LSJ - July 2016

ISSUE 24 JULY 2016

UPSETTINGAVERY DELICATEBALANCE IS THE NSWGOVERNMENT LEGISLATING AWAY OUR FUNDAMENTAL RIGHTS AND FREEDOMS?

NEVERSAYNEVER LARISSA BEHRENDT ON BOWRAVILLE, COMMUNITY AND THE POWER OF STORIES

AHUNDREDYEARS SINCE PAINANDMISERY SOLICITORS IN THE BATTLE OF THE SOMME JUDGINGABOOKBY ITSWRINKLES IS AGEISM AT WORK HOLDING YOU BACK? AVERYDIFFICULT PILL TOSWALLOW WHY FESTIVALS NEED DRUG CHECKING THE ETHICSOF LAWFIRM INCORPORATION LESSONS FROM SLATER & GORDON’S WOES

World class software supported locally We help small law firms because they help people

Gino

Umair

Salime

Nick

Isabella

Jake

Zak

Farhana

Nathan

Ben

Charin

Hameeda

Leah

Peter

Dheeraj

Ian

Ali

Phi-Long

Rory

Diana T.

Freddy

Arvid

Joseph

Vanessa

Randa

Paul

Gavin

Tim

Diana A.

1300 886 243 | sales@leap.com.au | www.leap.com.au

CONTENTS

38

34 22

FEATURES

22 HOTTOPIC

34 NEVERSAYNEVER

54 LIFEOUTSIDETHELAW Leading cricket umpire and lawyer Gerard Abood of ACL Lawyers in North Rocks in Sydney explains how he combines cricket and the law 56 THEMYTHSAROUNDMILK Does skim milk make you fat? Are human bodies designed to digest milk? Can protein powders build muscle faster than milk? Joanna McMillan reports 67 MOVIEGIVEAWAY Win tickets to Goldstone , the new film starring Aaron Pedersen, Jacki Weaver and David Wenham

Governments have a duty to add pill testing to the mix of interventions for drug users, writes former NSW Director of Public Prosecutions Nicholas Cowdery 24 INFOCUS Is there such a thing as being too young or too old at work? Thea O’Connor dips into the cruel world of ageism 26 COVERSTORY Five expert commentators detail new laws they say are threatening our democracy and explain why solicitors should be worried

Professor Larissa Behrendt tells Julie McCrossin why advocates should never say never and argues that storytelling is the key to law reform 38 SOLICITORSATWAR In time for the 100-year anniversary of the Battle of the Somme, historian Tony Cunneen explains how the war had a lasting effect on the legal profession of NSW 50 ADAY INTHELIFE Meet Colleen Kerr, the first witness intermediary used in a child sexual assault case in NSW

ISSUE 24 I JULY 2016 I LSJ 3

60

56 54

REGULARS

LEGALUPDATES

8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS News and events from the legal world 16 THE LSJ QUIZ 19 CAREERMOVES Who moved where this month

58 WELLBEING

70 ADVOCACY: THE LATEST IN LAW REFORM

Mediator Paula Bruce offers strategies to manage the relationships in your team

72 RISK: IMPLICATIONS OF ADVOCATE’S IMMUNITY

74 PERSONALPROPERTY: GUIDANCE ON PPSA LEASES

59 FITNESS

76 ETHICS: LESSONS FROM SLATER & GORDON

Prepare for the running season with our training program

80 COSTS: RECOVERY BY SOLICITOR LITIGANTS

60 TRAVEL

82 PRACTICE: SERVICE OF OVERSEAS DEFENDANTS

The best of Bali and a luxury escape in Ubud

20 OUTANDABOUT 44 CAREERCOACH

84 IMMIGRATION: THE NAURU ABORTION CASE

66 LIFESTYLE

86 CONTRACTS: WHEN IS A CONTRACT BINDING?

Fiona Craig reveals the 10 career mistakes you didn’t know you were making

Book reviews, events and our movie giveaway

88 RISK: PERSONAL COSTS ORDERS

68 NON-BILLABLES

46 CAREER101

90 TRIBUTE: LEARNING FROM THE MABO LAWYERS

Yarns we can’t bill for 87 LIBRARYADDITIONS 106 EXPERTWITLESS Legal news to make you giggle

Anne Collins, KPMG 48 DOINGBUSINESS

92 COSTS: THE COST OF NOT COMMUNICATING

Fashion, etiquette, and tips on how to resolve conflict at work

94 CASENOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS

4 LSJ I ISSUE 24 I JULY 2016

LEXUS CORPORATE PROGRAMME

Lexus represents an incomparable driving experience, and the Lexus Corporate Programme builds upon this by providing a service uniquely tailored to our corporate customers across the entire Lexus range, including luxury hatch, sedans, coupes and SUVs. In addition to the great benefits of the Programme, you can enjoy Preferential Corporate Pricing, an offering that rewards your important achievements. LEXUS CORPORATE PROGRAMME BENEFITS: • Preferential Corporate Pricing 1 • 3 year/60,000kms complimentary servicing 2 • Reduced delivery fee of $995 (ex GST) • Priority ordering and allocation • Encore Privileges Programme, including: – Service loan cars or complimentary pick-up/drop-off during servicing – Lexus DriveCare, providing 24 hour roadside assistance – ‘Beyond by Lexus’ magazine lexus.com.au/services/corporate

To access the Lexus Corporate Programme please contact your nearest Dealer (lexus.com.au/contact/dealers) or dedicated Lexus Corporate Sales Manager: Nataliya Yavtushenko e. nataliya.yavtushenko@lexus.com.au m. 0477 006 738

1. Conditions apply. See your Lexus dealer for further details. 2. Complimentary scheduled servicing expires at 3 years or 60,000kms from the date of first registration, whichever occurs first. Conditions apply. See your Lexus dealer for further details.

A WORD FROM THEEDITOR

ere are plenty of good reads in this month’s LSJ , but it’s hard to go past Tony Cunneen’s piece on page 38, “Solicitors in action”; an eerily sad narrative of solicitors involved in WWI’s Battle of the Somme 100 years ago. Particularly haunting is the opening photograph, which depicts men from a batallion of lawyers waiting in the trenches in the hours before the Battle of Fromelles. We know that all save three were killed. ere is something incredibly unsettling about gazing into the faces of those whose time is almost up.

ISSN 2203-8906

Managing Editor Claire Cha ey Associate Editor

Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer

We experienced this recently following the horri c events at the Pulse nightclub in Orlando. e hours and days that followed the massacre saw social media feeds lled with images of those who were only moments from death. Perhaps the only di erence is that the men at the Somme may have had some idea of their fate. Both events are a sombre reminder to make the most of every minute. On a brighter note, nine Law Society sta members are swapping their suits for active wear next month as they challenge themselves and run in the City2Surf (they don’t call it Heartbreak Hill for nothing) to support Ovarian Cancer Australia. Show your support and help them reach their fundraising target of $5000 by donating at lawsociety.com.au/donate.

Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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

Nicholas Cowdery is a former NSW Director of Public Prosecutions and Adjunct Professor of Law at the University of NSW. He argues that drug-checking at music festivals and other events could help saves lives in the war on drugs. Hot topic p22

Julie McCrossin is a writer and trainer who studied law. In this issue, she speaks with Professor Larissa Behrendt about her work on the Bowraville murders and her approach to research within Aboriginal communities. Profile p34

Dominic Rolfe is a Sydney-based journalist. In this issue he meets leading cricket umpire and lawyer Gerard Abood to talk cricket, helmets and the intensity of umpiring decisions as well as how he combines cricket and the law. Extracurricular p54

Simone Herbert-Lowe is a senior claims solicitor at Lawcover. She writes about the implications for litigation solicitors following the High Court’s decision on advocate’s immunity in Attwells & Anor v Jackson Lalic Lawyers Pty Limited . Risk p72

Cover illustration: Andy Raubinger

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 the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.

NEXT ISSUE: 1 AUGUST 2016

6 LSJ I ISSUE 24 I JULY 2016

President’smessage

I n February 2012, tough consorting laws were introduced in NSW to combat organised crime in the wake of a number of drive-by shootings in Sydney. The Crimes Amendment (Consorting and Organised Crime) Act 2012 made it an offence, punishable by three years imprisonment, to “habitually consort” with people who have been convicted of an indictable offence.

At the time, the Law Society warned of the wide discretion afforded police in issuing consorting warnings. Recent analysis of the impact of the laws just released by the NSW Ombudsman has found that, although the NSW Police Force has used the laws to disrupt serious and organised crime and criminal gangs as intended, in many cases the laws have been disproportionately applied in

relation to disadvantaged and vulnerable people, including Aboriginal people. These provisions must not be used as a public order and general street policing tool, and on this basis it appears that a further review is warranted. On 20 June the 2016/17, State Budget provided us with a bleak insight into the future of our State’s criminal justice system. On the one hand, $39 million over two years was allocated to clearing the backlog of matters in the District Court, and at the other end of the spectrum there was a massive $3.8 billion allocated over four years to increase the State’s prison capacity by 7,000 beds. While there will, of course, be cases where the courts decide that imprisonment is the appropriate sentence, there must be viable alternatives to custodial sentences. Community- based sentences can provide the proper element of punishment while increasing the chance of rehabilitation. Importantly, these options also need to be available in regional areas. We will continue to press government for sufficient and recurrent funding for the courts, the office of the Director of Public Prosecutions and Legal Aid. The Law Society continues to advocate on behalf of the profession and the community in response to the proposed privatisation of the Land and Property Information (LPI) functions. As the public campaign intensifies, the Law Society has voiced its concern at the proposed privatisation of operational functions such as land titling services, functions that hold immutable importance to the NSW economy. I will continue to draw attention to this issue. Finally, the Law Society’s Future of Law & Innovation in the Profession (FLIP) commission of inquiry is well underway. In May, the public hearings focused on clients’ needs and expectations as drivers of change. Witnesses told of how clients’ budgets and the cost of legal services are significantly affecting service delivery. The inquiry heard evidence from Nassim Arrage, Chair of Community Legal Centres NSW, about the far-reaching, unmet need within the community. On 21 and 30 June, the inquiry focused on technology as a driver of change. In these sessions the commission heard from principals of large and small law firms, General Counsel, the Federal Court and others. Footage of the hearings is progressively being made available online and is well worth a look.

GARY ULMAN

8 LSJ I ISSUE 24 I JULY 2016

Legal Costs Resolutions A bespoke mediation service offering an effective and confidential solution for your costs disputes

Sydney: (02) 9977 9200 | Brisbane: (07) 3834 3359 | Canberra: (02) 6248 8077 www.dgt.com.au costing@dgt.com.au

What’s your next career move? UNSW Business School Taxation and Business Law Master of Taxation

Join other ambitious professionals and take your career to the next level. Learn from leading tax academics with real-world expertise and build the confidence you need to advise on today’s complex business issues. Apply now for a Master of Taxation. • Study online or on campus in Sydney

• UNSW Taxation and Business Law is one of the world’s top tax schools with an outstanding reputation. To find out more and apply ... business.unsw.edu.au/makeyourmove

Never Stand Still

Business School

ISSUE 24 I JULY 2016 I LSJ 9

Mailbag

LETTERS TO THE EDITOR

Offshore processing This article (June LSJ ) by Madeline Gleeson certainly had a point, however while calling for a talk about alternatives there was no suggestion of what these alternatives might be. Writing in The Australian some time ago, Greg Sheridan correctly pointed out: “When large numbers just show up (which is what these boat people have done) a Government/nation has two options. One is to assert its sovereignty, slam the gates and boot virtually all of them out. The other is to abdicate its sovereignty and let virtually all of them stay. There is no in between.” One can only presume that Madeline advocates the second of these options. Jeremy Lucas Subpoena, subpoenae Tony Cavanagh’s article about claims for legal professional privilege in “subpoenae” ( LSJ May) was very informative, so I raise this distraction reluctantly. If only because “subpoena” and its plural form have to be written and spoken every day in every litigator’s office and every courtroom across the land, could LSJ editorial staff do their bit towards eliminating the bogus Latin “subpoenae”? This really isn’t a tricky or borderline linguistic problem. Over the years numerous commentators, far

more erudite than the present grumbler, have explained why “subpoenae” can’t be a word in English, Latin or any other language. For a concise summary, see the final paragraph of Justice Bryson’s speech of 25 February 2004, titled, “Subpoenas, Discovery and Interrogatories”, available on the Supreme Court website. David Brown Lessons fromhistory While not doubting the will of Frank Brennan or Francis Sullivan to reform the Church, the much publicised testimony of Cardinal Pell suggests those in authority have different views ( LSJ , June). In any event, the evidence heard by the McClelland Royal Commission has extended to many churches, charities and non-government organisations (NGO) beyond the Holy See. Despite the Commission’s revelations, policy makers are still prepared to put vulnerable children and adults in the care of church and charitable organisations. The National Disability Insurance Scheme (NDIS) is a case in point. In NSW, the Baird Government has decided to outsource all the care and support services which were formally provided by the Department of Ageing, Disability and Homecare, to NGO contractors. All service recipients, including me, have to sign up to the NDIS to retain our supports.

Meanwhile, the Government has yet to act on a 2013 recommendation of the Public Accounts Committee, that the NSW Auditor General be given power to examine the accounts of NGOs in receipt of public money in this State (Efficiency and Effectiveness of the Audit Office of NSW, Tabled 18 September, 2013) It is true to say that one no longer looks on the charitable sector with the warmth or confidence that I once did. However, it is also true to say that as someone with a disability, I never asked for an NDIS that shuffled me (and thousands of others) out of the public space and, possibly out of the public mind as well. As is said: Those who fail to learn the lessons of history … Adam Johnston Davidson

ISSUE23 JUNE2016

ISSUE23 JUNE2016

TRUTH,JUSTICE ANDHEALING FATHERFRANKBRENNANONTHEROYAL COMMISSION INTOCHILDSEXUALABUSE

MANVERSUSMACHINE SIMPLESTEPSLAWYERSCANTAKETO FUTURE-PROOFLEGALPRACTICE

ABANDONINGTHOSEWESHOULDPROTECT THEFAILUREOFOFFSHOREDETENTION LIVE,UNCUTANDLARGELYINAPPROPRIATE THEBESTOFTHISYEAR’SGOLDENGAVEL ANEWFRONTIERINFAMILYVIOLENCE UNIQUECHALLENGESFOR IMMIGRANTS HOWFARDOESADVOCATE’SIMMUNITYGO? THEHIGHCOURTDELIVERSJUDGMENT

LSJ06_Cover_spine_June.indd 1

26/05/2016 2:04pm

WRITETOUS: We would love to hear your views. The author of our favourite letter, email or tweet each month will WINLUNCHFORFOUR at the Law Society dining room. E: letters@lawsociety.com.au Please note: we may not be able to publish all letters received. CONGRATULATIONS! DavidBrown has won lunch for four. Please email journal@lawsociety.com.au for instructions on how to claim your prize.

Tweets

@LawSocietyNSW

10 LSJ I ISSUE 24 I JULY 2016

A warning on building inspections There is an increasing trend of real estate agents encouraging property vendors to obtain pest and building inspection reports and to make these reports available to prospective purchasers at a reduced rate. On first blush, this could be seen as a benefit to a purchaser and could help to reduce their costs associated with a property purchase but the reality is proving to be very different in many cases. The reality is that neither the vendor nor the real estate agent has any motivation to seek out a thorough inspector. In fact, we are aware of inspection providers who are no longer requested to provide these vendor reports simply because they were too thorough and reported too many faults. Our own inspectors have been requested by some vendors to modify their reports to be less comprehensive or to play down the seriousness of a fault and we are aware of pressure being applied to other inspection providers to make their reports more favourable. This may assist the vendor but it is not in the purchaser’s best interest. Of course this does not apply in all cases but we are aware that some real estate agents maintain a list of property inspectors who they know are “less critical” and more “vendor friendly”. The concept of vendor provided reports is driven by the real estate agent who is, after all, the vendor’s agent, with the prime aim of selling the property; not safeguarding the purchaser. Very simply there is too much room for a conflict of interest where an inspector is selected by the vendor’s agent. Currently in NSW there is no requirement for qualifications or insurance to be held by pest or building inspectors. This means that inspection providers selected by the agent or vendor may not be qualified or insured. This warning is provided in response to the growing trend of vendor supplied reports and is aimed at better informing purchasers and their legal representatives of the potential risks - a cheap report may turn out to be anything but! Malcolm Trotter, Managing Director Pink Inspection Services

Place your trust in the recognised industry leader in legal costing. Pattison Hardman have proudly provided an outstanding, integrated legal costing service since 1988. ✓ Expert Support ... We offer a seemless process to support busy lawyers.

✓ Quick Turnaround ... We help our clients recover their money faster ✓ Positive Outcome ... We ensure you achieve the best possible result

Level 4, 10 Park Road Hurstville NSW 2220 Free Advice: 1800 810 807 www.pattisonhardman.com.au

ISSUE 24 I JULY 2016 I LSJ 11

Briefs NEWS

NewLawCouncil chief The LawCouncil of Australia has announced Jonathan Smithers as its newChief ExecutiveOfficer.

Newstudydispels mythof juryprejudice A study launched by the Royal Commission into Institutional Responses to Child Sexual Abuse found that separating trials to hear each criminal charge independently in a child sex abuse trial will not affect the jury’s reasoning. Jury Reasoning in Joint and Separate Trials of Institutional Child Sexual Abuse: An Empirical Study was published in June and involved more than 1,000 mock jurors in 90 simulated deliberations. The study found that what is known as “impermissible reasoning”, caused by unfair prejudice, was rare among jurors. Royal Commission Chair Justice Peter McClellan AM said the findings were important because of how difficult it could be to prove separate trials of child sex abuse beyond reasonable doubt. “Where the only evidence of the abuse is the complainant’s evidence, it can be difficult for the jury to be satisfied beyond reasonable doubt that the alleged offence occurred,” Justice McClellan said. “The jury is effectively considering the account of one person against the account of another.” Child sex abuse trials often involve situations where a single offender has offended a number of times against multiple victims, so judges will sever the counts of abuse in order that each victim’s claim be heard in separate trials to reduce the chance of prejudice against the defendant. While the study showed that the accused was more likely to be found guilty in joint trials than basic separate trials, there was no difference in outcome when tendency evidence was heard instead of oral evidence from multiple complainants.The jurors’ reasoning in both types of trial was similar and it was trial complexity – not trial type – that affected the ability of jurors to recall facts accurately. “The results are interesting,” Justice McClellan said. “For some they will be counter-intuitive and possibly surprising. They will undoubtedly assist all of us to reflect on whether the current rules are appropriate.”

We know he enjoys taking on a challenge and there are always a number to tackle on behalf of the Australian legal profession. “We believe Jonathan’s current experience as President of the Law Society of England and Wales will bring both a new perspective and international experience to the Law Council of Australia. “From our discussions with Jonathan we know he understands the critical importance of providing support for our constituent bodies and enhancing the reputation of the profession. “We believe his insight and ability will be a real asset across our full gamut of work, whether that’s campaigning for adequate legal aid funding, developing opportunities for lawyers in foreign markets, or reducing the regulatory burden on legal professionals.”

Law Council of Australia President Stuart Clark AM said Smithers had served on the executive of the Law Society of England and Wales since 2013 and led CooperBurnett during a challenging period in the 1990s UK recession. “I know I speak for the entire Law Council executive when I say we are extremely excited to have secured the services of an outstanding candidate in Jonathan Smithers,” Mr Clark said. “Jonathan has established a reputation throughout his career as being both courageous and strategically sound.

QUEEN’SBIRTHDAY HONOURS Thirteen members of the NSW legal profession were named in the 2016 Queen’s Birthday list in June. The Honourable Justice Arthur Emmett of the NSW Court of Appeal was named an Officer of the Order of Australia – the second highest honour after a Companion of the Order of Australia. Twelve current and former legal practitioners were named as members or received medals in the General Division

of the Order of Australia, including Ronald Dyer, Francis Bates, Robert McCormack, Kevin Hobgood-Brown, Anne Robinson, Michael Chapman, Brian Doyle, Ronald Dyer, Douglas Humphreys, John Keating, David Scarlett and Paul Miller. Maithri Panagoda, Partner at Carroll & O’Dea and LSJ contributor (pictured), was among those awarded an Order of Australia in the General Division. “On behalf of Carroll & O’Dea Lawyers, I would like to extend to Maithri our congratulations and our pride in his achievements which are recognised with an Order of Australia,” said the managing partner of Carroll & O’Dea Lawyers, Howard Harrison. “This award reflects the decades of tireless work by Maithri on behalf of the Sri Lankan community and also his extraordinary contribution to social justice through his work with the Stolen Generations. “His contribution to the law is well recognised by his peers and Maithri continues to build on that reputation with a recent landmark Workers’ Compensation win which set a new precedent in NSW.”

12 LSJ I ISSUE 24 I JULY 2016

NEWS

DIVERSITYAND INCLUSIONCOMMITTEE The Law Society has established a Diversity and Inclusion Committee, comprisingmembers of the Law Society who represent a wide cross-section of the profession, including women lawyers, LGBT lawyers, lawyers of Asian heritage, lawyers with disabilities and an Indigenous lawyer. The committee chair is Juliana Warner,

If your clients buy, sell or transfer property, you must ensure Verification of Identity (VOI) steps are taken or risk potential liability. VOI checks are now in effect in NSW in addition to SA, WA and VIC and practitioners are required to be fully compliant from 1 August 2016. Australia Post provides a leading verification service that’s quick, easy and convenient for you and your clients with more than 1,450 participating Post Offices nationwide. Are you ready for Land Title VOI Legislation? Managing Partner at Herbert Smith Freehills, and the Deputy Chair is Annmarie Lumsden, Director of Strategic Policy and Planning at Legal Aid NSW. The committee aims to promote diversity, equality and inclusion in the legal profession, in particular by progressing initiatives to ensure equal opportunity for all members of the profession, regardless of sex, race, disability or sexuality. While the committee has a broad remit to deal with diversity and inclusion issues within the profession, its initial primary focus will be on the advancement of women in the legal profession. The committee met for the first time in June 2016.

The Law Society of NSW’s new Diversity and Inclusion Committee.

We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”

To find out more please visit auspost.com.au/landtitles

Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney

ISSUE 24 I JULY 2016 I LSJ 13

Briefs NEWS

EXPERTEVIDENCE: HOWTOAVOIDCOURTROOMDRAMA

A Unisearch forum heard a lawyer, a judge, an architect and a psychologist offer their insights into how to get helpful and admissible evidence out of expert witnesses. CASSIE BELL reports.

Professor Gary Edmond, director of postgraduate research at UNSW Faculty of Law, agreed that experts often “get frustrated because time-poor lawyers don’t get to spend time talking to them”. He explained that lengthy, theoretical expert reports were equally frustrating to decision-makers, because they didn’t answer the ultimate question of the court: “What value does this add to the decision?” Taking time to meet with the witness to discuss the case’s key issues can be extremely useful in clarifying both parties’ expectations. It may also expedite the court process, ensuring your client gets a quick, favourable outcome. Don’t be too picky During the forum’s question time, an engineer in the audience recalled an instance where his draft report referred to a type of screw known as a “she-bolt”. The instructing solicitor crossed it out and returned the report with a note: “Use a different term. This is gender-biased”. The panellists laughed, but the lesson was clear – to get the most out of your expert witness, the relationship must be balanced. Brief your witness on the importance of clarity when giving evidence before a lay audience, but respect their wealth of knowledge and the authority of their opinion. “Inmy experience, themost satisfying cases to work on, from an expert point of view, are the best prepared cases – the ones where there is involvement.“ JOHN COOKE, ARCHITECT, ARBITRATOR AND VETERAN EXPERT WITNESS

District Court Judge John Pickering SC, psychologist Kristie Martire, arbitrator John Cooke and Professor Gary Edmond at the Unisearch event.

Giving expert witnesses a copy of the code of conduct, making sure they have all the relevant facts and finding time for a pre-trial meeting were among the tips shared at a recent University of New South Wales forum on how to get the most out of expert witnesses. A good advocate knows that an expert witness’s evidence can make or break a case. Often, however, a communication breakdown or failure to honour the witness’s expertise can damage a case. Their evidence is lost in translation and lawyers are faced with a courtroom of confused jurors, or worse, a judge who resents having had the court’s time wasted. How a lawyer selects and briefs an expert witness can be as important as the evidence itself. So how do you ensure that expert evidence is clear, helpful and (most importantly) admissible? The code of conduct is key Former Deputy Director of the NSW DPP and recently appointed District Court Judge John Pickering SC learned the importance of following expert rules the hard way. He ran the prosecution case in the landmark Honeysett decision – a case taken to the High Court on the basis that the Crown’s expert evidence was inadmissible. The High Court unanimously agreed that the conviction be quashed.

“We ran the trial again. We didn’t call any experts; the defence didn’t call any experts … and he was found guilty in half an hour by the jury, as he would’ve been in the first trial, had we not gone down that path,” joked Judge Pickering. “It was an amazing lesson for lawyers about a range of things, but it was also an example of the incredible lengths that leading expert evidence can go.” Judge Pickering advised that the crucial first step is to provide expert witnesses with a copy of the code of conduct. Next, ensure they have all the relevant facts of the incident – not just those recounted by your client. And in criminal trials, tread carefully when preparing them for cross-examination as this can go against the requirement of expert neutrality. Pre-trial communication is vital John Cooke, an architect, arbitrator and veteran expert witness, said that pre-trial conferences were particularly useful because the expert’s report could be “tailored to a particular approach by the lawyer”. “In my experience, the most satisfying cases to work on, from an expert point of view, are the best prepared cases – the ones where there is involvement,” he said.

14 LSJ I ISSUE 24 I JULY 2016

NEWS

NEWNSWYOUNG LAWYERSPROGRAM The NSWYoung Lawyers International LawCommittee, in conjunction with the Australian Centre for International Commercial Arbitration (ACICA) and Australian Disputes Centre (ADC), launched a new series on 23 June called the International Negotiation and Dispute Resolution Series. This launch event was held at Baker & McKenzie, with guest speaker Justin Gleeson SC, Solicitor-General, Commonwealth of Australia. The series is an opportunity for young and aspiring lawyers to broaden their understanding of international negotiation and dispute resolution. Participants will gain a wide exposure to the world of international dispute resolution and an understanding of the skills they will need and pathways to take to build a career in this area.

SAVETHEDATE

Cambridgehonour for Australian legal scholar

The Tristan Jepson Memorial Foundation has announced that Australian of the Year Lt General David Morrison AO will deliver the foundation’s annual address in Sydney on 13 October. Morrison will speak at the Federal Court in Queen’s Square on the topic “Leadership and cultural change in the legal profession”.

Australian Professor Jane Stapleton will become the first female master of Christ’s College Cambridge this September, having been elected the 38th master of the college in March. Stapleton is a distinguished legal professor who holds senior positions at the Australian National University and the University of Texas, and is a Corresponding Fellow of the British Academy and an Honorary Fellow of St John’s College in Cambridge.

nline

LLM (APPLIED LAW) Majoring in EstatePlanning

Next semester commences 8 AUGUST 2016

CALL US 1300 506 402

VISIT US collaw.edu.au/alp

EMAIL US alp@collaw.edu.au

ISSUE 24 I JULY 2016 I LSJ 15

Briefs NEWS

2015ANNUALPROFILE SOLICITORS INNSW

Cross-examination Test your legal knowledge ...

The Law Society of NSW has released a picture of solicitors practising in NSW using information from the Society database and the results of the annual Practising Certificate survey. For the full report, visit lawsociety.com.au/resources/surveysandstatistics

1. How many different jurisdictions are there in Australia? What court or tribunal does the abbreviation AAT usually refer to? What was significant about the 1907 “Harvester judgment” from the case ex parte H.V. McKay? How long does the term of a standard patent in Australia last? How long does an innovation patent last? In which Australian State or territory is commercial surrogacy legal? According to the Australian National Employment Standards, what is the maximum amount of hours an employee can work in a week? Name the first country in the world to legalise same-sex marriage? Under the Australian Constitution, Parliament has power to disqualify people from voting at elections based on their race. True or false? 10. According to the 2015 2. 3. 4. 5. 6. 7. 8. 9.

SIZE OF PROFESSION 28,935 the number of solicitors holding a NSW Practising Certificate 7,373

COUNTRY OF BIRTH 73% of solicitors practising in NSW are born in Australia

AGE 42yrs the average age of practising solicitors in NSW

17%

<30yrs 30-49yrs 50-69yrs 70+yrs

41% of solicitors practising in NSW are from Asia

53%

27%

the number of legal employers in NSW

2%

LOCATION

INCOME $129,886 the average annual income for solicitors practising in NSW

HOURS OFWORK 48hrs average weekly hours worked by full-time solicitors

CITY SUBURBS RURAL

49% of solicitors

33% of solicitors

12% of solicitors

25hrs average weekly hours worked by part-time solicitors

$164,526

$125,208

$120,479

23% of firms

53% of firms

22% of firms

Private Practice Government

Corporate

JUSTICECONNECTCHIEFAWARDED Justice Connect Chief Executive Officer Fiona McLeay has been awarded the prestigious Dyson Bequest Scholarship to attend the Stanford Executive Program at Stanford University this month. The Dyson Bequest Scholarship is offered by the Stanford Australia Foundation and provides up to $65,000 towards course fees and economy travel for a not-for-profit executive to attend the program. “I am very excited about this opportunity and hope it will help build my skills to be a better CEO at Justice Connect,” Ms McLeay said. “Australia’s not-for-profit sector is rapidly professionalising and the experience available at Stanford will no doubt impart valuable lessons for me to bring home and help both my organisation, and the pro bono legal sector, continue to thrive in coming years.” Established in 1952, the Stanford Executive Program is the flagship program offered by the Stanford Graduate School of Business. Taught by more than 30 Stanford faculty members, this six-week program features a general management curriculum that is customised to the needs of senior executives working in global companies, government agencies, and not-for-profit organisations.

Profile of the Solicitors of NSW by Urbis, what is the average age of a lawyer in NSW?

Answers on page 67.

16 LSJ I ISSUE 24 I JULY 2016

NEWS

six minutes with

VANESSA VAZQUEZ SOLICITOR, WHITELEY IRONSIDE & SHILLINGTON IN ORANGE

Vanessa Vazquez worked for more than a decade in general litigation and commercial law at Sparke Helmore and then in-house at Aon Risk Services in Sydney before packing up and moving to join Whiteley Ironside & Shillington in Orange in the NSW central west in 2014. Vazquez, 32, focuses on all aspects of employment and insurance law, including personal injury, and migration issues such as applications and appeals to various migration tribunals and courts. Vanessa and her husband, Michael Evans, have two children under three.

How did you end up in Orange? We used to live in Wentworth Falls and had a

Biggest myths about working in the country? People think living in the country means tumbleweeds, empty streets and unsophisticated people. We haven’t found that. Orange is a vibrant regional centre with loads of young professionals and terrific restaurants, bars and cafes. While it’s true that there isn’t much traffic, the pavement is full of friendly (and some familiar) faces. Any difference in clients’ expectations? Clients sometimes expect more things for free here. For example, almost always the first consult is free. You are also more likely to cross paths in the street with someone you are doing work for. Upside of living in Orange? It’s a lifestyle choice. We are in charge of our destiny, both personally and professionally. The work/life balance is a bonus but it’s not everything. I’m proud of the work I do and love having the time to embrace all aspects of community life by being involved in sport and volunteer work. Living in Orange gives us more freedom and choices to enjoy all the sweet things in life. We are building a house we designed on four hectares, 20 minutes from town. That’s something we couldn’t have dreamed of doing in Sydney.

commute of two hours and 20 minutes. When we had our son, Huw, we realised we couldn’t work as we wanted and be the parents we wanted if we stayed in the city. We were both litigation lawyers and were looking for jobs overseas. Then my husband, Michael, found this firm in Orange. He now works full-time and I work part-time. Since moving here, we have added to the family with a daughter, Alice. How has your legal practice changed since your move to the country? The very big change is the hours. We live down the road from the office and both go home for lunch and eat three meals a day together. There is a more direct correlation between the work you put in and the reward you get. We serve the people in the community in which we live. It gives a human side of the law that often gets lost in large corporations and firms. My husband and I work in a firm where our opinions are valued and we have a say in its direction. We care about our colleagues like family and we work together to serve our clients best.

ISSUE 24 I JULY 2016 I LSJ 17

Briefs NEWS

mind your ethics

TIPS AND TRICKS FOR PLAYING BY THE RULES ...

For the full round-up of Law Society advocacy, see page 70.

STATEMENTSTOTHECOURT BYASOLICITOR When a solicitor is appearing in court, constant vigilance is required to ensure the accuracy of the information being presented to the court. However, as in all matters, even the best preparation may result in an inaccurate statement being presented. What are the ethical obligations of a practitioner when this occurs? The solicitor is an officer of the court and their obligations to correct the situation are precise. Rule 19: Frankness in court 19.1 A solicitor must not deceive or knowingly or recklessly mislead the court. 19.2 A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading. 19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person. It should be noted that “as soon as possible” places an element of self- assessment upon the solicitor, where on discovering such an error, the solicitor must take positive steps to correct it. An often heard phrase in many courts from the Bar table will be: “I apologise to the court ... I withdraw that last statement ... and I must correct an error made ...”. Compliance by the solicitor to the advocacy rules and the necessity to ensure the court is not misled is a paramount duty. With more solicitors attending court for representational matters, it should be carefully noted that there is the obligation of upholding the required standards of independence, objectivity and accuracy essential to an efficient and just legal system. BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR PROFESSIONALNOTICE On 16 June 2016 and pursuant to s.327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), the Council of the Law Society appointed Richard Stephen Savage, solicitor, as manager of the law practice formerly known as DC Legal Pty Limited for a period of two years.

Inquiry into elder abuse The Elder Law and Succession and Criminal Law Committees provided a supplementary submission to the NSW Parliamentary Inquiry into Elder Abuse. The submission was made in response to questions from the Inquiry, after committee representatives appeared before the inquiry on 18 March . The committees considered the Australian Bankers Association’s guidelines for bank employees on identifying financial abuse of older people a useful resource; and said a uniform best practice approach for the banking industry would be beneficial. NSWHealthConsultation on advance care directives The Elder Law and Succession and Medico-Legal Liaison Committees provided a submission to NSW Ministry of Health on a draft Advance Health Care Directive template. The committees noted that they did not object to the long form template being available to individuals for completion with the assistance of a medical practitioner. Draft Strata Schemes Management Regulation 2016 The Property Law Committee made a submission to NSW Fair Trading in relation to the Draft Strata Schemes Management Regulation 2016, with additional comment from the Alternative Dispute Resolution Committee. The regulation is expected to begin in November, the expected commencement date of the Strata Schemes Management Act 2015 .

18 LSJ I ISSUE 24 I JULY 2016

CAREER MOVES

MEMBERS ON THE

MIKEADAMS Joined as a Director Barnett Law

TOMMCDONALD Appointed as Counsel Vannin Capital, Sydney

ZOEWHETHAM Appointed to Associate Streeton Lawyers

DR. SIMONEMITCHELL Appointed to Partner, Intellectual Property K&L Gates, Sydney

DAVIDSTAMMERS Joined as Partner, Corporate National Practice Group Clayton Utz, Sydney

DAVIDAITKEN Promoted to Chief Counsel, Global Operations Akamai Technologies Inc.

RICHARDLYNE Joined as Special Counsel, Commercial Disputes and Insolvency Polczynski Lawyers

CLAIRELATHAM Joined as Senior Associate, Commercial Disputes and Insolvency Polczynski Lawyers

LAURAWILLIS Joined as Lawyer, Commercial Disputes and Insolvency Polczynski Lawyers

NATASHADAVIDSON Appointed as General Counsel WiseTech Global Limited

PETERMILEVSKI Joined as Director Milevski Family Lawyers

KARENBEASHEL Joined as Associate Milevski Family Lawyers

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

JUNE 2014 I LSJ 1 ISSUE 24 I JULY 2016 I LSJ 19

Briefs OUT AND ABOUT

YOUNG LAWYERSMID YEAR ASSEMBLY One hundred delegates attended the annual NSW Young Lawyers (NSWYL) mid-year assembly at The Sebel Kirkton Park Hunter Valley on Saturday 28 and Sunday 29 May. The NSWYL patron for 2016, Professor Gillian Triggs, was also in attendance.

20 LSJ I ISSUE 24 I JULY 2016

OUT AND ABOUT

DIVERSITYCOMMITTEE The Law Society’s new Diversity and Inclusion Committee met for the first time in June. PHOTOGRAPHY: JASON McCORMACK

“Numbers Talk”

We speak their language. RGL interprets complicated figures to reveal clear financial value—translating numbers into sound analysis. Forensic and Investigative Accounting Quantification of Economic Damages

Litigation Support Business Valuation

RGL Sydney Level 16, Bligh Chambers 25 Bligh Street

Sydney, NSW2000 T +61 2 8488 6000 sydney@rgl.com rgl.com

24 offices | 5 continents | 1 firm

ISSUE 23 I JUNE 2016 I LSJ 21 I 4 I J LY

Briefs HOT TOPIC

harmful without knowing. Thousands take that risk every week, just in NSW. Most survive the experience. Some do not. The National Drug and Alcohol Centre estimates there have been about 100 drug deaths at Australian music events in the past decade. The point is, even if there is no detected drug in a pill, there can be any concentration of other chemicals or dangerous contaminants. Drug checking (an expression probably preferable to “pill testing”, because it may extend to other forms of drug presentation), or “adulterant screening”, has been carried out for decades at concerts and other events in the USA and Canada in places where it is not expressly unlawful. It is carried out routinely in The Netherlands (where it is part of the official drug policy) and in Germany, Austria, Switzerland, Belgium, France and Spain. In the latter countries, reliance must be put on regional regulations, ad hoc legal opinions or special agreements. To be able to operate effectively in the current legal environment, drug checking requires political support and good cooperation with the local authorities, police forces, health services and event organisers. In 2001, the European Monitoring Centre for Drugs and Drug Addiction (EMCDDA) produced a scientific report on on-site pill-testing interventions in the European Union, where 80 to 100 per cent of the funding required comes from local, regional or federal authorities. Testing equipment is usually set up near the entrance or in a “chill-out” area of a music festival, close and visible to the audience, and quiet. Testing options may include pill identification (comparison with known batches of identified drugs), the Marquis (colour reaction) test, immunological

Ahardpill to swallow?

Governments have a duty to protect the community, including by assisting members of it to avoid foreseeable harm. Adding drug checking to the mix of interventions for users does not prevent measures being taken against unlawful drug producers and suppliers, argues former NSW Director of Public Prosecutions and Adjunct Professor of Law NICHOLAS COWDERY AM QC .

W hen I was amusement to discontinue a case of drug possession or deemed supply because the chemical analysis showed no prohibited drugs in the pills (or powders) seized. It happened quite often. It mostly involved young people, often at music events – teenagers and early 20-somethings. It was a familiar process of confrontation, search and seizure, then arrest, charge and remand, almost always on bail. Then the pills would be sent for analysis. I reflected often on the person’s motivation to obtain and use drugs. Scraping together the money, the furtive transaction with a dealer who may or (more usually) may not have been known to the buyer, the keen Director of Public Prosecutions, it was always a source of wry

anticipation of the buzz they would get and perhaps the social kudos that would come from sharing such good fortune. I wondered if, had the “non- drugs” not been detected, they would have been used as intended and enjoyed anyway (the power of suggestion being so strong). But instead came the bust – along with the tension, anxiety, publicity, dealing with family, friends, employers and educational bodies, the inconvenience and expense of court and often legal representation, fear of future implications of a conviction and penalty and so on. Sometimes people avoid such consequences by swallowing their stash as police approach – sometimes with disastrous results if it does contain drugs or other dangerous contaminants. The exonerated people were the lucky ones, up to a point. They were spared the risk of consuming something very

22 LSJ I ISSUE 24 I JULY 2016

HOT TOPIC

“To be able to operate effectively in the current legal environment, drug checking requires political support and good cooperation with the local authorities, police forces, health services and event organisers.” NICHOLAS COWDERY AM QC

tests and chromatography. Chromatography (a chemical process that separates mixtures into their components) can be quite fast – as quick as 15 minutes – is very reliable, yields qualitative and quantitative results, and can be used on site, preferably alongside pill identification for maximum effect. The EMCDDA report distilled the primary purposes of pill testing as: Harm reduction – as well as assessing the content and dosage of drugs, pill testing provides an opportunity to deliver health and safety messages that cover a variety of topics such as acute and short-term health hazards (e.g. dehydration, overdoses), long- term health hazards and addiction, legal risks and safe driving messages. Redirected consumption and consequent market pressure can force the black market to produce safer options. Prevention – the necessary contact with potential drug users can help change their behaviour through counselling and providing access to information and assistance services. The situation can be used “to provide visitors with information sheets or booklets and to involve them in extended (more than five minutes) information and counselling talks, with presumably preventive effects.” Monitoring and research – “The fact that on-site pill testing is collecting data and qualitative insights about drug markets, demographic and psychological, medical and social issues concerning rave visitors and other consumers of illicit substances is an important prerequisite to setting up and improving information and prevention projects and to planning scientific studies on patterns of use and related dangers.” Pill testing can create an early-warning system for new drug products, and the information gathered can be broadcast by authorities on the internet and through social media. The report stated unequivocally that, “Pill testing interventions have to be part of a global strategy for prevention and harm

reduction in recreational settings.” Young people involved in drug taking support it. More than 82 per cent of the 2,300 young Australians aged between 16 and 25 years surveyed for the Australian National Council on Drugs in 2013 supported it. The finding is consistent with young people’s overall views about drugs: they want better information to make informed choices. Senior police and politicians in some Australian jurisdictions are listening. It has been reported that pill testing may be available in some places for next summer’s music festival season. But not in NSW. Earlier this year, in an interview with 2UE, NSW Deputy Premier Troy Grant (a former police officer) labelled drug checking a “very dangerous regime that the NSW government fundamentally rejects”. He argued that if the testing failed and someone died, then the service could be sued for manslaughter (a highly contestable proposition). Grant also challenged the logistics of testing a large number of drugs in a given night, before admitting, “I don’t know a lot about the engineering of the pill testing, or how it’s made up or the science behind it exactly.” NSW Premier Mike Baird has said the danger from unidentified drugs could be easily addressed. “There’s a pretty simple way that you know you’re going to be safe – don’t take the pills,” was his advice. This is a re-run of Nancy Reagan’s “Just say no” policy. Remember how effective that was in reducing drug use and harms? People will continue to take the risk. Government has an overall duty to protect the community, including by assisting members of it to avoid foreseeable harm. Adding drug checking to the mix of interventions for users does not prevent measures being taken against unlawful drug producers and suppliers.

ISSUE 24 I JULY 2016 I LSJ 23

Made with