Shaking up the system Judge Robyn Sexton on how innovation in the courtroom has changed the game Earlymorning hilarity The winning speech and best zingers from the 2018 NSWYL Golden Gavel Competingwith clients The perils of insourcing for in-house counsel and private practitioners
ISSUE 45 JUNE 2018
The art of persuasion A guide to lump sum cost orders and getting the result you want
Reshaping justice in Bourke How a new approach to crime prevention is rejuvenating one of NSW’s most vulnerable communities
PLUS: MEDIATION, WORKERS COMP, PROPERTY, JOHN CORKER & MORE
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26 Hot topic
38 Golden Gavel
48 A day in the life
Kate Allman visits a Sydney prison oering a unique, uplifting and rather pawsome rehabilitation program
Kate Allman reports the best zingers and mic drops from this year’s NSW Young Lawyers Golden Gavel competition
Construction lawyer Vlad Vishney reflects on the value of prioritising what you love
51 Career coach
28 In focus
42 Mood for mediation
Fiona Craig on the best ways to let sta know they’re underperforming
Judge Robyn Sexton tells Jane Southward about the case which led her to implement changes in how she deals with Indigenous matters
Lynn Elsey chats to three experts about why more lawyers should consider using mediation to resolve disputes
Thea O’Connor delves into eight things that might be making you anxious in the workplace
32 Cover story
Jane Southward travels to Bourke in far western NSW to see the impact of the first 18 months of a unique justice program
Are you a workaholic? Or do you simply thrive on working hard? Why knowing the dierence really matters
The best of South Africa, including Cape Town and a luxury safari
ISSUE 45 I JUNE 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 LSJ quiz 24 Out and about 46 Careers 50 Doing business 52 Extracurricular 56 Fitness 64 Lifestyle 66 The case that changedme
The Law Society’s policy experts bring you up to date with the latest in law reform
Minimising risks associated with e-conveyancing
Lump sum costs orders: when are they available and what evidence is required? 84 Workers compensation
When your client is your competitor – implications of insourcing for in-house counsel and private practice 72 Professional conduct New laws restricting lawyers’ involvement in Managed Investment Schemes 74 Privacy
A reprieve for injured workers: no more time limits for knee replacements
Strangely foreign: recent NSW duty and land tax surcharges
Big brother is watching: The hidden cost of the Gold Opal Card
Is the PM right? Should employers intervene in workplace relationships?
2018 NSW Contract for the Sale and Purchase of Land: “GST at settlement” measure
The High Court leaves NCAT with no standing for interstate party disputes
Death by crocodile: not necessarily tax-free
100 Library additions 106 Avid for scandal
93 Case notes
HCA, FCA, Wills & Estates and Family law
4 LSJ I ISSUE 45 I JUNE 2018
FR I DAY 1 4 S E P T EMBER 20 1 8 • SO F I T E L S Y DNE Y DARL I NG HARBOUR
The legal profession is in a state of flux and changing at an unforeseen speed.
The Law Society of New South Wales is proud to present the inaugural FLIP Conference to equip our profession with the knowledge and tools needed to survive and thrive in an ever-changing landscape. This conference will expose you to the latest in legal innovation and trends both nationally and globally as well as provide an opportunity to become familiar with new and emerging technologies. Don’t miss your chance to be at the forefront of legal innovation.
Take advantage of our early bird rates before the end of July 2018 and register today:
A word from the editor
It’s not every day that someone who is confronted with a system that isn’t working will pick up the mantle and endeavour to change that system. But that is very much the underlying theme in two of our major features this edition. Our cover story on page 32, “Circuit breakers: How justice reinvestment is changing Bourke” is a surprising and inspiring exploration of how an alternative approach to justice is having
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Coordinator Juliana Grego 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 © 2018 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
meaningful impact in a town in which the ordinary justice system simply doesn’t t. Jane Southward travelled to Bourke to investigate whether the Just Reinvest program, which has been in place for about 18 months and which very much centres on a community-based approach to crime, is actually working. I’ll avoid spoilers, but the results might surprise you. Another example of an innovative approach to the usual system is that of the remarkable Judge Robyn Sexton, featured on page 28 in “It takes a village”. Judge Sexton was wise enough to recognise that the system simply was not resulting in the most just outcomes when it came to the Indigenous matters coming before her. So she changed the system. e key to Sexton’s approach under the bespoke Indigenous List was to remove many of the usual intimidating courtroom features and ensure, with the support of Indigenous leader Rick Welsh and others, that Indigenous people felt more at ease and on a more equal footing. Again, without spoilers, the results speak for themselves.
Claire Cha ey
JANE SOUTHWARD Cover story p32 Our Associate Editor travelled to Bourke to report on the first results of the Just Reinvest NSW initiative in the state. She found a community pushing for change and was inspired by results that show the innovative approach is reducing crime.
KATE ALLMAN Golden gavel p38 Kate studied law at UNSW and works as a journalist. She covers the best zingers and all the news from the NSW Young Lawyers 2018 Golden Gavel competition at The Westin on 18 May. Meet some of the funniest lawyers in town.
THEA O’CONNOR Health p54 Thea calls herself a “personal sustainability specialist” and in this report she identifies some surprising sources of anxiety at work. She oers solutions for anxious workers and colleagues who may not know they are adding to oce stress.
DIANE SKAPINKER Property law p76 Diane is a partner in the real estate group at Ashurst and a member of the Law Society’s Property Law Commit- tee. She writes about the 2018 edition of the Contract for Sale and Purchase of Land and the “GST at settlement” measure.
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Shakingupthesystem JudgeRobynSextononhow innovation in thecourtroomhaschanged thegame Earlymorninghilarity Thewinning speechandbestzingers from the2018NSWYLGoldenGavel Competingwithclients Theperilsof insourcing for in-house counselandprivatepractitioners
ISSUE45 JUNE 2018
Theartofpersuasion Aguide to lump sumcostorders andgetting the result youwant
Reshaping justice in Bourke Howanewapproach tocrimeprevention is rejuvenatingoneofNSW’smostvulnerablecommunities
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
PLUS: MEDIATION,WORKERSCOMP,PROPERTY, JOHNCORKER&MORE
Cover design: Alys Martin
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NEXT ISSUE: 1 JULY 2018
6 LSJ I ISSUE 45 I JUNE 2018
PANEL DISCUSSION: REFORMING THE LOCAL AND DISTRICT COURT SYSTEM IN NSW 31 July 2018 Long delays and a lack of resources are synonymous with the local and district courts in NSW. What initiatives can we try to relieve the strain on our overworked court system? Join eminent panellists and contribute to the discussion on improving the system. Find out more at lawsociety.com.au/thoughtleadership
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President’s message T he e ective delivery of justice must be a priority for the NSW Government’s 2018- 19 budget on 19 June. is means ensuring funding for law enforcement is balanced with extra resources to equip the courts and support services, including the legal assistance sector, to carry through the good work of police. rise and the main cause is more people being held on remand. Many accused are spending more than a year in jail before a verdict and sentence is handed down. ere are many regions where inadequate resourcing of the local courts and legal assistance services is limiting access to justice. e circumstances in the Macarthur region where courts and legal services are over owing is a concerning example of how a lack of resources is a ecting communities. But there are few regions like Macarthur where the population is expected to double to more than 600,000 by 2036, putting more pressure on already stretched services. Victims are waiting excessively long periods for a just resolution, while stressed families are sometimes travelling hours and long distances to access the courts. Like the rest of NSW, the Macarthur community needs and deserves more paramedics, nurses and teachers as well as justice facilities. Funding it all could be more easily achieved by reducing the alarmingly high number of prisoners on remand. e remand population in NSW rose 7.5 per cent in the past year to 4,807. Remand prisoners make up 35.6 per cent of the total 13,494 prison population and could be costing taxpayers up to $600 million a year. Each prisoner costs the equivalent of a salary of about $120,000 a year. For Macarthur, the best way to address the urgent need for court resources is the establishment of a new multi-jurisdiction justice precinct. We need a new justice complex in Macarthur that provides facilities for Local and District Courts as well as the Federal Circuit Court. is is a sensible and cost-e ective investment at a time of surplus to ensure the community is able to exercise its right to access justice, now and in the future. Maintaining our jails is costing the community more than ever. Our courts are clogged with matters. Victims of crime are waiting too long for cases to be resolved. e prison population continues to
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8 LSJ I ISSUE 45 I JUNE 2018
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M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports
ISSUE 45 I JUNE 2018 I LSJ 9
Atthecoalfaceofmisery Insights fromanAustralian lawyer assisting inaRohingya refugeecamp No justiceforthepoor CanAustralia learn fromadamning report into theUK’s legalaid system? Bravadoversushumility Why the legalprofession’sbest leaders chooseunderstatementoverarrogance Anewera inprivacy law Preparingclients for theGeneralData ProtectionRegulationprivacy reforms
ISSUE44 MAY 2018
An ultra-thank you! Thank you to LSJ
for the article in the March edition about my little run in the desert.”Taking on the heat”. I am pleased to report that I was able to drag myself just under 250kms through the southern Morocco Sahara, as planned. More importantly, we were able to raise more than $12,000 for Giant Steps, a school supporting children and families with autism. So, thank you to Jane Southward and all the team for their support. A big thanks, too, to the members who contacted me and sent messages of support. It is a fantastic event. If you have thought about doing the event, do it. You won’t regret it. Stefan Briggs, Principal SMB Law The amazing and the absurd A few passing comments on e-conveyancing, if I may: 1. A section 10.7(2) and (5) planning certificate applied for on InfoTrack in the morning and on my screen that same afternoon. Amazing! 2. A contract for a residential strata unit, 1,785 pages long, sent to me in six separate PDF attachments. How does one e-sign and e-exchange such a document, even assuming that PDF size attachment limitations would allow transmission of the entire document, which I doubt? Why so voluminous a contract? An electricity sub-station on the common property being noted in an Ausgrid lease (which must cover every single Ausgrid sub-station in the Sydney metropolitan area) noted on the common property title, thus vendor disclosure
Emojisunderthespotlight Areourcourtsequipped toproperly interpret thenewglobal language?
PLUS: JANE SANDERS,CAROLYN SIMPSON,ANNABELLEBENNETT&MORE
LSJ05_Cover_May_Issue 44.indd 1
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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
dictates that the Ausgrid lease, and all dealings aecting it, be attached to the contract. 3. Another contract, this one imposing five separate monetary imposts on the purchaser for technical breaches of the contract and then some, including $100 for a request to extend the cooling-o period and an administrative fee of $275 payable to the vendor’s solicitors for investing the deposit (in the absence of a selling agent). Are we all charging so little in conveyancing matters that such clauses are necessary to bolster our income? 4. We have become unpaid tax collectors and information gatherers for both the NSW and Australian governments and now, as from 1 July as I understand it, we can add GST to the duty and CGT list (leaving aside our own BAS obligations). Why should we not be able to charge for this additional time and paperwork? George Bognar, Bognar Legal Time for reform As a lawyer with 60 years of experience in south-west Sydney, I support the Law Society President’s call for proper justice facilities in
Macarthur. The same call could be made in every expanding area in NSW. What is really needed is a complete change of the justice system to do away with the system that is making the courts and the legal profession inaccessible to the public. The people who need the protection of the justice system most are the least able to aord it. Not even the wealthy can aord our present system, which is sinking in the spaghetti-like mass that our justice system has become – less justice, more intolerable delays and legal fees no-one can aord. Sir, you could really stand- out as a reforming President by urging the establishment of a pilot system designed to do away with the present time-wasting, lawyer- driven, adversarial system involving evidence-in-chief, cross-examination and re- examination and replacing it with the European inquisitorial system, in both civil and criminal cases. Lawyers wrongly see the inquisitorial system as doing away with the need for their services, whereas the opposite is the case. The clients who really need legal assistance no longer darken the doors of lawyers for the service they can no longer aord – they do their own
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! STEFAN BRIGGS has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 45 I JUNE 2018
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The rule of law dies an undignified death in Victoria Thank you for publishing my letter to the editor in August 2017 opposing assisted dying and euthanasia (AD&E) which is a topic that is again in the public spotlight with the passing of the late Professor David Goodall in Switzerland. The Parliament of Victoria, Legislative Council’s Legal and Social Issues Committee’s Inquiry on End of Life Choices is given high status by supporters of AD&E. Politicians and activists alike will often say a “good 10 month inquiry”, or “comprehensive inquiry”. parliament worked well in the way it examined then debated the issue of AD&E. I have read each written submission and transcript of oral evidence given to the Inquiry, the Final Report of the Inquiry; the reports of the four major previous inquiries relied upon by the majority of the Committee, the Final Report of the Ministerial Advisory Panel (MAP), and every AD&E lobby group newsletter I could obtain. Recommendation 49 (to introduce AD&E) should not have been made and the legislation repealed because most of the committee failed to do proper research. Further, they failed to properly define the most basic terms (such as “slippery slope”, “dignity”, “assisted dying”, “euthanasia”). In total ignorance of the objections about abuses and non-compliance they nothing more than “values”, “choice”, “popularity”, and the vain hope that regulation will reduce the instances of unlawful deaths that are now happening. This last issue is very interesting because evidence based their decision to recommended AD&E on One notable advocate of AD&E has said that
thing or go elsewhere. When the system is simplified and made
cheaper, clients will return. The gap will never be filled by increases in legal aid grants (except for politicians, of course). New buildings will no longer be needed to accommodate the bureaucracy system that we, the short-sighted lawyers, have created. On a similar topic, only this week I was finally forced to attend a PEXA meeting to come to grips with the electronic conveyancing system thrust on the profession by the banks. I remarked, in a throwaway statement, that it was a system that was going to deliver the property transfer system from the profession into the hands of the banks as it has in America. There were a few tut- tuts. I then asked, “Who is PEXA anyway? Who owns it?” There was some silence in the room before it was disclosed that PEXA is owned by the four banks. I did not know that, but was not surprised to learn that it is so owned. The banks will no doubt take advantage of the PEXA system to introduce the system favoured in America where the banks and insurers run the conveyancing system. “What do Lawyers do anyway? They charge you a fortune to fill in a few forms – which we can do cheaper.” And who pressured the governments to get behind it and provide the necessary regulatory support? The legal profession? Surely not! Perhaps the disclosures in the current Royal Commission might make the reformers think twice about delivering the gullible public to the banks to take them away from the “greedy lawyers”. It is time for reform – but in the interests of the people, our clients. John Henshaw
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ISSUE 45 I JUNE 2018 I LSJ 11
was put to the committee that the legislature in Belgium was told that involuntary euthanasia would reduce if assisted dying was permitted. Now look what has happened – they allow 16-year-old children to be killed. The evidence relied upon by most of the committee for their findings on “values” is provided by advocate organisations; the findings are consistent because the same people and organisations are involved. These same people have provided submissions in their personal capacities and often as signatories to organisational submissions. The majority of the committee’s “quantitative analysis” included no attempt to quantify the number of submissions received from the “ambassadors”, “board members”, chapter “conveners”, oce sta and “members” of Dying with Dignity and similar organisations. Further, their “quantitative analysis” made no attempt to weigh the evidence, but instead they adopted a simple majority test “more yes than no” and claimed their result was consistent with polls and trends. It is disappointing that most of the committee made no attempt to compare arguments. I am reminded of Fletcher Construction Australia Limited v Lines MacFarlane & Marshall Pty Ltd  VSCA 189 : “Where one set of evidence is accepted over a conflicting set of significant evidence, the trial judge should set out his findings as to how he comes to accept the one over the other.” The majority of the committee would have done well to consider this. The MAP final report included Recommendation 1, which says: “Providing people with genuine choices must be balanced with the need to safeguard people who might be subject to abuse.”
It is important to realise that most of the committee failed to provide a reasoned model that would show expected number of annual deaths and number of adversely aected people. Evidence was put to the committee that the ratio was 100:100. Pure personal autonomy will value one person’s chance/ choice to live over pain relief in others. If society allows itself to say that some people are suitable to be sacrificed for the pain relief of others, it is slippery slope being actualised. It is not even good enough to say “it is happening already” as this is an “on the aggregate there are less involuntary euthanasia cases”. Even if regulation did reduce the instances of involuntary euthanasia – that is, allowing without consent – that is not protecting the autonomy of those who are deemed worth sacrificing. This is all contrary to Recommendation 1 of the MAP. The “smoking gun” as to the failure of safeguards is the admission by Professor Peter Goodwin – an architect of the Oregon legislation in the mid- 1990s – that it is opponents who prevent the slippery slope from occurring. Quoting from the NSW Voluntary Euthanasia Society (now called Dying with Dignity) newsletter from March 2001, he said: “It will always be opposed, but that is good. It should be opposed to ensure it maintains the most rigorous standards, it should not become a slippery slope.” Pro AD&E lobbyists safeguards”. This quote defeats the claim that safeguards will work and thus the lobbyists have not satisfied their own pre-condition for legalising AD&E. David Foletta some people to be put at risk to possibly save those who will be euthanised even state that AD&E is to be legalised only “with
“Stunning portrait! What a magnificent piece of work. Doesn’t hurt that the subject is a profoundly impressive human being but even putting that aside the technical skill of the artist is just superb. I could gaze at the reflection of the shoe on the chrome of the chair all day. Well possibly not ALL day, but for at least 2-3 units.” - Thomas Russell, Facebook “I breathed the same air as this human being last year. She is extraordinary. What a woman. What a brain.” - Tanya Jackson-Vaughan “Stunning portrait. Just so appropriate. Glorious way to celebrate 100 years of women in the law. What an achievement and guiding light for other women in the law.” - Anne O’Donoghue, Facebook
“Thanks Kate – this was so much fun. Thank you for inviting me to be part of your At the Bar series. #CelebratingWomen” - Kirstin Ferguson, Twitter “Surely a Queenslander is going to be pro pineapple on pizza???” - Dr Daya Sharma, Twitter “Drinkies, water views . . . looks like a terrible environment for a chat. Hard to suer such cruel hurdles for the cause.” - Gordon, Twitter
12 LSJ I ISSUE 45 I JUNE 2018
“Finally a reliable career path for millennials. Writing expert translations of emojis for courts.” - Mitchell Nielsen, Facebook “This will be my field of practice if I ever get a job.” - Charlie Ward, Facebook “Worth a read every time. Thanks Law Society of NSW.” - Stephen Kuhn, Facebook
“I completely agree. Having all your documents and personal items at one desk reduces so much stress.” - Allirra Honner, Facebook “I so agree with the hotdesk part.” - Sarah Harvey, Facebook
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ISSUE 45 I JUNE 2018 I LSJ 13
High Court Chief Justice shines at Archibalds
A portrait of the first woman Chief Justice of the High Court, the Honourable Chief Justice Susan Kiefel AC, pictured above right, is on display at the prestigious 2018 Archibald competition at the Art Gallery of NSW. e portrait was commissioned by the team behind the First 100 Years campaign, an initiative a liated with the Law Society of NSW and the Women Lawyers Association of NSW, which aims to celebrate women working in law in NSW and their achievements. is year marks 100 years since the law was changed to allow women to practise law and stand for parliament in NSW. Rachel Scanlon, who is leading the First 100 Years campaign, said she was thrilled the portrait had Activities for the First 100 Years of Women in Law initiative are building towards the 100-year anniversary on 26 November of NSW legislation that allowed women to practise as solicitors and politicians. JANE SOUTHWARD reports.
“Her incredible intellect is represented by the books behind her. ere are 100 books; one for each of the 100 years being commemorated. eir spines are blank to represent the anonymity of the many women who have worked tirelessly to achieve their goals. “ is portrait represents the strength and honour of women in powerful positions, combined with femininity and order.” East was born in regional South Australia and lived and worked there until 2014 when she moved to Sydney with her eight-year-old son to complete a Masters of Fine Art at UNSW Art and Design. is is her rst time in the Archibald Prize. e portrait will be on display at the Art Gallery of NSW until 9 September. e First 100 Years initiative started in England to celebrate the 2019 centenary of women practising law in that jurisdiction. However, various Australian states granted women this right long before it was granted in England. Victoria was the rst state to allow women to practise law in 1903, Tasmania in 1904, Queensland in 1905, South Australia in 1911, and the nal centenary will occur in Western Australia in 2023. Among the commemoration plans for NSW is a scholarship for a female lawyer to attend a leadership course at Oxford University, the creation of several photo mosaic digital artworks of women trailblazers including Ada Evans, the rst Australian woman to graduate with a law degree, and a gala event at NSW Parliament on 26 November. Visit rst100years.com.au for more information.
been recognised, especially in the centenary year of the change of the law. e portrait (above), an oil on linen painting, has been painted by artist Yvonne East (left), and sponsored by the law rm Herbert Smith Freehills. “Given the historical milestone of the centenary, and the symbolism of
women achieving success in the name of justice and honour, this achievement is particularly signi cant,” Scanlon said. East painted Chief Justice Kiefel in her chambers at the High Court of Australia in Canberra. “ e centenary initiative facilitated my meeting with the Honourable Chief Justice Susan Kiefel AC,” East said “My hope was to capture the commanding and graceful presence of the Chief Justice and her love of stylish shoes.
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NEWTHISMONTH Just Art Solicitors are invited to view
artworks on the theme of “justice” in an exhibition on Level 2 of the Law Society, 170 Phillip St, Sydney. Just Art has received dozens of entries for the exhibition that raises money for the President’s 2018 Charity, the Butter y Foundation. e exhibition will open on 27 June when an Artist’s Choice Award (voted on by all nalists) and a Peoples’ Choice Award (voted on by attendees of the Opening Night who are non- nalists) will be announced. e exhibition will run until 4pm Sunday, 1 July. Visit lawsociety.com.au for more information. Registrations open for Specialist Accreditation conference Want to build your network with other accredited specialists and hear from eminent speakers in your area of law? Registrations for the Law Society’s annual Specialist Accreditation Conference on 10-11 August at the International Convention Centre, Darling Harbour, are open. e conference will cover ve streams: business, property, commercial litigation, wills & estates, and personal injury. Speakers include Dharmendra Yadav, on the impact of technology on legal work, Hugh Dillon on the power of the Coroner, Valerie Heath on the latest in insurance law, and Louise Brown on probate practice and procedure. Visit lawinform.com.au to register.
David Goodall AM EUTHANASIA ADVOCATE
The Perth academic and great grandfather aged 104 travelled to Switzerland in May to take his life through assisted suicide. He had declared his life was no longer worth living due to old age.
I don’t feel that anyone else’s choice is involved. It’s my own choice to end my life … and I look forward to that. There is no reason why it should be a sad occasion. I would like it to be easier than it is.
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HOLLY LAM sixminuteswith
Holly Lam is President of the Women Lawyers Association of NSW and a senior associate at HWL Ebsworth Lawyers. She specialises in insolvency and general commercial litigation, advising and appearing in State and Federal Courts in relation to Corporations Act 2001 (Cth) matters, misleading and deceptive conduct claims, and shareholder/partnership disputes. Lam holds a Bachelor of Business and a Bachelor of Arts in International Studies fromUTS and a Bachelor of Laws fromUNSW and is a Champion of the First 100 Years project. Who has had the greatest influence on your legal career? It’s a mix of people. It sounds so crazy, but Shirley Schmidt from Boston Legal is the epitome of the perfect woman lawyer. e altruistic among us tend to become lawyers because we want to do good. We want to help the little guy. We want to ght injustice. For me, former Justice Michael Kirby has always been that person. Within the Women Lawyers Association (WLA) network, we are fortunate to have the support of amazing trailblazing women. Our patron, Justice Jane Mathews, was the rst woman judge of the NSW District Court then the Supreme Court. Quite amazing. Professor Rosalind Croucher, who is the head of the Australian Human Rights Commission, is just phenomenal. She’s given me so much invaluable advice, as has her predecessor, Professor Gillian Triggs. Former Prime Minister Julia Gillard recently predicted it will take 200 years before men and women have equal work opportunities. What’s your view? I don’t have a view in terms of how long it’s going to take, but change has been glacial, so I expect it’s going to take a long time. It would be really good if partners and those people who do have control on who works on which matters could take a step back and think, ‘ is is the person I like the most and like spending time with, but are they actually the right person for the matter? Do they have capacity? Do they have the skill set? Could I perhaps consider someone else in my team?’ It would be good it they acknowledged there might be unconscious biases and tried to consider someone else. BY AZAL KHAN
In November, the profession will mark the centenary of the Women’s Legal Status Act 1918 (NSW). How significant is this and what will the association be doing to celebrate? It’s pretty signi cant. I feel a special a nity with Ada Evans who went to the same high school as me, Sydney Girls High. Reading about her struggles and what she had to put up with makes me grateful that’s not the environment women lawyers are operating in now. In terms of centenary celebrations, with the Law Society, the WLA has been a supporter of the First 100 Years project. In August, we have the Australian Women Lawyers Conference with a First 100 Years session chaired by our patron, Justice Jane Mathews. Why do we need a Women Lawyers Association 100 years since the law changed to allowwomen to practise law? We can clearly see the failure of the pipeline argument. It used to be that once you had enough women graduate from law school, you would eventually see those women trickle up into law rm partnerships and leadership roles. But we are only seeing between 20-30 per cent of women in partnership and leadership roles. ere is obviously more work to be done. With tech disruption, there are a lot more opportunities for women as well. Lawyers aren’t the earliest adopters of new changes. e WLA can add value in this space. We are running a lot of legal tech seminars to help women use tech to their advantage. What is one thing you think firms could be doing better to support women at work? Being more encouraging and genuinely implementing exible work arrangement policies.
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BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Q: What are my ethical obligations when acting for a client and encountering a di cult and hostile opposing party? When is it appropriate to use a stern letter? A: Many practitioners will experience the need to vigorously press the case of their client. However, it is important to be mindful of the obligations to act in accordance with the Professional Conduct and Practice Rules, with particular emphasis on Rule 34. A common error is the mistaken belief that the behaviour of an opponent, no matter how outrageous, justi es
communicating in a similar manner. A client may give such instruction that requires “a stern letter” to the opposing party. However, the ever- vigilant practitioner will be mindful of the obligations in such communications. A practitioner must not, in any communication with another person on behalf of a client: • make representations that something is true which the practitioner knows, or reasonably believes, to be untrue; or • make any statement that is calculated to mislead or intimidate the other person; or which grossly exceeds the legitimate assertion of the rights or
entitlement of the practitioner’s client; • threaten the institution of criminal proceedings against the other person, in default of that person satisfying a concurrent civil liability to the practitioner’s client; or • demand the payment of any costs to the practitioner when there is no liability owed by the opposing party to the practitioner’s client. A client may have su ered signi cantly at the hands of a mendacious and wily opponent. However, the degree of response by a practitioner must always be measured in accordance with your ethical obligations.
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ISSUE 45 I JUNE 2018 I LSJ 17
Mark Addison Joined as Consulting Principal Keypoint Law
Sarah Johnson Joined as a Partner, Commercial Law Piper Alderman
Heather McKinnon Founding Partner Bryant McKinnon Lawyers
Benjamin Bryant Founding Partner Bryant McKinnon Lawyers
Rebecca Gilbert Appointed to Senior Associate Newnhams Solicitors
Elaine Clarke Appointed to Associate Newnhams Solicitors
LinseyWilson Joined as Associate Roberts Legal
Paul Lewis Appointed as Partner, Family & Relationship Law Gadens Sydney
Ron Kessels Joined as Partner Ajuria Lawyers
Brad Allen Appointed as Partner, Banking and Finance Group Gadens Sydney
Mandy Chang Joined as Senior Associate Barkus Doolan Family Lawyers
Mark Easton Joined as Partner, Commercial Litigation Johnson Winter & Slattery Sydney
Cassandra Banks Now Principal – sole practitioner Susan Green Legal Practice
Wendy Jacobs Joined as Consulting Principal Keypoint Law
Natasha Heathcote Promoted to Senior Associate, Family Law Armstrong Legal
CORRECTION: Belinda Cassidy, joined Stacks Goudkamp as Special Counsel not Senior Counsel.
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
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CYBER FRAUD Law Society warning on new scamalert The Law Society’s Trust Department has become aware of recent cyber attacks on law practices. According to Jim So ak, the Law Society’s Chief Trust Account Investigator, one scam involves the hacker sending a text asking about a password reset on a Gmail account. “Just like scams targeting solicitors in relation to a bank, hackers know a certain percentage of the population banks with a certain bank, so they are bound to get some sort of hit rate,” So ak said. e text says that if you did not request such a request, text STOP. “Your rst inclination might be to reply ‘Stop’ because you did not request a password change. Do not reply, this is a scam,” So ak explained. He explained how the scam works: once you send the “STOP” text, the hacker will then respond asking you for the six-digit code you received to stop the password change. is is a scam. e hacker requests a password reset for your account and is asking you for the code to change the password to take control of your email account. Do not reply to the text, as doing so will tell the scammers they have reached a valid number. e second (and law practices have already been defrauded by this method) is where the hacker has studied your website and has determined the name of your accounts person and that person’s email address. ey then send an email from either an iPad or mobile phone pretending to be from the principal (the name also obtained from the website). e latest being, “What’s your account balance? I need you to make some payment today. Kind regards, (name of principal). So ak advised solicitors to share this information with their sta and explain the instructions on how to deal with the threat. For more information on cyber fraud,
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see the Law Society’s resources at lawsociety.com.au/scamalert
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THE COURTS Respected Supreme Court Judge to lead consent law review
BY KATE ALLMAN
through the expense and worry of the process. “We can’t legislate for respect, but we can examine whether the consent provisions in our Crimes Act require simplification and modernisation,” Speakman said. Laws on the requirement for knowledge of sexual consent vary around the world and even across Australia. Tasmania has Australia’s strictest consent laws, which assume that a person has not consented if they “do not say or do anything to communicate consent”. Goward told The Sydney Morning Herald that she believed NSW should follow Tasmania’s lead in requiring “enthusiastic consent”. “You must explicitly ask for permission to have sex. If it’s not an enthusiastic yes, then it’s a no,” said Goward. Criminal lawyer and partner at Armstrong Legal Andrew Tiedt said he was sceptical about how the law could be amended fairly to accommodate all stakeholders. “The law on consent is complicated,” said Tiedt. “The law on knowledge of consent is complicated. It is difficult to explain to juries and difficult for juries to apply to facts as they find them. Making the law clearer while protecting the safety of the community, the rights of complainants and the rights of the accused is an almost impossible task.” Tiedt noted that, as in the Lazarus case, most sexual assault trials had no eyewitnesses and alcohol was frequently involved. This presented serious evidentiary difficulties for the victim to prove their case over the accused’s version of events, or to reach the standard required for a guilty conviction. “More often than not, it is simply one word against another,” said Tiedt. “It is always difficult to prove a case when the entire case rests on the evidence of just one person.” To make a submission, visit lawreform.justice.nsw.gov.au
Retired Supreme Court Justice Carolyn Simpson has been appointed to lead the NSW Law ReformCommission’s review into the law of consent in sexual assault matters. Simpson, who served in the NSW Supreme court for 24 years and is an acting judge in the NSW Court of Appeal, was appointed part- time Commissioner of the NSW Law Reform Commission on 23 May. Attorney-General Mark Speakman called Simpson a “trailblazer for female lawyers and judges across the state” and said that her “wealth of knowledge acquired during a four decades long career will be invaluable to the Law Reform Commission”. Speakman and the Minister for the Prevention of Domestic Violence and Sexual Assault, Pru Goward, commissioned the enquiry into section 61HA of the Crimes Act , which governs the law of consent, in the wake of the acquittal of Sydney man Luke Lazarus, the son of a King’s Cross nightclub owner. The announcement came the day after Four Corners aired a story on Lazarus’ trial. The program highlighted the legal and emotional hurdles victim Saxon Mullins faced in taking her allegations to court. “This young woman’s bravery in coming forward and sharing her story is commendable,” Speakman said of Mullins. “The delay and uncertainty in this matter were unacceptable.” Mullins, who relinquished her legal right to anonymity to share her story and highlight gaps in the law, was an 18-year-old virgin before her encounter with Lazarus. She endured two trials and two appeals, in which Lazarus was found guilty by a jury then had his conviction quashed by the Court of Criminal Appeal. The appeals court refused Mullins the chance to seek a third trial because it said it would be “oppressive” to put Lazarus
More often than not, it
is simply one word against another,” said Tiedt. “It is always difficult to prove a case when the entire
case rests on the evidence of just one person.”
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“Lawyers, along with doctors, are the two professions which handle most of our con dential information on a day-to-day basis,” he said. “It’s incredibly important that their cyber security practices are improved to protect their clients and themselves. Imagine if a lawyer you’d engaged to draft a will had their email compromised and a cyber-criminal gained access to all of the information contained in that will? “Trials could also be a ected if key documents related to arguments are inaccessible due to a ransomware attack like the Wannacry attack in 2017.” e research identi ed ve key areas for immediate improvement: • Turn on automatic software updates on all devices • Use cybersecurity countermeasures like antivirus and rewalls on computers and smartphones • Encrypt sensitive client data, especially when sent via email • Limit use of third-party email services such as Gmail and Hotmail • Report cyberattacks to government initiatives such as the Australian Cybercrime Online Reporting Network (ACORN).
RESEARCH Lawyers unprepared for cyber attacks A new study has found alarming evidence that confidential and sensitive data is at risk of exposure due to the cyber security practices of lawyers. e Edith Cowan University’s Security Research Institute survey of 122 lawyers, in partnership with the Law Society of Western Australia, found 11 per cent had no anti-virus protection on their work computers, 41 per cent did not know what cyber security counter measures were in place on their smartphones, and 94 per cent used email to send con dential data. Just 9.4 per cent used encryption to protect client data. Associate Professor Mike Johnstone said there were some serious but not insurmountable aws in the way lawyers were protecting themselves from cyber attack. Maurice Blackburn is Australia’s leading employment law rm. Our employment lawdivision, led by Josh Bornstein, has an unparalleled track record across a range of legal issues impacting employees. Our teamhave the experience, expertise and discretion to nd the right resolution for your client. A recommendation they’ll remember.
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