ISSUE 53 MARCH 2019
Inside our legal aid crisis Why the failure to raise the hourly rate means rural lawyers are battling Small lawand legal tech A match made in heaven or a disaster waiting to happen?
The problemwith perfect Why rampant perfectionism in the profession is no laughing matter Banking onHayne pain Where to now for ASIC and APRA after the Banking Royal Commission?
Arockandahardplace How the Royal Commission has unearthed an ethical minefield
PLUS: ESSENTIAL UPDATES ON TENANCY, HUMAN RIGHTS, CRIMINAL LAW & MORE
LEAD THE PACK AND STAY ON POINT with our 2019 March CPD program
MANDATORY RULE 6.1 SEMINARS 12, 19, 20 & 29 March
PROPERTY LAW: ONE DAY INTENSIVE 7 March
SOLE PRACTITIONERS: ONE DAY INTENSIVE 8 March
EMPLOYMENT LAW: HALF DAY 12 March
THE ART OF NEGOTIATION - TOOLS FOR SUCCESS 14 March
MANAGING DATA BREACHES AND VULNERABILITIES 15 March
WILLS AND ESTATES: ONE DAY INTENSIVE 27 March
LEGAL BUSINESS MODEL INNOVATION 19 March
Register now at lawinform.com.au
ISSUE 52 I FEBRUARY 2019 I LSJ 10
26 Hot topic
40 AI and the small firm Melissa Coade talks to tech heads to unearth why AI
51 Career coach
NSW Chief Justice Tom Bathurst AC ruminates on who is judging the judges
Performance coach and academic Anna Hinder o ers some hard truths about giving feedback
technology should matter to all lawyers
30 Cover story
Hannah Wootton dives into the wash-up following the Hayne Report and examines just what it means for lawyers
How can you reignite the January motivation you held so stridently? Angela Heise finds out
Kate Allman takes a bucket-list trip to the Maldives with a stop- over in funky Kuala Lumpur
36 Legal aid crisis
48 Day in the life
Kirrily Schwarz goes bush to see how the failure to raise the legal aid hourly wage is a ecting the regional and rural profession
EDO NSW solicitor Matthew Floro shares what it’s like to work on a major climate litigation case and his reasons for leaving BigLaw
ISSUE 53 I MARCH 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 44 Career matters 46 Mindset 50 Doing business 52 Life outside the law 54 Health 56 Fitness 64 Books 66 The case that changedme
82 Construction law
The latest key developments in advocacy and law reform
Security of payment changes to building & construction disputes
84 Constitutional law
Lessons for litigators from the Banking Royal Commission
The Constitutional limits of NCAT’s jurisdiction
86 Human rights
APRA’s regulatory failings under the spotlight 75 Personal property
Attacking modern slavery now a matter of legal compliance
Coming to grips with the fundamentals of the PPSA
Powers of Attorney – an “enduring” source of liability for solicitors
78 Tenancy &DV
90 Compliance risks
New rights for those fleeing domestic violence.
Five tips for implementing a delegation process in your practice
80 Criminal law
91 Case notes
A closer look at the controversial offence of concealing a serious indictable offence
A wrap-up and analysis of the latest key HCA, FCA, Family, Criminal and Wills & Estates judgments
77 Library additions 106 Avid for scandal
4 LSJ I ISSUE 53 I MARCH 2019
The Process Serving Evolution Continues
Redefining Process Serving, Skip Tracing and Investigations through Innovation, Quality, Culture and Experience.
Parramatta | Brisbane | Melbourne
1300 712 978
Secure Online Portal | National Service
ISSUE 52 I FEBRUARY 2019 I LSJ 12
A word from the editor
Understandably, this month’s edition is home to quite a few pages dealing with the fallout from the Banking Royal Commission. Commissioner Kenneth Hayne’s report, released last month, was criticised by some as being “disappointing” in its lack of bite and furore. But don’t be fooled – there are plenty of hard lessons within the report that we, as a profession, must digest.
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor Kate Allman Senior Journalist
There are two excellent articles in our Legal Updates section dealing with the Commission’s impact on regulation and litigation. But our cover story on page 30 takes a different angle: it deals with the very human issue of ethical conflicts that often arise for in-house counsel due to the very nature of their position. The story shines a light on the unethical behaviour of some in-house lawyers working in the financial services industry and throws up numerous questions about how those lawyers can genuinely and effectively serve two masters: the law and their employer. It’s a tricky topic and I feel we have only just scratched the surface. It’s important to stress here that if you do ever find yourself facing an ethical dilemma, the Law Society’s Ethics Unit can deliver expert advice and guidance. You need never feel alone when ethical issues arise. See page 35 for details.
Melissa Coade Art Director Andy Raubinger Graphic Designer Alys Martin Photographer Jason McCormack Publications Project Lead Juliana Grego Advertising Sales Account Manager J’aime Brierty 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.
HANNAH WOOTTON Cover story p30
KIRRILY SCHWARZ Legal aid p36 Kirrily is a Young Walkley Award-winning journalist and producer with a double degree in journalism and law. In this issue, she visits the regions to uncover the very real impact of the state’s current legal aid crisis.
SCOTT DONALD Banking p72
THOMAS SPOHR Criminal law pp80 & 97 Thomas is a solicitor at Legal Aid NSW and LSJ ’s regular criminal law contributor. His article, ‘Concealing a complex problem’, examines the vexed moral and legal questions surrounding the offence of concealing a serious indictable offence.
27,501 * *AUDITED MARCH 2018 DISTRIBUTION
Scott Donald is Director of the Centre for Law, Markets & Regulation at UNSW and an expert in superannuation and financial products and services. Here, he examines the Banking Royal Commission’s final report and APRA’s failings as a regulator.
Hannah is a Sydney- based financial journalist. She holds a Juris Doctor in law from UNSW. In this edition, Hannah examines the Hayne Report and analyses what it means for the legal profession.
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 image: Andrea Piacquadio
NEXT ISSUE: 1 APRIL 2019
6 LSJ I ISSUE 53 I MARCH 2019
THE LAW SOCIETY OF NEW SOUTH WALES IS PROUD TO ANNOUNCE THE 2019 PRESIDENT’S CHARITY
Our Watch is a not-for-profit organisation established to drive nationwide change in the structures, norms and practices that can lead to violence against women and their children. Australia has a choice. We can change the story that currently sees a woman murdered every week by a current or former partner. We can choose a future where women and their children live free from violence.
Find out more at www.ourwatch.org.au
ISSUE 52 I FEBRUARY 2019 I LSJ 2
O utdated, overflowing, under-resourced and unsafe. These are the words that unfortunately spring to mind when talking about the state of the courts in one of Australia’s fastest-growing areas, south-western Sydney. While there are many rural and regional areas in NSW crying out for more court resources and legal services, the inadequacy of court resources in this growth corridor, which is projected to expand from a population of 700,000 to 1.1 million in 2036, has reached a tipping point. Three courts in the region – Camden, Campbelltown and Picton – are either at capacity or not equipped to manage the current backlogs in criminal and civil cases. Sitting
times at Camden are restricted to just two days per month. Victims of crime and people seeking resolutions to business and family law disputes are being forced to wait inordinate lengths of time for justice or travel into the Sydney CBD to have their matters heard. Courts in south-western Sydney, which are no longer fit for purpose, are failing to meet basic requirements to ensure the safety of the community and those who attend court. Of real concern is the lack of security at the ailing Camden and Picton courts, where cases relating to family violence and involving Apprehended Violence Orders (AVOs) are being heard. And with no Federal Circuit Court to deal with family law matters in south-western Sydney, residents and court users are forced to travel long distances to Wollongong, Parramatta or the Sydney CBD to resolve these disputes. The impact of a court system that is buckling under pressure comes at a great cost for all involved. One victim of family violence with whom I spoke, who needed an AVO for protection, had to wait 18 months for the matter to be finalised because of the lack of sitting days and the sheer volume of matters the Magistrate had to deal with. Another, a mother of five who ran her own small business, had to take the equivalent of 30 weeks of annual leave over three years to travel to courts in Parramatta and Sydney for family law and criminal proceedings. The emotional and financial strain on these families can be irreparable, and the unnecessary and time-consuming administrative delays are placing additional burdens on domestic violence support services, legal aid, and our emergency services. In collaboration with major stakeholders in the area, the Law Society is calling on the NSW Government to commit to building a new multi-jurisdiction justice precinct in south-western Sydney, with courtrooms and facilities for the Local Court, District Court, Federal Circuit and Family Court of Australia, NCAT and the police. Funding to build a “one-stop justice precinct” in south-western Sydney should be a major government priority to ensure access to justice for people living in this area, now and in the future.
8 LSJ I ISSUE 53 I MARCH 2019
Leave the gift of a better life Leaving a bequest to Diabetes NSW& ACT helps us support, educate and advocate for those living with diabetes and fund life changing research. Our services and programs are designed to help those living with diabetes better manage their condition so they can live their best lives! Continue the circle of life with a gift in your will. For more information about leaving a bequest contact DNSW& ACT Planned Giving Manager on: 02 9552 9925
MANDATORY CONTINUING LEGAL EDUCATION SEMINARS for Solicitors, Barristers & others All day CLE seminars carry 7 units
Criminal Law *Saturday, 9 March 2019 Family Law *Saturday, 16 March 2019 Employment Law
*Venue: Toongabbie Christian School, 30-40 Metella Road, Toongabbie **Venue: Ashurst Conference Hall 5 Martin Place, Sydney For more information, go to TLC’s website: www.tlc.asn.au **Friday, 22 March 2019 Tax and Equity **Friday, 29 March 2019 Rule 6.1 Mandatory Components *Saturday, 30 March 2019 Support the seminars for legal practitioners conducted by Toongabbie Legal Centre 2019 Annual Community Fundraising Dinner Saturday 16 November 2019
Wanting to focus on your area of law? Shine Lawyers are now purchasing personal injury files. Shine has 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:
Motor Vehicle Accidents
For a confidential discussion contact:
Cath Evans Chief Executive Officer E email@example.com T 1800 870 414
ISSUE 53 I MARCH 2019 I LSJ 9
pro bono legal advice to young Saudi Arabian women who had fled abuse in their homeland and were seeking asylum in Australia, and he provided pro bono legal counsel on “Chasing Asylum”, a documentary exposé of Austra- lia’s o shore detention policies. Steven was a longstanding volunteer at RACS, the Refugee Advice and Casework Service, where he worked behind the scenes to assist hundreds of people seeking our protection: drafting statements and submis- sions to support claims, drafting appeals and review applications for those who had been rejected, and appearing on their behalf. He was instrumental in estab- lishing a legal advice service to the clients of the Asylum Seek- ers’ Centre. He also travelled to detention centres at Villawood, Curtin, and even Christmas Island (at his own expense) to provide direct legal assistance to people detained there. Outside of work, Steven was the Vice President of The New Israel Fund, which funds progressive organisations in Israel. Its focus on defending the rights of women, minorities, Arab-Israelis, African refugees, Palestinians under occupation, promoting democracy, and ending the occupation resonat- ed with Steven, who believed it was important to broaden the conversation in and about Israel. Stevenwas famous as amentor. He was the partner with whom all the junior lawyers wanted to work. He was unfailingly patient and generous with his expertise, as long as the protégé agreed to follow the rules in the first edition of Fowler’s Dictionary of Modern English Usage and strike legal inanity from their lexicon. He was a lawyer’s lawyer. He believed in the rule of law, had unblemished integrity, and was ethical almost to a fault. Many Gilbert + Tobin partners will tell you he was the cleverest litigator they knew. And, most importantly, he had the most impressive shrine of Barack Obama merchandise outside of the USA. Steven was a family man who loved cooking, food and Bondi, where he lived for many years.
He was immensely proud of his children, Samantha and Jason, and was full of love for them and his wife of almost 30 years, Michelle – so much so that he forgave her the very great transgression of always eating what she wanted and never getting fat. Steven Glass had an enormous heart and, on 6 February 2019, it stopped beat- ing too soon. He was 58 years old and leaves behind Michelle, Samantha and Jason, as well as his mother, Ellen, siblings Jeremy and Dina, and a very large number of heartbroken colleagues, clients and friends. Asia Lenard, George Newhouse, Ju Lin OConnor and Eva Orner Glossary of a time gone by Thank you for publishing the letter from Bill Caldwell in the February LSJ . It was an insight into the practise of law post-WWII. I entered articles of clerkship in 1957, 10 years later than Bill. Things had not changed greatly in those years. I suspect that the majority of today’s 32,000 solic- itors would not be conversant with many of the terms referred to in Bill’s letter. I set hereunder a glossary of some of those terms, not in alphabetical order but as they appeared in the letter. “Articles of Clerkship” – a deed entered into between the Master Solicitor and the Articled Clerk whereby the master would pro- vide the clerk with tuition in legal practice and the clerk provide the master with faithful service. The duration of the articles was five years. In 1947, Bill was paid 10 shillings ($1) a week in his first year. In 1957, I was paid 5 pounds ($10) a week inmy first year. It was quite common in Bill’s day for the clerk to pay a premium to the master, which in the latter years of service was returned as wages. “Prothonotary” aka “the Protho” – still the chief admin- istrative o cer of the Supreme Court of NSW. In the days of articles the person before whom the Master Solicitor and Articled Clerk appeared when the arti- cles were formally filed in the Supreme Court. “Red tape” – actually pink in colour. Contained on a roll many
Thescienceoftired Whyeverything you thought you knewabout fatigue iswrong Embracingchange ThenewLawSocietyPresident hashereyeon legal technology Abuse inthedigitalage How lawyerscanprotect theirclients from stalking incyber space
Vale Steven Glass At Steven Glass’s funeral, his closest
friends and loved ones were discovering things about him they didn’t know and connect- ing with people they had never met before. It’s not that Steven was secretive; he was simply a man who got things done quiet- ly, without fanfare, and with no expectation of recognition. Steven was born in Melbourne in 1960 to John and Ellen Glass. His mother’s family escaped Nazi Germany and his father was a Holocaust survivor so, from childhood, Steven was attuned to the su ering of others, which inspired his commitment to social justice. After the family moved to Sydney in the early 70s, Steven completed school and an elec- trical engineering degree in quick succession, before realising his true calling lay in law. Steven made his name and reputation as a fearsome commercial litigator at Gilbert + Tobin, where he was a partner for more than 20 years. But his real passion was his pro bono work. Many of the causes Steven championed were legally com- plex and socially controversial. He defended David Hicks when the government tried to take the proceeds of his book sales. He fought Senator Nigel Scullion, the Minister for Indigenous A airs, to prevent the govern- ment from revoking a $10 million grant to a charity which provides support to Aboriginal and Torres Strait Islander peoples who su er from a debilitating neurological disease. Once, he successfully secured the release of a young Indigenous client with an intel- lectual disability from unlawful detention by issuing a writ of habeas corpus. As the son of refugees, the cause closest to his heart was asylum seekers. Steven ran several cases to the High Court, challenging the government’s ongoing attempts to restrict the rights of people escaping persecution. He also provided
T H E innovators Meetthefresh-thinking lawyerssettoshakethingsup in2019
PLUS: ESSENTIALUPDATESONNATIONAL SECURITY,EMPLOYMENT,RISK&MORE
LSJ01_Cover_Feb2019_ApprovedConcept (V2).indd 1
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! Asia Lenard, George Newhouse, Ju Lin O Connor and Eva Orner have won lunch for four. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 53 I MARCH 2019
hundreds of yards long. Used around each file. A throwback to the Raj in India where a file bound in that colour signified priority. “Registration clerk” aka “rego clerk” – exclusively, a young lass employed by all law firms to file court documents and lodge documents at the Land Titles Office. As the counter clerks at these institutions were nearly exclusively male, the rego clerk system worked extremely well. “Law school” – Sydney Uni- versity’s branch in Phillip Street. An old building where now NSW Leagues is located. Lectures were also held next door in the Phillip Street Theatre building. The seats were comfortable, but regular fumigation with formaldehyde was tough on bugs and law students alike. “Cheap divorces” – provid- ed by practitioners who were appointed by the Supreme Court to act for impecunious women at minimal fee. The court also waived a filing fee. The matter was denoted as “fee suspended”. In the court list, the matter had an addendum “FS”. The costs were awarded against the respondent husband at pronouncement of the decree nisi. The petitioner’s solicitor seldom recovered his costs as the husband had most likely fled the jurisdiction. “Divorce office” – a separate office to the main Supreme Court office for the filing of documents and an exclusive repository for divorce pro- ceedings files. A popular office to work in by male clerks. To prove the ground of adultery in divorce proceedings it was necessary to have photo- graphic proof of the adulterous relationship. Affidavits of the required proof were provided by the raiding private inquiry agent, annexed thereto were the incriminating photographs. A constant source of titillation for divorce office clerks. “Moratorium certificate” – in the Great Depression of the 1930s, the Moratorium Act was enacted to prevent mortgagees recovering any balance owed under a mortgage after the
forced sale of the mortgaged property. After the act was passed, any mortgagor entering into a mortgage had to take the mortgage to a solicitor inde- pendent of the mortgagee, who provided a certificate thereon which certified that the mort- gagor signed the mortgage knowing that the mortgagee could recover any balance due after sale. The fee paid to the solicitor for the certificate was still 10/6 (half a guinea)($1.05) in 1964. I hope the foregoing has enlightened those readers of LSJ who, upon reading Bill’s letter, may have wondered if Bill had practised in the same state or country where they practise today. Peter Poulton, retired solicitor A good vintage John Eades writes, “After 50 years, the contact details of many of us (1969 Sydney law school graduation class) have changed or been lost.” If only contact details were the only changes or losses after that time, bearing in mind that those who graduated in 1969 would likely be, at least, three score and 10 years old. Just quietly, I should know – I was in that class! Edward Loong Regarding the rather inflam- matory cover of the December 2018 issue of the journal, the cover suggests the sexual harassment of lawyers, I am presuming they are predomi- nantly female, is occurring at a rate that is out of control. I hope this is base evidence (sic) that is more reliable than the alleged “pay gap” and the “rape culture” (in American universities and colleges) myths both on (sic) which have been shown to be false. Concerning the gender pay gap myth, Havard (sic) Uni- versity has recently published research debunking that men and women are paid differ- ently due to their sex. The FBI debunked the rape culture myth as well. The “MeToo” movement has seen its share of false alle- The sexual harassment myth
gations for various political or financial reasons. Therefore, to protect myself I will not be alone with any female lawyers or staff to avoid any such alle- gations. If other male lawyers adopt my stance, it may have a serious impact on the mentor- ing of female lawyers by males. The hysterical manner in which the Law Society has chosen to raise this issue should alert all men to take extra precaution to avoid disingenuous claims for financial or political gain. Brendan Manning I am writing in relation to the article you wrote for LSJ in February, ‘Meet the Innovators’. I was particularly interested in the piece about RMA and immi- gration lawyer Marina Brizar, who had a very interesting back story, as well as a strategy for attempting to manage the current global refugee crisis. I’ve been a member of the Law Society for over six years now, and have practised in the field of immigration for three years, and have always observed a real lack of coverage on migration law and updates generally. For such an interesting and highly topi- cal area of law, it is surprising that it doesn’t get the air time it deserves. It would be great if LSJ could continue presenting pieces that cover immigration. Angela Marando Don’t leave it to the cops In respect of the current Victo- rian Royal Commission, it has been reported that NSW Police insist their inquiry has found “no evidence of alleged breaches of legal professional privilege have been identified nor has any conduct similar to that alleged in the Victorian Lawyer X matter become apparent”. It worries me when the NSW Police want to get ahead of the curve by addressing questions that were not even asked. Thanks for the news scoop, but it might be nice to have the Courts, as they have for hundreds of years, decide if there has been a breach of legal professional privilege. And Courage inmigration matters
whether there is anything with similar facts to what happened in Victoria is beside the point. What matters is whether the Police in NSW have used lawyers as informants and/or continue to do so. Police and Intelligence agencies around the world have historically recruited co-opera- tors who are vulnerable, for one reason or another. The idea that this could not happen to a lawyer in the great state of NSW is delusional. If the Premier, or if there is to be a new one, does not get onto this issue straight away, it will come back to bite whoever is running the show. And leaving it to the Police to resolve? Oceans of ink have been devoted, over the years, to criticisms of that practice; I doubt that I could improve on it. Joe Weller, Solicitor A great end note The article on Shoshana Shields, Google Australia’s Director of Legal, ends by quoting her saying, “Culturally Google is very democratic and bot- toms-up.” ( LSJ Feb 2019). That’s quite a tailpiece! David Grinston, Grinstons Lawyers Pickme! Pickme! Pursuant to your invitation pub- lished in the December edition of LSJ (Avid for Scandal, p106), I hereby apply for the role of cor- porate counsel for Upper Middle Outer Hunter with the Provin- cial Regal Investment Group. I believe I am well qualified for the job. Having spent my entire career (well over the “eight or 10 to 11 years” experience specified) working for tyrannical employ- ers, draconian clients and coping with the box-ticking Orwellian zombies proliferating within the bureaucracy, I am confident I meet all the criteria listed under “What you’ll need” other than “Fluency in Mongolian” (whatev- er that is). However, I am fluent in Khalka, Russian and Chinese and trust that will suffice. I am available for an interview before 6am, after 8pm, or during my 15-minute lunch break. Roger Butler, Cole & Butler Solicitors, Moree
ISSUE 53 I MARCH 2019 I LSJ 11
“Congratulations. That is such wonderful news.” Rex Turnbull, Facebook
“Congratulations, a true love story with the happiest ending.” – Jacquie Caroline Grant, Facebook
“Love conquers all!” – Angela Djukanovic, Facebook
12 LSJ I ISSUE 53 I MARCH 2019
“This is an inspired article to include in a professional publication regardless of what profession we are in. It is also timely. It’s a shame that it comes too late for many of those inspirational women who went before us and broke the ground that we now walk on but hopefully those following will read it and not only take note but take action to support all women in the workforce during these important years. “ – Christine Smyth, LinkedIn “Congratulations to Thea and NSW Law Society for publishing this informative and thoughtful article.” – Bill Potts, President of Queensland Law Society, LinkedIn
“Loving this strong slant from LSJ lately.” – Nick Rose, Facebook
Shedding light on legal costs for over 30 years
Bespoke Costs Mediation
All legal costing services
ISSUE 53 I MARCH 2019 I LSJ 13
Law Society urges politicians to commit to key election issues
BY KATE ALLMAN
withdraw from legally aided matters,” President Espinosa told LSJ . In a response sent to the Law Society on 11 February, the Greens commit- ted to increasing legal aid rates to $250 per hour. Labor’s response said it would “review” the current rates, while Independent Alex Greenwich did not directly respond to this request. Labor offered non-specific support on a number of issues, including a recom- mendation to expand the NSW Drug Court to the Illawarra. Shadow Attor- ney-General Paul Lynch also broadly committed to reducing the incarcera- tion rate in NSW – which is currently at an all-time high of 13,165 according to figures released by the NSW Bureau of Crime Statistics and Research in January. Lynch said Labor supported the prin- ciple of Justice Reinvestment and would commit to allocating $4.5m to funding pilot projects in NSW to support this policy. The most comprehensive response came from NSW Greens, who agreed to support every Law Society recommenda- tion, noting additional support on some fronts such as raising the age of criminal responsibility. The Greens indicated it would like the age raised from 10 to 16 – four years beyond the minimum 12 that the Law Society has called for, as rec- ommended by the Northern Territory’s Royal Commission into the Protection and Detention of Children in 2017. A two-page letter from Alex Greenwich offered broad support for Indigenous justice issues, defending the rule of law and promoting business innovation and investment, but did not make any direct promises.
Establish a Human Rights Act in NSW, raise the age of criminal responsibility, and raise the rate paid to lawyers doing legal aid work – these are among the 25 recommendations the Law Soci- ety of NSW has made in its 2019 State Election Platform sent to all major political parties in December. The Law Society has so far received responses from the NSW Greens, Labor, and Independent MP Alex Greenwich, which have all been sighted by LSJ . At the time of writing, the Law Society had not received a response from the Coalition, but a government spokesperson indicated the party would be writing to Law Society CEO Michael Tidball in coming days. Law Society President Elizabeth Espinosa said she hoped all parties – including the Coalition – would come to the discussion table and address these issues directly before the state election on 23 March. “We are calling on all major political parties and independents contesting the 23 March election to respond to the key law and justice priorities set out in the Law Society’s 2019 State Election Plat- form,” said Espinosa. The Law Society’s 36-page Election Platform asks politicians to address 25 recommendations for law reform in their campaigns leading into the election. Increasing legal aid funding and justice facilities for regional areas, and tackling the high incarceration rates of Indige- nous Australians feature prominently. The Platform also urges politicians to prioritise defending the rule of law, reminding them of the Law Society’s longstanding position to introduce a Human Rights Act in NSW.
Law Society President Elizabeth Espinosa
“There is a clear need for better safe- guards of individual rights and freedoms in NSW,” says the document published on the Law Society’s website. Among the recommendations is an “urgent” call to raise government-funded rates for lawyers doing legal aid work to $250 per hour. This hourly rate has remained stagnant at $150 per hour since 2008, despite Australian Bureau of Statistics data showing that average weekly earnings for Australians have increased by 46 per cent over the same time period. “The combination of a low hourly rate paid to private practitioners and insufficient time claimable under the fee scales means the system is in crisis,” the document says. Legal Aid NSW’s 2017-18 Annual Report showed that demand for legal aid services had increased by almost 15 per cent over the past five years, and regional areas in particular were suffer- ing from a lack of available lawyers. “If the hourly rate and timescales for undertaking legal aid work are not increased urgently, we will continue to see experienced solicitors reluctantly
14 LSJ I ISSUE 53 I MARCH 2019
NEWTHISMONTH IWD event featuring Dr Kirstin Ferguson Join guest speaker Dr Kirstin Ferguson on International Women’s Day for an inspiring discussion on the challenges and achievements of women in law and business. Ferguson is a leading company director, keynote speaker, author, and founder of the #CelebratingWomen movement. She will speak at a breakfast at the Law Society on 8 March from 7.30am.
Hayne Report: Law, Regulation and Practice
The Law Society’s first Thought Leadership event of 2019 will explore the themes of remoulding law, regulation and the financial services industry after the Hayne Report. Hear from an expert pan- el on 28 February from 4.30pm. Visit lawsociety.com.au/events District Court going online: free info sessions Lawyers are invited to attend free information sessions on how to navigate the new District Court online court. Visit districtcourt.justice.nsw.gov.au for more. information and dates.
Julie Inman Grant AUSTRALIAN ESAFETY COMMISSIONER
Prevention, followed by early intervention through reporting are the most effective measures to addressing negative online experiences like cyberbullying.
ISSUE 53 I MARCH 2019 I LSJ 15
ANITA WILL SOLICITOR AND CLINICAL LEGAL SUPERVISOR AT KINGSFORD LEGAL CENTRE
What sparked the idea for this sexual harassment education program?
In 2018, the #MeToo movement was gaining a lot of momen- tum and we had a conversation in the office about how we could be a part of that, drawing from our state-wide discrim- ination law practice. We have a big focus on community legal education and wanted to help. I think it’s important to have this conversation with young people, particularly as they begin to enter the workforce. I wanted to help them understand what sexual harassment is, so they would be able to identify it and know what to do if it happens to them or someone they know. Basically, I had the idea of creating some sort of CLE presentation to give to local high schools. Who are you targeting and why? The presentation is aimed at Year 9 and 10 students, both male and female. We thought it good to aim at that age range because they’re old enough to be having that conversation. They are about to enter the workforce because many of them are getting part-time jobs, and many of them don’t really know their rights. A lot of students didn’t know the difference between sexual harassment and sexual assault. So, they kind of thought that there had to be some sort of physical touching for it to be sexual harassment. We asked them what sexual harassment was and they would say things like rape, abuse, so on. Obviously, there were varying levels of understanding from different students. What has been the response? Interestingly, the students were very receptive to learning about sexual harassment and adapting their ideas – more so than you might expect. Certainly more than some adults. The teachers were really impressed by the program. We asked the students to fill out surveys after the program and the feed- back was really positive – saying they had walked away and learnt something new including how jokes or sexual proposi- tioning could be sexual harassment and that they didn’t have to put up with this kind of behaviour. We’re hoping to take it to more schools and to spread the message further by creating some materials that the students can take away. It’s a small thing we can do to contribute to cultural change on a much broader level in society. Howmuch did the students seem to know (or not know) about sexual harassment?
As a generalist solicitor at Kingsford Legal Centre (KLC) in Sydney, Anita Will represents clients on a range of matters including sex discrimination cases and employment situations where sexual harassment has occurred. Last year, the momen- tum of the #MeToo movement inspired Will and her colleagues to spread an educational message on sexual harassment to a new generation: high school students. The KLC team, with the help of volunteer UNSW law students, set up and ran “#MeToo – It’s About You” workshops in local schools Matraville Sports High and JJ Cahill. The program received positive feedback from teach- ers and attracted media attention from Buzzfeed and The Southern Courier . Will’s next presenta- tion will be held at Randwick Boys High in March. She spoke to KATE ALLMAN .
16 LSJ I ISSUE 53 I MARCH 2019
BY PAUL MONAGHAN, SENIOR ETHICS LAWYER
history shows a cautionary tale. In such a situation, when dealing with other practitioners the guide to our pro- fessional obligations may be noted in: • The fundamental duty on a practi- tioner to: “ ... avoid any compromise to their integrity and professional indepen- dence ...” ; and • To observe the professional stan- dards required and ensure that you must not: ... use tactics that go beyond legitimate advocacy and which are primarily designed to embarrass or frus- trate another person ...” by any action or statement. When lawyers desire success and believe they need to make a name for
themselves, it is sad to observe lawyers act unethically “... as they will never be for- gotten for it ...” . That’s a name you do not want to have. Act ethically and protect your good name no matter where you go; it is the only asset a lawyer really has. The ethics department welcomes enquiries on ethics matters with a grow- ing increase in number from those who practise as in-house lawyers. The com- plexities of this specialised area of legal practice often require discussion and guidance. This is available from the ethics department, our online services, and by written guidance from our ethics committee. We look forward to hearing from you.
I am considering an in-house posi- tion at a multi-national corporation with a reputation for having a shrewd commercial culture. What advice do you have for counsel whose job it is to negotiate the interests of their com- pany (and client) against their duty to the profession? Joining a big corporation, with great expectations of a high-profile career that promises a fast-track to success and rec- ognition, it is important to remember the professional standards of every lawyer. Balancing a duty to the court, the client and the profession is not an easy task and is made more difficult by the ‘culture’ of the corporate client. Recent
MEMBER OFFER New
Great Deals On Travel For Members Members of the Law Society of New South Wales have access to great rates on domestic and international airfares, discounted national and international accommodation, Qantas & Virgin lounge memberships and access to amazing holiday packages and experiences.
Exclusive Member Offer
FLY FREE on Select Europe and South East Asia Scenic River Cruises*
Login at lawsociety.com.au or phone 1300 119 493 to access your benefits *Valid for travel in 2019 only, book before 29th March 2019.
ISSUE 53 I MARCH 2019 I LSJ 17
AndrewRankine Joined as a partner, Intellectual Property Jones Day, Sydney
Samantha Lewis Joined as Senior Associate, Family Law team Mills Oakley
Charles Bogle Joined as a partner, Corporate Hogan Lovells, Sydney
Joanne Grant Appointed as a partner Makinson d’Apice
Shelley Johnston Opened her own practice Clearly Legal
MariaMonastiriotis Joined as Group Principal Nexus Law Group, Sydney
Harpreet Bawa Joined as an associate Justice Family Lawyers
David Holland Joined as a partner, Corporate Hogan Lovells, Sydney
Claudio Venegas Joined as Group Principal Nexus Law Group, Sydney
Rochelle Rieck Elevated to Special
Dr JohnWoodward Appointed to Associate Lecturer University of Newcastle
Ryan Stehlik Elevated to Special Counsel, Property & Injury Liability Carter Newell, Sydney
Counsel, Financial Lines Carter Newell, Sydney
Know someone with a new position? Email us the details and a photograph (at least 1MB) at email@example.com
On 17 January 2019 pursuant to s.81 and 464 of the Legal Pro- fession Uniform Law (NSW), the Council of the Law Society resolved to imme- diately suspend the practising certificate of Anthony Autore.
On 17 January 2019 pursu- ant to s.327 (2)(b)(ii) and (iii) of the Legal Profession Uni- form Law (NSW), the Law Society Council appoint- ed Richard Gerard Flynn, Solicitor, as manager of the law practice known as Autore & Associates Solici- tors & Barristers for a period of two (2) years.
On 4 February 2019 pursuant to s.327 (2)(b) (ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Soci- ety Council appointed Anthony N Walker, Solic- itor, as manager of the law practice known as Michael Ghobrial for a period of two (2) years.
On 4 February 2019 pursuant to s.77, 81 and 464 of the Legal Profession Uniform Law (NSW), the Coun- cil of the Law Society resolved to immediately suspend the practising certificate of Michael Ghobrial.
On 17 January 2019 pursuant to s.82(1) (c) of the Legal Pro- fession Uniform Law (NSW}, the Council of the Law Society resolved to suspend the practising certifi- cate of Peter Anthony Khoury.
18 LSJ I ISSUE 53 I MARCH 2019
The largest global team in the industry. $200 million in capacity. Thousands of transactions completed.
EXCLUSIVE City lawyers chargingmore for fixed-fee services BY KATE ALLMAN
Clients of city-based lawyers can expect to pay up to five timeswhat people in country areaswould pay for the same document, according to the results of a revealing survey of Australian lawyers. e Survey of Fixed Price Legal Services 2019 was con- ducted by legal document startup Smarter Drafter in January and is the rst national study of its kind to highlight di er- ences in price for common legal services such as preparing a will or business sales agreement. Early results, shown exclu- sively to LSJ , reveal the average price of xed-fee services can
vary dramatically between city and country areas. e average price of preparing a sale of business agreement was $1,578 in rural areas and jumped to $7,045 when prepared by city-based rms. e average price in rural areas for a shareholders’ agreement was $1,567, but three CBD rms said they charged up to $20,000 for the same service. Smarter Drafter CEO Adam Long said such dramatic variations in price could potentially be explained by the fact city-based lawyers were often dealing with larger clients and big businesses. However, he noted that a larger client would not always add more complexity to a xed-fee legal service.
Our expertise helps M&A deals take off.
Variation in prices for common legal services
Statement of claim
$3,067 $7,044 $1,411 $1,635 $2,908 $3,103
Sale of business agreement Motion for default judgment
$415 $556 $992
Introducing Liberty Global
Deed of guarantee Loan agreement
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.
“I was quite shocked that the fees for estate planning were so varied – because a person is a person, regardless of whether they have a property in Sydney or a property in Dubbo,” Long said. e survey found that a simple will cost approximately $366 in rural areas, whereas city lawyers were charging an average $556 for similar documents. “It’s not necessarily about complexity of a matter,” said Long. “Perhaps city lawyers who are dealing with larger or wealthier clients attach higher stakes to a matter. ey price their services to re ect that investment and risk.” e results of the survey may come as a shock to lawyers seeking to transition their billing arrangements from billable hours to xed fees. Long said the survey would provide new clarity for lawyers o ering xed-fee services, in a profession that has traditionally remained guarded on such issues. “I’ve spoken to lawyers who swear until they are blue in the face that no one will ever pay more than $199 for a will,” said Long. “But I’ve spoken to others who won’t write a will for less than $1,000. “We’re expecting participants will get new clarity – learning the median prices charged by rms like theirs will enable lawyers to know if they are overcharging or missing out on pro t.” Complete results of the survey will be available in March.
ISSUE 53 I MARCH 2019 I LSJ 19
INDIGENOUS JUSTICE Youth Koori Court doubles capacity with new venue A new Youth Koori Court has held its first sessions in Surry Hills and promises to focus on rehabilitation, not punish- ment, for young Indigenous offenders. The new court will operate in Surry Hills on a fortnightly basis, doubling the capacity of the original Parramatta-based Youth Koori Court, which opened in 2015 to reduce the number of Aboriginal and Torres Strait Islander children in custody. The courts are unique in that residing magistrates can apply a range of interventions in sentencing, to help set young people on the right path. Some of these include helping the offender find secure accommodation, access to drug rehabili- tation programs, or employment. “The Youth Koori Court offers us a valuable window of opportunity to step into young people’s lives and steady them, to set them back in balance, to reconnect them with culture and country,” said Brendan Thomas, CEO of Legal Aid NSW. “The power of this idea and the reason it succeeds comes from direct involvement of the Aboriginal community in the administration of justice.” Law Society President Elizabeth Espinosa said it was a privilege to attend the first sitting of the court on 6 February.
She noted the state still had a long way to go in reducing the numbers and over-representation of Indigenous Australians in prison. “There is an unjustifiable disparity in the incarceration rates of Indigenous and non-Indigenous young people. Indigenous youth make up 4 per cent of the youth population in NSW, but 51 per cent of the juvenile detention population.”
LAWREFORM States agree on defamation review timeline
The review, which was originally intended to be conduct- ed “as soon as possible” after the existing defamation laws entered their fifth year in January 2011, is now more than nine years overdue. Current defamation laws were passed in 2006, before Twitter or Instagram existed, and at a time when the most popular internet-accessible mobile devices were the Sony Eriksson and Motorola RAZR. The new laws are expected to accommodate changes to online publishing and to provide new protections for public interest journalism. “Reforming national defamation law will be complex and demanding,” said Speakman. “The agreed timetable now provides the community, stakeholders and the Defamation Working Party with the framework to deliver reforms to ensure the right balance between protecting reputations and freedom of speech.”
Attorneys-General from around Australia have agreed to an 18-month timeline for a long-awaited national review of defamation laws. Public consultation responses will be due in April and model provisions will be drafted by September, according to the ambitious timetable released by NSW Attorney-General Mark Speakman in February. The Council of Attorneys-General will meet in September to discuss and amend provisions before public consultations on the laws take place in late 2019. If all goes to plan, Australia will have a new set of uniform laws by June 2020. “The timetable is designed to allow the reform process to be as expeditious as possible, while providing opportunity for extensive engagement by community and stakeholder groups to help determine how our new defamation law should func- tion,” said Speakman.
20 LSJ I ISSUE 53 I MARCH 2019
PILL TESTING Pill testing given green light for Canberra music festival The ACT Government has signed off on a second pill- testing trial to be held inside Canberra’s annual Groovin the Moo music festival in April. The trial is the second of its kind to be held in Australia, after a similar testing program was set up at the same event last year and found that more than half of drugs tested were contaminated with dangerous substances, including lactose, paint filler, and even a potentially lethal stimulant. The announcement comes as pill testing once again surges to the top of the national political agenda, after a spate of deaths linked to dangerous drugs and possible overdoses at music festivals. Advocate groups including Pill Testing Australia, Harm Reduction Australia, and the Noffs Foundation have urged the NSW government to introduce testing in an attempt to reduce harm caused by ingesting dangerous substances mixed with illicit drugs. “Studies in Europe have shown that two-thirds of people will dispose of their drugs if the test finds that the pill has harmful substances in them,” said Dr David Caldicott, an advocate for Harm Reduction Australia, at a pill-testing demonstration in Sydney in January. “More than half of people choose to alter their dose and take less of the drug after testing.” The 2018 pill-testing trial at Groovin the Moo tested 85 substances and found that more than half of the drugs that people thought were MDMA (ecstasy) turned out to be contaminated with different chemicals. An analysis by Durham University professors of the UK’s first pill-testing trial, published in December 2018, found a 95 per cent reduction in hospital admissions due to drugs. But NSW Premier Gladys Berejiklian has maintained a harsh stance against pill testing in NSW because she has said it could send the wrong message to drug users. “Of course we want young people to have fun but don’t take an illegal substance, it can kill you,” Premier Berejiklian told reporters in December, at a press conference where she announced an increase in criminal penalties for drug supply in NSW. “That’s why we took the measure to increase penalties for people supplying these illegal substances to a maximum of 20 years.” The NSW Coroner is currently holding an inquest into five deaths at music festivals after the most recent passing of a 19-year-old Central Coast woman who attended the FOMO festival at Parramatta in Sydney. 25 people were admitted to hospital for drug-related illnesses over the 2019 Australia Day long weekend.
Place your trust in the recognised industry leader in legal costing. outstanding, integrated legal costing service since 1988. ✓ Expert Support ... We offer a seamless process to support busy lawyers ✓ Quick Turnaround ... We help our clients recover their money faster ✓ Positive Outcome ... We ensure you achieve the best possible result Pattison Hardman have proudly provided an
Level 4, 10 Park Road Hurstville NSW 2220 Free Advice: 1800 810 807 www.pattisonhardman.com.au
ISSUE 53 I MARCH 2019 I LSJ 21
Made with FlippingBook Annual report