ISSUE 62 DECEMBER 2019
Enacting the unenacted Growing calls for the revival of one of Australia’s most secretive laws A fresh newperspective What former Prime Minister Julia Gillard really thinks about law and leadership
Practising lawat a cost A wrap-up and analysis of the year’s most significant cases on costs O -the-plan reforms Changes to property law drive new edition of contract for sale of land
Meet three inspirational lawyers excelling and thriving in the face of disability Willingandable
PLUS: UPDATES ON WILLS, COMPLIANCE, EMPLOYMENT, ANIMAL LAW, RISK & MORE
Where Work Flows. A winning legal team is made up of many important parts. Our team can help you keep them all moving.
The Law In Order Difference — Established 1999 — 24/7, 365 days a year — Servicing Law Firms, Corporates and Government Agencies — Unparalleled quality — Secure and confidential practices to protect you and your clients — Realtime job tracking via our website — Latest document technology
Document Production Support
Forensic Data Specialists
Managed Document Review
Working with us, makes working with your clients easier.
2 0 1 9 s e r v i c e c h m p i o n u s t r l i n s e r v i c e e x c e l l e n c e w r d s csi
Talk to us about support and solutions for your team. lawinorder.com email@example.com 1300 096 216
SYDNEY • BRISBANE • MELBOURNE • PERTH • SINGAPORE • HONG KONG • INDIA
ISSUE 62 I DECEMBER 2019 I LSJ 53 Open over Christmas and New Year. Supporting you 24/7 – 365 days a year.
24 Lunchwith a judge
36 Our oldest unenacted bill Amy Dale reports on a little- known law that could shed light on the public’s #righttoknow
Retired judge Terry Sheahan on his life after law, politics, and why he never took silk
Meet l awyer and podcaster Jen Brown, who took up running and ended up on an exciting new path
26 Out and about
40 Gillard’s newgroove
View the best shots from the Law Society’s Annual Members Dinner at Sydney’s stunning Town Hall
Australia’s first and only female Prime Minister chats with Kate Allman about life after politics
How do you avoid piling on holiday pounds over Christmas? Fitness guru Benjamin Lucas shares insider tips
28 Cover story
Three lawyers with disabilities share their stories and discuss broadening ideas of diversity
Thea O’Connor reveals how “completion bias” can undermine wellbeing and productivity
Discover Portugal, Europe’s quiet achiever. Kate Allman finds wine, food and sights to match the continent’s best
ISSUE 62 I DECEMBER 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 26 Out and about 44 Career matters 46 Mindset 48 Doing business 49 Career coach 52 Health 60 Youwish 62 Books and lifestyle 64 The case that changedme
78 Elder law
The latest key developments in advocacy and law reform
What we can learn from the Canadian approach to the presumption of advancement
80 Wills and estates
Off-the-plan reforms and the 2019 contract for the sale and purchase of land
Practical tips for dealing with knowledge and approval of a will
82 Personal injury
A look back at the biggest developments of 2019
At fault, not at fault, and no-fault liability under the Motor Accident Injuries Act
73 Compliance risks
What you need to know to protect your law practice from cyber fraud
The dangers of non-compliance in expert reports and evidence
86 Animal law
Fair Work class actions given a shake-up with the Federal Court’s security for costs order against a third-party funder
A wrap-up of the latest developments and issues in animal law and welfare
88 Case notes
The latest High Court, Federal, family, criminal, and elder law and succession judgments
The Law Society Professional Support Unit answers some common costs queries in this practical Q&A
90 Library additions 106 Avid for scandal
4 LSJ I ISSUE 62 I DECEMBER 2019
National Process Serving and Skip Tracing through innovation, quality and experience.
02 8833 3334 www.riskandsecurity.com.au Sydney | Brisbane | Melbourne CBD Document Delivery & Collection Available
The Intellectual Property and Trade Mark Investigation experts.
07 3257 1083 www.tmis.com.au Sydney | Brisbane | Melbourne
ISSUE 62 I DECEMBER 2019 I LSJ 53
A word from the editor
I was incredibly moved reading the stories belonging to this month’s cover story subjects Carol Taylor, Ron McCallum and Annabelle Williams. All are talented lawyers, parents, and advocates – and each has a disability. I rst came into contact with Carol, an associate member from Queensland, when she wrote to LSJ to express her disappointment that we had not covered disabilities in a feature
Managing Editor Claire Cha ey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor
about diversity in the legal profession earlier this year. Carol was absolutely right to call us out, and I appreciated her passion and honesty about how our omission made her feel. She also shared with me a snapshot of her story. I was blown away by what she had been through, what she had achieved, and how she had dealt with enormous adversity. I am delighted to be publishing Carol’s story, along with Ron’s and Annabelle’s, in time for International Day of People with Disability on 3 December. We can all learn a thing or two from this trio, who represent a small percentage of our legal colleagues living each and every day with disability. I hope this story brings to light their achievements and attitudes and goes some way to bringing the conversation about disability further into the open. On that note, enjoy the end-of-year break and see you in the New Year!
Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2019 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
FLOYD ALEXANDER- HUNT Cover story p28 Floyd is the Communications Coordinator at LSJ . She has also worked in journalism at Channel Nine. This month she asks lawyers what it takes to work in the legal profession with a disability.
RICHARD HARVEY Property law p68 Richard is an Accredited Specialist, Property Law and President Elect of the Law Society. In this issue, he joins our regular property law contributor Gabrielle Lea to discuss the new o -the-plan reforms and the 2019 contract for the sale and purchase of land.
THOMAS SPOHR Case notes p95 Thomas is a solicitor at Legal Aid, member of the Law Society’s criminal law committee, and author of the LSJ ’s criminal law case notes. This month, he highlights some recent decisions from the High Court and the NSW CCA.
KATE ALLMAN Feature p40
27,100 * *AUDITED MARCH 2019 DISTRIBUTION
Kate is a features writer, podcast host and Online Editor at LSJ . In this issue, she sits down for an exclusive interview with Australia’s first and only female Prime Minister Julia Gillard to discuss Gillard’s new role and life after politics.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
Cover photography: Jason McCormack
NEXT ISSUE: 1 FEBRUARY 2020
6 LSJ I ISSUE 62 I DECEMBER 2019
Exclusive member-only content
READ. LISTEN. WATCH. SHARE.
Don’t stay chained to your desk. Experience LSJ ’s award-winning content online – wherever you are.
leaders in our profession, and were inspired by finalists in the Hackathon. I polished my debating skills to participate in the Great Debate with the Legal Services Commissioner addressing the pros and cons of the “uberisation” of the legal profession, judged by The Honourable Michael Kirby AC CMG. The Government Solicitors Conference was also a standout success where government solicitors from all three tiers met, sharing knowledge and experience. This conference has been an annual event for decades, illustrating the value placed on our government solicitors in NSW and nationally. I have been privileged and honoured to represent the interests of the solicitors of NSW in many settings, including state and national stakeholder consultations and international bar leaders fora, where it is clear that the Law Society of NSW is highly regarded and respected among other jurisdictions. The President’s charity, Our Watch, now has a national framework to prevent violence against women and children, with the NSW Government signing up this year. I am proud of the role our profession is playing to change the story of domestic and family violence. I set out to celebrate our solicitors this year and am pleased we have capped off a significant achievement with our advocacy with the recent announcement of $88 million from the NSW Government for legal aid funding. Serving as President is a responsibility I have undertaken with a sense of optimism for our profession. I have worked hard to represent you, speak up for the cause of justice, and to ready our profession for the future. I did not do this alone. I thank Chief Executive Officer Michael Tidball for his guidance and commitment to the legal profession; he has the best interests of the Law Society and our profession first and foremost in his mind. The countless volunteer hours and contributions made to strategic direction, policy, and law reform by the 21 elected councillors and the members of our 27 committees is also worthy of acknowledgement. I also thank the hardworking staff at the Law Society for regularly going beyond the call of duty. Their participation and passion illustrate why the Law Society is an employer of choice. I hope they know that the work they do, like the work of our solicitors, does make a difference. On that note, I would like to wish everyone a safe and hap- py festive season. May the joy of Christmas sustain you into the New Year and beyond.
A s the legal term draws to a close and with Christmas and the New Year just around the corner, I’ve taken the liberty of reflecting on my year as President in my final message for LSJ . My work, on behalf of the state’s 35,000 solicitors, has been guided by the Law Society’s ongoing com- mitment to adapt and progress, to react and respond to our members’ needs, and to further our continued standing as one of the most resilient and respected legal associations within Australia and internationally. At the core of the Law Society of NSW and our governing Council is our close relationship with our 29 regional law societies. As President, I made it a priority to engage with as many regions as possible in collaboration with our regional law societies. A highlight was participating in the FLIP Regional Roadshow events with more than 300 solicitor members. In every region I visited I also took the opportunity to meet with the Community Legal Centre Principal Solicitor and the Women’s Domestic Violence Court Advocacy Service team to thank them for their passion and unrelenting dedication to supporting women to navigate through the administration of justice within the context of domestic violence. There have been many other highlights, including the FLIP Conference in July which garnered interaction with more than 600 participants, engaged with the purpose-built “Today and Tomorrow Alley” (complete with its own robots – Sanbot and Nanobot), were challenged by the thought
8 LSJ I ISSUE 62 I DECEMBER 2019
My firm thrives at Prepare legal documents quickly and accurately, all by voice Dragon My firm thrives at M fir thrives at SIMO DELLA MARTA , PARTNER POINTON PARTNERS SYDNEY My firm thrives at CHRISTELLE SANTELLI INNOVO LEGAL JANE HALL FOUNDER & PRINCIPAL LAWYER LOUPE LEGAL A BOUTIQUE HEALTH AND SAFETY FIRM Regardless of practice size, Dragon Legal Australian software can increase time spent with clients on billable work. MANJOT SINGH DHILLON LEGAL
3 times faster than typing, with Dragon you can:
Create, import and share custom words specific to your clients, practice or specialty Eliminate or reduce transcription time and costs
Utilise an extensive, built-in legal vocabulary that covers terminology specific to the legal community Prepare case files, contracts, briefs—all by voice
1300 310 500 We want you and your money to go further on your next journey with this special offer. Plus, earn 4 Qantas Points † for every dollar spent on time and kilometre charges in Australia. Community | Workspaces | Resources WWW.CLARENCE.LAW Contact our Dragon Partners for help with software, installation, configuration, customisation and training: Used by The Hon. Michael Kirby AC CMG . See Michael’s video at dragonpro.com.au/legal & ask your member benefits contact for our exclusive member offers. Community | Worksp | r W Community | Workspaces | Resources WWW.CLARENCE.LAW 1300 310 500 Let the journey begin. Take advantage of 10% off * Australian Avis rentals as a Law Society Member. T o b o o k v i s i T w w w . m e m b e r c o n n e x i o n s . c o m . a u * Discount offer is valid for Australian car rentals booked via the LSNSW booking tool. This discount applies to the base rate (time and kilometre charge) only. Standard age, credit card and driver requirements apply. Rentals are subject to the terms and conditions of the Avis Rental Agreement at the time of rental. Offer valid until 18 May 2020. † You must be a memb r f the Qantas Frequent Flyer program to earn points. Membership number must be quoted when booking to earn points. Membership and points are subject to the terms and conditions of the Qantas Frequent Flyer program. A joining fee may apply. Points are earned on time and kilometre charges. For more information about earning points with Avis visit qantas.com/cars. Voice Recognition Australia www.voicerecognition.com.au 1300 255 900 Dataworxs Australia www.dataworxs.com.au 1300 446 932 Voicex Communications www.voicex.com.au 1300 551 778 Community | Workspaces | Resources WWW.CLARENCE.LAW
ISSUE 62 I DECEMBER 2019 I LSJ 27 ISSUE 59 I SEPTEMBER 2019 I LSJ 25
Mailbag LETTERS TO THE EDITOR
clogging up the contested mat- ters list. It might also be prudent to identify those matters that re- quire the attention of a judge as opposed to those that do not. In commercial matters, we have had three court levels for a con- siderable period of time relevant to the amount, which is the sub- ject of litigation. Why not apply the same principle to financial matters by relegating matters to di erent levels of judicial man- agement and decision-making relevant to the value of the family asset pool to be distributed? In relation to parenting, is this re- ally something that should be in the purveyance of a legal system or should it be dealt with by the immediate involvement of coun- sellors and decisions being made by a tribunal made up of a legal representative and the communi- ty generally, with substantial input from those counsellors? Perhaps it is time to look ‘outside of the square’ to find practical resolu- tion to practical problems rather than attempting to reconfigure a legal system to generate a legal resolution to practical problems such as parenting. Warren Wells Following review of the latest Law Society of NSW Journal (Is- sue 61, November 2019), with subtle cover image of a group of dismembered Night of the Liv- ing Dead -esque hands clutching for an out-of-reach piggy bank (something I have yet to per- sonally see in wills and estates legal practice), with further sub- tle catchline “Show me the mon- ey”, and the subject article titled, “Where there’s a will (there’s a le- gal dispute)” (p30-35), I wonder, based on a reliance of the accu- racy of the content of the article, should I contact the NSW legis- lature to suggest they update the Succession Act 2006 (NSW) to replace subsections s57(1)(d)-(f) to read, “(d) pretty much any- one else”, as indicated on page 32, 2 nd column, 2 nd paragraph: “Under the Succession Act 2006 (NSW), spouses and children are automatically eligible to make a claim for provision in the de- Legislative amendment required?
ceased’s estate but pretty much anyone else is free to challenge it”. As to the descriptive titling of the article, a review of the freely available Supreme Court of NSW statistics indicate that in 2018 there were 26,538 non-conten- tious probate applications, and 981 family provision cases filed – indicating 96 per cent of wills were not subject to family pro- vision claims, or as I would infer, “Where there’s a will (there’s an extremely high probability it will A thousand words Actually, the more common quote is, “Where there’s a will there’s a relative”. And relatives – as reflected in your feature ar- ticle (November LSJ , cover story) – especially undeserving ones, often spell trouble. The door sign, “Friends welcome, rela- tives by appointment” sets the tone. I remember a cartoon de- picting a Dickensian scene of a lawyer reading a will, surrounded by expectant but mean-looking distant relatives, with the caption bubble “I, Joe Bloggs, bache- lor, being of sound mind, spent everything!” A cartoon tells a thousand words. Edward Loong The LSJ article (November 2019) on the fact that it is becoming increasingly di cult to draft an e ective will should not be al- lowed to pass without further review of the important issues mentioned. Family provisions may be “fertile ground for law- yers” but this may ultimately be at the expense of the reputation of the profession. Justice Pem- broke in a 2018 case said, “Tight rein needs to be exercised – conformably with principle and authority – if the court is not to become a shopping forum in which unmeritorious and mis- conceived claims multiply.” Part of the reason for this multiplica- tion is the low downside costs risk that eligible persons face in making even marginal claims. While many claims are settled in mediation, this is often because not be contested)”. Adrian Corbould Tight rein in wills and estates
ISSUE61 NOVEMBER 2019
Meeting a legend
Anawfulhumanmess Whatnowafter theannouncement of yetanother family law inquiry? Ashift inclientvalues Why thegrowingdemand forfixed feescouldfinally spellchange LegalAidNSWturns40 CEOBrendanThomas reflectson fourdecadesoffighting for justice Blowingthewhistle Doyouhaveawhistleblower protectionpolicy inplace?
Themessyandemotionalrealitybehindestatesdisputes –andwhythey’re increasinglycommon Showme themoney
PLUS: UPDATESONEMPLOYMENT,PRIVILEGE,CONSUMER LAW,RISK&MORE
24/10/19 4:10 pm
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.
I am the only one in Austra- lia, I think, except for my o ce librarian (I had it autographed for her) who has Margaret Beazley’s autograph, taken at the Bar As- sociation which honoured her contributions to the Bar recently. Datuk Ganasan Elephant in the room In relation to family law, it would seem to me that no one wants to reflect upon the “elephant in the room”, which is the fact that some 50 per cent of contested matters before the Family Court relate to financial-only matters and another 15 per cent relate to financial and parenting. Simple maths equates to 65 per cent of matters being related to financial matters. Where there is an imbal- ance, extreme or otherwise, in income and the accumulation of assets by one party to a marriage, an obvious consideration by the other party is to delay the distri- bution of a family asset pool for a period of three years to allow that income and those assets to become a part of the family as- set pool. May I suggest that the family asset pool be identified and valued as at the date of sep- aration and if this was applied, one would expect the contested Family Court list to collapse. Such a change would also reduce costs of the parties as an insistence on updating financial statements and providing updated financial doc- uments adds substantial costs. All of this would be eliminated by simply identifying and valuing as- sets as at separation. This would be a once only process and no benefit would be achieved by de- laying the distribution process by
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Datuk Ganasan has won lunch for four. Please email: email@example.com for instructions on how to claim your prize.
10 LSJ I ISSUE 62 I DECEMBER 2019
LETTERS TO THE EDITOR
executors are under pressure to settle even unmeritorious and misconceived claims to avoid the alternative of exposing the estate to high costs and significant de- lays. It may follow that the courts are under pressure to make or- ders for nominal provision in marginal cases despite being dis- inclined to make such orders due to the fact that if they were to make no provision the claimant could be liable for very substan- tial costs. Examining what “tight rein” is appropriate warrants involvement by the profession. Robert Minter Clarifying the rule in Beck The November LSJ on page 100 had a note on the decision of Rein J in Stegnjaic v Stegnja- ic  NSWSC 1208, the last sentence of which note says, “As an aside the judge commented that the rule in Saunders v Vauti- er does not apply to real estate”. In fact, what the judge said at paragraph 19 was, “Secondly it appears to have been accepted in Beck v Henley  NSWCA 201 at  per Leeming JA (with whom Beasley P and Sackville AJA agreed, that the ‘rule’ in Saunders v Vautier does not ap- ply to real estate”. Counsel might have agreed but the judges did not. While the trial judge in Beck held that Saunders v Vautier did not apply to real estate, the deci- sion on appeal makes it clear that this is far too wide and that the true position is that there is no right in one beneficiary to call for a transfer of a part share in land where others are entitled under the trusts to the balance of the land or will be when they come of age. The true position is set out clearly in Beck at paragraphs 32 to 44. The reason the ‘rule’ does not apply to an undivided share in real estate is that “an undi- vided share of real estate never fetches quite its proper propor- tion of the proceeds of the entire estate”. In such a case, if trans- fer were allowed the remain- ing beneficiaries would suffer. This restriction does not apply in a situation where a beneficiary under a trust is solely entitled to Blackacre on attaining the age of 25 years. That beneficiary is en-
titled to call transfer under the ‘rule’ on attaining majority. Beck does not hold otherwise. I am only writing to make the position clear in case the journal article gives an incorrect understand- ing. Any diligent reader would be expected to read the two deci- sions referred to here and would ascertain the correct position. Bill Windeyer Stand up for time billing There appears to be an increas- ing push by those involved in criticising the fees that lawyers charge to move away from time- based costing to a fixed-cost regime. When I commenced law, we would bill files according to the Supreme Court or the Fam- ily Court scale. I remember the criticism raised by those who saw the scale costs as being un- fair to the clients, encouraging time-based fees as a remedy to this apparent abuse. I am of the view that those who criticise law- yers’ fees want to have a fixed- cost charging system that limits the fees that can be charged by lawyers by type of work done. I would have no problem with that approach except for the appli- cation of the cost assessment legislation that would be used to reduce a fixed-cost charge if for some reason the work was done in less time than was esti- mated. Further, if you fixed cost a hearing for a set amount and settled prior to the hearing, I would assume the cost would then be reduced. However, if the hearing cost exceeded the fixed cost, then the lawyer would be required to do the balance of work for nothing. The hostility from the government and com- munity groups towards lawyers regarding the fees charged has now spilled over into the courts, with judges involving themselves in the cost charge to clients. The media will highlight any lawyer in court overcharging and conflate that with all lawyers, regardless of the evidence. The Law Society of New South Wales should be defending lawyers rather than joining in on the criticism by ac- tivists and politicians. I do not see there will be any change in the Law Society position regarding
defending lawyers from criticism or promoting whatever social and/or political narrative that seems to be in vogue at any giv- en time. Therefore, it will be up to individual lawyers to either form a political lobby to chal- lenge the overregulation of law and our fees or eventually be legislated out of existence. The attitude of the tribunal members of NCAT shows there is open hostility to lawyers appearing. The tribunal members appeared to be of the opinion they can sort out the differences between the parties without lawyers interfer- ing and causing delays. This ap- pears to be the prevailing view of activists, government and now judges with regard to lawyers. I anticipate that once lawyers are on the brink of financial ruin they will then take over the Law Society and become advocates for lawyers. Given the slowness of lawyers to respond to change I will be retired well before this occurs. Brendan Manning Today (29 October 2019) is a good day. Not just for Arme- nians, but for humankind. The US House of Representatives has stepped into a contested historical debate at a partic- ularly tense moment for the US-Turkey relationship, and has voted overwhelmingly to recog- nise the Armenian Genocide of 1915. The resolution, whilst not legally binding, formally rec- ognises the systematic killing of 1.5 million Armenians under the Ottoman Empire (Turkey) as genocide. And genocide it was. Although the term “geno- cide” was first coined by Polish lawyer Raphäel Lemkin in 1944, the atrocities committed by the Turks (albeit the term for it not yet existing) can only be de- scribed as genocide. The kill- ings, forced transfers, the rape, the resulting orphans, the moth- ers who watched their children be murdered. The children who watched their parents be slaughtered. The intent of the Ottoman Empire to destroy, in whole, the Armenians … this was A good day for humankind
genocide. To date, the Turk- ish government has denied the slaughter of my people was genocide and has long waged a lobbying campaign worldwide to discourage the use of that word in refer- ence to the slaughters. Today (29 October 2019) is a good day. A good day for truth. A good day for justice. We still need much, much more of these sorts of days. The souls of the more than one and a half million Armenians who were murdered still need much, much more to be able to rest knowing recognition has been achieved. But for now, the vote of the House will serve as a reminder that the truth will always be ex- posed – even if it is revealed sluggishly. The universality of the Genocide issue cannot be denied. Genocide is not only an issue for Armenians, Rwandans, Yazidis or the people of Darfur. Recognition and condemnation should be in the interests of everybody who considers themselves a member of the human race. Today (29 October 2019) is a good day. Not just for Arme- nians, but for humankind. Alexia Ereboni Yazdani The family tree Recently on Expert Witless (October LSJ , p 23, “Do you take this tree to be your law- fully wedded husband?”) it was noted an arboreal wom- an going out on a limb. Trunk calls shouldn’t be difficult, that poor sap doesn’t know about family roots and the law. She could be ringbarked on sepa- ration and may need your un- biased take on family or elder law from one of your branch offices. The couple may have difficulty with a destination honeymoon later this year, Fiji has strict quarantine laws, and they will have to be sprayed on arrival as will the grooms- men’s leaves. I suggest wrap- ping the bridal party in Tapa cloth when going through customs. Best wishes for an Aboreus Surrealis. Drew Dixon
ISSUE 62 I DECEMBER 2019 I LSJ 11
Mailbag LETTERS TO THE EDITOR
“I started my law degree 40 years ago. Over half the class was female. It is disappointing that so many years have passed, and women still aren’t making it to partner level in significant numbers. The pipeline certainly isn’t the issue. Attitude, culture and bias, both conscious and unconscious, are the issues.” – Jann Gardner, LinkedIn
“Is it perhaps the case that female barristers simply aren’t wanting the more complex, high paying briefs, given the time needed to work on them? Nearly all female barristers I’ve worked with or known personally over the years, particularly those a bit older, are torn between taking on the heavy workload, and being present, in meaningful way, in their (young) children’s lives. It’s an unforgiving profession to be involved in as a woman, when a mother, because you can’t “do it all” and “have it all” or do either very well at the same time. Something has to give.” – Liliana LB, Facebook “Kate Eastman fails to recognise that there are also less female barristers than male. Bar doesn’t need to do much to equitable briefing policy to stay relevant at all.” – Faiyad Rahim, Facebook
“Seriously? This isn’t an issue. The proportion of male-female is changing at a rapid pace.” – Steve Monaro, Facebook
12 LSJ I ISSUE 62 I DECEMBER 2019
LETTERS TO THE EDITOR
COSTS GUIDANCE THAT COSTS YOU NOTHING
“Really looking forward to this one!” – Renee Bianchi, Twitter
“Oooh! I love new mag day!” – Pauline Wright, Twitter
“A fantastic piece by @amydale_tweets! I’m biased as I’ve worked in the estates space for some time, but it’s such a critical area that so many people overlook. Our fear of our mortality stops many from estate planning & having those difficult conversations with loved ones.” – Arabella, Twitter
“Good to see a reference to one of our matters!” – Geoff Stein, Twitter
Contact us for free, independent guidance on all costs issues.
(02) 9926 0116 firstname.lastname@example.org
ISSUE 62 I DECEMBER 2019 I LSJ 13
LAWASIA Hong Kong conference proceeds despite unrest
BY CLAIRE CHAFFEY
A mid concerns about esca- lating violence, LAWASIA held its 32nd Annual Con- ference in Hong Kong from 5 – 8 November. More than 600 local and internation- al delegates attended despite simmering tensions between the Hong Kong Gov- ernment and pro-democracy protesters. Themed “Harmonisation through Synergy”, the conference was held in conjunction with the Law Society of Hong Kong, whose President Melissa Pang has been named LAWASIA’s Pres- ident-Elect. Pang welcomed delegates at the opening ceremony. “Hong Kong is a very blessed place … It has always been said that the rule of law is one of Hong Kong’s great- est strengths. It is the cornerstone of Hong Kong’s society. [We share with LAWASIA] the core value of promoting the administration of justice, the pro- tection of human rights and the mainte- nance of the rule of law,” she said. “Despite the situation in Hong Kong at large, your steadfast support has brought us to this point, and we are very pleased to have over 600 participants from 30 jurisdictions with us.” With signature wit, outgoing LAWASIA President Christopher Leong, whose three-year tenure came to an end at the conference’s closing cer- emony, applauded Hong Kong for its strong reputation in business and shop- ping, as well as its “very vibrant street activities”. “I congratulate you all for being here,” he said on a more serious note. “We are here in a very difficult period for Hong Kong, which is going through turbulent times. LAWASIA is deter- mined to be in Hong Kong, to support
at the UN Seminar meant our regional association became romantically known as having been ‘conceived in the moun- tains of Afghanistan’.” Since then, said Tidball, the organi- sation has evolved to a point whereby it is growing in size and influence. “LAWASIA has grown into an influ- ential and effective multilateral associa- tion of lawyers, judges, jurists and legal associations from across the ESCAP re- gion,” he said. “The strength and dynamism of LAWASIA is a direct reflection of you, our members, who continue to advocate for the rule of law across an enormous geographical region.” The closing ceremony saw Malaysia’s Christopher Leong hand the mantle of LAWASIA President to South Korea’s Chunghwan Choi. Choi, a senior partner at Lee & Ko in Seoul, outlined his vision for the future of the organisation. Among his priorities will be mod- ernising LAWASIA’s communication infrastructure; providing more educa- tional opportunities; empowering more individual members to take on leader- ship roles in LAWASIA; expanding the membership base to become a more inclusive, collective voice; and collabo- rating more with international organisa- tions and foundations. “I hope we will be able to warmly embrace harmony and integration of the multiple views and geo-political envi- ronments of our organisation,” he said. “We will celebrate diversity in race, religion, language, culture, structure of the rule of law, and human rights pro- tection. I will aptly communicate with our members and diligently focus on consensus to achieve those goals.”
The LAWASIA Conference opening ceremony
and stand with all of Hong Kong during this challenging time for all Hong Kongers. The strength of LAWASIA is in its raison d’etre , resolve, and ability to venture where others may hesitate.” Law Society CEO and LAWASIA Secretary-General Michael Tidball ad- dressed delegates at the closing ceremony, saying the organisation had come a long way since its conception 55 years ago. “The concept of an Asia Pacific legal association was first raised in 1964 at a United Nations Human Rights Seminar in Kabul, Afghanistan,” he said. “Against the scenic backdrop of the Hindu Kush mountain range, delegates from around the world enthusiastically embraced the vision of a new kind of as- sociation within the ESCAP region. “This association would harness the disparate national bar and law organi- sations throughout the Asia Pacific to encourage and facilitate regional inter- action, establish a voice for the interests of the legal community, promote the rule of law, respect for human rights and high standards of legal practice, facilitate quality cross-border legal edu- cation, and support business law initia- tives to strengthen relationships. “The impetus that this idea received
14 LSJ I ISSUE 62 I DECEMBER 2019
Practice management courses: amandatory step to becoming principal A reminder from the Licensing Committee of the Law Society of NSW. As a co-regulator under the legal profession legislation , the Council of the Law Society is required to enhance the protection and confi- dence of consumers by ensuring solicitors are competent and maintain high professional standards in serving their clients. Principals of law practices need skills and expertise that go beyond doctrinal knowl- edge and legal competencies to build a suc- cessful and ethical practice. Efficient and cost-effective strategic business manage- ment and risk planning are essential skills in ensuring that appropriate standards in the delivery of legal services are met. A solicitor who successfully completes an approved Practice Management Course (PMC) is considered to have attained the necessary skills and expertise to be eligible to apply for a principal’s practising certif- icate (PC). Solicitors may choose to com- plete an approved PMC from one of the three independently accredited PMC pro- viders in NSW. The content of the course can be claimed towards the annual continu- ing professional development requirements. It is a breach of the l egal profession legis- lation for solicitors to engage in legal prac- tice other than in the manner authorised by their PC type and its conditions, irre- spective of when a promotion is made or announced. A solicitor is not authorised to practise or be held out as a principal of a law practice, without completing an approved PMC and having been granted a principal’s PC. Given the above, and to avoid any delay in commencing practice as a principal after the promotion is offered, solicitors should complete a PMC in advance of applying for a principal’s PC. For information on Law Society courses visit lawinform.com.au
Vale Richard Tracey Judge and Royal Commission into Aged Care Chair
There is no better test for a young lawyer faced with a difficult ethical question than to ask, ‘What would Richard Tracey do?’
A tribute to Tracey by the Attorney General’s Department, 2018
ISSUE 62 I DECEMBER 2019 I LSJ 15
sixminuteswith MICHAEL BRADLEY
MICHAEL BRADLEY is Managing Partner of Marque Lawyers, as well as a columnist and writer. He has just published his first book, Coniston , a true story of the massacre of Aboriginal people in central Australia in 1928. The story begins with the murder of a prospector at the isolated Coniston station and descends into “hunting parties” shooting down victims by the dozen. The precise death toll of the little-known tragedy remains unclear. He tells LSJ how he applied forensic legal skills to bring a troubling, untold story to light.
sadly not surprising. It was like it didn’t happen. It is important to me that we un- derstand what was considered acceptable in Australian society at the time, without censoring or sanitising it. The case was a significant mass killing but, as you describe, largely unremem- bered. How important to you is it that the book educates the public on this dark chapter in Australian history? It is an amazing story, an awful story, but it has an incredible narrative. It is really gripping, and it truly underlines our col- lective blindness to events [concerning the genocide of Aboriginal people]. Apart from the social and political context, this was one of the largest mass deaths in Australian history. If it had been white people or soldiers who had died in bat- tle overseas it would be a very different story. We have stories about every battle fought by Australian soldiers in overseas wars, but there is no proportionality of information when it comes to the story of Coniston and the lives lost. It’s just weird given it was such a significant event.
In addition to your busy legal schedule, you regularly write columns on issues of law, politics and social justice. How long have you been considering writ- ing a book? I had that cliched desire to write a book one day, but I was waiting for the right thing to come up that I was really pas- sionate about. I was doing research on a related topic for an article and there was a mention of Coniston in passing. It really triggered my interest. I was quite intrigued to know more. It was a year of research and about six months of writing full time. I enjoyed the writing process very much, so it was never hard to find the time. The thing that shocked me the most was that nobody had previously researched this or fully written the events up. It has just been left alone. There was no de- finitive study, teaching tool, research or even really a record of these mass kill- ings, which I thought was shocking – but What was your motivation to research the events at Coniston?
How did you manage the process of writing the book and managing your law practice? I loved every minute of writing this book and would love to write another one. I do a lot of writing and it never feels like work to me. This book has combined two of my passions: history and law. It was a pleasure diving into the archives to find out every- thing I could, and piece it all together. It is a similar process to the forensic exer- cise lawyers go through in our day jobs to work out exactly what happened in a case. It’s a huge challenge but one I really enjoy, and it feeds both sides of my brain. What has the feedback been like? I’ve had really positive feedback, al- though it’s sometimes hard to tell if peo- ple are just being nice. But the reception I am getting is that it’s pretty readable, which I was happy about. I was totally gripped by the story of what happened at Coniston. I wanted people to be gripped in the same way that I was, and that the story would tell itself without too much interference from me.
Photography: Laura Friezer
16 LSJ I ISSUE 62 I DECEMBER 2019
BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
A cautionary tale of the Ghost of Christmas Present
However, as lawyers we have some special considerations to be aware of. Our professional obligations may be noted by the Australian Solicitors’ Con- duct Rules: • Ensuring that: “... a solicitor not publish or take steps towards the publication of any material concerning current proceedings which may prejudice a fair trial or the admin- istration of justice ... ”; and • Observe the professional standards required to “... avoid any compromise to their integrity and professional inde- pendence ...”. At a festive gathering of lawyers, the temptation to post an image or
make a comment published in various forms of social media that may touch upon current legal matters may become overwhelming. Regrettably, the ‘Ghost of Christmas Present’ may appear in many forms to haunt the o ender immediately. When lawyers come together to cel- ebrate, exchange greetings or discuss any current matter, we must carefully note our obligations to ensure such com- ments “... are not published or takes steps toward the publication of any material” that may breach our ethical obligations. e ethics department wishes our readers best wishes for Christmas and the New Year.
Lawyers are a superstitious lot; we all believe that things can come back to haunt us. With eager anticipation of another year of di cult and stressful practice concluding, many now look forward to the pending yuletide festivities. Opportunity will soon present itself in multi-site celebrations to demon- strate our professional ethics and this will often accompany our great desire to share our social exuberance with the world using various images and com- ments on social media.
Shedding light on legal costs for over 30 years
Bespoke Costs Mediation
All legal costing services
ISSUE 62 I DECEMBER 2019 I LSJ 17
Taryn Cowan Joined as Solicitor Director Cowan Law
Jeremy Kennedy Joined as Special Counsel Roberts Legal
Jade Coshaw Joined as Associate Roberts Legal, Newcastle
TimRussell Joined as Solicitor Dorter Family Lawyers and Mediators
Shawn Skyring Joined as Principal Lawyer Coleman Greig Lawyers
Rishika Pai Joined as Associate Pigdon Norgate Family Lawyers
Mahi Kazaglis Promoted to Associate, Charities and Not-For- Profits Makinson d’Apice Lawyers
Maeve Cooper Joined as Solicitor Dorter Family Lawyers and Mediators
Julie Cheung Joined as Solicitor Dorter Family Lawyers and Mediators
Dianne Retief Promoted to Associate Carroll & O’Dea Lawyers
Marie Panuccio Promoted to Associate,
GregMcAllister Promoted to Associate Carroll & O’Dea Lawyers
Dispute Resolution Makinson d’Apice Lawyers
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
On 3 October 2019 and pursuant to s.327(2)(a) of the Legal Profession UniformLaw (NSW) , the Law Society Council appointed Penelope Jane Waters as Supervisor of the trust money for the law practice known as Clifton Legal (FN: 24298). On 10 October 2019 pursuant to s.327 (2)(b)(i) and (iii) of the Legal Profession Uniform Law (NSW) , the Law Society Council appointed Stephen Richard Savage, Solicitor, as manager of the law practice known as Criminal Law Pty Ltd for a period of two (2) years. On 10 October 2019 pursuant to s.327 (2)(b )(iii) of the Legal Profession Uniform Law (NSW) , the Law Society Council appointed Anthony Neary Walker, Solicitor, as manager of the law practice known as Ian R Stabback for a period of two (2) years .
On 17 October 2019 and pursuant to s.327(2)(a) of the Legal Profession Uniform Law (NSW) , the Law Society Council appointed Richard Gerard Flynn as Supervisor of the trust money for the law practice known as John C Mackey & Co (FN: 2089). On 10 October 2019 pursuant to s.327 (2)(b)(ii) and (iii) of the Legal Profession Uniform Law (NSW) , the Law Society Council appointed Anthony Neary Walker, Solicitor, as manager of the law practice known as Melvin Newman for a period of two (2) years . On 10 October 2019 pursuant to s.327 (2)(b) (iii) of the Legal Profession UniformLaw (NSW) , the Law Society Council appointed Stephen Richard Savage, Solicitor, as manager of the law practice known as Thoshlegal Solicitors for a period of two (2) years.
18 LSJ I ISSUE 62 I DECEMBER 2019
FIRST 100 YEARS Next 100 Years workshop sets right tone
Following last year’s centenary of women lawyers and the First 100 Years initiative, the Law Society hosted a Career Planning Day for 25 women lawyers on 14 November. Under the banner of “Next 100 Years – Especially for You” the day was designed to advance women in the legal profession into the future. e morning comprised a personal career strategy workshop with consultant and LSJ ’s Career Coach Anna Hinder, followed by talks on risk management from Nile adventurer Sarah Davis, personal branding by Ilana Orlievsky, the future of work from Hinder, and secrets to success with Fiona Craig. e session wrapped up with a speech from the Law Society President Elizabeth Espinosa and a networking reception sponsored by McCullough Robertson.
CONTACT US: Suite 203, 46 Market St SYDNEY NSW 2000
ph: (02) 8399 2050 fax: (02) 8399 2080 email: firstname.lastname@example.org web: www.medicolegalpsychiatry.com.au
M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports
ISSUE 62 I DECEMBER 2019 I LSJ 19
WOMEN IN PARTNERSHIP Report finds ‘glass ceiling’ between senior associate and partner level
More women are being promoted to top-tier law firm partnerships than ever before, but leadership of the Australian legal profession remains “overwhelm- ingly male dominated”, says a new report by the Women Lawyers Associ- ation NSW (WLANSW). The WLANSW Law Firm Com- parison 2019 report was published in November and shows the number of women promoted to partnership in Aus- tralian law firms with more than 100 employees has been trending upwards over the past three years. The report draws mainly on data from the Work- place Gender Equality Agency (WGEA) but also cites public sources including the Law Council of Australia, announce- ments in online media platforms, published surveys and firm websites. Since 2017, 13 firms that made part- ner promotions met the 40 per cent minimum female partner percentage target recommended by WLANSW. Three firms – Clayton Utz, Maddocks and Holding Redlich – were praised for exceeding 50 per cent female partner promotions since 2017. However, the report also notes that 10 firms promoted no women to part- nership in 2019, despite the senior associate pool overall being dominated by women in almost every case. “Almost every firm has a senior asso- ciate pool that is more than 50 per cent female. This suggests that the pipeline is not the issue, rather the glass ceiling remains strongly placed between senior associate and partner level in some firms, warranting examination of what the requirements are to make partner
female representation,” said WLANSW President Larissa Andelman. Andelman also said firms needed to implement “practical and measurable steps” to achieve gender balance. One way of doing this was by encouraging men to take parental leave in equal mea- sure to women. “Women are overwhelmingly the ones taking parental leave … despite many firms having generous paid leave for secondary carers,” said Andelman. “This has to be a focus for firms, not just to support women, but to break down the cultural and structural barri- ers that make it unacceptable for men to work flexibly or take parental leave.” A total of 61 entities classifying as “legal services” reported to the WGEA in 2017-2018 and were included in the WLANSW report. However, the data did not capture small and boutique firms with less than 100 employees. These smaller firms and sole practi- tioners make up more than 50 per cent of the profession, according to the Law Society of NSW 2018 National Profile of Solicitors. Susan Price, a lawyer and author of the report, said there may be more vari- ety in partnership composition among small firms. However, the gender com- position was still an issue across firms of all sizes. “We do know from Law Society of NSW statistics that women comprise 26 per cent of all principals, excluding sole practitioner firms, and 37 per cent of sole practitioners, which would suggest that partnership composition is still an issue across all firms.”
in those firms,” said a statement from WLANSW. The report also noted leadership of firms remains male dominated at the Chairperson, CEO and director level. Ten of 61 firms had no women on their governing bodies, and only a handful of firms had a female CEO. The results come one year after WLANSW called on the legal profes- sion to commit to targets for partner admission in a 40/40/20 model – with 40 per cent of new partner admissions in any year being male, 40 per cent being female, and 20 per cent remaining vari- able, depending on the candidate pool. “Targets are an effective way of keeping firms accountable, particularly when they are made public, and reflect the underlying pool of female partner candidates. We would like to see more firms commit to public targets for the workplace culture and structures, women will not be able to fully participate and thrive in the profession.” Larissa Andelman, President of WLANSW “Unless law firms implement practical and measurable steps to change
20 LSJ I ISSUE 62 I DECEMBER 2019
Made with FlippingBook Learn more on our blog