws to a close, I would like to re ect on the Society’s signi cant achievements during 2014. Engaging with the community and government on proposals for law reform has been a key focus. From the very beginning, I agged my determination to push for a more equitable workers compensation system in NSW. I am pleased to say the Legislative Council’s inquiry into WorkCover functions and the statutory review of the Workers Compensation Legislative Amendment Act 2012 adopted many of the Law Society’s recommendations for reform. However, much work remains to be done, and we will continue to push for change in the lead up to the State Election. e Law Society also strongly opposed plans for the introduction of
mandatory sentences, including a minimum of eight years for assaults occasioning death while intoxicated, which were introduced in January. e government was unsuccessful in attempts to introduce mandatory minimums for alcohol- or drug-related assaults, and this was in no small part due to the campaigning of the legal profession and other key stakeholders. In September, we welcomed the appointment of Dale Boucher as the inaugural Commissioner for Uniform Services Regulation and the establishment of the Legal Services Council. I am proud of the role the Law Society of NSW has played in driving the new Legal Profession Uniform Law. is year also saw the launch of our partnership with LawAsia, opening opportunities for
collaboration and pathways for Sydney-based law rms looking to do business in the Asia Paci c. Providing services and support for our members remained on our agenda, including growth in our professional development o erings, the launch of the online Job Board,
and the establishment of the Lifeline for Lawyers service. Championing the work of the Soldier On charity has also been a highlight of my presidency.
Everything achieved this year would not have been possible without the dedicated team at the Law Society, led by CEO Michael Tidball. I am grateful to Michael and his team for their support and guidance during my term as president. It has been incredibly productive and rewarding, and an honour and privilege to represent the state’s legal profession.
DECEMBER 2014 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer
It’s that glorious time of year when most people are winding down at work and the summer holidays are tantalisingly close. For lawyers across the state, especially those with the added stress of running their own small businesses, this is the time to rest and recharge the batteries so 2015 can be a productive, successful and enjoyable year. If you’re in need of inspiration, this edition’s news pages are lled with tales of lawyers who have been recognised for their achievements and our cover story on international lawyers Ben Saul and Jane McAdam is the perfect spot to land if you’re in need of an example of just where passion, talent and hard work can take you. I also encourage you to check out our feature on improving communication (see page 30), and our pro les of young regional lawyers on page 34. It’s great to see such talent in the regions – and they certainly make a strong case for ditching the city. Finally, I am extremely proud to let you know that the LSJ was named the Association or Member Organisation Magazine of the Year at the Publishers Australia Excellence Awards on 20 November. What a pleasing way to end the year! See you again in February 2015.
Michael Nguyen Photographer Jason McCormack Editorial enquiries firstname.lastname@example.org Business Development Manager Melissa Cossar Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 e 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 speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e 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 Cha ey
Dominic Rolfe is a Sydney-based
Julie McCrossin trained as a lawyer and is a writer, broadcaster and facilitator. Read her feature about international law’s power couple Jane McAdam and Ben Saul. A marriage of minds p24
Joanna McMillan holds a Bachelor of Science with First Class Honours in Nutrition and Dietetics. She dishes out some timely warnings about over- imbibing this season. Skip the booze bus p52
The Hon. Malcolm McLelland
journalist. He writes this edition on lawyer and food critic Guy Gri n, as well as how to spend 24 hours in stunning Shanghai. A gastronomic practice p48
is a former Chief Judge in Equity of the Supreme Court of New South Wales. He updates us on the elderly and advance care directives. Elder law p76
Cover photograph: Jason McCormack
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 the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 2 FEBRUARY 2015
DEAKIN LAW SCHOOL INTERNATIONALLY RANKED AS ONE OF THE TOP THREE VICTORIAN LAW SCHOOLS
PROUDWINNER OF THE 2014 VISMOOT
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20 HOT TOPIC David Lipworth argues technology can help partners reduce their supervision burden and spend more time with clients 24 COVER STORY Julie McCrossin steps into the world of law professors Jane McAdam and Ben Saul 30 LOST INTRANSLATION Claire Chaffey details why solicitors need to lift their game when communicating with clients 34 THEPERKSOFGOINGREGIONAL NSW Young Lawyers members detail what they love about rural and regional practice
50 INTHE BLOOD
Dr John Hart suggests four must-have blood tests to add to your annual checkup 52 SKIP THE BOOZE BUS Nutritionist Joanna McMillan sounds a warning about over- indulgence 54 HIGH-INTENSITY INTERVAL TRAINING It’s the buzz word for exercise and Fitness First gives the lowdown on HIIT
Want more inner strength and confidence? Try the Alexander Technique 56 CITYGUIDE Your guide to spending 24 hours in Shanghai 60 YOUWISH Jane Southward test-drives the new One&Only Hayman Island
6 LSJ I DECEMBER 2014
8 MAILBAG 10 BRIEFS
42 ADAY INTHE LIFE Jane Southward
64 LAWSOCIETY ADVOCACY 66 ETHICS 67 CONTRACT LAW 68 ANTI-TERRORISM (PART TWO)
meets circle sentencing advocate Gail Wallace in Nowra
News and events from the legal world 12 PROFESSIONAL NOTICES 15 FROMTHE ARCHIVES 16 OUT ANDABOUT 17 CAREERMOVES Who moved where this month 20 GLOBAL FOCUS Legal news from around the world 22 PEARLS OF WISDOM Justice Virginia Bell 37 LIBRARY ADDITIONS
Boab IT answers key tech questions
70 EMPLOYMENT LAW 72 WILLS AND ESTATES 74 RESTORATIVE JUSTICE
MANAGEMENT Why innovation is the key for small and medium- sized firms 48 EXTRACURRICULAR Lawyer-turned-foodie
76 ELDER LAW 78 LEGAL RISK 80 PERSONAL PROPERTY & SECURITIES 82 PROFESSIONAL NEGLIGENCE 84 PROPERTY LAW 85 CASENOTES: HIGHAND FEDERAL COURTS 86 GENERAL PRACTICE: WILLS & ESTATES, FAMILY ANDCRIMINAL LAW
Guy Griffin on his gastronomical life
The latest in wine, books and events
New books at the Law Society Library
98 EXPERTWITLESS Legal news to make you giggle
DECEMBER 2014 I LSJ 7
LETTERS TO THE EDITOR
Costs debate In reference to the article The 10 Commandments of Costs Assessment and Review by Christopher Bevan, I do not agree with the statement that the Court of Appeal in its judgment in Wende v Horwath found that s353(1) of the Act “permits a global costs assessment and global costs certificate in a matter with multiple costs orders in one court, but it precludes courts”. The use of the term “assessment” in this context by Mr Bevan is open to misinterpretation. Section 353(1) was held by majority to permit one application for assessment to be filed in respect of multiple costs orders, however a costs assessor must make a determination in respect of each costs order – a global determination is not permissible (again, a global assessment and global certificate for the same matter in different each determination, and a certificate issued setting out that determination under s368(1) – multiple certificates may be issued in one application. That enables a review application to be made in respect of each separate determination made within one application for assessment. As Mr Bevan noted, this appears to be the most important principle enunciated in the case, certainly from a practical perspective of how an application for assessment by majority). Reasons must be provided for
is made and supporting evidence is presented. I am concerned that Mr Bevan’s statement could mislead practitioners, with unfortunate and costly consequences. Sharon Drew, Sydney Not just men It was extremely disappointing reading the article authored by Sarah Edelman titled How to Spot a Narcissist in the October issue of the Law Society Journal and to note that she commences, apparent presumption that the only people who are narcissistic are males. This is most regrettable and unfortunate as such an approach does nothing at all to foster continued support for gender equality. Alfred Noble interested to note that after about 20 years in England CPD is to be scrapped. I have always thought it was a waste of time and money and just a money-making machine for the educators so good riddance. Here’s hoping NSW will go the same way. No more last- minute attendances at mind- numbingly boring lectures to accumulate the necessary points. Bring it on. James Bowers Compo confusion? As a community legal centre lawyer specialising in the area of social security law, it was welcome to see an either intentionally or inadvertently, with the For the scrap heap Practitioners may be
article about compensation preclusion periods in the November 2014 edition (“Social Security Preclusion Periods and Lump Sum Compensation Payouts: The need for reform”, Langenheim and Frangos). The article refers to the Administrative Appeals Tribunal’s decision in Ms Lind’s case and its view that it was bound by the Federal Court decision in Chamberlain to reject her claim that her case was special because she received compensation after retirement. This is an error of law. The Chamberlain decision did not deal with the issue of compensation post retirement and, in fact, agreed with other Federal Court decisions which had said that where it could be seen, objectively, that there was no overlap (“double dipping”) between the period for which the person was compensated for economic loss and the preclusion period, this might be special. Errors of law by the tribunal may be appealed to the
ULTIMATE SACRIFICE FORMERPMJOHNHOWARD
LESTWEFORGET SOLICITORSWHOGAVE IT ALLDURINGTHEGREATWAR THEDEMENTIADILEMMA WHYLAWYERSAREATRISK LIFEATSEA ANAVYLAWYER’SSTORY BEHINDTHETERROR WHATTHENEWLAWSMEAN RIGHTSCURTAILED THEBROOKFIELDDECISION
23/10/2014 4:02 pm
WRITE TO US: 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 . Email: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! This month’s winner of lunch for four is Rebecca Douglas. @LawSocietyNSW It also screams old-money- conservative-oh-daddy-buy- me-a-pony. Rebecca Douglas @ becksandthecity Catching up on reading – great cover on @LawSocietyNSW journal – lawyer turned national leader! Tim James @timothycjames Reading my @LawSocietyNSW journal & loving this article from Michael Bradley @ marquelawyers, It’s all about trust. Helen McGowan @RRR_Law
Federal Court. Matthew Butt Welfare Rights Centre
Our story on former PM John Howard generated lively responses on Twitter: This screams “old people” magazine. And they wonder why young lawyers don’t feel
represented by the @LawSocietyNSW. Nic @Nyx2701
8 LSJ I DECEMBER 2014
The LSJ team is delighted to announce that we are ASSOCIATION OR MEMBER ORGANISATION MAGAZINEOFTHEYEAR WINNERS and CUSTOMMAGAZINEOFTHEYEAR FINALISTS in the 2014 PUBLISHERS AUSTRALIA EXCELLENCE AWARDS
We thank you for your support.
FAMILY LAWYER RECOGNISED FOR PROBONOWORK
NEW EDITION OF SURVIVEANDTHRIVE
NSW Young Lawyers has launched the second edition of How to Survive and Thrive in your First Year of Law. The handbook
2 ND EDITION
Harry Freedman, a partner at Freedman and Gopalan Solicitors in Bondi, has been honoured with the Law Society’s President’s Award, which was announced as part of the 2014 Justice Awards. The President’s Award recognises the work of solicitors who participate in the NSW Law Society’s Pro Bono Scheme. Law Society of NSW president Ros Everett presented the award at the Justice Awards Dinner at NSW Parliament House in late October. “The Law Society encourages its members to undertake pro bono legal services as part of their commitment to social justice,” said Everett.
A realisticguide to thestudyandpracticeof law ThisGuidewascreatedbymembersoftheNSWYoungLawyersCivilLitigationCommittee
aims to assist law students in forging a career in the law and provides valuable suggestions for the first years of practice. It contains key information for new solicitors about the daily work of lawyers, as well as useful tips on how to build your career, deal with o ce politics, and court attendances. Another key component is information about health and wellbeing, including useful suggestions to help new lawyers cope in the workforce. VALUEOF LAWREFORM The Hon Michael Kirby AC CMG has launched the Adding Public Value report on the value of law reform activities undertaken by community legal centres in NSW. The Community Legal Centres NSW and Financial Rights Legal Centre report finds that law reform activities undertaken by community legal centres maximise e cient use of resources, further objectives of government, and support access to justice for all people. The report analysed 10 case studies of law reform initiatives by community legal centres, which spend $5 million on law reform activities annually. “The NSW and Federal governments have recently placed restrictions on community legal centres undertaking law reform activities. These activities, far from diverting resources from frontline legal services, are an e cient use of resources, help the government’s objectives and support access to justice,” said Nassim Arrage, chairperson, Community Legal Centres NSW. younglawyers.com.au
“Mr Freedman has been doing just that for 20 years – providing legal advice and support for many people, often during di cult and challenging circumstances. His particular expertise has been in the area of family law where matters can be incredibly complex and drawn out.” Freedman said in his acceptance speech that the legal profession was often under- appreciated. “I feel we should use events like these to promote our profession’s contribution to society. I think the general community does not hear enough about the good work our profession does,” he said. “The community and the media seem to be primarily fixated with those few bad elements within our ranks who act inappropriately to the detriment of their clients and for their own personal benefit. Providing pro bono services and having programs like this well promoted would, in my opinion, significantly improve the community’s appreciation of what we do.” Freedman also lamented the fact that legal assistance was still unavailable to so many. “Whilst I do get pleasure from assisting pro bono clients, it is also heartbreaking to have an initial conference with genuine, hard-working people who have meritorious cases and who simply say, ‘We can’t a ord to go ahead’,” he said. “We also read about the insu cient funding of legal aid and other such organisations, all which make it more and more di cult for people to have access to our legal system.” The Law Society’s Pro Bono Scheme, headed by solicitor Nerida Harvey, o ers assistance to individuals not eligible for Legal Aid who also don’t have the income to support full fee paying legal services. “Each year, we are able to provide much-needed legal assistance to members of the NSW community, often those who are socially and economically disadvantaged,” said Everett. “This would not be possible without the many solicitors who support this outstanding program or those who work in the Law Society Pro Bono unit processing hundreds of applications. “The scheme is often the last port of call for these people and serves to assist them in obtaining quality representation that looks no di erent to full fee paying work. It has been particularly innovative in the last few years in developing its in-house practice, which serves to represent many people every year in a large range of legal matters.” A 2013 Law Society survey found that the average annual commitment of pro bono work for the state’s practising solicitors was 67.5 hours.
10 LSJ I DECEMBER 2014
JULIANBURNSIDEWINS SYDNEYPEACEPRIZE Julian Burnside AO QC has
won the 2014 Sydney Peace Prize – Austra- lia’s only international peace prize. The Sydney Peace Foundation selected the barrister, human
rights activist and author for his “brave and principled advocacy for human rights and for those wronged by government, for insisting that we respect our international legal obligations toward those seeking asylum, and for his unflinching defence of the rule of law as a means to achieve a more peaceful and just society”. Speaking to a capacity crowd at the Sydney Town Hall on 5 November, Burnside’s City of Sydney Peace Prize Lecture centred on the theme, “Without justice, there will not be peace”. The rights of asylum seekers were front and centre, including systemic human rights abuses of detainees held offshore, the lack of due process afforded to detainees in determining claims, and the plight of the 30 people currently held in indefinite detention as a result of receiving adverse security assessments. Much of the rhetoric used by the major political parties, particularly the common classification of asylum seekers who arrive by boat as “illegal”, was repeatedly and emphatically criticised by Mr Burnside as “a lie”. Mr Burnside also lamented the fact that Australia does not have a bill of rights and made a plea to the capacity crowd not to tolerate injustice and remember always to speak against injustice and never to to collaborate with those who inflict injustice. The Hon. Dame Marie Bashir, who awarded the prize, called Burnside “an Australian of outstanding qualities, distinguished as a barrister, a humanist, an author”. Previous recipients include Professor Muhummad Yunus, Hans Blix, Mary Robinson, Dr Hanan Ashrawi, Xanana Gusmao and Patrick Dodson.
UNSWLAWGRADWINS RHODES SCHOLARSHIP UNSW Arts/Law graduate Sean Lau will explore the role of Christian ethics in public issues such as responses to child abuse and climate change as the State’s newest Rhodes Scholar – the second UNSW law alumnus to win the prestigious prize in two years. Lau, a Scientia scholarship student who graduated from UNSW with the University Medal in Law and First Class Honours in Philosophy, and as valedictorian of his class in 2012, will study a Masters in Christian theology at Oxford University after being named the 2015 NSW Rhodes Scholar. Currently working for the Royal Commission into Institutional Responses to Child Sexual Abuse, Lau is fascinated by the intersection of religion with public life and by morality’s role in issues like climate change, which he said is “one of the biggest problems that humanity is currently facing”. Lau is also interested in the “really difficult philosophical debate about how much religious values should be allowed to influence democratic society” and some religious organisations’ power to “quell dissent and discourage critical thought”. Lau said he “fell into law by accident” after school but grew to love it as a prism through which to understand society and explore complex problems. After graduating he served as an associate to the Honourable Justice Virginia Bell at the High Court. “Even now, although I’m not planning to study law at Oxford, I’m absolutely confident I’m going to remain connected in some form or other to Australian law, and to the Australian legal community,” Lau said.
DECEMBER 2014 I LSJ 11
OUR LADYOFMERCY COLLEGE PARRAMATTA WINSMOCKMEDIATION A case of ownership of the content of a website was the subject of the 2014 Mock Mediation grand final on 31 October.
PROFESSIONAL NOTICES On 16 October 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as McMahon Todd Solicitors (Id: 23874), formerly conducted by Myroslava Zhukovska. The Council of the Law Society of New South Wales, at a meeting on 16 October 2014, resolved to immediately suspend the practising certificate of Myroslava Zhukovska pursuant to section 548 of the Legal Profession Act 2004 . By Order of the Supreme Court on 20 October2014, Richard Stephen Savage was appointed receiver for the law practice known as Tereze V Dzitars, formerly conducted by Tereze Vilhelmina Dzitars. ASHURST’S JOHN CARRINGTONRETIRES After almost 30
Twenty schools competed throughout the year with Our Lady of Mercy College Parramatta and John Paul College Coffs Harbour battling it out in the grand final in the rooms of the Law Society. Our Lady of Mercy College Parramatta’s six representatives were declared the winners. Professional mediator Annette Simpson and Michelle de Vries, from the competition’s sponsor, LEADR, volunteered as judges. The mediation competition gives Year 9 and 10 students the chance to develop skills they need to resolve conflicts without a courtroom. Tania Dalton, who runs the program for the Law Society, said the skills required for mediation were particularly relevant to personal development. They included active listening, self-awareness, questioning, analysing, empathising, speaking clearly and logically and creative thinking. Members wishing to register as volunteer magistrates, coaches or scriptwriters for the 2015 Mock Mediation competitions should contact the Law Society’s community programs co-ordinator on 02 9926 0253 or firstname.lastname@example.org . The Year 9 and 10 students who participated in the 2014 Mock Mediation grand final at The Law Society of NSW. Congratulations to Our Lady of Mercy College Parramatta and John Paul College Coffs Harbour. More pictures on page 16.
years with the firm, including the past six years as its managing partner in Australia,
John Carrington retired from the
Ashurst partnership on 31 October 2014.
There will be no successor to the role of Australian managing partner, with the responsibilities of the position to be shared across the firm’s Australia- based leadership group. Ashurst managing partner James Collis said Carrington had made an “extraordinary contribution to the firm, its people and our clients over many years”. “He presided over a major transformation of our practice in Australia which demanded a considerable degree of vision and courage,” added Collis. Carrington said he was “extremely privileged” to have worked with a group of talented people committed to the evolution of the firm. “I am indebted to them and indeed to the firm as a whole,” he said.
Ajay Khandhar, associate at Minter Ellison, was named 2014 Young Professional of the Year at the inaugural India Australia Business & Community Awards in Sydney’s Town Hall on 30 October. Khandhar received the award from NSW Minister for Finance and Services Dominic Perrottet.
12 LSJ I DECEMBER 2014
YOUNGLAWYERS’ ANNUAL ASSEMBLY
“It is no exaggeration to say that John Ellis has become a leader in the fight to bring the Catholic Church to justice and bemade accountable for the actions of its clergy and staff.” ANDREW STONE, ALA NATIONAL PRESIDENT ALARECOGNISES JOHNELLIS A man who has led the fight to make the Catholic Church and other institutions accountable for the actions of its clergy and staff has been declared the winner of the Australian Lawyers Alliance (ALA) National Civil Justice Award. Lawyer John Ellis was presented with the honour at the ALA’s national conference in Sydney last month. ALA national president Andrew Stone said Ellis had shown unwavering diligence, passion, vision and resilience and had sacrificed much personally in his bid to shine light on the abuse which had been carried out by Catholic Church clergy and staff. “It is no exaggeration to say that John Ellis has become a leader in the fight to bring the Catholic Church to justice and be made accountable for the actions of its clergy and staff,” Stone said. “Not only was his personal litigation a catalyst that formed a crucial part in the triggering of the Royal Commission into Institutional Responses to Child Sexual Abuse, he continues to connect with and inspire survivors of abuse through his ongoing work as a lawyer.” Stone said that although Ellis’s personal litigation journey did not ultimately hold the Church legally accountable, it succeeded in shedding light on the legal mechanisms used by institutions to escape liability. “At the Royal Commission into Institutional Responses to Child Sexual Abuse, John’s experiences acted as an important case study at public hearings,” Stone said. “In giving evidence, John again illuminated how the response of the Catholic Church to allegations of sexual abuse has been inconsistent with its stated aims of providing ‘just and compassionate healing’ to survivors.”
Ninety young lawyers gathered at The Westin in Sydney on 8-9 November for the NSW Young Lawyers Annual Assembly.
Justice Julie Ward, fourth from left, with the NSW Young Lawyers Patron Award winners and immediate past president Thomas Spohr.
With the theme “Connect, Collaborate, Differentiate” the assembly, sponsored by First Title, celebrated the achievements of the organisation over the past year. The Honourable Justice Julie Ward of the NSW Court of Appeal, the 2014 patron, presented the following Patron Awards: BEST PROFESSIONAL PROJECT Winner: Regional Careers Guide, BushWeb Regional Issues Committee Highly commended: CIArb/YL International Arbitration Moot, International Law Committee and Confidence in the Courtroom – Family Law, Family Law Committee BEST COMMUNITY PROJECT Winner: Young Justice Program, NSW Young Lawyers Justice Education Team Highly commended: Companion Animal Law Guide, Animal Law Committee YOUNG LAWYER OF THE YEAR Winner: Clare Kerley Highly commended: Hannah Bruce Law Society president Ros Everett, Society CEO Michael Tidball, president of the NSW Bar Association Jane Needham SC, Jason Elias of Elias Recruitment, LexisNexis, and First Title presented at the assembly. Outgoing Young Lawyers president Thomas Spohr was thanked for his contribution to the organisation and new president Elias Yamine was welcomed. Yamine outlined his goals for 2015, which include a two-year NSW Young Lawyers strategic plan. The new leadership team was also announced. The 2015 Office Bearers for NSW Young Lawyers are: President: Elias Yamine Vice president: Renée Bianchi
Secretary: Raeshell Tang Treasurer: Robert Hoyles Immediate past president: Thomas Spohr Congratulations also to three new executive councilors: Raymon Anderson, Alexandra Sprouster and Jennifer Windsor.
DECEMBER 2014 I LSJ 13
SURROGACY EXPLORED Should commercial surrogacy be legalised in Australia? Can exploitation of vulnerable women be addressed through regulation? Do we have a right to be parents? These and other challenging questions were tackled at the Commercial Surrogacy and Women’s Rights forum hosted by Gilbert + Tobin on 5 November. The forum was the latest in a series of lunchtime events organised by the Women’s Legal Services NSW Foundation. Women’s Legal Services NSW chair Danelle Crozier joined a distinguished panel of experts including Anne Gallagher, human rights lawyer and legal adviser to the UN, Mary Keyes, barrister and professor, Gri th Law School, and Mari Vagg, WLS solicitor and author of the WLSNSW submission to the recent review of the Surrogacy Act 2010 NSW. A wide range of issues was considered including the idea of criminal background checks for intended parents in NSW, whether three names should go on the child’s birth certificate, the fact that criminal law in Australia relating to international commercial surrogacy arrangements is flouted regularly and rarely enforced, the di culties the Family Court faces in determining the legal parents of children born overseas via international commercial surrogacy agreements, family law agreements as a counterpoint to commercial agreements, cases of human tra cking and coercion of vulnerable women into surrogacy for profit, the implications of introducing commercial surrogacy laws in Australia, the commodification of the womb, and whether commercial surrogacy in fact equates to the “sale of children” and is thereby illegal under international law.
UNSW Law offers four substantial scholarships each year to outstanding applicants of postgraduate coursework programs. Each scholarship is to the value of $10,000 and will be tenable for a period of one year for students enrolled full-time, or pro rata for part-time students. Scholarships are available to students applying for admission into the Master of Laws program and many other postgraduate coursework programs. To find out more and apply visit: law.unsw.edu.au/llmscholarship
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14 LSJ I DECEMBER 2014
BRIEFS FROM THE ARCHIVES
review THE YEAR IN 2000
Take a trip down memory lane through the pages of the Law Society Journal.
NEWCTP LAW The new comprehensive third party scheme ( Motor Accidents Compensation Act 1999 ) is explained. “It seems inevitable that minor claims will be resolved without lawyer involvement, only claimants with severe injuries will qualify for non-economic loss and most claims will be settled or assessed without litigation,” writes Tom Goudkamp, an accredited specialist in personal injury law. “The problems for lawyers on both sides will be significant.” “The Law Society believes that building new prisons is an inappropriate response to the escalating numbers of people being sent to prison.” CALL TOCUT PRISONPOPULATION The Law Society expresses concerns about the escalating prison population. “The Law Society believes that building new prisons is an inappropriate response to the escalating numbers of people being sent to prison,” the Journal reports. “The society suggests alternatives to imprisonment and ways to improve conditions for those who are incarcerated.” The alternatives include earned remissions, removal of restrictions on the court when setting the term and parole period of a sentence, bail, and the creation of residential rehabilitation facilities for indigenous and non-indigenous women to deal with problems such as drug and alcohol dependency, domestic violence, and mental health issues.
IMPLEMENTING THE GST The goods and services tax begins on 1 July 2000 and the Law Society Journal publishes a guide to implementing the GST in legal practice. “There is a great deal of work solicitors need to be doing now to prepare their practices and their clients,” the Journal reports. “GST will require legal practices to review internal administration and management to create systems and records that will allow practices to appropriately track work, expenses and income. At the same time it will provide opportunities for creating better systems and re-establishing relationships with clients, many of whom are perplexed by the GST legislation.”
IN THE NEWS
The Smoke-free Environment Act 2000 becomes law, banning smoking in enclosed public places and certain outdoor public areas. “Removing discretion from our courts triggers the worst in our legal system. Allowing this to
continue reveals the worst in us.” Law Society president John North
Diana Bryant is appointed
Bob Debus is sworn in as NSW Attorney-General on 28 June after the retirement of the Hon Je Shaw, who returns to the Bar.
Australia’s first Chief Federal Magistrate. (She is now Chief Justice of the Family Court of Australia.)
The Journal celebrates the administration of justice with a pictorial by Judge Terry Naughton that includes the 1893 Nelligen court house on the south coast.
DECEMBER 2014 I LSJ 15
BRIEFS OUT AND ABOUT
MOCKMEDIATION Our Lady of Mercy College Parramatta and John Paul College Co s Harbour battled it out in the mock mediation grand final in the rooms of the Law Society.
TRISTAN JEPSONMEMORIAL LECTURE Justice Virginia Bell (bottom right) was the keynote speaker at this year’s annual Tristan Jepson Memorial Foundation lecture. Photos by One Ski Digital.
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BRIEFS CAREER MOVES
MEMBERS ON THE
DOUG VORBACH Now a special counsel Turks Legal
KIM PERRY Now a special counsel Turks Legal
JAMES ROLAND Now a partner Turks Legal
ALLAN KAWALSKY Now a partner Turks Legal
ALLISON ANTHONY Now a consulting principal Nexus Law Group
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NOVEMBER 2014 I LSJ 17
LEGAL NEWS FROM AROUND THE WORLD
NEW ZEALAND TEATIMEOVER FOR WORKERS
CHINA AND AUSTRALIA CHINAFTATOBENEFIT AUSSIE LAWFIRMS Chinese President Xi and Prime Minister Abbott announced the conclusion of negotiations for the China-Australia Free Trade Agreement (ChAFTA) on 17 November and Australian law firms are reportedly among those set to benefit. The Department of Foreign Affairs and Trade facts sheet explained it in a nutshell: “The FTA provide[s] Australian law firms with unprecedented and integrated access to the Chinese market. ChAFTA will, for the first time, ensure that Australian law firms will be allowed to establish commercial associations with Chinese law firms in the Shanghai Free Trade Zone (SFTZ). The association will be able to offer Australian, Chinese and international legal services, without restrictions on where clients may be located . .. Australian qualified lawyers will be able to practise Australian and international law ... and Chinese qualified lawyers will be able to practise Chinese and international law without suspension of their Chinese practising certificates ... China and Australia have also agreed to promote increased mobility for Australian and Chinese lawyers, including the facilitation of professional secondments between law firms in Australia and China, and through cooperation between the peak legal professional bodies in each c ountry”.
UK LIBYANTORTUREVICTIM WINSRIGHT TOSUEMI6 Libyan politician Abdul Hakim Belhaj has won the right to sue the British Government and MI6 over claims they were complicit in his rendition from Britain to Libya in 2004, where he was subsequently tortured under the Gaddafi regime. The Court of Appeal found his claim was not barred by state immunity because there were limits to the doctrine on public policy grounds that applied in cases of violation of international law and fundamental human rights. Belhaj and his wife sought a “declaration of illegality and damages” based on allegations they were unlawfully detained and/or mistreated in China, Malaysia, Thailand and Libya, and onboard a US-registered aircraft. They alleged their detention and mistreatment was carried out by agents of all of those countries. According to the court’s summary judgment, the causes of action pleaded were “false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, negligence and misfeasance in public office”. Lord Justice Dyson said: “The stark reality is that unless the English courts are able to exercise jurisdiction in this case, these very grave allegations against the executive will never be subjected to judicial investigation.”
The NZ National Party has narrowly passed significant new workplace laws at the start of its third term in office. The Employment Relations Amendment Bill was passed 62 votes to 58 and is seen by unions as significantly impacting the collective bargaining rights of workers. The so called “tea break” bill removes the right of an employee to a tea break and meal breaks if the employer provides “reasonable compensatory measures where an employee could not reasonably be provided with breaks”. A guaranteed right to tea and meal breaks became a part of NZ employment laws in 2008, but it was argued that the resulting lack of flexibility proved impractical for many businesses. The NZ Government claimed that the new laws would bring much needed flexibility to the labour market and stimulate growth. Unions objected to many of the amendments, such as the weakening of collective bargaining rights, a new ability to dock workers’ pay for engaging industrial action, new exemptions from the “vulnerable workers” protections for employers with fewer than 20 employees, and new amendments allowing employers to opt out of multi- employer collective bargaining. The Council of Trade Unions said it meant NZ now had some of the worst worker protections in the OECD.
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SAUDI ARABIA LAWYERS JAILEDFOR
CANADA CANADIANDNAPATENT LAWSUNDERCHALLENGE A children’s hospital in Eastern Ontario has filed a challenge to Canada’s patent laws in the Federal Court. The hospital has argued that the patenting of genes or other segments of the human genome should not be subject to patents for commercial or other purposes. The hospital’s case is based in large part on a frustration at not being able to test for, or manage research into, long QT syndrome, a potentially deadly genetic heart rhythm disorder. Current Canadian patent laws mean that companies that hold patents on genes or snippets of DNA and who also own the rights to related diagnostic tests, effectively have a monopoly on what can be done with the information. Fearing a costly risk of patent infringement, the hospital said it was forced to send blood tests for the mutated gene over the border to the USA. In the USA, naturally occurring human DNA cannot be patented thanks to a successful challenge to the US Patents Act mounted late last year in Association for Molecular Pathology v Myriad Genetics Inc . In Australia, a similar DNA patents challenge was mounted earlier this year. In contrast to the US finding, our Federal Court confirmed that DNA (or RNA) is in fact patentable in Australia ( D’Arcy v Myriad Genetics Inc [2014 ]).
SCOTLAND CHALLENGE TOCHILD GUARDIANSHIP LAWS A judicial review of Scotland’s Children and Young People (Scotland) Act is soon to be heard by Lord Pentland at the Court of Session in Edinburgh. The controversial Act was introduced in March and provides, among other things, that from 2016 a so-called “named person”, such as a teacher or health worker, will be appointed to all Scottish children aged to 18 years, regardless of either their current wellbeing or future risk of harm and regardless of whether they already have fit parents. The government argued that such a broad application of the law meant it was non-discriminatory and would ensure any potential cases of abuse or developmental difficulties are spotted and acted upon at an early stage. Lawyers have argued the measures are unlawful, and religious groups have argued the laws amount to excessive government over-reach into the private realm. An opposition party spokeswoman said “the policy undermines family life because it threatens the trust between parents and children”. A specially formed action group, the No To Named Persons (NO2NP), has brought the action to the Court of Session, arguing that the government exceeded its powers and breached both data protection laws and the European Convention on Human Rights.
CRITICISINGJUDICIARY Three lawyers have been jailed in Saudi Arabia for posting tweets criticising the Saudi judiciary. The Middle East Eye reported that the lawyers – Abdulrahman al-Subaihi, Bandar al-Nogithan (a Harvard Law School graduate) and Abdulrahman al-Rumaih – tweeted that authorities had arbitrarily detained and wrongfully convicted certain unnamed individuals. They described the judicial system as “backward” and accused the judiciary of releasing “corrupt people”. The trio was found to have posed a risk to public order and were convicted of various charges, including “disobeying the ruler” as well as undermining and slandering the judicial system. They were banned from using social media and sentenced to between five and eight years jail. The case was heard in Riyadh’s Specialised Criminal Court, which is designated to handle terrorism- related cases but has been criticised by Human Rights Watch for silencing peaceful political activists. In June, the Ministry of Culture and Information fined the lawyers 1 million Saudi riyals (US$266,666) for similar charges. Saudi authorities have reportedly cracked down on those who use Twitter to criticise the state, sentencing a man to 10 years in prison earlier this year for “urging anti-regime protests” in a series of tweets.
DECEMBER 2014 I LSJ 19
HOT TOPIC OPINION
AN OPEN LETTER TO PARTNERS EVERYWHERE MOREMONEY BYDOINGLESS: By leveraging new technology, partners can reduce their supervision burden and free themselves to win new work while focusing on the areas of practice that really add value for clients, writes DAVID LIPWORTH .
T he fact that you are a partner proves a lot about you. For starters, reaching that level requires a high degree of competence and professionalism. It means you’ve managed to navigate your way through a lot of politics to a position of respect and authority and it shows you’ve earned the trust and confidence of your clients. It also proves you’ve worked damn hard – too hard – to get there. There’s just one problem – you’re still working too hard. When I started life as a lawyer a decade ago, partners already worked just as hard as associates. Nowadays, they work harder. There are a number of reasons for this. In Australia, the legal industry is more competitive than ever. Clients are demanding a lot more face time from partners, with whom they expect to deal directly on the legal work itself and not just on the big picture. When you distil it all down, there is really only one cause. Law firms currently leverage only human capital. The word “leverage” in the context of law firms, means the size of the pyramid of human beings
that partners have working under them. There are three key issues with this: 1.This model can be scaled up only by adding more human beings to the pyramid, which, in the business world of today, means the pyramid becomes unscaleable; 2.It relies entirely on the direct personal labour of human beings, which is reflected in hourly rate pricing. It also means that when you’re not working, you’re not earning. This is the polar opposite of passive income, which is the highest objective in the rest of the business world; and 3. Employees need to be supervised and managed. After all, they are only human. They get tired eyes. They make mistakes. They are sensitive to morale and need to be motivated. And, as the amount of face time required of partners is going up, the volume of work – and the burden of hard. However, you may have grown so accustomed to the lifestyle of a workaholic that you don’t see a need to change. But the market will force you to change. supervision – is not decreasing. That is why you are working too
The rising demand for fixed pricing Step back from the immediate demands of work for a few minutes to consider the changing landscape of the legal industry. You will realise that relationships have taken a back seat to outcomes – in other words, clients increasingly see lawyers as fungible and will shop around for those who can deliver the desired outcome the fastest and the cheapest. Clients have recognised that they do not pay you for your time, your expertise or your experience per se – rather, they pay you for outcomes you can deliver. And increasingly they expect you to accept the responsibility and risk of managing your costs in delivering those outcomes. This trend will only intensify in the future. A number of mid-tier and boutique firms have already made the switch to using fixed pricing exclusively instead of hourly rates and clients at all levels of the market are increasingly demanding fixed-price engagements. This means your priorities will need to shift to one thing above all else: eliminating waste.
Photography: Jason McCormack
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