LSJ_December 2018

A vital matter of trust With confidence in lawyers at a record low, how do we recover? Triumph over adversity A judge reflects on why believing in lost causes can be very worthwhile Blowing thewhistle Does a new Bill succeed in providing more protection for whistleblowers?

ISSUE 51 DECEMBER 2018

The stories the legal profession can no longer ignore

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ISSUE 51 I DECEMBER 2018 I LSJ 27

Contents

30

36

40

Features

28 In focus

40 Trust me, I’ma lawyer

52 Goals on the green

A group of Australians have earmarked the option of suing social media platform Facebook for breach of privacy

Building trust isn’t what it used to be. Here three practitioners share how lawyers can better connect with and deliver for clients

Melissa Coade catches up with the number one FootGolfer in Australia before he takes on the World Cup in Morocco

30 Sexual harassment Until now, lawyers have

46 Mindset

56 Health

True leaders know when inspiration is required to lead – and how to use it. Find out how

With Christmas just around the corner, try these tips to avoid parties hurting your hard-won fitness gains 66 The case that changedme Judge Roger Dive reflects on a troubled young man who came before him in the NSW Drug Court and triumphed

remained relatively silent about their #MeToo stories. Kate Allman looks at the hidden scourge that is driving lawyers away from the profession

48 A day in the life

As a unique program to help women in prison get legal services turns 10, Carolyn Jones, shares her passion for grassroots advocacy

36 LawAsia 2018

Claire Cha ey reports on the LawAsia 2018 conference where environmental crime was a key topic

ISSUE 51 I DECEMBER 2018 I LSJ 3

48

58

75

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove

68 Advocacy

81 FLIP

The latest key developments in advocacy and law reform

Limited scope services – lessons from the Legal Assistance Sector

70 Corporate law

84 Planning

Is whistleblowing worth the risk? The limited protections under the proposed Bill

Government prevails over Desane in WestConnex appeal

86 Cyber security

72 Costs

How cyber resilient is your law practice?

23 Expert witless 23 The LSJ quiz 24 Out and about 44 Career matters 50 Doing business 52 Extracurricular

Reflecting on a costly year – key themes and predictions

88 Insurance

75 Water law

NSWSC considers insurer’s duties when assessing total and permanent disability claims

Managing our scarce water resources: a tumultuous time in the Murray-Darling Basin

90 Equity

78 Family law and arbitration

High Court gives new guidance on accounting for a knowing breach of fiduciary duty

First judicial consideration of family law property arbitration reforms

54 Health 58 Travel 64 Books

92 Case notes

A wrap-up and analysis of the latest key judgments – HCA, FCA, Family, Criminal and Wills & Estates

80 Risk

The relationship between risk and stress

74 Library additions 106 Avid for scandal

4 LSJ I ISSUE 51 I DECEMBER 2018

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ISSUE 51 I DECEMBER 2018 I LSJ 27

A word from the editor

I was incredibly privileged to attend the 31st LAWASIA conference in Cambodia last month. While there, I reviewed the rst draft of Kate Allman’s confronting cover story on sexual harassment in law (“Time’s up for the legal profession” on page 30) and began to ponder the nature of the #MeToo movement. Particularly, I asked myself whether the progress behind the movement is reserved solely for those living in

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist

developed nations such as Australia. Do the women of Cambodia, one of the world’s poorest countries, feel its e ects? Is exposing sexual assault and harassment a priority when even basic needs such as clean water, shelter and health care are, for many, a daily struggle? It is a question to which I don’t have the answer, though I suspect the greatest bene ts of #MeToo are mostly felt by those living a more privileged existence than the billions living below the poverty line. is does not, however, diminish its signi cance in Australia – and especially within the legal profession. Allman’s story makes for harrowing reading. But it’s important that every lawyer reads it. anks to all of our readers for your letters and support in 2018. We very much look forward to engaging with you in 2019. Until then, take care, and make the most of the festive season.

Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty Editorial enquiries 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 © 2018 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

Contributors

KATE ALLMAN Sexual harassment p30 Kate has university degrees in journalism and law, and is LSJ ’s Online Editor. In this issue, she reports on the scourge of sexual harassment in the legal profession, an issue she says lawyers have remained relatively silent about.

JUDGE ROGER DIVE The case that changed me p66 Judge Dive is Senior Judge of the Drug Court of NSW. He recalls a case from 2005 in which a troubled young man triumphed over his drug addiction thanks, in part, to the innovative court program.

GRANT HANSEN Whistleblowers p70 Grant is a partner at Harris & Company specialising in IP, employment and commercial litigation. In this edition, he exposes the gaps in Australia’s controversial new Whistlebowers Protection Bill.

EMMA CARMODY Water law p75 Sought-after environmental and water law expert Emma Carmody analyses the latest legal and policy developments in the Murray-Darling Basin ahead of the much anticipated Royal Commission report.

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Avitalmatteroftrust Withconfidence in lawyersata record low,howdowe recover? Triumphoveradversity A judge reflectsonwhybelieving in lostcausescanbe veryworthwhile Blowingthewhistle DoesanewBill succeed inproviding moreprotection forwhistleblowers?

ISSUE51 DECEMBER 2018

ISSUE51 DECEMBER2018

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.

Thestories the legalprofessioncanno longer ignore

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Cover design: Alys Martin

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6 LSJ I ISSUE 51 I DECEMBER 2018

2019 WOMEN'S MENTORING PROGRAM

APPLICATIONS CLOSE 25 January 2019

The Law Society of NSW Women’s Mentoring Program engages women in the profession with experienced practitioners to support and encourage their career progression through a mutually- beneficial mentoring relationship. Find out more at lawsociety.com.au/womensmentoring

lawsociety.com.au

President’s message A t the onset of my term as President of the Law Society of NSW, I set out a series of key priorities for 2018. Underpinning these goals was my steadfast belief that leadership is about service, membership is about value, and the practice of law is fundamentally about delivering justice. Everything I have set out to do this year has been founded in service to membership. This service, in turn, has supported our members in their mission to serve the community. In doing so, we have consolidated the Law Society’s position as one of the leading professional legal membership bodies and, indeed, co-regulators – not just in Australia, but across the world. One of my first objectives for 2018 was to reinvigorate the role of the Solicitors’ Benevolent Fund and enhance the assistance it provides to solicitors and their families who are in financial distress. I took the view that the Law Society needed to make it a priority to be at the ready and look after its own when they are in trouble. With the support of the Law Society Council, we have done that, providing a significant lump sum to enhance the financial capacity of the fund. As President, I have advocated for the appointment of more solicitors to the Bench. As solicitors and able officers of the court, we have a primary stake in the administration of justice and I believe this should be reflected in judicial appointments. As such, I welcomed the news of the appointment of solicitor Lea Armstrong as a Judge to the Supreme Court and President of NSW Civil and Administrative Tribunal in October. I have no doubt that the Hon Justice Armstrong will continue to be a trailblazer in the legal profession and an exceptional role model for young female lawyers. I look forward to seeing more solicitor appointments to the bench in the future. Fittingly, 2018 was also a year in which we celebrated the 100th anniversary of women in the law, with events acknowledging the work of those women and men in the profession who fought so hard to make it possible for women to practise as solicitors in NSW. While the “First 100 Year” events and initiatives marking this milestone gave us the opportunity to reflect and be thankful for our achievements, we will continue to prioritise the ongoing advancement of women in the legal profession. This year, we have also run an excellent Law Society Thought Leadership series, including panel events on legal assistance, the courts, and the rising prison population, and introduced the LSJ Speaker Series, covering alcohol abuse and sexual harassment. These events provided our members with access to experts, as well as a collaborative platform on which every member can engage with broader issues.

8 LSJ I ISSUE 51 I DECEMBER 2018

The future of Law and Innovation in the Profession (FLIP) was a major priority for the Law Society this year, with the key recommendations from the Law Society’s 2017 FLIP Commission of Inquiry providing us with a game plan to understand and adapt to the changes taking place in our profession. Our 2018 FLIP initiatives, including the inaugural #InnovateLaw2018 Hackathon and FLIP Conference, drew international attention and cemented the Law Society’s place as a pace-setter in this climate of accelerated innovation. On the advocacy front, we have campaigned vigorously for additional court resources to clear the ongoing delays and backlog of cases impacting victims, witnesses and the accused, and the viability of practice for solicitors and law practices. The NSW Government’s recent announcement of a $148 million funding boost for the District Court, which includes the appointment of seven extra District Court judges, has been greatly received, and will do much to cut through the backlog and bring about faster trials. In the lead up to the March 2019 State Election, the Law Society will continue to advocate for other enhancements and resources in priority areas of need to ensure access to justice and the efficient administration of justice for the people of NSW. As a community, the President’s 2018 Charity has supported the worthy work of the Butterfly Foundation for Eating Disorders. The scourge of eating disorders is a national crisis that deserves far more attention. Through our fundraising projects this year, our profession has contributed around $20,000 in donations to the Butterfly Foundation. I would like to think the support of NSW lawyers has made a positive difference in the lives of those who suffer from an eating disorder and their families. I thank members for their support and implore them to continue their generosity as we head closer to Christmas. I also wish to thank the tireless staff of the Law Society, particularly the Chief Executive Officer, Michael Tidball. I am immensely grateful for Michael’s support and guidance. Under his leadership, our team in Phillip Street, with their incredible diversity of roles, has worked hard to make our goals a reality, and it has been a privilege to work with them. It has been and honour and privilege to serve as President in 2018. When I took up this role I was determined to build on the great work that has been accomplished by Presidents who have served before me. I hope, based on what has been outlined here, that members will form that view. Finally, I would like to wish everyone a happy and safe Christmas and remind all members of our profession to take care of themselves during the holiday season, to enjoy some quality time with family and friends, and to have a well-earned break in readiness for the New Year.

It has been

and honour and

privilege to serve as

President in 2018.

When I took up

this role I was

determined to

build on the great

work that has been

accomplished by

Presidents who have

served before me.

I hope, based on

what has been

outlined here, that

members will form

that view.

Doug Humphreys OAM

ISSUE 51 I DECEMBER 2018 I LSJ 9

“professionals”. Making money as a lawyer is frowned upon. There are plenty of articles regarding acting as a professional, ethics, managing clients, pay gaps and stress. The topic of profit appears to be treated as something we would rather not discuss because we are in the business of helping our clients and talking about money is not polite. The greatest stress on self-employed lawyers is their finances. I have noticed a consistent message from the O ce of the Legal Service Commissioner and the Law Society that legal services are too costly and must be reduced. I agree. However, the burden of lowering those costs is laid at the feet of the lawyers. The court delays and the overly complex preparation of matters required by the court’s rules or lack of judges to hear matters in a reasonable period of time is not equally addressed. I practise in the Rarely is there any discussion as to why the costs are so high. I would appreciate at least one article per journal addressing the above issues to assist practitioners with expert advice on how to provide excellent legal services that are profitable and maintainable in the current economic environment. If a business proprietor does not know what the businesses overheads are, then how can it be determined what hourly rate is appropriate? When I started in law more than 25 years ago the profit margin for the suburban practice was about 70 per cent. Now the overheads are 70 per cent-plus. Regulation has increased and cost assessments prevent enforcement of outstanding costs for up to a year or more. I will be criticised by those who believe we should put our clients’ interests first and our own financial wellbeing last. Perhaps if the Law Society Family Court where the emphasis is on projecting future legal costs.

actively informed the community, bureaucrats, and politicians that lawyers are not civil servants or not-for-profit organisations but small business owners who provide legal services for a fee. I am aware that non-lawyers read LSJ articles. If the public was properly informed of the costs of running a legal practice then the costs involved in providing legal services would be better understood rather than constant criticism of law costing too much. The general public is well informed as to how to complain about their lawyer but not their responsibility to manage the process and pay their bills. The number one complaint I hear from other lawyers is not the conduct of the client, law or the delays of the courts but having to constantly chase money. Brendan Manning, Manning Lawyers Pty Ltd Sydney Sealed, not signed As an avid reader of LSJ , I need to point out an error in your quiz this month (November LSJ ). The first question asks what year was the Magna Carta signed? The year is given as 1215. The error, however, is that the document was not signed, but sealed. Emeritus Professor Rosalind Croucher AM, President, Australian Human Rights Commission Thanks for the inspo I am writing to let you know how much I enjoyed reading the article “For the love of animals” by Melissa Coade (November LSJ ). It is really refreshing to read such an inspiring story about a young advocate making a di erence in society. In a world of negative news media, this article really made me think about the broader issues of animal welfare and what we can do to help stop ivory trade. It was also great to read about the journey of a young lawyer and her road to advocacy. It is stories like this which give young lawyers hope, so thank you for sharing. Charlotte O’Meara, Risk & Compliance Manager, Funds Management Challenger Limited

Nodroughtabout it How thebigdry isaffectingNSW lawyersand theircommunities Caringforthecrew Why successful legalpractices need toput theirpeoplefirst Vulnerablenomore? Analysing theoutcomesof the AustralianConsumerLawReview Approachwithcaution The rewardsand responsibilities of solicitorsactingasexecutors

ISSUE50 NOVEMBER 2018

A voice for country lawyers

ISSUE50 NOVEMBER2018

I just wanted to comment on the excellent article written by Melissa Coade in relation to the drought (November LSJ , “Lawyers of the land”). Cobar is 3.45 hours’ drive from Parkes/Forbes but I know my colleagues out there – Geo Langford and Peter Payne. In fact, I was in Cobar last week. I travel throughout central west NSW and the drought has been very serious. I, too, am the subject of the article – and I was honoured to be able to provide a perspective for my city counterparts. I just wanted to say a huge thank you to LSJ and Melissa for doing the article. Many of us, on the other side of the mountains, feel as though we are often unheard. We may be a minority but what our city counterparts fail to realise is that our farming communities provide food and commodities to Australia – that are second to none. We should not be disregarded! So, thank you. Stephanie Hughes, Hughes & Co. Lawyers & Conveyancing, Parkes and Forbes I have read over LSJ articles for the past year. What is lacking [in] articles is the fact that the majority of lawyers are either self-employed or employed by small business owners who provide legal services for a fee. It is apparent from my discussions with most self- employed lawyers that they do not understand how to run a profitable business. There appears to be an aversion to discussing profit. I often ask other self-employed lawyers what their profit margin is or what the overheads are per annum. Many cannot give me an answer as they do not know rather than not wanting to discuss incomes. There is a reluctance to discuss profit as we are Help us run our businesses better

Thebravenewworldoflaw Fivekey trendsshaping the futureof legalpractice

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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! Stephanie Hughes has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

10 LSJ I ISSUE 51 I DECEMBER 2018

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Loving the animals Loved your article “For the love of animals”. I think it’s important that all topics get coverage and we don’t just get lost in talking about tech and innovation (which seems to be on everyone’s lips these days). Thank you for giving this topic the attention it deserves. Emily MacLoud Vale Kevin O’Connor The Law Society Privacy and Data Law Committee noted the recent passing of Australia’s inaugural Privacy Commissioner, Acting Judge Kevin O’Connor AM at their November meeting. Judge O’Connor had a distinguished legal career of 50 years, including being appointed Australian Privacy Commissioner in 1989 with the commencement of the Privacy Act 1988 (Cth). As Privacy Commissioner, Kevin laid the groundwork for the current regulatory privacy regime in Australia and contributed to legislative and policy developments in the area of privacy, working to embed consideration of this legal right into the fabric of government and business. (For his reflections, see 24(1) UNSWLJ 255, austlii.edu.au/au/journals/ UNSWLawJl/2001/3.html.) In the late 1970s, Kevin had worked on the ALRC’s privacy reference under then ALRC chair the Honourable Michael Kirby AC CMG, in which the Commonwealth privacy legislation had its genesis. From 1998 to 2013, Kevin was the President of the NSW Administrative Decisions Tribunal (ADT), which had exclusive jurisdiction for reviewing privacy decisions of NSW government agencies. From 2004, with the passing of health privacy legislation, this expanded to include private sector health service providers in NSW. Kevin was appointed a Judge of the District Court of NSW and held additional statutory appointments, including as part-time Commissioner of the NSW Law Reform Commission dealing inter alia with the NSW

privacy legislation reference. In his role as President of the ADT, Kevin substantially created the major body of privacy law, in first instance matters and in later years clarifying the privacy principles sitting on appeals. Kevin continued this work as Deputy President Appeals when NCAT began in January 2014. The committee noted Judge O’Connor’s compassion and understanding of the rights of individuals when administering and interpreting a legislatively- based rights regime. John McAteer and David Vaile, members of the Law Society Privacy and Data Law Committee Troubling tale A fascinating article about a 53-year-old writer/lawyer/ mother dropping acid to improve her mood and open opioids and hallucinogens were purportedly the drugs of choice for many writers in earlier centuries and cocaine has been heralded as the go- to for many in the legal and medical profession, perhaps we should all be opening our minds to other drugs on the black market to give us that kick start when drafting a davits and preparing submissions! If it’s good enough for Steve Jobs … Samantha Lewis, Family Law Accredited Specialist CORRECTION In October LSJ former High Court Justice Michael Kirby describes “The Case That Changed Me”. It is mentioned that the young Australian university student who took on the discrimination against Aborigines at the Walgett cinema, Owen Wescott, was ‘’an Aboriginal Australian”. This was a mistake. He was not Aboriginal, but he strongly supported an end to discrimination. In this he was defended by the lawyers who agreed to represent him and Aboriginal defendants pro bono, including Michael Kirby. the door for creativity (“A controversial alternative”, November LSJ ). Given

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ISSUE 51 I DECEMBER 2018 I LSJ 11

“As they say possession is nine-tenths of the law!” Michelle Batterham, Facebook

“The best part was the neighbours saying that ‘the law was wrong.’” Luciana Meroni

“Good to open the conversation and awareness for all sexes.” Jessica Sain, LinkedIn

“The beauty of adverse possession.” Cassie Valentino, Facebook

“This looks great!” Van Badham, Twitter

“Is #MeToo a thing in the legal profession? Join us and find out.” Josh Bornstein, Twitter

“How totally bizarre!” Chris Gleisner, Facebook

“An important issue for our profession. Great to see this initiative @LawSocietyNSW!” Pauline Wright, Twitter

“Who said we won’t be able to a ord a house!?” Dasha Konnova, Facebook

12 LSJ I ISSUE 51 I DECEMBER 2018

“Why don’t the sentences include making them do clean up of the dead animals, people (if that deadly), the houses destroyed, and helping rebuild, with jail if they don’t turn up or make good faith e orts?” Robyn Indigo, Facebook “The sentence must be psychological treatment for the mental issues.” Lakshmanaa Varathan “Seriously, if 14 years in jail is not deterrent enough, will 21 years jail make any di erence? Who commits crimes like this thinking they will be caught anyway?” Steve Zironda

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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

ISSUE 51 I DECEMBER 2018 I LSJ 13

Briefs NEWS

Gala honours female trailblazers

Hundreds of solicitors gathered at NSW Parliament on 26 November to mark the centenary of a change to the law to allow women in NSW to practise as solicitors and in politics.

T he First 100 Years gala celebrated on 26 November capped off a year of events led by members of the legal profession to recognise the achievements of female lawyers who have pioneered changes to encourage women to practise law. The campaign has been supported by the Law Society of NSW and Women Lawyers Association of NSW throughout 2018, with a dedicated website at first100years.com.au, the commissioning of a portrait of Australia’s first female Chief Justice Susan Kiefel AC, and the development of a video about women in law. The initiative culminated in the unveiling of three photo mosaics of legal trailblazers, pictured above from left, Marie Byles, the first practising solicitor in NSW, former Justice Jane Mathews, the first woman appointed as a judge in NSW, and Ada Evans, Australia’s first female law graduate. The mosaics were created by Sydney artist and LSJ contributor Rocco Fazzari, using hundreds of photographs of Australian lawyers. They symbolise three important women in NSW legal history who have been a source of inspiration for many others following them. The photomosaics were

presented as large-scale digital portraits and were sponsored by Allen & Overy, MinterEllison and Ashurst. The idea for these legal photomosaics came to Rachel Scanlon, the founder of the First 100 Years NSW initiative, when she was viewing the 2017 Archibald Prize and saw the portrait of Dr John Valance, a former headmaster of Sydney Grammar School. That portrait comprised hundreds of tiny coloured blocks, each painted by a different schoolboy. A new award from the Law Society of NSW was also launched at the gala, recognising a commitment to the Charter for the Advancement of Women in the Profession. The team from Clayton Utz won the award and the team from Coutts was highly commended. “As we move to the next centenary of women working in the law, let’s work together to ensure a strong and equal future for all women in the legal profession by continuing to raise awareness about our history and by inspiring future generations of female lawyers,” Scanlon said. Also on the First 100 Years steering committee are Amber Cerny, Catherine James, Ilana Orlievsky and Lucinda Bradshaw.

As we move to the

next centenary of

women working in

the law, let’s work

together to ensure

a strong and equal

future for all women

in the legal profession

by continuing to raise

awareness about our

history and by inspiring

future generations.

RACHEL SCANLON

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NEWS

NEWTHISMONTH Off the Record episode two:

Influencers

by

sexual harassment The second episode of LSJ ’s podcast series Off the Record will be released this month and will discuss sexual harassment in the legal profession. The podcast is hosted on Whooshkaa and is available for download via iTunes, Spotify and Soundcloud. lawsociety.com.au/offtherecordpodcast FLIP Inquiry Series –Behind the buzzwords: artificial intelligence This bimonthly series investigates a range of legal tech “buzzwords”. The latest instalment will look at artificial intelligence and feature experts from Gilbert + Tobin, IBM, the Federal Court, UNSW and ASIC on 12 December at the Law Society of NSW. lawsociety.com.au/learning-and- events/events-calendar/buzzwords-AI The time is ripe: the case for a Federal andNSW HumanRights Act Is it time for Australia to follow the lead of countries such as the US and introduce a Bill of Rights or Human Rights Act? Join the NSW Bar Association on 4 December to hear from human rights experts Rob Hulls, Helen Watchirs OAM and Hugh de Kretser. nswbar.eventsair.com/ 2018-human-rights-cpd/ registration-page/Site/Register

Louise Taylor THE ACT’S FIRST ABORIGINAL JUDICIAL OFFICER

I won’t ever forget how hard it can be to be an advocate, the courage it can require and the toll it can take.

ISSUE 51 I DECEMBER 2018 I LSJ 15

Briefs NEWS

sixminuteswith

PETER PAYNE SOLICITOR AND CONVEYANCER

How has your history with Cobar as the town publican helped you build rapport with the local community? Most of my clients are those have known from my pub days. Cobar is a mining town and, with the shift workers, it’s a dead-set man’s town, a drinker’s town. The Occidental was a boozer. I had the best pub in Cobar by a country mile and any of my old customers would tell you that my old pub was a great old pub. I endeavoured to look after every person who walked into my establishment. To have a good hotel you’ve got to have regular clients, and your regulars are what make you. It has only been a few months since I was working as the Legal Aid solicitor in Cobar as part of the old scheme, but I would always say, “This is no different to my pub days because I still have my regular clients”. I try and look after people. It costs me time, it costs me money, but that’s the way I am. And that’s why I had a successful pub for so many years. When you were studying law, you said you got nowhere because people wouldn’t leave you alone. What do you mean? I was well-known as a publican and people would come and knock on my door. They’d just want to socialise. I got no Peter “Payney” Payne began his career in law in 1970, working as an articled clerk for Dubbo firm Peacocke Dickens and King. Following the sudden death of his policeman father, he returned to Cobar to help his mother run the family business and local pub for the next 30-plus years. His role as long-time publican of the New Occidental Hotel, which was built in 1879 and destroyed by fire in 2014, has endeared him to the regional community and made him a local legend. Payney, who has a penchant for using the term “bloody”, returned to law when he was in his 60s and recently set up a sole practice in Cobar. MELISSA COADE speaks with the straight-shooting lawyer who has no shortage of clients thanks to his faithful pub patrons.

peace. I was involved in the rugby club as a life member and I’m involved in every other bloody thing in town too. They always want to bug me about something. The only way to get a bit of time to study was to get out of town. My cousin Roderick Watt, principal lawyer at Armidale firm Watson McNamara & Watt, told me to get up to the University of New England and go on campus, which is what I did. I got my law degree and worked with Watt to complete my practical training. I did everything by stages. My ambition was to get a law degree. Now I got my degree, I thought I might as well get admitted. Shit, I’m admitted, I might as well bloody go and work as a lawyer. Then I worked as a lawyer and I thought I might as well open my own practice. One followed the other. I am very, very proud of my little practice but it’s busy. After court in Bourke one day, Magistrate Gary Wilson asked me how my little practice was going and I said, “Well, the next thing I suppose is I get real smart one day and then I’ll die and it will be all over”. By the time I’ll be really coming good and know a little bit, I’ll probably be old and die. What prompted you to establish your sole practice, Peter Payne Law, in January 2018?

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NEWS

BY PAUL MONAGHAN, SENIOR ETHICS LAWYER

in the workplace will come back to haunt the perpetrator. e guide to our professional obligations may be noted in rule 4 of the Australian Solicitors’ Conduct Rules which include the points: • e fundamental duty on a practitioner to: ... act in the best interest of a client in any matter in which the solicitor represents the client ... which may include attendance at all functions the practitioner may attend in their professional capacity; • To observe the professional standards required and ensure that you must not:

... bring the profession into disrepute ... by any action or statement; • And it should also be noted that ... a solicitor must not in the course of practice, engage in conduct which constitutes discrimination, sexual harassment or workplace bullying ... When lawyers come together in any number to celebrate, discuss, network and re ect on the completion of another di cult and busy year, we must carry due regard for our ethics and professional standards on every occasion. e ethics department wishes our readers best wishes for Christmas and the New Year.

With the imminent passing of another year we have the occasion to reflect, celebrate and plan for the next year in an environment of yuletide joy. Let’s use this festive time as an opportunity to demonstrate our ethics and exemplary professional conduct, and not allow an episode of misfortune – in a Dickensian sense – and allow events to come back and haunt us as “the ghosts of Christmas past”. To observe another practitioner act without restraint in their fervor to celebrate the year conclude can be horri c to the attuned senses of our better nature. Unacceptable behaviour

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ISSUE 51 I DECEMBER 2018 I LSJ 17

Briefs NEWS

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

Rachael Bass Joined as a solicitor Massons

Justin Conomy Joined as Director of Commercial Litigation & Dispute Resolution Acorn Lawyers

Irfana Kamerasevic Promoted to Lawyer Acorn Lawyers

Monique Sayer Promoted to Lawyer Acorn Lawyers

Paul Ohm Re-joined as Special Counsel Carrol & O’Dea Lawyers

Michael Milton Joined as a partner, Insurance HWL Ebsworth, Sydney

Marial Lewis Promoted to Partner Teleo Lawyers

Andrea Beatty Joins as a partner, Financial Services Piper Alderman, Sydney

Veronica Phillips Appointed as an associate Family Law Matters

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Avitalmatteroftrust Withconfidence in lawyersata record low,howdowe recover? Triumphoveradversity A judge reflectsonwhybelieving in lostcausescanbe veryworthwhile Blowingthewhistle DoesanewBill succeed inproviding moreprotection forwhistleblowers?

ISSUE47 AUGUST 2018 Nodroughtabout it How thebigdry isaffectingNSW lawyersand theircommunities Caringforthecrew Why successful legalpractices need toput theirpeoplefirst Vulnerablenomore? Analysing theoutcomesof the AustralianConsumerLawReview Approachwithcaution The rewardsand responsibilities of solicitorsactingasexecutors

ISSUE49 OCTOBER 2018

ISSUE50 NOVEMBER 2018

ISSUE48 SEPTEMBER 2018

ISSUE51 DECEMBER2018

ISSUE49 OCTOBER2018

ISSUE50 NOVEMBER2018

ISSUE48 SEPTEMBER2018

ISSUE47 AUGUST2018

Speakingmy language Themultilingual lawyersproving the valueofculturaldiversity Againstthetide TheSydney lawyer shaping refugeepolicyat theUNHCR Outingthe introverts Whyunderstanding yourquieter teammembersholdsgreatbenefits Acasualconundrum Substanceover formprevails inemployment relationships

Grinningandbaring it Whycurrent lawsaround sexting arecriminalising today’s youth Banishingburnout Doeshitting rockbottommean theendof yourbrilliantcareer? Reflectingonchange JusticeVirginiaBellon the battle forwomen’s legal status Criminal lawreforms Ananalysisof sweepingchanges to sentencingandcommittal laws Modern-daybagsearch How fardoesprivacyextendwhen itcomes tomobilephonesatwork? Childsexualabuseredress Why thenewgovernment scheme willpresentachallenge for lawyers Allaboardthetechtrain Why there isnoexcuse for small firms failing toembrace technology Savingcommunity justice Attorney-GeneralMarkSpeakman onnew funding for strugglingCLCs

Grinningandbaring it Whycurrent lawsaround sexting arecriminalising today’s youth Banishingburnout Doeshitting rockbottommean theendof yourbrilliantcareer? Reflectingonchange JusticeVirginiaBellon the battle forwomen’s legal status Criminal lawreforms Ananalysisof sweepingchanges to sentencingandcommittal laws Thetimeforevolution Do lawyers reallyhavewhat it takes to survive theA.I.onslaught? Googlingdefamation Why lawyersneed to stepupand evolve inachangingmedia landscape Ditchingherdemons TalithaCumminsopensupabout herdevastatingbattlewithalcohol Breakingperceptions Howeverythingwe thinkweknow about sexoffenders iswrong

Thesink-or-swim culturehurtingour junior lawyers

Thesink-or-swim culturehurtingour junior lawyers

Puttingbabyinacorner Whychoosi gparenthood isstillriskybusiness in the legalprofession

Shatteringtheillusion Themessy truthbehindhigh-functioningalcoholics in law

Thebravenewworldoflaw Fivekey trendsshaping the futureof legalpractice

Onthe bright side Fiveyoung lawyersboldlydiscuss livingwithmental illness

Thestories the legalprofessioncanno longer ignore

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18 LSJ I ISSUE 51 I DECEMBER 2018

NEWS

MENTAL HEALTH Doctor says poor mental health ‘worse than smoking’ The Federal Court hosted the inaugural Minds Court lecture on mental health in the legal profession on 12 November, with two inspiring speakers sharing their stories. Peter Jones, a partner at DLA Piper, shared his personal experience of anxiety and depression, saying support from family and his managers at work had been vital. Dr Brian Marien, a medical doctor, psychologist and co-founder of the Positive Group, said there were proven, evidence-based techniques to improve psychological wellbeing, resilience and performance. “ is is no longer warm, u y, tree-hugging stu . It’s science,” Marien told an audience of about 200. “Your mental health also has an absolute correlation to your physical health,” he continued. “People, especially men, nd it very di cult to talk about themselves and to talk to others about mental health issues. We need to build emotional literacy to decrease the risk and get people talking. is will reduce the stigma and embarrassment.” Marien, who wrote his Masters thesis on burnout 30 years ago, maintained that a person’s psychological state was a key performance indicator. He said you could lose 70 per cent of cognitive function if you were diagnosed with depression. “ e good news is that when you treat the depression, cognitive function comes back,” he said. “Depression is eminently treatable. Clinical depression is a greater risk factor for heart disease than smoking. We need to reintegrate the mind and body. We need to be taught techniques to get out of that space (stress, anxiety and depression).” Marien suggested workplaces encourage sta to develop a tool kit to deal with anxiety and depression well before a crisis hits, adding that “positive self- talk” was an important tool for beating anxiety and depression. He added that feeling disconnected at work had “a huge e ect on psychological health”. “Loneliness is worse than being a smoking diabetic. It switches on bad genes,” Marien said. He warned that people who are self-critical, including lawyers, are more likely to have psychological problems. He urged lawyers to focus on their strengths and competencies – slamming perfectionist thinking, and saying perseverance was a better predictor of success than IQ in high performing jobs. “We should be rewarding people for e ort and not for their IQs,” he said.

Minds Count is the new name of the Tristan Jepson Memorial Foundation. For more information, visit mindscount.com.au

From top: Dr Brian Marian, Peter Jones and Chief Justice Allsop.

ISSUE 51 I DECEMBER 2018 I LSJ 19

Briefs NEWS

COMMUNITY NEWS Michael Kirby tomarry 50-year partner

NSWYOUNG LAWYERS Young grad has gift of the gab

Former High Court Judge and friend of LSJ Michael Kirby has announced he will marry his long-term partner Johan van Vloten in February on the 50th anniversary of the day the pair met. The former judge, known affectionately to many as the “Great Dissenter” for his high proportion of dissenting

Winner of the 2018 McCallum Medal for public speaking Sandra Hu (second from left) with runner-up Cassidy O’Sullivan (second from right) and judges.

LSJ ONLINE LSJ launches online The Law Society of NSW’s award-winning member magazine, LSJ, is turning a new page in its life cycle by launching an online news site. LSJ.com.au will join Australia’s top business and legal news sites by making its content accessible to members of the Law Society as well as general readers looking for legal news, inspired content, and high-quality journalism. The site will have all LSJ ’s regular news, career advice, law reform updates and insights within the Australian legal profession, as well as a range of new multimedia content. Content from the past four years of the magazine has been migrated to an online format. “Lawyers like to take their time with things to ensure they’re as perfect as they can be, and LSJ is no exception,” said Managing Editor Claire Chaffey. Law Society CEO Michael Tidball said he was excited for the site to showcase LSJ ’s award- winning content to wider audiences. The site will be live from 5 December. Visit lsj.com.au . Kirby announced in November that he would make use of the new law and tie the knot with von Vloten in 2019. “It’s been a long engagement, but I wanted to be sure,” the former judge joked in a private moment with LSJ. He revealed that the wedding would be a “small, family affair” at his home in Sydney. judgments in the High Court, last year announced he would boycott the government’s postal survey vote on marriage equality. But he later revealed he had changed his mind and voted “yes”.

Graduate lawyer Sandra Hu fromHerbert Smith Freehills has won the NSW Young Lawyers annual public speaking competition, the McCallumMedal, held on 15 November in Sydney. The annual competition is held in honour of Emeritus Professor Ron McCallum, the Dean of the Faculty of Law at the University of Sydney and former patron of NSW Young Lawyers. This year’s competition asked competing young lawyers to speak on topics related to workplace and safety laws in Australia and NSW. Hu’s winning speech discussed issues around improving paternal leave entitlements. Cassidy O’Sullivan, a tipstaff in the Supreme Court of NSW, claimed the runner-up prize for her speech investigating the adequacy of employment laws in the modern gig economy. The event was sponsored by Seyfarth Shaw, Thomson Reuters, HWL Ebsworth Lawyers, and The College of Law.

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NEWS

MOCK TRIAL Hot competition in MockMediation final

A teamof teen negotiators fromSydney Boys High School has been crowned champions of the Law Society of NSW’s 2018MockMediation competition. The boys defeated Hurlstone Agricultural High School in a nail-biting grand final held at University of Sydney Law School on 9 November. Both teams used various resolution dispute tactics to resolve a familiar scenario to Australians in today’s gig economy: a dispute between Airbnb hosts and unhappy guests demanding a refund. Teacher adjudicators Monika Lama, Linda Attard and Helen Miedzinski praised the students’ negotiation and role-playing abilities. ey named Anton Joseph from Sydney Boys High School this year’s winner of the Sydney University Student Advocacy Prize for his display of personal integrity, respect for self and others, and acceptance of di ering views during the mediation process. “Many thanks to the grand nal adjudicators, who took time out of their busy schedules to adjudicate the mediation on the day as well as o er feedback, support and advice to both teams,” said Anwen Gardner, the Law Society of NSW’s Mock Law Coordinator. Gardner also thanked the volunteers, teachers and students involved throughout the year, who “made this year’s competition such a success”.

The winning team from Sydney Boys High shows o their medals at the grand final of the Law Society of NSW’s 2018 Mock Mediation competition.

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ISSUE 51 I DECEMBER 2018 I LSJ 21

Briefs NEWS

PROFESSIONAL STANDARDS AnewScheme–anew opportunity tomanage your risk

For the full round-up of Law Society advocacy, see page 68.

Eligible civil cases to be heard via Online Court The Online Court in the District Court General Division Civil List came into effect in November 2018. Eligible civil cases will be required to use the Online Court unless exceptional reasons are demonstrated. A new guidance note has also been published outlining the capabilities, expectations and benefits of the court. The recommendation to establish a Financial Regulator Assessment Board has been supported by the Business Law Committee, which contends that such a body will improve accountability of regulators. The call, which included recommendations for annual reviews of overall performance against regulator mandates, was made as part of a committee’s submission to the Law Council in response to the Interim Report of the Financial Services Royal Commission. Focus on outreach and awareness instead of DVDS redesign The Criminal Law Committee has submitted that more funding for outreach and awareness initiatives, as well as specialist services, can effectively prevent domestic violence over the proposed redesign of a program known as the Domestic Violence Disclosure Scheme (DVDS). The committee contributed to a consultation paper being developed by Department of Family and Community Services about the DVDS redesign, noting that the scheme had a “very low” uptake during its pilot and was not cost-effective. Calls for Financial Regulator Assessment Board

Professional Standards Schemes are legal instruments, approved by the Professional Standards Councils, that bind occupational associations to monitor, enforce and improve the professional standards of their members and protect consumers. In return for these commitments, the Schemes cap the civil liability or damages that members who take part in an occupational association’s scheme may be required to pay if a court upholds a claim against them. The Law Society of NSW has continuously administered Professional Standards Schemes since 1996, as an exclusive benefit for its solicitor/ life members in private practice. The new Professional Standards Scheme (effective 2018-2023) commenced on 22 November 2018. New Scheme, new benefits, new logo This new Scheme brings several new benefits to Society members: 1. Incorporated Legal Practice (ILP) entities can now participate. 2.It is designed to have mutual recognition in other Australian states and territories. 3. Scheme participants can use the new Law Society Professional Standards Scheme logo, which replaces the now obsolete Cover of Excellence logo. New Scheme, new rules Under the Scheme, as approved by the Professional Standards Councils and in accordance with the professional standards legislation, all Law Society members in private practice are required to apply for either participation in, or exemption from, the Scheme. Participation in the Scheme is open to all solicitor members and life members in private practice. For more information on the new Scheme please visit: lawsociety.com.au/scheme From left: Mary C Snell, A/Executive Director and Chief Executive Officer, Professional Standards Councils; John R Rappell, Director Professional Standards Regulation, Professional Standards Authority; Michael Tidball, Chief Executive Officer, Law Society of NSW; and John Vines OAM, Chair, Professional Standards Councils at the presentation of the Professional Standards Councils Scheme approval certificate to the Law Society of NSW on 18 October.

22 LSJ I ISSUE 51 I DECEMBER 2018

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