LSJ March 2018
ISSUE 42 MARCH 2018
Enter the entrepreneurs Why boutique and start-up firms are becoming increasingly successful Master classmemories Mark Tedeschi AM QC on the case that shaped his illustrious career Protecting the disabled Alastair McEwin reflects on 25 years of the Disability Discrimination Act Amatter of metadata Why safeguarding privileged client information must be front of mind
Ahard-fought century The rollicking tale behind 100 years of women lawyers
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ISSUE 42 I MARCH 2018 I LSJ 49
28 Hot topic
54 The fermented fad Are kombucha and other trendy items really magic potions or just marketing creations? Joanna McMillan uncovers the truth 58 Travel
New research from UTS forensic analysts adds to concerns about the dark side of Bitcoin
Can you say no to a promotion without damaging your career? Rachel Setti thinks so
30 Cover story
48 A day in the life
On the eve of the 100-year celebrations, Tony Cunneen revisits the strange and lengthy fight to allow women to practise law in NSW
As head of Shine Lawyers’ abuse practice, Lisa Flynn sees the importance of addressing the issues of child abuse
Ute Junker presents her tips for a visit to Shanghai and test-drives a new luxury resort with a fascinating history
36 Boutique firms
66 Closing argument
What does it take to start and run a small, specialised firm? Dominic Rolfe finds out
Two solicitors explain why they are tackling a 250km ultramarathon across the Sahara
In a new LSJ column, former Senior Crown Prosecutor Mark Tedeschi talks about the case that changed him
ISSUE 42 I MARCH 2018 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 16 News 20 Members on themove
82 Cyber security
The latest developments in law reform
Global developments in cyber security: is Australia keeping pace?
84 Class actions
Reflections on 25 years of the Disability Discrimination Act
Montara oil spill: time extended for Indonesian seaweed farmers
‘Outer limit’ contracts within unfair dismissal bounds
This time it’s personal: defamation claims against solicitors
25 Expert witless 25 The LSJ quiz 26 Out and about 40 Profile 44 Professional development 50 Doing business 51 Career coach 64 Books 106 Avid for scandal
88 Medical negligence Managing costs in medical negligence claims 90 Alternative dispute resolution
Why it’s time to wise up about metadata
Split-deposit clauses and penalties reconsidered
Court-referred ADR: Judicial perceptions
92 Case notes
HCA, FCA, Criminal, Family & Wills
4 LSJ I ISSUE 42 I MARCH 2018
ISSUE 42 I MARCH 2018 I LSJ 49
A word from the editor
The photograph on this edition’s cover is remarkable in several respects. It depicts Adela Pankhurst, the estranged and controversial daughter of British suffragette movement leader Emmeline Pankhurst, sharing her anti-conscription views on a Sydney street in 1941. Perhaps because of her gene pool, Pankhurst was bold and unafraid; a powerhouse who was instrumental in the movement that saw women in NSW gain
Managing Editor Claire Chaffey Associate Editor Jane Southward Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Senior Writer
the right to practise law and participate in parliament 100 years ago. What bravery must have been required to shake up the establishment and demand a fair go. For all her flaws (she was a known Nazi sympathiser, for one), thank goodness we had women like her – and the many others referenced by Tony Cunneen in our fascinating cover story on page 30, “Pioneers and pariahs: a century of women in law”. It has been wonderful to receive so much positive feedback on the February edition of LSJ . Many of our readers appreciated the focus on health and wellbeing, and many, it seems, are dog lovers. One reader loved the cover so much that it is now stuck to his office wall for “therapy” (maybe a first for LSJ ?). You’ll be seeing a lot more on health and wellbeing in LSJ throughout the year. If there are other topics you would like to see us cover in LSJ , please do let us know. We are always listening to your feedback and suggestions. Email us at email@example.com.
Lynn Elsey Reporter Kate Allman Art Director Andy Raubinger Graphic Designers Alys Martin, Michael Nguyen 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 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.
TONY CUNNEEN Women in law p30
DOMINIC ROLFE Boutique firms p36
JOANNAMCMILLAN Health p54 Kombucha. Kimchi. Fermented vegies. Nutritionist Joanna McMillan explores the science behind the latest food fad of fermented foods. She warns that common sense is needed and offers some less expensive options.
ALASTAIRMCEWIN Discrimination p71 Alastair McEwin is Australia’s Disability Discrimination Commissioner. He reflects on 25 years of the Disability Discrimination Act , its successes and areas where law reform is needed to strengthen the Act.
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Tony Cunneen teaches at St Pius X College in Chatswood and has written extensively on the history of the legal profession. In our cover story, he looks at the long and often fraught campaign that led to women being able to practise law.
Is small the new black? Sydney journalist Dominic Rolfe looks at the rise of small, specialised law firms and interviews lawyers who tell how going small is helping them break out of traditional legal pathways.
ISSUE42 MARCH 2018 LSJ03_Cover_March_Issue 42.indd 1
Entertheentrepreneurs Whyboutiqueand start-upfirmsare becoming increasingly successful Masterclassmemories MarkTedeschiAMQCon thecase that shapedhis illustriouscareer Protectingthedisabled AlastairMcEwin reflectson25 years of theDisabilityDiscriminationAct Amatterofmetadata Why safeguardingprivilegedclient informationmustbe frontofmind
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.
Ahard-foughtcentury Therollicking talebehind100yearsofwomen lawyers
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6 LSJ I ISSUE 42 I MARCH 2018
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I ncreasing solicitor appointments to the judiciary is essential to maintain public confidence in the justice system. The breadth of solicitors across the state provides a diverse source of different backgrounds, experience and skills. Almost all appointments to the District and Supreme Courts since 2012 have been sourced from the Bar. The Law Society does not suggest that any appointments have been without merit. However, we remain concerned about a lack of diversity in the NSW judiciary, and particularly the lack of solicitors appointed as judicial officers. The Law Society is actively seeking more solicitor appointments. I have invited NSW Attorney-General
Mark Speakman and the Department of Justice to engage with us on ways we can improve the appointment process and promote greater diversity in our higher courts. It needs to be emphasised that it is the government that makes all judicial appointments, not committees that might interview applicants. The current figures give solicitors little incentive to even apply for appointment. It is understandable that many do not apply because of a perception of bias, including that the process favours barristers. Of the 39 appointments to the District court since 2012, there was just one solicitor who was also formerly a magistrate. No solicitors have been appointed to the Supreme Court since 2011. Barristers also have increasingly become a preferred pool of candidates for the Local Court. Greater diversity could be sourced from the solicitor ranks. One only need look to the gifted practitioners in the Law Society’s Specialist Accreditation program to find many solicitors of equal merit among the 32,000-strong solicitor population in NSW. The program received more than 220 applications last year, adding to the roll of more than 1,600 specialists. The process for judicial appointments must, of course, remain merit-based, but our process and accountability for achieving diversity must be strengthened to improve the outcome. There are many options to improve the system. Among them is expanding the role of the NSW Judicial Commission to include appointments along the lines of the United Kingdom system, which has a more transparent and rigorous application, assessment, consultation and selection process. Alternatively, greater openness and diversity could be achieved by formalising the application, assessment, consultation and selection process in consultation with the heads of jurisdiction and the relevant legal professional bodies. Whatever steps are taken, it is clear we need more rigorous data on the demographics of the judiciary to understand more about the dynamics of the appointments process to improve diversity. Our efforts will continue until we achieve a greater commitment from the NSWGovernment, the judiciary and the legal profession towards greater diversity on the bench, including solicitors.
Doug Humphreys OAM
8 LSJ I ISSUE 42 I MARCH 2018
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ISSUE 42 I MARCH 2018 I LSJ 9
An inspiration I have just read Lillian Leigh’s story ( LSJ
Parent Management Hearings were introduced by the Commonwealth Government through the backdoor of the 2017/2018 budget with apparent minimal to no consultation with stakeholders. The intent of these ‘hearings’ is designed to reduce the cost and time for potential litigants to achieve outcomes in parenting matters. This is a concept that I am sure all members support, however the devil is in the detail. These hearings remove the automatic right that a person has to legal representation, the rules of evidence do not apply and the determiner of the dispute is a panel of lay persons. These are just some of the radical changes that apply to these ‘hearings’. Consequently, the adversarial system of determining parenting disputes is or, will in part be, replaced with an inquisitorial tribunal, which has the power to make life changing decisions for those persons before it. The concern that I hold is that such an important piece of legislative reform ought to have with it some evidence based research as to the short and long term effect on litigants, the profession and the court. Further, there must be a period of consultation undertaken before any change it actually adopted. None of this either exists or has occurred. The second and far reaching Commonwealth Government review into family law will surely have regard to these hearings as a means of addressing Terms of Reference to achieve a system of faster, more cost effective outcomes for litigants in the family law system. The irony of course, is that this goal has been set by a government who has a track record of untimely appointments to the bench, stalling funding into the system at large and ignoring the concerns of the profession about physical spaces in which family law matters are heard. If left unchecked, there is
a real chance that the green light will be given to a more expansive adoption of Parent Management Hearings and the role of lawyers will be greatly curtailed. I implore members and our trusted Law Society to stand unified against the attempts by government to reduce the role of the legal profession in general. For those members who are may not be impacted by radical changes to the operation of family law, I simply ask you this question; which jurisdiction will be next? The best way that we can all achieve the longevity of law is to fiercely advocate to government the essential and necessary role of lawyers in our current legal system. We must avoid being marginalised as a profession and the role of the court system being eroded by government. We are part of the solution, we are not the problem. This is best achieved through phrasing the role of family lawyers and the associated court system in a far better light than what we generally do. I suggest to members that we need to be our own advocate and speak out loudly and clearly to government by making a submission to each review online about the critical and beneficial role that we play within the system in assisting the court and the community in solving problems and conflict. Christopher White, President of the Hunter Valley Family Law Practitioners Association Best cover ever I have to say, what an awesome front cover! And what a wonderful, good news dog story – very uplifting. I’m a bit of a soppy animal lover and have always had a cocker spaniel since I fell in love with one when I was five. Puppies are hard work but with patience and training the rewards are practise in not just family law, but all other types of
Feb 2018) and I hope her clinical trial is successful and continues to be successful and allows her to lead a full and long life. Lillian’s love of surfing came through, and her beautiful prose and literary use of waves, the ocean and respect resonated. As a 64-year-old lawyer who grew up in Wollongong and did articles, I found that the ability to go surfing before work, particularly at Sandon Point at Bulli, kept me in keel, taught me respect, allowed me to meet a great group of people that always made me more functional at work and then for my night time correspondence study. I also through necessity became a competent surfer and got to surf great waves, which satisfied the aesthetic and kept me fit. With her activities and daughter and husband it is difficult to get in the water, but try for quality rather than quantity. It can become a bit like the snow skiing weekend or week once a year, though I hope yours is once a month at least. The lesson of living in the present moment is often only really learnt when something bad happens. I hope Lillian gets through to be able to enjoy all her life holds. Stephen Titus, Partner, Carneys Lawyers Concern about reviews I have read and followed with interest the comments of the Presidents of the Law Society of NSW and members of our profession in terms of the current state of family law. I am sure that some members, though not all, are aware of two Commonwealth Government reviews into the family law system. The first is a Parliamentary inquiry into ‘Parent Management Hearings’ and the second is a review into the family law system more generally. It is the first review that I am concerned not all members are aware of.
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 email@example.com for instructions on how to claim your prize.
everlasting. Well done on another beautiful issue. Mark Rolls
10 LSJ I ISSUE 42 I MARCH 2018
Jail birds I have just read the latest LSJ with the President’s view on the number of people in jails. Firstly, the number of men vastly outnumbers the women serving terms of imprisonment. Where is the outcry for the men who are over-represented in jails? My experience of the criminal law system in NSW is if you receive a jail term you have done something very bad or you refuse to stop committing criminal acts. People are not incarcerated for minor o ences, nor is it the first choice of sentencing. Is the President suggesting we should not jail people who commit serious crimes or refuse to stop committing crimes? I fail to see the point of the article unless that is his position. I would like to see someone from the Law Society comment on the number of males in prison and
what steps are being taken to reduce this number. Brendan Manning, Manning Lawyers Citizenship or nationality? An alien in my own land? I refer to Mr Blackshield’s article on the mis-named “dual citizenship crisis” in the December LSJ . There is no crisis, save that the majority decision in Sue v Hill was manifestly misconceived. I was born in NSW as a subject of His Late Majesty George VI, before there was any so-called “Australian citizenship”. Every o cial form I ever signed described my nationality as “British subject” and I continue to so describe my nationality (as opposed to “citizenship as shown in passport”). Quick and Garran observe that the new Commonwealth was expressly denied a power to decide who were to be its “citizens” – an
alien term proper to republics. I swore an oath of allegiance to Her Majesty as Queen of the United Kingdom of Great Britain and Northern Ireland etc on entering the Commonwealth Public Service in 1972. Am I now, unlike Senator Xenophon, thereby disqualified from election to Federal Parliament? The High Court decision in Sue v Hill creates even more mischiefs. Not a single person in this country is now free from the (at present distant) threat of some lunatic future Federal Parliament or Federal Minister declaring him or her to be a “non-citizen” to be deported at will to Manus or Macquarie Island or elsewhere. As my relative Edmund Burke observed of French republican fantasies on the rights of man, an ancient status surrounded by ancient and respected precedent is to be preferred to a brave new
world of novel legislative and judicial manufacture. Terry Dwyer, Dwyer Lawyers A culinary dispute Mr Lee Kwo, a well-known food aficionado and critic, had a reputation for experimenting with cutting-edge cooking and culinary environments. He was avidly enthusiastic about the trend towards insects as the new frontier of gustatory experience. Mr Lee heard a rumour of a pop-up kitchen that specialised in cooking exotic insects, such as a rare to endangered South American grasshopper. This creature, when prepared correctly, tasted like a cross between the rich Languedoc tru e and a variety of lobster specific to a tropical atoll at the northern tip of the Great Barrier Reef. Mr Lee was excited and couldn’t wait to try this culinary treat. He waited for
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ISSUE 42 I MARCH 2018 I LSJ 11
several hours on a street corner in Sydney’s CBD, when a truck suddenly appeared, the side of which was opened to reveal a small but exquisitely accoutred kitchen. This was what Mr Lee was waiting for – the fabled Cuisine Insectivore de Grasshopper. Greedily, Mr Lee consumed at least half a dozen of these marvellous creations; and just as a beatific smile of delight began to radiate from his well- padded cheeks, he suddenly convulsed and collapsed on the ground. Rushed to hospital, he remained in a critical condition for several days. He eventually recovered only to discover, to his horror, that his tastebuds had been absolutely, completely and with total finality destroyed. Being of significant financial resources, Mr Lee began action against the company Insectivore de Grasshopper. He employed the finest silk money could afford and, inevitably, the matter was heard before Mr Justice Davidson, a jurist with wide experience in this area. The case proceeded, with the plaintiff pursuing the action through his counsel with the greatest of vigour. At one stage, Mr Davidson, who was famous for his oratorical skills, was in full flight, portraying the time and place in which Mr Lee suffered his tragic contretemps. At this point, Justice Davidson interrupted to say to counsel: J: I assume, Mr Davidson, you are referring to the locus in quo? The silk drew himself to his full, not insignificant height, fixed the judge with a gimlet eye, and replied in his usual sonorous baritone D: I am in fact, your Honour, referring to the locusts in Kwo. Mark d’Arbon Monkey claimmissesmark Polly Seidler’s letter taking issue with PETA’s case in a U.S. federal appeals court on behalf of Naruto, a free crested
male macaque monkey, who unquestionably took the famous “monkey selfie” photo, misses the mark ( LSJ December 2017). Our society has evolved and our understanding of who is deserving of “rights” has naturally progressed considerably throughout history. There was a time in the not-too-distant past when women were denied the right to own property or vote; black people were regarded as “subhuman”; and gay couples were denied the right to marry. Today, society and the courts are recognising that legal rights should not be determined by your species any more than by gender, skin colour or sexual orientation. We now understand that animals aren’t “things” to dominate but rather breathing, feeling beings with families, dialects, interests, intellect and emotions. As this mindset begins to coalesce throughout society, we will look back with shame for once having viewed Jeffrey S.Kerr, General Counsel and Senior Vice President of Corporate Affairs, PETA Foundation Dear fellow human being Having just read a letter in the Feb LSJ in which the writer complains because most letters start with Dear Sirs, well, all I can say is “get a life”. There are more important issues to worry about. I am a woman and I don’t get offended. In fact, it is very convenient rather than seeing that very annoying Dear Colleagues that irritates me so much. Also, what if it is a bank or a company? Starting with Dear Sir or Dear Sirs solves all these problems, as we all know it is only a polite formality, and I am sure most people receiving the letter are more concerned with the substance in the letter itself. Why have any introductory words at all and simply get to animals as less deserving of legal protection and consideration.
the point immediately? If there does need to be something written, why not start off with Greetings? If some people are going to get upset over such a trivial matter, how about the words at the end of a letter? Do the writers really mean “faithfully” or “sincerely”? All this sounds like the usual politically correct brigade at it again who want to change our language whereby postmen become postal officers, a chairman becomes a chair and firemen become fire persons. Sounds to me as if a lot of people are not gainfully employed and have a lot of time to waste on minor issues. D. Melekok, Parramatta Young and ignorant Alexia Ereboni Yazdani’s letter ( LSJ February 2018) betrays the ignorance common to the younger generation. (I assume she’s young. I may be wrong. I just know I’m getting old and grumpy.) There is no excuse though for Claire Chaffey. As Editor of a professional journal, you should really know better (not that the “professional” part of LSJ occupies much space anymore). Terms such as “Dear Sirs” and “Yours faithfully” are the correct forms of business address. Emails made people think they should be less formal, hence “Hi”, “Warmest regards” and all the other nonsense we see nowadays. “Dear Sir/Madam” is acceptable if you feel you must, but even that is not necessary. Just as words like “mankind” include both men and women, so do generic terms like “Dear Sirs” in a business context. You are really addressing your correspondence to the business, not to any particular individual. It may be appropriate to include an individual’s name as a reference, or mark it to that person’s attention. Generic terms like “Dear Sirs” are meant to make life easier. Taking offence is just silly. Generic terms save the embarrassment of getting
names wrong or spelling them incorrectly. Generic terms save time. Imagine the time wasted trying to find out the correct spelling and name of every person in every organization to which correspondence is sent. In big organizations, the correct person this week may be someone else next month. Of course, if you are trying to impress e.g. applying for a job, that extra effort may be well worthwhile. But just imagine the potential for causing offence, as a result of getting an unusual name, such as Ms Yazdani’s, wrong. Helen MacKenzie, Solicitor Note from the ed: I can’t help but be slightly bemused at the sheer outrage of these letters telling us we shouldn’t be outraged ... NCAT concerns NCAT and its civil procedure encourage – virtually mandate – that an applicant/strata owner represent themselves in person i.e. must seek leave to appoint a solicitor to act for them at their own expense. In 30 years with CTTT/ NCAT, I am yet to see/hear of a single strata owner/applicant succeeding while acting for themselves in a ‘strata’ matter. Can the Law Society seek NCAT’s statistics in the past five years for how many strata owner/applicants have succeeded before the strata tribunal? Zero? This does not apply to the Consumer List … easy to succeed, even though its helpful pre-action advisory service no longer exists. As a ‘corporate body’, the OC almost invariably has legal representation paid by the OC (hopefully in accordance with SSMA 2015 etc), cost and risk thinly spread, often with massive perjury, distortion/ misinterpretation of law etc. Do other lawyers see this as a disproportionate imbalance of power leading to gross miscarriage of justice/ disenfranchisement/denial of human rights to strata owners?
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of human rights to strata owners? P. L. Hill, Associate member Coming up roses My heartfelt thanks to the editor who staggered to my o ce shortly before the Christmas Break with the most enormous bunch of flowers in festive colours that I have ever seen. I have enjoyed my work with the Journal/ LSJ since initiating the regular column on wills and estates at the turn of the 21st century. I did not stand for re-election to the Law Society Council when my term expired in 2017 and I am no longer a chair or committee member of the Elder Law & Succession Committee. My enthusiasm for the practice of wills and estate law continues. I hope to continue to contribute to that area of law and to the education of members of the profession for some years to come. My contact with committee members and the wider profession during those many years has been a treasured experience. Pamela G. Suttor, L. Rundle & Co, Sydney Supporting our sta Thank you for the opportunity to respond to a recent article (‘Are you burning out?’ February LSJ ). That article set out the apparently tyrannical and exploitative regime under which an employed solicitor was required to work. Unfortunately, I am the relevant employer. No-one is expected to work 12-hour days or nights. Sadly, the reality of private legal practice is such that there may be occasions when this is needed. Those occasions, at least in our o ce, are extremely rare and certainly not regular. Indeed, I have di culty recalling the last occasion when the lights were on in our o ce for 12 hours a day. The same comments are made in relation to weekend work. No-one has ever suggested
workloads are “gruelling”. We take active steps to look after our sta based on the philosophy that our sta will treat clients in a way that reflects the way we treat our sta . Some of the measures we have had running for a considerable time include: no sta member is required to work on their birthday; all full- time sta have a “shopping day” during December; for well over 10 years we have had a chaplain on our payroll whose duties revolve entirely around sta welfare; we have flexible arrangements for work hours and are quick to customise arrangements to suit individual requirements; everyone has unlimited access to quality co ee, tea and other refreshments and food items of their choice; we have a formal grievance policy for complaint resolution; we do not set targets for billing or recording time. We track and report on a monthly basis, but not with any mandates or firm- imposed requirements. Every second year a weekend outing is arranged whereby all transport, accommodation, meals and sightseeing are provided by the firm; we have engaged a massage therapist to spend the day at the o ce; we have engaged the services of Robyn Bradey to provide a full day of insights and wisdom (another day with Robyn has been booked for later this year). Once a month there is a sta morning tea to bring everyone up to date with what is happening and any issues that may concern them; we have monthly meetings with external parties such as financial planners, police, barristers and court support agencies so our sta are better informed; all sta receive appropriate gifts and cards for Christmas, Easter and Valentine’s Day; extra leave is granted where someone has gone beyond what is required; every two
ISSUE 42 I MARCH 2018 I LSJ 13
months there is a staff award voted on (anonymously) by staff; staff are encouraged to further their formal training and fully paid study and exam leave is provided. The firm carries a substantial part, if not all, of the costs of the course, travel and accommodation; professional fees such as practising certificates, Fidelity fund contributions, Law Society and regional law Society memberships and ongoing education are paid in full by the firm; and the firm was an early adopter of the Law Society’s Charter for the Advancement of Women. Formal annual audits are undertaken to ensure these policies and procedures are not just empty promises. At least two professional associations have taken an interest in and complimented us on these initiatives. It is therefore difficult to come to the conclusion that we do not provide any care or support for our staff. Sadly, not everyone is suited to or wishes to be involved in private practice. That is a career choice everyone is entitled to make. However, please don’t blame the employer for the nature of an industry we have no control over, and please abstain from criticisms at odds with the evidence. Name withheld Not just the lawyers I have just read with interest the latest proposals to affect family law matters and the involvement of lawyers. I assume the Law Society will take into account your members’ interests with the same vigour as you do the interests of others who are involved in family law matters when commenting upon recommendations, including any change to the law that would affect the ability of lawyers to represent their clients and earn a living in this area of the law. If the past behaviour
of the Law Society is any guide, I might expect to be “thrown under the bus” by the recommended changes to the law or submissions you may make regarding said changes. It is easy to blame lawyers for the delays and cost of litigation. The onerous requirements of the court to conduct even the simplest matter are burdensome and the delays are beyond belief. The conduct of the client who refuses to settle even when advised by the lawyer and counsel is never considered when this problem is examined and solutions proposed. There are three parties involved: the lawyer, court and client. The solution should not simply reduce the lawyer’s involvement to solve the problem but should address the complicity of the court and/or the client in the cost and delay. I am in favour and would support any initiative that would reduce the complexity and costs of an application regarding parenting matters. The court needs to consider its own failure to be flexible and willing to make decisions in a timely fashion. Past changes to the Family Law Act and court procedure have failed to speed up the process even if the lawyers were willing to reduce their involvement in the court’s proceedings. Parents need to be made accountable for refusing reasonable proposals for parenting orders that then require the court to hear and determine very minor disputes. Removing lawyers from courts will result in injustices just as excessive delays in having matters heard. History is replete with examples of the excesses of the state when people do not have independent legal representation. Brendan Manning, Director/ Principal Solicitor, Manning Lawyers Pty Ltd
14 LSJ I ISSUE 42 I MARCH 2018
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Tedeschi moves back to the Bar
BY JANE SOUTHWARD
His years of service make him the longest serving Crown Prosecutor in living memory. He is also a keen photographer and true crime author with books including Murder at Myall Creek, Kidnapped and Eugenia . Tedeschi said he wrote another book when he took long service leave last year but would not reveal the case involved. Wardell Chambers includes John Agius SC as Head of Chambers and six other silks, 10 senior-juniors, six juniors and two readers. Christopher Maxwell QC, who filled in for Tedeschi when he took leave last year, is acting in the position of NSW’s top prosecutor. A spokesperson for the Office of the Director of Public Prosecutions said the recruitment process was “underway”. Maxwell, who was appointed silk in 1989, successfully prosecuted Roger Rogerson and his co-accused Glen McNamara in 2016 for the murder of university student and drug dealer Jamie Gao. Staff at the Office of the Director of Public Prosecutions and members of the legal profession will celebrate Tedeschi’s contribution to the law at a private event in Sydney on 2 March.
After a record 35 years as a Crown Prosecutor, including 20 as Senior Crown Prosecutor, Mark Tedeschi AMQC has joined Wardell Chambers as a barrister. Tedeschi, 65, has helped put some of state’s most notorious criminals behind bars, including serial killer Ivan Milat, Robert Xie for the murders of five members of the Lin family in 2009, and Simon Gittany, who was convicted of throwing his fiancee off a high-rise balcony in Sydney. He told LSJ that he had been approached four times about a judicial appointment but had declined as he “loves to be an advocate, be it for the prosecution or defence”.
For more on Tedeschi’s reflections on his work in the law, turn to page 66 for our new column “The case that changed me”.
More therapy dogs for courts
Following LSJ’ s February cover story “Barking up the right tree: how dogs are creating a healthier justice system”, the NSWAttorney-General, Mark Speakman, has announced therapy dogs will be used in 10 courts. “A visit to court can be among the most stressful experiences a person can endure. During the course of this year, placid pooches will be offering a pat and a paw to help reduce the anxiety of court users at 10
courthouses around the NSW,” Speakman said. An evaluation of the nine-month trial of therapy dogs at Manly showed support from all participants who provided glowing reports on the benefits of having a friendly animal in the courthouse. “During the trial, these helpful hounds have assisted hundreds of victims of crime and witnesses who’ve enjoyed the benefits of the scientifically observed ‘pet effect’. It is exciting to see such a positive response to the program, not only from participants but also lawyers and court staff as well,” Speakman said.
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NEWTHISMONTH Time to get creative Entries for the Law Society’s charity arts initiatives Just Art and Just Music are open. e Law Society is calling for eligible artists and musicians to submit artworks and songs on the theme of “justice”. Finalists will be showcased at an exhibition and concert later this year, with proceeds going to the 2018 President’s charity, e Butter y Foundation. “Many members of the legal profession are involved in music and art so it’s an honour for the Law Society to showcase their many talents,” said Law Society President Doug Humphreys. Visit lawsociety.com.au/president for more information. Volunteers needed Women’s Legal Service NSW (WLS) is seeking volunteer family law solicitors and employment law solicitors. WLS is seeking women lawyers to volunteer for its Tuesday evening telephone advice service. is service eases the high levels of demand on daytime services for advice and provides an alternative for women who cannot access the service during business hours. WLS has a proud 30-year history of providing free legal services to women across NSW. WLS brings a feminist philosophy to its work which includes a deep understanding of the gendered nature of violence against women and the value of accessible information and advice about the law to empower women to make safe choices about their legal options. If you have at least three years post- admission experience in family law or sex discrimination in employment law and are interested in making a volunteer contribution to our work, go to wlsnsw. org.au/about-us/volunteer-with-wls- nsw/ for more information.
PRESIDENT, AUSTRALIAN HUMAN RIGHTS COMMISSION
Good relationships and open doors are absolutely crucial for us to be able to play the role of adviser to its fullest — to be the devil’s advocate and, as I have said, even at times to be the ‘devil’s blowtorch’, for which you need to have a respected, indeed trusted, seat at the table.” December 2017
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PETER FAZIO sixminuteswith
DIRECTOR, LIGHTHOUSE LAW GROUP, PREMONITION AI AND LEGALSIFTER AUSTRALIA
winning percentages, average case length and settlement figures. Premonition has uploaded all Australian court records databases, allowing it to provide detailed information about litigation in our courts, including individual success rates for matters in front of specific judges. In short, it is a tool to measure litigation success. Our current court system is based on believing that a client is being referred to the best barrister or lawyer for their particular situation. Premonition applies modern technology to this traditional practice, using real numbers and facts to increase the chance of success. How can the information be used? Lawyers use the information in lots of ways. It can be used to determine the win/loss ratio of an opponent in an upcoming litigation matter or allow someone to develop a strategy to best argue a case. It can be used to retain the best lawyer for a specific type of matter or help locate and market to new clients by providing the statistics to support a good track record in a specific area. It can also be used for
information, such as finding there is only a 3 per cent correlation between higher fees and better legal performance, which might ruffle a few feathers. What has been the response thus far? Anything new is going to receive different reactions. Premonition has been received quite well in the US. Currently, large companies are using the data to measure the potential effect litigation could have on its share price, for example. As a practising lawyer, I am aware that our profession is measured by more than just wins and losses. However, new technology can help us create a better, efficient profession more suitable to the 21st century than the 15th. How does LegalSifter differ? LegalSifter uses artificial intelligence to scan and review legal documents against in-house advice and requirements. It is designed to allow more affordable, efficient legal review of contracts and other legal agreements. LegalSifter reviews documents fast, with fewer errors, and enables tailored information for each client, allowing them to engage “your brain” 24/7 with the help of artificial intelligence. In the days before the cloud, I travelled to Europe for a holiday and found it incredibly difficult to connect to my office to review an urgent agreement. It got to the point where, rather than looking at the historical sites, my holiday became searching for fast internet. It led me to think that lawyers need technology to help us help others. How did you get involved in technology?
Peter Fazio is the tri-lingual director of Lighthouse Law Group, a small general practice firm located in Five Dock, Sydney. He is also the Australian director for two US-based legal tech companies, Premonition and LegalSifter. Both companies recently launched in Australia.
What is Premonition? Premonition is a large litigation
database that gathers court data from publicly available records and
uses analytics to turn it into searchable data, including
recruitment, allowing you to review potential staff by accessing the applicant’s actual results in court. Firms can also use it to set prices, in comparison with other firms and their track record in court.
Premonition’s new Australia Courts Report 2017 includes
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BY LINDEN BARNES, ETHICS SOLICITOR
Q: I have heard the Law Society has a group of experienced members who can advise solicitors if they run into trouble and/or are involved in disciplinary procedures. How does this work? A: One of the main aims of this year’s Law Society President, Doug Humphreys, is to reinvigorate the services the Law Society provides to members of the profession. An important service is the Professional Conduct Advisory Panel, a voluntary and confidential service provided by senior members of the profession to help solicitors who have concerns over potential or actual disciplinary proceedings, including complaints, show cause events, and trust accounting issues. Solicitors can contact panel members for many reasons and, while the purpose of the panel is not to give legal advice, panellists are available to talk to solicitors about the process and offer practical support.
Jennifer Shaw Partner at Eakin McCaffery Cox Lawyers, who is a new panel member and has acted for both regulators and professionals subject to complaints.
“I joined the panel because I felt my depth of knowledge and experience of this area of law would be of benefit to colleagues in the profession who are facing complaints. “Some of the biggest conduct issues solicitors face arise out of trust irregularities and show cause events. Also conduct issues arising out of cash flow difficulties such as failure to keep up with payment obligations to staff, the ATO and third parties. “If there was one thing I wish all solicitors knew, it is not to ignore or delay in responding to a complaint, as that will only make matters worse. Seek help from a member of the panel.” “I joined just after serving on the Law Society Council and the Professional Conduct Committee. I felt it was a way to continue that service in a different way, especially after being involved with a few practitioners and realising the stress they were under and the real assistance you can offer when you understand the process and have had a relationship with the conduct department at the Society. “Having been a solicitor on the Far North Coast since the early 70s, I have come to know many local practitioners. Approaches tend to come from people I know and have had dealings with over the years, not that there have been many in recent times. Knowing the solicitors gives you some insight into the issues and colours your approach.” To contact a member of the panel , visit lawsociety.com.au/ForSolictors/professionalsupport/ supportingyou/seniorsolicitorsscheme John Maxwell Lismore practitioner who has been on the panel for many years.
Many panellists become involved as a way of giving back to the profession. Most, such as Serryn O’Regan , a new panellist who is in-house counsel for
a college and also does private pro bono work, say they want to support practitioners through what can be a stressful and difficult time if they are facing a complaint or other disciplinary proceedings.
Here, three panellists explain why they are involved.
Janine De Saxe Sole practitioner who joined the panel in 2018.
“I joined partly for selfish reasons, having become somewhat disaffected with the profession. Linden Barnes
of the Law Society suggested I might find it helpful to become involved in some of the committees and panels the Society runs. I have only been to one meeting so far, but can see that giving support to solicitors facing conduct or disciplinary issues will be a way for me to draw on all the issues I have faced in the years I have been in practice, and hopefully use my experience to help other lawyers in need.
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MaryAnn deMestre Appointed to Senior Associate John de Mestre & Co Pty Ltd
Sarah Reid Now Principal in sole practice Reid Legal
James Moir Joined as Partner – Strata Madison Marcus Law Firm
David Voet Joined as Partner
Andrew Sharpe Joined as Principal, Insurance Meridian Lawyers, Sydney
Archie Smith Joined as a Partner, Property, Construction &
– Real Estate & Developments Madison Marcus Law Firm
Planning Group Gadens, Sydney
AdamVella Now a solicitor Tiyce & Lawyers
Alexandra Johnstone Promoted to Partner Coutts
SamyMansour Appointed as the first Distinguished Fellow Centre for Legal Innovation
Maria Di Gregorio Appointed as a Notary Public Iron Cove Law
Neville Carter Awarded Order of Australia for significant service to legal education College of Law
Emma Shuttleworth Promoted to Associate McLachlan Thorpe Partners
EmmaMacfarlane Now Principal Coleman Greig, Parramatta
Georgiena Ryan Now Principal Regional Business Lawyers
Vince Baudille Appointed as a Partner, Real Estate Bird & Bird, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
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