LSJ November 2019

ISSUE 61 NOVEMBER 2019

An awful humanmess What now after the announcement of yet another family law inquiry? A shift in client values Why the growing demand for fixed fees could finally spell change Legal AidNSWturns 40 CEO Brendan Thomas reflects on four decades of fighting for justice Blowing thewhistle Do you have a whistleblower protection policy in place?

The messy and emotional reality behind estates disputes – and why they’re increasingly common Showme themoney

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ISSUE 61 I NOVEMBER 2019 I LSJ 28

Contents

26

30

36

Features

24 Hot topic

36 An awful humanmess Kirrily Schwarz reports how another inquiry won’t fix the broken family law system 40 Challenging the bill

50 Extracurricular

UNSW Law School Dean George Williams on the new training giving lawyers a digital edge

A new chapter in poetic justice for human rights lawyer and author Stewart Levitt

26 Lunchwith Legal Aid

52 Health

Legal Aid CEO Brendan Thomas unveils the big plans in store for the organisation’s 40th year

A new approach to billable hours is a game changer for lawyers, writes Sam McKeith

Want to turn your commute from drab to fab? Angela Tufvesson knows how to conquer the daily grind

30 Estate of despair

46 Mindset

56 Travel

Amy Dale explores a testy area of law and what is at stake when grieving families challenge a will

Angela Heise shares how breaking your daily routine will do wonders for creativity

From the best tacos and margaritas to the stunning skyline, Kieran Pender breathes in the colour of Mexico City

ISSUE 61 I NOVEMBER 2019 I LSJ 3

50

52

60

Regulars

Legal updates

6 From the editor 8 President’s message 10 Mailbag 12 News 18 Members on themove 21 Expert witless 21 The LSJ quiz 28 Out and about 44 Career matters 46 Mindset 48 Doing business 49 Career coach 54 Fitness 60 Youwish 62 Books 64 The case that changedme

66 Advocacy

80 Employment

The latest key developments in advocacy and law reform

Searching for solutions to the dilemma of franchisor liability for workplace breaches

68 Corporate law

83 Risk

An examination of the stages and challenges involved in a corporate criminal prosecution

Top tips on how to avoid risk and manage critical dates

71 Corporate law

84 Consumer law

Time for companies to implement whistleblower policies to protect corporate insiders

ACCC gains momentum in its push for higher consumer law penalties

86 Personal injury

74 Employment

Common law claims under the Motor Accident Injuries Act 88 Property and elder law How to deal with guests who outstay their welcome 90 Taxation

Workplace surveillance and admissibility of improperly obtained evidence

76 Construction

An overview of the building and construction industry’s new security of payment regime

Why it’s important to carefully consider your choice of entity

78 Privilege

91 Case notes

The limits of the common law privilege against self- incrimination

The latest High Court, Federal, family, criminal, and elder law and succession judgments

82 Library additions 106 Avid for scandal

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ISSUE 61 I NOVEMBER 2019 I LSJ 28

A word from the editor

It’s a rare person who is comfortable thinking about death and dying. But more of us should do it – at least that’s the message in this month’s cover story, “Where there’s a will” on page 30. Amy Dale ventures into the often fraught world of wills and estates disputes, and finds that many of us (and therefore many clients) are woefully unprepared for the administrative formalities of death, in spite of its inevitability. Very few people,

ISSN 2203-8906

Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor Jacquie Mancy-Stuhl Online Editor

it seems, have a watertight will, and there are regularly successful claims against wills under the Succession Act. It’s an interesting foray into an uncomfortable topic. I had the pleasure this month of sitting down to interview Legal Aid NSW’s CEO Brendan Thomas (which you can read on page 26). The first thing that became clear was the enormity of his role – it has to be one of the toughest gigs in law. The second thing, though, was just how passionate he is about delivering access to justice to the most vulnerable people in our state. I walked away thinking the organisation is in good hands, and I wish him and his team all the very best in reaching their goals for the future.

Kate Allman Journalist Amy Dale Art Director Andy Raubinger Graphic Designer Alys Martin Communications Coordinator Floyd Alexander-Hunt Advertising Sales Account Manager Jessica Lupton Editorial enquiries journal@lawsociety.com.au Classified Ads www.lawsociety.com.au/advertise Advertising enquiries advertising@lawsociety.com.au or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 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.

Claire Chaffey

Contributors

AMY DALE Cover story p30

KIRRILY SCHWARZ Feature p36 Kirrily is a Young Walkley Award- winning journalist and producer with a double degree in journalism and law. She asks, “What now?” in the wake of the announcement of yet another family law review.

STEPHEN SPEIRS Corporate law p68

JEN MCMILLAN Risk p83

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Stephen is a senior associate at Ashurst and practises in white collar crime. He writes with Ashurst partner, Ian Bolster, using a recent Federal Court decision to examine the stages and challenges involved in a corporate criminal prosecution.

Amy is a journalist at LSJ . She is a published true crime author and former government social policy adviser. She examines the law surrounding wills and estates, and what more can be done to prevent family breakdowns and courtroom feuds.

Jen is a legal practice consultant at Lawcover and an Accredited Specialist, Wills and Estates. A frequent LSJ contributor, Jen provides practice tips on how to reduce risk and systematically manage critical dates.

Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will consider your idea and pursue it with you further if we would like to publish it in LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.

Cover design: Andy Raubinger

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6 LSJ I ISSUE 61 I NOVEMBER 2019

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ISSUE 61 I NOVEMBER 2019 I LSJ 28

President’s message

O ne of the most memorable occasions during my term as President to date was hosting the Law Society’s Annual Members Dinner at Sydney Town Hall last month. The black-tie event, held in one of Sydney’s most iconic civil landmarks, was an opportunity for us to reflect on our achievements on behalf of the profession and to thank all those who have contributed to the work of the Law Society over the course of the year.

My sincere thanks to Professor Megan Davis, Pro Vice-Chancellor, Indigenous and Professor of Law, UNSW, who delivered an engaging and thought-provoking keynote address to the 335 guests in attendance, including Her Excellency the Honourable Margaret Beazley AO QC, NSW Attorney General the Honourable Mark Speakman SC MP, members of the judiciary and past presidents of the Law Society. As is tradition, we honoured the achievements of solicitors who have practised law continuously for 50 years, most of whom were admitted when man first landed on the moon in 1969. We also presented three awards recognising signatories to the Charter for the Advancement of Women in the Legal Profession who have contributed to the progression of women in the legal workplace. Congratulations to the winners of their respective categories – King & Wood Mallesons, Holding Redlich Lawyers, and PepsiCo Australia & New Zealand. During the event, I had the honour of presenting the Law Society of NSW President’s Medal for 2019 to Jason Behrendt, Managing Director, Chalk & Behrendt Lawyers and Consultants, in recognition of his significant personal and professional contribution to the betterment of law and justice in the community. Jason, who is also Chair of the Law Society’s Indigenous Issues Committee, is known nationally for his work empowering Indigenous communities. The President’s Medal is a fitting acknowledgement of Jason’s outstanding contribution to the development of law and policy affecting Indigenous Australians during the past two decades, whether in the courts, as a policy advisor to government, or as a member on a multitude of professional committees. Congratulations, Jason. Your approach to the law has helped instil community confidence in the justice system and the courts as a forum for redress. Congratulations also to immigration law specialist and registered migration agent Anne O’Donoghue, who was highly commended in the President’s Medal for her contribution to the profession and the community during the past 30 years. The evening truly was a wonderful moment in time to reflect, acknowledge and celebrate.

Elizabeth Espinosa

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ISSUE 61 I NOVEMBER 2019 I LSJ 9

terminated against the wishes of the pregnant woman? He arguably has far more to lose if she elects to continue with her pregnancy. Eighteen years of child support adds up. Surely, if either potential parent is to have the right of veto in relation to the continuation of a pregnancy it should be the woman? Perhaps men who wish to control their reproduction ought to consider more carefully their choice of Righting a historical wrong The LSJ article, A country lawyer at war (October LSJ ), recognised the launch of a book, Ready, Aim, Fire: Major James Francis Thomas – The Fourth Victim in the Execution of Harry ‘Breaker’ Morant, and followed the launch of the book at the Law Society on 30 September. Law Society contraception. Sarah Perkins, LLB B Info Tech

persuasive appreciation of Major Thomas’ career. There is a need for the Australian Government to ensure justice is done through posthumous pardons. Thomas’ clients were not tried according to law, denied their right to appeal their convictions and sentences and petition the Crown for clemency, and su ered a fatal and unjust outcome. In recognition of this, the House of Representatives tabled a motion on 12 February 2018, in which the Parliament expressed “sincere regret that Lieutenants Morant, Handcock and Witton were denied procedural fairness contrary to law and acknowledges that this had cruel and unjust consequences; and sympathy to the descendants of these men as they were not tried and sentenced in accordance with the law of 1902.” The case for posthumous pardons will move

Acountry lawyeratwar The taleofabrave solicitorwho fought forBreakerMorant’s freedom Adoptingdaddydaycare Moredadswantflexibleworkoptions sohowcan lawfirmsget it right? Vale Chorley exception TheHighCourtwields theaxe inacontroversialcosts ruling Take itor (sick) leave it TheFederalCourt tackles the costly issueofpersonal leave

ISSUE60 OCTOBER 2019

To whomdo human rights attach? The way our society treats its most vulnerable members says a lot about what we value. With the Abortion Law Reform Bill that was recently passed, it would seem that we value women’s rights of freedom and choice, while the right to life of unborn babies is non-existent. This begs the question, what entitles someone to human rights? Their age? Their size? Their disability or lack thereof? The greatest atrocities in human history can be attributed to the society denying personhood to one group of people. Is that what we have done to the unborn? Sadly, the Bill also failed to o er any form of protection to women, who are often in fact not exercising their “right to choose” but rather are bullied into having an abortion by an abusive parent, partner or pimp. Brad Hazzard’s boast that “the result will be the best laws in Australia” is a gross overstatement and completely overlooks the adverse e ects such a law may have on both women and children. Ellen Turner, Principal, Turner Legal The cost of parenting I refer to Virginia C Smith’s letter published in the October 2019 issue of LSJ . I too have acted for a distraught “father” who wished to take some form of action against a woman who had fallen pregnant and terminated her pregnancy without his knowledge. Whilst I sympathised with his emotional distress, I strongly disagree with Ms Smith in calling for legal consequences for the woman and her doctors. What would those consequences be? Compensation? I would think the “father” has been relieved of the significant financial burden of raising a child, which would outweigh any amount awarded as general damages for pain and su ering. Would Ms Smith be equally supportive of a man who would like a pregnancy

ISSUE60 OCTOBER2019

Fillingthe empty spaces AnewBritish lawhassparkedcallsforchange inthewayAustraliadealswithmissingpersons

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WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.

E: letters@lawsociety.com.au

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.

/lawsocietyofnsw

/LawSocietyNSW

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CONGRATULATIONS! Edward Loong has won lunch for four. Please email: journal@lawsociety.com.au for instructions on how to claim your prize.

CEO Michael Tidball highlighted the Society’s respect for Major Thomas’ contribution to the legal profession in NSW, his career in Tenterfield as a solicitor, to the battlefields of South Africa where he commanded Australian volunteers against Boer commandoes, and then as the legal advocate who attempted to secure fair trials for Lieutenants Harry ‘Breaker’ Morant , Peter Handcock and George Witton. Former Senator and Major General (ret’d) Australian Army, Jim Molan AO, DSC launched the book and delivered a very

forward to address this most controversial case in Australian military/legal history, as the descendants of Major Thomas, Morant, Handcock and Witton seek resolution that Major Thomas could not achieve. The Law Society’s eloquent recognition of Major Thomas is commendable and appreciated. James Unkles A bad aftertaste The magazine continues to improve, but about Rosalind Croucher (October LSJ , Lunch with Rosalind Croucher, p26) –

10 LSJ I ISSUE 61 I NOVEMBER 2019

Vale The Honourable Bryce Ross-Jones Some NSW Law Society members (though I imagine fewer these days would have an active memory of him) might be saddened to hear of the recent death of The Honourable Bryce Ross-Jones. Recently of Palm Beach and prior to that Coogee whilst at school and East Lindfield as an adult, Bryce was a 1945 old boy of Sydney Boys High. After graduating in law from Sydney University, he spent some time in Grafton as a young lawyer, but returned to Sydney to join the firm Marshall, Marks, Dezarnaud and Jones (along with his two brothers, Greg and Roscoe, recently returned from the Pacific as pilots in the RAAF) after his father, also a lawyer, died suddenly. He was an active Law Society member, being elected to the Law Society Council, as one of its youngest members. He also sat on the NSW Council of

who cares where or what they ate other than the proprietor of the restaurant who, without charge, has received valuable publicity. Robert King, Narooma

Law Reporting. In 1976, along with his lifelong colleague and friend Josephine Maxwell, he was the first solicitor appointed to the bench in NSW when he was asked by then-Common- wealth Attorney General Bob Ellicot to join Elizabeth Evatt on the newly-established Family Court of Australia. He remained a judge of the Family Court of Australia for almost 20 years, through the troubles of the ‘80s when Family Court judges were violently targeted, until he retired in 1995. He retired to Palm Beach and was for many years an active committee member, and President for seven years, of the Palm Beach Association. He was passionate about retaining and preserving the unique character of the peninsular, was a keen student of Australian history, and of Governor Phillip in particular, and he was instrumental in the preservation of Governor Phillip Park at Palm Beach and the sandstone entrances to

that park being installed. In the words of a prominent QC and retired Family Court judge: “I appeared on a number of occasions before Bryce and was always met with consummate courtesy and respect. I always told my clients that we were before a good and fair Judge … I greatly admired him and have only good memories of the times I appeared before him.” As a judge, he would have asked for no more than that. He is survived by his four daughters, five grand- children and wonderful memories of his kindness, humility and charm. When society members are swim- ming in the Ocean Baths at Coogee (the Ross Jones Memorial Pool, named after his father), they might recall Bryce’s contribution to Sydney legal life. Bruce Cooper, Deputy Chief Executive Partner, Clayton Utz

What a small world! Immediately preceding my letter in October LSJ

was one by Maryanne Ofner, the principal of Biddulph & Salenger at Milsons Point, commending Warwick Dunn, a former long- term principal, still in practice at the firm. I pass by that office daily, living nearby as I do, and have done, since 1992. I have often seen Mr Dunn leaving there after 5pm. Incidentally, when he was admitted, I was a mere lad. However, next year I will, just quietly, notch up 50 years in practice, and then plan to call it quits. So, like Maryanne, I too dips me lid to Mr Dunn for his perseverance and enthusiasm in remaining in practice. Well done, Mr Dunn! Edward Loong

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ISSUE 61 I NOVEMBER 2019 I LSJ 11

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Contact us for free, independent guidance on all costs issues.

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ISSUE 61 I NOVEMBER 2019 I LSJ 13

Briefs NEWS

a move in the right direction for female barristers receiving more work but there was still room for improvement. “We know the legal profession is changing – the majority of Australian law students and solicitors are women. So if Australian bars want to remain relevant in the future, they also need to change,” Eastman said. “But change doesn’t happen by acci- dent. We need to embrace diversity and provide real opportunities for female law students and practitioners at the bar. The legal profession has the opportuni- ty to lead by example in ensuring equal opportunity in our workplaces and de- veloping effective strategies to eliminate the gender pay gap.” The Equitable Briefing Report did note that barristers were making ef- forts to recommend their female peers for more work, as women were recom- mended for briefs almost twice as often as men. Barristers reported recommend- ing 409 female barristers compared to 265 male barristers. President of the Law Council of Aus- tralia Arthur Moses said this aspect was encouraging, but that the unequal dis- tribution of pay illustrated a lot more work needed to be done. “It is good to see that in junior ranks targets are being met for female bar- risters, who received 30 per cent of the total briefs. This is a trend we must sup- port and nurture,” he said. The Law Council launched its na- tionwide Equitable Briefing Policy in 2016 with the goal of encouraging law firms, business organisations, clients and in-house counsel to increase brief- ing opportunities for female barristers. Organisations and individuals who sign up to the policy are asked to provide data on the number of female and male, junior and senior barristers they brief each year – as well as the monetary value of those briefs. In 2019, the Law Council received 168 reports from the current 400 adop- tees of the Equitable Briefing Policy. This represents a reporting rate of 42 per cent.

EQUITABLE BRIEFING Morework for less pay: equitable briefing data yields surprising results

BY KATE ALLMAN

F emale barristers are receiving more briefs but are not being paid proportionately for the ex- tra work, according to annual data collected on the Law Council of Australia’s Equitable Briefing Policy. The second annual report on the poli- cy, published by the Law Council in Oc- tober, reveals that male barristers are still briefed in the vast majority of cases requir- ing counsel in Australia. Female barristers received just 25 per cent of the briefs re- ported to the Law Council in 2017-2018. This represents an increase of five percentage points – up from 20 per cent in 2016-2017. However, the increase in workload shared by women across the profession was not reflected in propor- tionate pay distribution. The report shows female barristers received just 17 per cent of the total $510.5 million in fees earned by barris- ters across Australia – an increase of only two percentage points from the previous 15 per cent they earned in 2016-2017. In other words, male barristers re- ceived about three times the number of briefs – and five times the value of briefs – of their female counterparts. President of the Australian Women Lawyers Association Adrienne Morton said she was “bitterly disappointed” by the revelation that the value of briefs for women had decreased proportionate to the aggregate number. “It is extremely disappointing ... that despite a commitment to equitable briefing and an increase in the number of reported briefs going to women, the

President of the Australian Women Lawyers Association Adrienne Morton

value of briefs going to women barristers has fallen as a proportion of the total, indicating an increase in the profession’s already dismal gender pay gap,” Morton said in a media release on 14 October. The new data represents an effec- tive widening of the gender pay gap for barristers, which was most recently re- ported at 141 per cent Australia-wide, according to a 2016 paper Visible targets: The case for equitable briefing by Sydney barrister Kate Eastman SC. Australia’s Workplace Gender Equal- ity Agency (WGEA) reports that the pay gap across the Australian legal sector, in- cluding solicitors, is 26 per cent, while the average pay gap in all industries is much lower. The most recent numbers compiled by the Australian Bureau of Statistics in August show the average pay gap across Australia is 14 per cent. Eastman, who is Chair of the Law Council’s Equal Opportunity Com- mittee, said she was encouraged to see

14 LSJ I ISSUE 61 I NOVEMBER 2019

NEWS

Influencer

NEWTHISMONTH Calling for entries: the McCallum Medal 2019

by

This esteemed competition is for young lawyers and students interested in work- place safety law and industrial relations. The award is named in honour of Emeritus Professor Ron McCallum, a former patron of NSW Young Lawyers and a leading ac- ademic in the field of labour law and hu- man rights, who will present the award on 7 November. Visit lawsociety.com.au/ events/young-lawyers-events/mccal- lum-medal-2019 New admittees orientation session Recently admitted as a lawyer? Welcome to the profession! Join us for a cocktail re- ception and relaxed information night on 14 November at the Law Society. Experi- enced lawyers will be on hand to answer your FAQs regarding practising certificates and supervision guidelines. lawsociety.com.au/ events/events-calendar/new-admittee s Thought Leadership: Smart law for deep space Space is abuzz with human-initiated activity as we strive towards a sustainable future beyond Earth. But how do our earthly laws transfer to space? Join us on 18 November to discuss this question and explore what legal principles will guide us safely and ethically across this exciting new frontier. Visit lawsociety.com.au/ thoughtleadership

Tanya Smith SC Crown Prosecutor, Office of the Director of Public Prosecutions

There’s no time sheets and it’s not about what you’ve billed at the end of the month – the focus is very different. The focus is on representing the community, doing your job and doing it to the best of your ability.

ISSUE 61 I NOVEMBER 2019 I LSJ 15

Briefs NEWS

sixminuteswith

MANAGING DIRECTOR, CHALK & BEHRENDT JASON BEHRENDT

Aside from winning this, what has been your biggest career highlight? Being able to work with so many Ab- original communities and organisa- tions, particularly the Aboriginal land rights network in NSW, over a long pe- riod. It has been an honour to be trust- ed with their legal matters, and to work with many elders and strong Aborigi- nal men and women to try and achieve good outcomes for their communities. How has your cultural background as an Aboriginal person played into your career path and plans for the future? My cultural background and upbringing and the desire to work with Aboriginal communities was a significant reason for commencing legal studies and to enter into legal practice in the first place. It has also led to the strong interest in land rights, native title and cultural heritage which has been the primary focus of my legal practice and is likely to continue to be a primary, but not the only, focus. Do you have any mentors? I have been very lucky to work with Andrew Chalk over the length of my practising career. He has been both a friend and a mentor throughout. I have also been fortunate to work with some excellent barristers who have given me plenty of advice and guidance over the years. My most important mentors are, however, my family, especially my partner Amanda. Aside from work, what keeps you happy and healthy? Spending time with my family keeps me happy outside of work. Recently, I have taken up running to try and be a bit healthier and even ran in my first marathon and first ultramarathon this year, which is a something I never thought I would say about myself.

Jason Behrendt has a passion for pursuing justice for Aboriginal people. An Aboriginal man, Behrendt has been involved in several successful native title and land claims in NSW and the High Court. He is also a board member of the Law and Justice Foundation. He tells FLOYD ALEXANDER-HUNT why he chose a career in the law, what winning the 2019 Law Society of NSW President’s Medal means to him, and just how many kilometres he can run.

the time was right to give legal practice a go. I have continued to practise as a solicitor ever since. What does it mean to you to win the President’s Medal? It is obviously a great honour to be nominated for the medal, let alone to win it. The fact it is a recognition by my peers in the legal pro- fession is overwhelming, especially given there are so many legal practitioners who do fantastic and selfless work who would be deserving of this award.

Why did you pursue a career in law? When I was doing my law degree, I did not have any clear career plans. Pursuing justice for Aboriginal people was a major motivation for me to pursue legal studies, although I had no clear plans on how I would do that. I always had a particular interest in Aboriginal land justice and the protection of Aboriginal cultural heritage, and when the opportunity arose to start practice as a solicitor in a firm that had some current matters in those areas, I thought

16 LSJ I ISSUE 61 I NOVEMBER 2019

BY LINDEN BARNES, SENIOR ETHICS LAWYER

A: ere are certainly ethical issues to ponder here. Let us start with the obvious one – con dentiality. Who is overhearing your conversation? Who is overlooking your computer screen? We sometimes become so focussed on what we are doing that we don’t real- ise everyone else can share it with us or, indeed, is being forced to do so. Arguably, it is not just a matter of con dentiality but also a matter of courtesy, too. Other patrons want peace, if not quiet. Another aspect of con dentiality is wi- . If we use it, we have to be so aware of the con dentiality/security perils. It is our obligation – not the café’s – to ensure our systems are secure. Some jurisdic-

tions require technological competence of solicitors. It is probably not necessary for our conduct rules to be so speci c – the rules of con dentiality and general competence are broad obligations that cover the situation. If you need to increase your competence, the Law Society’s FLIP ini- tiatives on embracing technology are there to help. We act in our clients’ best interests. While it is arguably in their best interests to have a happy, su ciently ca einated solicitor, that doesn’t extend to risking their con dentiality. Enjoy your co ee, but leave Gloria- bucks to the students as a workplace.

Q: In my local Gloriabucks, as I drink my co ee, I see another solicitor, laptop open, talking on their mobile about court dates. I ponder: “Is doing work at Gloriabucks a good idea?”

ISSUE 61 I NOVEMBER 2019 I LSJ 17

Briefs NEWS

INCLUDE A CHARITY Why you

should consider charities in your client’s will is month’s LSJ cover story (p36) touches on the bitter family feuds that can arise from wills and estates. But there’s one bene ciary that will be grateful for a bequest, no matter how large or small: a charitable organisation. Research commissioned by the 2019 Include a Charity campaign found that more people are includ- ing charities in their wills than ever before. UK gifts in wills expert Meg Abdy from Legacy Foresight analysed 10 years of charitable bequest data and found that bequests accounted for as much as 20 per cent of charity fundraising income in 2018. e research suggests that increas- ing death rates among the Baby Boomer generation (to rise by 60 per cent from 170,000 to 285,000 by 2040) and the increase in the number of child-free people dying (who are more likely to leave gifts in wills) will underpin future growth in these bequests. e research suggests that by 2040, charitable bequest income will be 2.3 times higher than today, after in ation, with the total number of bequests 1.9 times higher. Just 7.4 per cent of Australians who have wills currently leave a charitable bequest. Helen Merrick, Include a Charity’s campaign direc- tor, suggested solicitors could help by asking clients if they had favour- ite causes they would like to support after providing for loved ones. “ at way, more people could know it’s an option and the impact this has for the community will be signi cant,” she said.

Samantha Lewis Joined as Senior Associate Nolan Lawyers, Sydney CBD

Tennille Ferguson- Brown Promoted to Associate

Taperell Rutledge Lawyers, Gosford

Jisella Corradini- Bird Promoted to Senior Associate Marsdens Law Group

Jennifer Shaw Jennifer Shaw Joined as Partner, Commercial Disputes Bartier Perry

Monique Loveday Joined as Senior Associate Family Law SWAAB

Grazia Zhou Joined as Senior Associate Project Lawyers

SalamKaoutarani Joined as Senior Associate Project Lawyers

Kristen Ali Joined as Lawyer Project Lawyers

Andrew Johnson Joined as Senior Associate Dorter Family Lawyers and Mediators

BronwynO’Loan Promoted to Senior Associate Dorter Family Lawyers and Mediators

Timothy Nicholls Joined as Associate Dorter Family Lawyers and Mediators

Lauren Sanderson Joined as Solicitor Dorter Family Lawyers and Mediators

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

18 LSJ I ISSUE 61 I NOVEMBER 2019

NEWS

OBITUARY Vale JaneMathews, first female judge inNSW

in law, were among those to pay tribute. Governor Beazley noted that Justice Mathews “spoke up for women lawyers at every opportunity” whilst Chief Jus- tice Kiefel said her friend “served as an example and encouragement to many women lawyers”. As a Crown Prosecutor, Mathews appeared in many sexual assault trials in an era where almost no-one, aside from the complainant, was a woman. Mathews said of this in a 2015 inter- view: “ e very rst time I did a sexual assault case the victimwas almost in tears with joy at having a female representing her interests. I went back and asked to do more sexual assault cases, not because I particularly enjoyed them, but it made such a huge di erence to the victims.” In lieu of owers, attendees contrib- uted to e Friends of Jane Mathews AO Chair of Associate Principal Trumpet at the Sydney Symphony Orchestra or the Environmental Defender’s O ce.

Jurists, lawmak- ers, academics and musicians joined family and friends of Jane Hamil- ton Mathews to celebrate her life in a stirring state

the state’s only female Supreme Court judge before becoming a judge of the Federal Court of Australia. In 2005 she was made an O cer of the Order of Australia for service to the judiciary, the legal profession, the Uni- versity of NSW, and to music. Her contribution to the arts was t- tingly acknowledged with a memorial in the Playhouse at the Sydney Opera House, after her family accepted the o er of a state service, which was pep- pered with performances in recognition of her love of classical music. NSW Governor Margaret Beazley and High Court Chief Justice Susan Kiefel, themselves pioneers for women

memorial service. Mathews, the rst woman appointed as judge of a NSW court, died from cancer in late August at the age of 78. e legal trailblazer served as a Dis- trict Court judge between 1980 and 1987 before being appointed to the Supreme Court of NSW. Mathews sub- sequently spent almost seven years as

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ISSUE 61 I NOVEMBER 2019 I LSJ 19

Briefs NEWS

IBA CONFERENCE Former Australian Prime Minister takes a stand against bullying and sexual harassment

Australia’s first female Prime Minister Julia Gillard has called on the legal pro- fession worldwide to work together to tackle bullying and sexual harassment in the workplace, following the release of the International Bar Association’s (IBA) ground-breaking Us Too? report on the issue. Gillard, who began her career as an industrial relations lawyer at Slater + Gordon in the 1990s and became the firm’s youngest partner at 29, addressed an international audience of lawyers in Seoul at the annual IBA conference in September. She gave the keynote speech at the showcase session on bullying, sexual harassment and barriers to diver- sity, having also written the foreword for the IBA report published in August. “I congratulate the IBA on having the courage to release such ground-break- ing and landmark research into bullying and sexual harassment in the legal pro- fession,” Gillard said. “Eliminating bullying and harass- ment is morally right and will benefit both men and women. At the same time, it will eliminate one of the barriers that is jeopardising the development and promotion of female talent in the law and preventing women from coming through to leadership positions.” Gillard spoke in her capacity as the new Chair of the Global Institute for Women’s Leadership, based in London, which aims to “create a world in which being a woman is not a barrier to becom- ing a leader in any field, nor a factor contributing to negative perceptions

“Eliminating bullying and harassment is morally right and will benefit both men and women. At the same time, it will eliminate one of the barriers that is jeopardising the development and promotion of female talent in the law and preventing women from coming through to leadership positions.” Julia Gillard

of an individual’s leadership”. Gillard noted that the Institute was particularly interested in “deepening the evidence base” and working closely with the legal profession to build safer workplaces to encourage women’s progression and gender pay parity. Gillard joined a panel of experts from around the world, including Simon Davis, President of the Law Soci- ety of England and Wales and a partner at Clifford Chance in London; Hanim Hamzah, the Regional Managing Part- ner of the ZICO Law network with offices in 10 ASEAN states; and Pip England, a partner and board member of Chapman Tripp in Auckland, New Zealand. LSJ journalist Kate Allman,

who has written widely about issues of bullying and harassment in the legal profession, chaired the panel. All panellists agreed that lawyers had a vital part to play in the fight against bullying and harassment, as gatekeepers of law and legal standards in society. “There is work for the legal profes- sion to do, in advocating for laws to be adopted everywhere and for the leg- islation to be the best it can be,” said Gillard. “With the combined expertise in this room, a real contribution could be made to creating laws that could work. With the goodwill in this room, pro bono cases could be taken that would set precedents for future behaviour.”

20 LSJ I ISSUE 61 I NOVEMBER 2019

NEWS

FLIP INQUIRY SERIES Head in the cloud? Most legal work is

So much of our life is swept up in the cloud these days, but how many lawyers can de ne what the cloud actually is? A recent Law Society of NSW dis- cussion panel, Behind the Buzzwords, sought to do just that. Five experts attempted to decode the technological jargon, discussing the risks and oppor- tunities of con dential data storage and practising law in the computing age. Law Society of NSW President Elizabeth Espinosa said the cloud o ered a variety of potential advantages for law rms, including low upfront costs, greater accessibility, opportunities

for collaboration and data security. “Cloud computing allows legal professionals to run their practices more e ciently and economically. However, our profession is governed by strict rules regarding client con dentiality and professional conduct,” President Espinosa said. “In NSW, lawyers have a funda- mental duty to deliver legal services competently. is could imply at least a functional understanding of those tech- nological developments that directly impact the delivery of legal services.” Graham Je erson, CEO of NTT

Cloud Services; Lyn Nicholson, General Counsel for Corporate & Commercial, Holding Redlich; Clayton Noble, Senior Legal Counsel at Microsoft Australia; David Vaile, Executive Director of Cyberspace Law and Policy Centre and UNSW Law and Australian Privacy Foundation Chairman; and Linden Barnes, Senior Ethics Solicitor at the Law Society of NSW joined Espinosa on the panel, also covering a variety of questions surrounding third- party access to data and the necessary legal obligations.

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ISSUE 61 I NOVEMBER 2019 I LSJ 21

Briefs NEWS

CLIENT CHOICE AWARDS Clients to cast votes in national professional services awards

For the full round-up of Law Society advocacy, see page 66.

Short-term rental accommodation The Environmental Planning & Devel- opment and Property Law Committees contributed to a submission to the Department of Planning, Industry and Environment in response to a Discussion Paper and draft planning instruments and Regulations to introduce a state-wide planning framework and mandatory Code of Conducr for short-term rental accommodation (STRA) . The Law Society expressed concern about a number of matters such as the enforceabil- ity of some of the proposed criteria in the exempt and complying pathways. These include: enforcing fire safety requirements; establishing whether STRA is hosted or non-hosted or whether a property is the host’s ‘principal place of residence’ to estab- lish the relevant day cap. Section 293 Criminal Procedure Act 1986 The Criminal Law Committee contributed to a submission to the Attorney General seeking a review of section 293 of the Criminal Procedure Act 1986 and recom- mending a carefully curated amendment. The Law Society supports the policy objective of section 293, which is to reduce the distress, humiliation and embarrassment experienced by complainants who testify at trial for a pre- scribed sexual offence. However, the way the section has been interpreted in the instant case appears to have prevented the admission of evidence relevant to a fact in issue . Review of the pricing framework for electronic conveyancing The Property Law Committee contributed to a submission to the Independent Pricing and Regulatory Tribunal NSW on the recommendations of the draft report. We submitted that a national approach to interoperability is vital and the MORs are the appropriate vehicle to implement this.

Think your firm or practice is killing it? Let your clients be the judge of that; by entering the 2020 Client Choice Awards. The Awards, which are backed by NAB and global consulting pow- erhouse beaton, have celebrated the best professional services firms in law and accounting for 15 years. Unlike other awards, the winners are the “clients’ choice” – awarded by a judging panel that carefully analyses customer feedback submitted by real clients answering survey questions about the firm and the service it provided them. The awards have targeted large top-tier firms for the past 15 years, hosted by the Australian Financial Review in partnership with beaton. But in 2019, the entry categories have been expanded to include small and medium-sized firms as well as sole practices. Research partner Firm- Checker has come on board to assist in analysing and gathering customer feedback for smaller-sized firms. “We’re excited to partner with beaton to open the awards up to firms that might not be huge in size but still provide a great client experience,” said Ben Farrow, Managing Director of FirmChecker. “Participation with FirmChecker and the Awards will be intrinsically valuable because of the independent insights firms can get through participating.” Law firms wishing to enter the awards must collect at least 30 com- pleted client surveys evaluating their customer service and perceived value by the deadline of 4 February 2020. Those who enter via Firm- Checker’s website gain a free 30-day trial to the subscription service, allowing them to also read the feedback from their clients online via real-time dashboards. To be eligible, firms must sign up via the FirmChecker website by 4 November 2019. Participants then have three months to gather at least 30 genuine client responses, before the entry deadline of 4 February 2020. Firms that already subscribe to FirmChecker’s review and rating system are automatically considered for an award. Finalists will be announced on 19 February 2020 and the winners will be announced at a gala dinner in Melbourne on 19 March.

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NEWS

Airing of grievances

Pit to be tried He might be an arm-wrestle champion, but a New York man was no match for the strong arm of the law after being busted repeatedly spruiking apricot seeds as a cancer cure. Jason Vale, a state and US national arm-wrestling champi- on, was arrested for peddling the seeds, which he claimed were a cure for terminal cancer. It was not the rst time Vale had fallen foul of authorities for selling the seeds on his website apricotsfromgod.info. e NY Post reports that in 2000 he was placed on a court order from a Brooklyn federal court judge, ordering him to ditch the dodgy sales pitch. He de ed the court order, which landed him in a fresh legal jam two years later when he was sentenced to ve years in prison for criminal contempt. By 2013, it is alleged Vale had resumed selling, insisting there is more than a kernel of truth in his belief that the seed’s medicinal powers trump traditional medicine. For AU$430, a buyer would receive roughly a kilo of ‘heal- ing’ apricot seeds, three bottles of vitamins, and a DVD about its curing powers. For Vale, it has proven a fruitful endeavour, netting him and his mother Barbara Vale more than AU$1 million over six years. On his website, Vale wrote “the answer to cancer is known”, claiming the seeds assisted him in surviving aggressive kidney cancer for more than 20 years. He uploaded videos of his suc- cessful arm wrestle feats as proof of his renewed strength. Food and drug authorities dismissed Vale’s claims, saying the seeds, known as laetrile, are useless as a cancer cure.

A US air conditioning company is suing a woman for defamation after she gave them a blast on review site Yelp. Michigan court records show North Wind Heating & Air Conditioning have accused Lisa Agostino of “false and defam- atory statements”, which they say have cost them up to six customers a day. Agostino took to Yelp to complain the company had “gouged” her over the price of a new capacitor. e company in turn alleged they received a chilly reception when the owner called to discuss the issue, claiming Agostino yelled and hung up on them, and then posted the dreaded one-star review. e small town company say they do not want damages, just a removal of the review they believe has had “a direct negative e ect on their employees and their families”. But lawyers for Agostino say the case is a “complete abuse of the court system”. “If she takes down her post, she’s giving the company an opportunity to muzzle all of its other customers and their bad reviews,” her lawyer said. With no sign of a cooling-o period in this dispute, it appears both parties are determined to turn up the heat.

Cross-examination Test your legal knowledge ...

1. Finish this equity maxim: Equity will not assist a ... 2. What year did Justice Michael Kirby retire from the High Court? 3. Which of the following Australian Prime Minsters holds a law degree: Kevin Rudd, Julia Gillard, Tony Abbott, Malcolm Turnbull and Scott Morrison? 4. Australia operates a single renvoi system – true or false?

5. Define res judicata? 6. In Carlill v Carbolic Smoke Ball Co [1892] what was the carbolic smoke ball? 7. The recent High Court decision in Comcare v Banerji [2019] concerned what issue? 8. Which Australian human rights

9. In NSW when land is conveyed to more than one person, it is presumed that they are to become tenants in common and not joint tenants. True or false? 10. In Flo Rida v Mothership Music Pty Ltd [2013] was it possible to serve

Flo Rida through his Facebook page via substituted service?

barrister founded and is the joint head of Doughty Street Chambers in London?

Answers on page 63

ISSUE 61 I NOVEMBER 2019 I LSJ 23

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