LSJ_June 2019_3 June
All eyes on America What the US opioid epidemic and class action could mean for Australia Empowering the victims How a fresh approach to strategic litigation is helping victims find redress Speak up or staymum? The complicated state of freedom of speech in employment relationships Family lawcourts in crisis What now for the system in the wake of the ALRC’s recommendations?
ISSUE 56 JUNE 2019
Takingonthe tragedy Why law firms must be alive to the dangers of vicarious trauma
PLUS: UPDATES ON ARBITRATION, IP, EMPLOYMENT, PROPERTY, RISK & MORE
2019 STREAMS Business Law Family Law Personal Injury Law Property Law Wills & Estates 9–10 August | ICC Sydney
REGISTER NOW lawsociety.com.au/SpecAcc2019
ISSUE 56 I JUNE 2019 I LSJ 25
26 Hot topic
38 Diversity in law
As opioid addiction spreads, is Australia facing a class action the likes of that coming to US drug companies?
Sam McKeith asks how many law firms are walking the talk when it comes to diversity
Suzie Miller is a former lawyer who traded her legal career for a shot at theatre fame
28 Cover story
Angela Tufvesson explains the “flow state” and how useful it can be for busy lawyers
Sunlight and vitamin D are essential for our health. But are o ce workers getting enough?
A court reporter su ering vicarious trauma has successfully sued her employer. Amy Dale asks if the case could set a precedent for lawyers at risk
46 A day in the life
Meet Anthony Lo Surdo, a lawyer, Silk and arbitrator and mediator on the Court of Arbitration for Sport
Cultures collide in Istanbul, the meeting point between Europe and Asia. Kieran Pender has the must-read tips for your visit
34 Strategic litigation Melissa Coade investigates
how new kinds of litigation are empowering victims of crime
ISSUE 56 I JUNE 2019 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News 18 Members on themove 23 Expert witless 23 The LSJ quiz 24 Out and about 42 Career matters 44 Mindset 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme
83 Practice and procedure Update on the District Court’s commercial jurisdiction crisis 84 Compliance risks Better business management for a sustainable practice 85 Risk Four tips to minimise risk when finalising estate matters 86 Animal law
The latest key developments in advocacy and law reform
68 Family law
A closer look at the ALRC recommendations for change to the family law system
71 Family arbitration Exploring the availability
and use of family arbitration
74 Family law
Growing public awareness leads to stronger protection for animals
S tamp duty exemption available in family law arbitration
88 Cyber security
Protecting client confidentiality in the digital era
High Court clarifies when arbitration clauses keep disputes confidential 78 Intellectual property
The final countdown in the transition to eConveyancing
92 Case notes
Repeal of IP exemption: it’s time to review IP contracts
A wrap-up and analysis of the latest HCA, FCA, Family, criminal and Wills & Estates judgments
Our expert delves into the debate about freedom of speech in employment
98 Library additions 106 Avid for scandal
4 LSJ I ISSUE 56 I JUNE 2019
H I LTON S YDNE Y • THURSDAY 25 JULY
We’re proud to announce the first group of confirmed expert speakers, including …
MITCH KOWALSKI AUTHOR, ADVISOR AND INNOVATOR IN THE GLOBAL LEGAL SERVICES INDUSTRY “Lawyering in 2050: Robots in Suits or Just a Slightly Better Version of 2019?”
DR JUSTINE ROGERS SENIOR LECTURER UNSW LAW DR FELICITY BELL FLIP STREAM RESEARCH FELLOW, UNSW LAW “Change Leadership for a Dynamic Profession”
PROFESSOR GEORGE WILLIAMS AO DEAN, ANTHONY MASON PROFESSOR AND SCIENTIA PROFESSOR, FACULTY OF LAW, UNSW SYDNEY “The Rule of Law and Automated Decision-Making”
To learn more, and meet our growing list of speakers, visit FLIPconference.com.au
ISSUE 56 I JUNE 2019 I LSJ 25
A word from the editor
Have you ever suffered from vicarious trauma as a result of your work? Turn to page 28 and you might recognise some uncomfortable symptoms – and you certainly wouldn’t be alone. Vicarious trauma is a topic LSJ has visited before, but a recent Victorian case in which a court reporter successfully sued The Age for failing to provide an adequate duty of care after she developed post-traumatic stress disorder at work has
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
repositioned the issue. The journalist at the heart of the case has refused to speak directly to the press – until now. In our exclusive cover story, “Taking on the trauma”, much of what she describes as traumatic would be similar to what many criminal, family and other lawyers have to confront on a daily basis. The question is obvious: given the parallels, does this case have potential ramifications for lawyers working on traumatic court cases day in and day out? Whether it does or doesn’t, it is critical that the profession is aware that vicarious trauma is real and its effects potentially devastating. Working in the law can be tough. We need to look after one another and learn to recognise when enough is enough – before it’s too late.
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead 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 © 2019 The 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 specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The 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.
AMY DALE Cover story p28
SAMMCKEITH Diversity p38
DR FELICITY BELL Family law p68 Dr Felicity Bell is a Research Fellow for the Law Society of NSW’s FLIP research stream, at UNSW. Her research background is in family law. She discusses the ALRC’s key findings and recommendations for change to the family law system.
JACK DE FLAMINGH Employment p80
27,501 * *AUDITED MARCH 2018 DISTRIBUTION
Amy Dale is a former court reporter, journalist and published true crime author. She now works in the government sector, specialising in media relations and social policy. She writes about vicarious trauma in the cover story of this issue.
Sam McKeith has worked as a journalist at the AFR and Huffington Post, and has a Bachelor of Arts (English) and Law. In this issue, he uncovers the how and why of striving for genuine diversity within law firms – and not just of the gendered kind.
Jack de Flamingh is a partner at Corrs Chambers Westgarth. In this issue, he examines the debate about freedom of speech in employment relationships and what we can learn from recent high-profile cases.
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
Cover design: Andy Raubinger
NEXT ISSUE: 1 JULY 2019
6 LSJ I ISSUE 56 I JUNE 2019
Shedding light on legal costs for over 30 years
Bespoke Costs Mediation
All legal costing services
CONTACT US: Suite 203, 46 Market St SYDNEY NSW 2000
ph: (02) 8399 2050 fax: (02) 8399 2080 email: email@example.com web: www.medicolegalpsychiatry.com.au
M E D I C O L E G A L P S Y C H I A T R Y Criminal & Civil Forensic Reports
ISSUE 56 I JUNE 2019 I LSJ 7
N ew research from the Law and Jus- tice Foundation of NSW has con- firmed that people experiencing domestic and family violence are 10 times more likely to experience myriad legal problems compared to the rest of the population. The Law and Justice Foundation’s Justice Issues pa- per, Quantifying the legal and broader implications of impacts of domestic and family violence , found that in a 12-month period, people who experience domestic and family violence have 20 legal problems on aver- age, including a range of family, civil and criminal law problems, compared to only two problems for the rest of the community. Notably, the analysis shows that people who expe- rience domestic violence are 16 times more likely to experience a family law problem and three to six times more likely to experience other crime and civil law
problems – including consumer, credit/debit, employment, health-related and housing problems. The report found that their legal problems are more likely to lead to stress-related illness, physical ill health, relationship breakdown, loss of income or financial strain, and being forced to move home. One in eight respon- dents who experience domestic and family violence reported being homeless during the previous 12 months. The findings clearly illustrate the broad and far-reaching range of legal problems that victims of domestic and family violence must deal with, and confirms our belief that combatting domestic and family violence requires a complex and coordinated response across all jurisdictions and human service providers. It supports the Law Society’s ongoing advocacy for outreach, awareness and provision of specialist services appropriate to the needs of specific groups that help prevent violence against women and children. As stated in my speech at the Opening of Law Term Dinner earlier this year, the Law Society is taking a stand to support the work of Our Watch, a national charity dedicated to ending violence against women and children. By driving a nationwide change in culture, Our Watch seeks to correct the abusive power imbalance that can develop at home, which leads to cycles of violence. I encourage members to donate to or hold events to raise funds for Our Watch, and play a role in changing the story about domestic and family violence. I would like to take this opportunity to commend the NSWMinister for the Prevention of Domestic Vio- lence, The Hon Mark Speakman SC, on his announcement that the NSW Government will become a mem- ber of Our Watch, joining all other state and territory governments in supporting the charity’s valuable work. The announcement, which came on the 10th anniversary of the Time for Action: The National Council’s Plan for Australia to Reduce Violence against Women and their Children 2009‐2021 , is an important step in Our Watch’s mission to create an Australia where women and their children live free from violence.
If you or someone you know is impacted by sexual assault or family violence, call 1800RESPECT on 1800 737 732 or visit www.1800RESPECT.org.au. In an emergency, call 000.
8 LSJ I ISSUE 56 I JUNE 2019
SWAP YOUR BRIEF FOR A BLANK CANVAS Let your inner artist out by creating an artwork on the theme of ‘justice’. Entries close 30 June 2019. Enter online at lawsociety.com.au/justart
SAVE THE DATE! Finalists will be showcased at an exhibition from 20–23 August. All artworks will be for sale to raise money for the 2019 President’s charity, Our Watch.
ENTRIES CLOSE 30 JUNE
The plight of the victims by Amani Haydar, JustArt 2018 Finalist
ISSUE 56 I JUNE 2019 I LSJ 25
the editor and in particular your writer Melissa Coade, whom I recognise her contri- butions in a significant way. I observe her presence at vari- ous industry functions getting to … know the quieter and vulnerable sectors of our pro- fession. Her own background lends itself this way. The stories are well crafted and carry that tone that diverse people like myself recognise easily and are drawn to. Asian Australians are now reaching 20 per cent of the new intake. Diversity at the upper echelons reflects an industry weakness in reflect- ing the balance of our social charge equitably. Our Asian Australian Lawyers Associa- tion welcomes yourselves at our functions and gatherings across Australia. We are just an email or phone call away. Kingsley Liu, President, Asian Australian Lawyers Association It is with great sadness that I mention to you and your readers that the rule of law – as inherited from England – in the State of Victoria, Australia, will be passing away on 19 June 2019 aged 184 (noting John Batman arriving on Sunday 30 August, 1835 – 19 June 2019). On 19 June 2019, the Vol- untary Assisted Dying Act 2017 (Vic) (VAD Act) will come into force throughout Victoria. With the commencement of this new epoch in Victoria’s history, the triumph of untruth over validity, the triumph of deception over transparency, the triumph of bullying over unpressured debate, the triumph of emotive popular culture over careful analysis of competing evidence, and the triumph of expedient killing over valuing fortitude in hard Vale rule of law in the State of Victoria
times will be complete. When I read Hansard from the Parliament of Victoria in relation to the debate on the Voluntary Assisted Dying Bill 2017 (Vic) (VAD Bill), I learned that the safeguards are actually known to not be 100 per cent successful. I initially ask myself one clear and concise question: If I were Counsel, which I am not, would I be willing to appear before His Honour Chief Jus- tice Thomas Bathurst AC, the Chief Justice of the Supreme Court of New South Wales, with lay and expert evidence of the quality (lack of) that is seen in the “Final Reports” from the Victorian Inquiry into End of Life Choices (Inquiry) and Health Minister’s Ministe- rial Advisory Panel (MAP)? For me, the answer is a resounding “Brief someone else please, not me!” When I consider the follow- ing to be proof of life of the rule of law: human life is pro- tected, humans are protected from abuse, abuse is not char- acterised or described in ways that allow it be declassified as being abuse for the benefit of a government, group, organ- isation or individual to gain a condonable exemption from\ their actions as being defined as abuse, people are esteemed and valued when they are vulnerable, people are not considered worthy of being allowed to be killed or abused against their will or knowledge to grant others the right to either live or die a death that suites those who choose to die, people are punished for wrongdoing even when they claim popular support for their wrongdoing (even if 85 per cent of the population allegedly agrees with that wrongdoing), that the severity of a crime is recognised with
ISSUE55 MAY 2019
A ferry good read I really enjoyed the December edition of LSJ . The costs sum- mary article by Michelle Castle and Andrew Bailey was very helpful to me in a couple of cases, particularly where I am a litigant (and if successful with a delayed judgment will hope to recover for my time). The article by Dr Emma Carmody from EDO NSW was so topical and well-written. I have read part of the Bret Walker report. I will look at the proceedings and enforcement actions they have taken where a link is given. In the main I read the journal on the fast ferry between Manly and the city. It is a good enjoyable read. The article by Matthew Shepherd about litigants going to arbitra- tion because of the long delays in the Family Court shows lawyers lateral thinking and ingenuity. Please keep it up. Stephen Titus, Carneys Lawyers Nazi trial case fascinating I thoroughly enjoyed the LSJ ’s piece on the Polyukhovich investigation and trial (May edition). I was fascinated by the extraordinary lengths our legal system went to in an attempt to overcome the ill-e ects of distance and delay, to deal with the discovery that a Nazi war criminal may have lived in the Australian community for so many years. James Diment, Acting General Counsel, IPART, Sydney Well done on diversity I wish to let you know that we think LSJ is doing a better job and improving coverage in the cultural diversity area. I thank
PLUS: UPDATESON FRANCHISING,CONTRACTS,PRIVACY,BANKING&MORE
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.
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! Stephen Titus has won lunch for four. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 56 I JUNE 2019
a severity of punishment and government in the chamber of houses of parliament, in committee, in an inquiry and assessing evidence is impartial, and makes recommendation based on evidence, facts, consideration and turning its mind and reporting and provision of intelligent and relevant reasons for decid- ing one set of evidence over another. In the State of Victoria between 2015 and 2017 inclusive, in relation to the Inquiry into End of Life Choices, the Ministerial Advisory Panel, the release and writing of the VAD Bill, the VAD Act and the Parlia- mentary debates regarding the VAD Bill, all of the above indicia were cast aside by supporters of assisted dying and euthanasia. The supporters of assist- ed dying and euthanasia (not the same thing) have put testimony of pain into newspapers, magazines, newsletters, online “news” articles and collaborative “think tanks” consisting of themselves (occasionally with token “nay sayers” for an appearance of objec- tivity) which are then cited by the above as a circular reliance of self-generated evidence. A careful analysis of such reports will see many people speak about “The Oregon Experience” – industry jargon for a State in the United States of Amer- ica where assisted dying is claimed to be working per- fectly (based on empirical evidence, not on detailed analytical assessment). (I ran a marathon in Oregon in 2016 and at the time I did not even know that assist- ed dying was legal there). When one reads written
material and listens to sup- porters of assisted dying and euthanasia, and then write or speak in support of the VAD Bill you will see that they wish to assure their reader/ listener that the “Victorian Model” is safe because it is based on the “Oregon Model”. Regrettably, space in this letter does not allow me to detail how the Charter of Rights and Responsibilities Act 2006 (Vic) (Charter) which speaks so much about “equality” of every- one does not give equal status to those who suffer because of this VAD Act to those who use the VAD Act. The Charter has failed the biggest test it could ever hope to face. The Charter is very symbolic but in prac- tice – useless – as was the prediction made of it when it was debated. I will conclude the letter by saying, that it is well known and even claimed by Dying with Dignity that Doctors in Australia and Belgium are amongst the worst offend- ers in the western world for either killing, or unlawfully assisting the deaths of, their patients. The rule of law has not touched them because they go entirely unpunished. Indeed, the inquiry final report states that it killing is so out of control that it should be legalised and regulated. It is amazing, that no effort is made to have the police and judges convict criminal doctors of their crime, and they legalise their crime knowing that the legalisation of that crime will incentivise other people to abuse people their loved ones. David Foletta
“Interesting read. ‘At its core, this issue involves striking the right balance between open justice including the public interest in court reporting, and the right of the individual to a fair trial.’” - @LozAuld, Twitter
“My fave is the suppression order we can’t tell you about because it’s suppressed …” – Duncan McNag, Twitter
“The cover design you used for the #metoo issue was very confronting. It greeted me in the office every morning for a month. You do a good line in cover art over at the LSJ. Wonder what it looked like 50 years ago?” – Thomas Russell, LinkedIn
ISSUE 56 I JUNE 2019 I LSJ 11
“It’s ironic that we call them soft skills when in fact they are the hardest!” – Jo Leatham, Facebook “Because, generally, people who rank in the top 5 per cent on academic ratings do not have people skills ... the next 25 per cent are way better at that but they can’t get a place in law school ...” – Wendy Hardman, Facebook “I’d imagine most subordinate lawyers, like a lot of lawyers, have anti-social and narcissistic personality traits. So there’s no surprise they’d blame their supervisors for their own shortcomings. Especially so with the gen y, self-entitled ones. Which are also abundant.” – @rhinoerik, Twitter “Technical abilities can get you only so far.” – Alexander Katyk, Facebook
StarCard. The fuel card that rewards your business. Save money Save 4c per litre on Vortex Premium fuels and 2c per litre on regular petrol and diesel, all for a low monthly fee of $2.75 per card Save time All expenses captured in one invoice and available online 24/7 Earn Qantas Points* 1 Qantas Point per litre of Vortex Premium fuels Welcome to Audi Corporate
Apply today at caltex.com.au using referral code LAWSOCIETYAUS
StarCard eligibility criteria and Terms and Conditions apply. Visit caltex.com.au for details. *Qantas Business Rewards membership and Qantas Points for business are subject to the T&Cs at qantasbusinessrewards.com/terms and Caltex T&Cs at caltex.com.au/our-solutions/fuel-cards CAL00525 04/19
12 LSJ I ISSUE 56 I JUNE 2019
“I’d love government to compensate women over 55 for the low wage and childbearing impacts on our superannuation; make some savings on the welfare bill by giving us what our male counterparts have waiting for them on retirement!” – Wendy Hardman, Facebook “Insightful article and so fortunate to work with Scarlet, among other progressive leaders, at McCullough Robertson. Hopefully the legal profession will continue to support more women in leadership positions.” – Amy Tin, Facebook
Want to focus on your area of law? Shine Lawyers are now purchasing personal injury files. We have a team of dedicated personal injury experts in New South Wales who can get these cases moving, allowing your firm to concentrate on your core areas of law. We are prepared to purchase your files in the areas of:
PATRONAL FEAST DAY DINNER St Thomas More Society Friday, 21 June 2019 at 7.00pm
Motor Vehicle Accidents
With Guest Speaker Margaret Cunneen SC Union, University and Schools Club, 25 Bent Street (Cnr Phillip St), Sydney Mass will be celebrated in the crypt at St Mary’s Cathedral at 6.00pm All Welcome COST $150 (STMS Members & Guests) $165 (Non-Members) BOOKINGS To book for this event, visit www.stms.org.au/events
For a confidential discussion
Cath Evans Shine Corporate Group COO E email@example.com T 1800 870 414
ISSUE 56 I JUNE 2019 I LSJ 13
Study reveals disturbing rates of bullying and harassment
BY KATE ALLMAN
and women and, at an individual level, deal with the distress that arises from harassment, bullying and inappropriate behaviour.” Perhaps most shocking for Australian lawyers was that raw data showed higher rates of bullying and sexual harassment reported here compared to globally. 73 per cent of female respondents from Australia had been bullied, compared to one in two globally. Almost half of all male respondents from Australia had been bullied, which was up from one in three globally. Kieran Pender, an author of the report and Legal Advisor in the IBA’s
the Law Society to engage with victims and to ensure their issues are dealt with,” said Tidball. “The legal profession must display best practice and provide leadership in our community. This goes to the heart of everyone being treated equally by the law and before the law.” The legal profession has been under the spotlight in recent times, as various surveys and reports have highlighted the prevalence of sexual harassment. LSJ exposed the impacts of sexual harassment in the profession with an investigatory feature and podcast pub- lished in November 2018. In April 2019,
As many as one in two female lawyers and one in three male lawyers who took part in the largest-ever study on bullying and sexual harassment in the legal profession has been bullied at work. The ground-breaking global survey was conducted by the International Bar Association (IBA) in 2018 and gathered responses in six languages from almost 7,000 respondents in 135 countries. The raw data was shown exclusively to LSJ , and a summary published in May reveals the legal industry worldwide is rife with toxic and unlawful behaviour. According to the report, women law- yers suffered more than men on both counts of bullying and sexual harass- ment. Half of all female respondents reported that they had been bullied in legal workplaces, and one in three female respondents said they had been sexually harassed. Men did not escape the toxic behaviour, with one in three male lawyers reporting they had been bullied, and one in 14 men having expe- rienced sexual harassment. In most cases (57 per cent of bullying cases and 75 per cent of sexual harass- ment cases), victims said they did not report the conduct for fear of retribution and because official responses by human resources departments were “insuffi- cient” or “negligible”. According to the survey respondents, 80 per cent of per- petrators went unsanctioned. “This is a clarion wake-up call for the legal profession about a problem we need to address,” said CEO of the Law Society of NSW Michael Tidball. “The data is unedifying, but it under- scores the need for the Law Society to continue to provide leadership in con- fronting systemic inequity between men
This is a clarionwake-up call for the legal profession about a problemwe need to address. MICHAEL TIDBALL, LAW SOCIETY OF NSW CEO
Legal Policy and Research Unit, noted that reporting rates could be greater in countries that are more educated or aware of what constitutes bullying and sexual harassment. “Although those rates are shocking in Australia, and they are higher than the global average, it doesn’t necessarily mean the problems are worse in Austra- lia. It does mean we are perhaps more aware of these issues here,” Pender said. Tidball said this heightened aware- ness presented an opportunity for the Australian profession to lead a change of culture globally. “If the effect of that awareness is that we are getting high reporting, then there is an opportunity arising from that, for
the Women’s Legal Service Victoria released a report condemning the legal and justice sector as one in which sexual harassment was “pervasive, normalised and often accepted”. The Women Law- yers Association of NSW (WLANSW) has called for the legal definition of sexual harassment to be simplified as well as bystander provisions introduced to encourage more reporting and sanc- tioning of perpetrators. “Women in the legal profession are impatient for change and demand specific and measurable strategies and actions from their employers, legal regulators and from State and Federal governments,” President of WLANSW Larissa Andelman told LSJ .
14 LSJ I ISSUE 56 I JUNE 2019
NEWTHISMONTH A night at the theatre Prima Facie by Suzie Miller Solicitors and Law Society members are invited to a night of compel- ling Australian theatre at a special viewing of Prima Facie , an original play by Suzie Miller presented by the Griffin Theatre Company. This gripping one-woman show shines a light on the justice system and the experience of women in sexual as- sault or harassment cases. Thursday 6 June, tickets $89. lawsociety.com.au/primafacie FLIP Inquiry Series Behind the buzzwords: globalisation The FLIP Inquiry Series is a series of panel events led by thought leaders on legal industry “buzzwords”. A panel of experts will provide an engaging, thought-provoking look at globalisa- tionas it is affecting the legal profession. 19 June at the Law Society of NSW. lawsociety.com.au/FLIP Join Chief Justice of NSW Tom Bathurst AC, President of the Law Society of NSW Elizabeth Espinosa, and NSW Governor Justice Margaret Beazley AO QC for the launch of this new book by Francisco Esparraga. The book helps practitioners to develop an understanding of the core prin- ciples of ethical legal practice. 27 June at the Law Society of NSW. lawsociety.com.au/events Book launch: Ethical Legal Practice and Professional Conduct
Chris Sidoti INDEPENDENT INTERNATIONAL EXPERT FOR THE UN FACT-FINDING MISSION ON MYANMAR
Unless we move away from ‘diplomacy at all costs’ to a more early and effective response to gross human rights violations and atrocities, we will continue to have the ‘old normal’ being repeated.
ISSUE 56 I JUNE 2019 I LSJ 15
MITCH KOWALSKI BARRISTER, SOLICITOR, AUTHOR AND PROFESSOR IN LEGAL INNOVATION
There’s so much marketing talk about innovation in law firms these days – what does innovation really look like? Unfortunately, too many firms view innovation as a mar- keting advantage: “We’d better say AI somewhere on our website! We’d better mention innovation 50 thousand times in our material.” We’re living in a time of hype as opposed to substance. I think the proper way for firms to look at this is, “What do our clients want, and how can we deliver that in a way that is helpful, cost-effective, but still makes us money and makes the lives of our teams better?” There are two things that drive change in any industry. One is talent – who is coming into that industry and what is valuable to them? And two – do we have the tools to accommodate what they’re asking? We have a millennial generation that is closing in on their 40s and who are becoming partners in law firms. They have the trust of their clients and can move away from workplaces they’re unhappy with. They want to work from wherever they wish and whenever they wish. They want inde- pendence, purpose and they’re not afraid to leave if firms won’t accommodate those values. We have the tools to accommodate them and firms that don’t will suffer. It’s a riff on The Reformation, which was a time of great upheaval in Europe. Europeans went from having only one Christian religion – Catholicism – to splintering off into sever- al different beliefs about Christianity. Martin Luther, arguably the father of The Reformation, sparked a lot of rethinking. The same thing is happening in law today. People are questioning how legal services are delivered. Young lawyers and clients are saying, “Surely you can do things differently.” I’m going to talk about what the legal world will look like in 2050. For small firms and sole practitioners, in-house coun- sel, government lawyers and large firms. It’s instructive to look 30 years back and see how far we’ve come, and then to look 30 years forward and see what is coming. That way we can estimate the pace of change and what is realistic in terms of technology. What people should take away is that “innovation” isn’t just random, silly talk about flying cars, putting every- thing on a blockchain, or AI taking lawyers’ jobs. I intend to be very pragmatic in how I approach this talk, to give attendees a path forward. What do you think is the biggest change coming to the legal profession? One of your books is called The Great Legal Reformation – what does the title mean? What do you hope people will take away from your session at the FLIP Conference?
Mitch Kowalski has held almost every legal role you can imagine, in almost every sector of the legal industry around the world. He declares he has been a lawyer for “far too many years” – as partner of a large international law firm, a sole practitioner, in-house counsel for a global company, a board director at various companies, and a university teacher at three different law schools. He has written two books on legal innovation and been named a Fastcase 50 Global Legal Innovator. Kowalski will deliver the keynote speech at the 2019 FLIP Conference (flipconference.com.au). KATE ALLMAN needs only six minutes with him to predict his session will be the highlight.
16 LSJ I ISSUE 56 I JUNE 2019
BY LINDEN BARNES, SENIOR ETHICS LAWYER
giving guidance and supporting each other, the better it is for us individually as well as for the whole profession. If you think another solicitor is doing something wrong, there may be a perfectly good explanation for it. ere will be situations where you think it appropriate to complain to the regulator. For instance, we must all be honest (Conduct Rule 4). Also, might the misrepresentation be bringing the profession into disrepute (Conduct Rule 5)? Arguably, any misrepresentation by a solicitor does that. However, you must only complain
where you have a proper basis to do so (Conduct Rule 32). It certainly cannot be done to gain the upper hand in your client’s matter (Conduct Rule 34). Whilewe are on the topic of LinkedIn, do be careful of con dentiality. It may be wonderful advertising to say that you act for the Queen of Sheba, but she may not want you to disclose that. See Conduct Rule 9 – there is no self- promotion exception to our obligation of con dentiality. But there is an exception to ring an ethics solicitor, so always feel free to do that if you need to.
Q: I have noticed a fellow solicitor misrepresenting their qualifications on LinkedIn. What should I do? A: Now, here we have the professional equivalent of the glamour shot in online dating. How to make yourself look more attractive, supposedly, to potential clients, business connections and employers? My rst suggestion with almost any ethical situation is to talk to the other solicitor, colleague to colleague. We are all in the same profession and the more we can treat each other as colleagues,
ISSUE 56 I JUNE 2019 I LSJ 17
Samantha Ellison Joined as Solicitor, Commercial JemmesonFisher
Melanie Leahy Joined as Solicitor, Commercial JemmesonFisher
Belinda Rava Joined as Solicitor, Commercial JemmesonFisher
Mark Underwood Joined as Legal Counsel, Workers Compensation StateCover Mutual Limited
TomMcDonald Appointed to Regional Managing Director, Australasia Vannin Capital, Sydney
Margot King Joined as Partner and Head of Real Estate – Sydney Piper Alderman
SamanthaWilliams Joined as Senior Associate, Family Law Roberts Legal
Grant Long Joined as Specialist Group Principal Nexus Law Group, Newcastle
Shannon Finch Joined as Partner, M&A Practice Jones Day, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
GOLDENGAVEL 2019 LegalVision lawyer takesGavel glory
versity in law while still managing to have the audience chuckling into their breakfast. Runner-up and Peoples’ Choice winner Joseph Bates pushed the boundaries of appropriate ear- ly-morning content with his topic, “Dropping your briefs: e rules of dating another lawyer.” Seeking in- spiration from dating apps and Barry White, the 800-strong audience will never think about “deeds” in the same way again.
e highlight of the NSW Law Week calendar, the Golden Gavel pitches 10 young lawyers against each other in the stand- up comedy stakes. Contestants are given 24 hours to prepare their speeches. is year’s event was held at e Westin, with Jane Needham SC the judge of honour alongside major spon- sors Sparke Helmore. MC Julian Morrow didn’t disappoint. Eliezer will go on to represent NSW at the National Golden Gavel later this year.
LegalVision Senior Legal Project Manager Dhanu Eliezer has taken out the 2019 NSW Young Lawyers’ Golden Gavel competition, edging out Baker McKenzie’s Joseph Bates to take the glory. In a tightly contested eld, Eliezer brought the house down with her comic exploration of the topic, “ e person really in charge isn’t the managing partner, it’s ...”. rough clever use of props and sharp wit, Eliezer made a serious point about di-
18 LSJ I ISSUE 56 I JUNE 2019
Get ready for eConveyancing
From 1 July 2019, all mainstream property dealings must be lodged electronically. This includes:
h Transfers h Mortgages h Discharges of mortgage h Caveats h Withdrawals of caveats h Transmission applications
Next steps 1. If you haven’t already, please register for eConveyancing now 2. Register for the Office of the Registrar General’s eConveyancing courses 3. Watch our “How to” videos and read our FAQs
For more information, please go to: www.registrargeneral.nsw.gov.au/eConveyancing
FAMILY LAWREVIEW Experts examine ‘seismic shifts’ proposed to family law system
people at the Law Society’s most recent Thought Leadership event discussing “Family law courts – change for a sys- tem in distress”. FLIP Stream Research Fellow and UNSW Law professor Felicity Bell facil- itated the conversation alongside a panel of four experts including Doolan, Kylie Beckhouse, Director of Family Law at Legal Aid NSW, Geoffrey Sinclair, a part-time commissioner at the ALRC, and Kerry Chikarovski, a lawyer, author and board member of Our Watch. The ALRC report, which was tabled in Parliament by Attorney-General Christian Porter in April, advises chang- es to how parenting orders were made, and questions whether judges should be required to start by considering a default position of equal shared care by both parents – as the current law proscribes. It also suggests a range of recommen- dations to address the increasing prev- alence of family and domestic violence matters entering courts alongside family law matters. “Legal Aid data tells us that domes- tic violence is a feature of 80 per cent of the family law matters we act in,” said Beckhouse. “We are becoming much better at identifying domestic violence and re- sponding to it … We were pleased the ALRC recommended a continuance of the Family Advocacy and Support Ser- vices, providing integrated duty repre- sentation and social support services for families affected by family violence.” The report also recommended the Australian Government work with state and territory governments to develop a “national information-sharing frame- work” for courts to consider informa- tion relevant to family law, family vio- lence, and child protection matters in cases involving domestic violence.
The recommendation that the states and territories assume adjudication powers for family law disputes would be a seismic shift. It would reshape the landscape of the family law courts throughout Australia. PAUL DOOLAN, CHAIR OF THE FAMILY LAW EXECUTIVE OF THE LAW COUNCIL OF AUSTRALIA
the landscape of family law in Australia. “The recommendation that the states and territories assume adjudication powers for family law disputes would be a seismic shift,” said Paul Doolan, a partner at Barkus Doolan Family Law- yers and Chair of the Family Law Exec- utive of the Law Council of Australia. “It would reshape the landscape of the family law courts throughout Aus- tralia. Even if it gains support, there are enormous funding, structural and polit- ical considerations before it could ever be achieved, and it may prove to be a five-to-10-year project. The Law Coun- cil is looking closely at whether that is a step in the right direction or not.” Doolan spoke to an audience of 100
A panel of family law experts has weighed in on the recommendations put forward by a national review of Australia’s family law system. The Australian Law Reform Com- mission (ALRC) released its report Fam- ily Law for the Future: An Inquiry into the Family Law System in April, recom- mending 60 changes to the family law system in Australia. One of the most dramatic recom- mendations was to abolish federal fam- ily courts and return the resolution of family law disputes to the states and territories. But a panel of family law experts at the Law Society of NSW on 14 May said this could have huge implications for
20 LSJ I ISSUE 56 I JUNE 2019
PROPERTY Lawyers face cyber risk as property settlementsmove online
cent since 2009. Australian businesses lost more than $107 million to scam- mers in 2018, with email “phishing” scams the most common type of scams reported. Although previously the telephone was the most-used method for scammers to connect with victims, the report said modern scammers preferred targeting victims via email (causing losses of $25.3 million in 2018), text message ($2.1 mil- lion), or social media ($15.7 million). InfoTrack CEO John Ahern (pic- tured) said the cyber scams presented a serious threat to property lawyers, who are increasingly exchanging online via e-conveyancing. Ahern and InfoTrack
recently launched a software called “Securexchange” to protect lawyers and their clients from hackers using e-conveyancing. “We’re witnessing how vulnerable the property industry has become to cyber fraud, due to the high-value nature of online property transactions,” said Ahern. In 2018, Consumer Affairs Victoria reported that several Victorian prop- erty buyers lost more than $200,000 to a hacking scam targeting the email accounts of real estate agents. A Ray White agency in Brisbane also landed in court after accidently sending $90,000 worth of client deposit proceeds to a scammer.
Property lawyers are warning of a heightened threat of cyber fraud to law firms and clients as high- value property transactions are increasingly conducted online via e-conveyancing. The Australian Competition and Consumer Commission (ACCC) released its annual report on national scam activity in April and highlighted that the number of scams reported to Scamwatch in 2018 had increased dra- matically in recent years – up 765 per
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.
“Our teamhas an outstanding record of achieving terri c outcomes for employees in both the private and public sector. We assist our clients with a combination of strategy, tenacity and compassion.”
• • •
JoshBornstein NationalHeadofEmploymentLaw MauriceBlackburn
• Whistleblowerprotection&claims • Workplacebullying • Workplacediscrimination • Publicsectormatters • Performance&disciplinary investigations/allegations
Weare theonlyFirstTieremployment law rm foremployees in Australia,asrecommendedby theprestigiousDoylesGuide.
ISSUE 56 I JUNE 2019 I LSJ 21
For the full round-up of Law Society advocacy, see page 68.
Enormous spider makes appearance in local court NSWmagistrate Les Mabbutt brushed o concerns from the Bar table at Sutherland Local Court about a rather large huntsman spider spotted on the wall behind him. News Corp journalist Eliza Barr tweeted about the magistrate’s encounter with the enormous arachnid in April. Solicitor at Sutherland Local Court: “Sorry to interrupt, Your Honour, but there’s a massive huntsman to your right.” Magistrate : “Doesn’t worry me.”
Reformof the common law forfeiture rule
The Elder Law, Capacity and Succession Committee contributed to a submission to a review conducted by the South Australian Law Reform Institute considering reform of the common law forfeiture rule. e common law forfeiture rule states that a person who has committed an unlawful killing cannot inherit property as a result of the crime. e Law Society recommends that other states and territories consider adopting a model based on the New South Wales regime, in which the common law applies alongside a statutory judicial discretion giving the court broad powers to modify the operation of the common law rule . Review of pricing framework for electronic conveyancing services in NSW The Property Law Committee contributed to a submission to the Independent Pricing and Regulatory Tribunal in response to the Issues Paper. e Law Society stated that the approach to pricing must ensure that additional charges to Electronic Lodgment Networks and industry do not erode the bene ts of electronic con- veyancing. Competition must not result in increased costs to the industry and clients . The Litigation Law and Practice, Employ- ment Law, and Human Rights Committees contributed to a submission to the Law Council regarding the Council of Attor- neys-General (CAG) review of the ‘Model Defamation Provisions’ . In its submission, the Law Society noted that the Model Defamation Provisions pre- dated some ‘signi cant development in digital communication’, notably several social media platforms. e Law Society also set out responses to the questions posed in the CAG discussion paper on the topic . Review of model defamation provisions
Solicitor : “It’s quite large.” Magistrate : “ at’s okay.”
Solicitor : “Probably scared myself more than I scared you.” Barr tweeted that the spider was “the size of my st” and a metre away from Mabbutt, who was later heard saying that snakes were the only real concern insofar as critters in ltrating the courtroom. e huntsman is reported to have disappeared before it could be escorted out. Being both judge and jury A senior circuit judge in the UK has been fighting a summons to sit as a juror for a hearing that he was also scheduled to preside over. According to e Guardian , resident judge of Winchester and Salisbury Keith Cutler attempted several times to excuse himself from his civic duty sitting on a jury panel for a trial starting in April. “I told the jury central summoning bureau that I thought I would be inappropriate,” Cutler said. “ ey wrote back to me. ey picked up on the fact I was the judge but said ‘Your appeal for refusal has been rejected but you could apply to the resident judge’, but I told them, ‘I am the resident judge’. I had to phone them up and they [eventually] realised it was a mistake.” In England and Wales, only diplomats can be exempt from jury duty. Since 2004, legal professionals including judges, law- yers and politicians have been eligible to sit on a jury.
22 LSJ I ISSUE 56 I JUNE 2019
The largest global team in the industry. $200 million in capacity. Thousands of transactions completed.
MOCK TRIAL Mock trial kicks o for 2019
Teams from St Mark’s Coptic Orthodox College and Hurlstone Agricultural College competed for the opening round of the Law Society’s Mock Trial competition in April.
The opening session of the 2019 Mock Trial competition kicked o with a bang in April as two teams of high school students exchanged courtroom blows over an imaginary case involving theft of PlayStation games. Years 10 and 11 students from St Mark’s Coptic Orthodox College prosecuted the case against a defence team from Hurlstone Agricultural College. Both teams elded two barristers, an instructing solicitor and a court o cial, as is required for all teams in the mock trial competition run annually by the Law Society of NSW. Solicitor Mina Hanna from MRG Solicitors in Kogarah presided over the case as magistrate and re ected that the competition was “red hot”. However, Hurlstone Agri- cultural College won by a small margin as the prosecution were unable to prove their case beyond a reasonable doubt. e Mock Trial competition has been run by the Law Society of NSW since 1981 and aims to introduce students to the NSW judicial system through practical experi- ence of running a court case.
Our expertise helps M&A deals take off.
Introducing Liberty Global
Transaction Solutions We've brought the best minds in M&A insurance together with a dedicated team of in-house claims specialists to create bespoke policies and get deals done. To learnmore, go to www.libertygts.com.
Cross-examination Test your legal knowledge ...
1. True or false: new penalties for drink driving mean drivers caught over the limit, even low range, could lose their licence on the spot? 2. What is the maximum on-the-spot fine police can issue under the new laws? 3. Name the commissioner appointed to lead a special commission of inquiry into the drug “ice” in NSW? 4. What is the scientific name for that drug? 5. From which Sydney law school did NSW Governor Margaret Beazley graduate? 6. Who is the President of the NSW Court of Appeal?
7. Which year was aspiring politician Fiona McLeod President of the Law Council of Australia? 8. How many seats are in the Australian House of Representatives? 9. In which year was the Universal Decla- ration of Human Rights adopted by the United Nations? 10. Name the Australian billionaire with his own political party who was recently rejected by the High Court in his attempt to challenge election prefer- ence counting?
Answers on page 63
ISSUE 56 I JUNE 2019 I LSJ 23
Made with FlippingBook flipbook maker