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I am pleased to report that the LSJ is now available as an app as well as in print format, posted to members. is impressive new online o ering is available for Apple and Android users in tablet and smart phone format. On 5 September, I welcomed the appointment of Dale Boucher as the inaugural Commissioner for Uniform Legal Services Regulation. e appointment brings us a step closer to commencement of the new Legal Profession Uniform Law and associated scheme. e commissioner will have an important role in overseeing the implementation of the scheme, reducing red tape and encouraging other states to get on board. On 17 September, Parliament passed the Bail Amendment Bill 2014, creating a new test for serious o ences that will require defendants to
“show cause” in establishing why their detention is not justi ed. We are disappointed that the 2013 Act has been amended before there can be constructive and evidence- based assessment of its operation. is is an unfortunate return to the reactive approach that historically has dominated the NSW bail debate. In a limited but encouraging move, the NSW Government introduced the Workers Compensation Amendment (Existing Claims) Regulation 2014 in September. is means improvements to medical
bene ts for a limited class of injured workers, including access to hearing aids and prostheses for claims made before 1 October 2012. e Upper House’s Standing Committee on Law and Justice tabled its rst review of the WorkCover Authority last month with recommendations to improve the performance of WorkCover and enhance support to injured workers. Importantly, the report recommends the restoration of access to legal advice
in relation to work-capacity decisions. Employers have bene ted from a 17.5 per cent
reduction in premiums since the scheme was reformed in 2012. However, this has come at the cost of bene ts for injured workers. We look forward to the Government’s response to the recommendations. Finally, tickets are available for the Annual Members’ Dinner at the Museum of Contemporary Art on 23 October. e Hon Justice Margaret Beazley AO will be guest speaker. Visit lawsociety.com.au/ForSolictors/ Events/AnnualMembersDinner/index.htm for tickets.
OCTOBER 2014 I LSJ 3
A WORD FROM THE EDITOR
Is a function at which e Hon. Michael Kirby speaks ever a dull a air? I doubt it. Last month I had the honour of meeting e Great Dissenter at the Law Society’s ought Leadership lunch on Human Rights in North Korea. Kirby, pictured above, was in ne form. With his usual sharp wit and self-deprecating humour, he kept the whole room enthralled as he spoke of his experience as a solicitor, barrister and judge in NSW, and then his role as chair and commissioner of the United Nations Commission of Inquiry on Human Rights in North Korea. As well as providing a glimpse into the macabre (if not fascinating) world of a country about which we know so little, hearing Kirby’s story was a reminder that solicitors (even those like Kirby who couldn’t even get articles to begin with!) have so much to give to society, both locally and globally. As you will read on page 26, NSW-trained lawyers are making a real di erence to processes and methodology used by international bodies – and this is something of which we should be proud.
Managing Editor Claire Cha ey Associate Editor Jane Southward Legal Editor Klara Major Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Editorial enquiries firstname.lastname@example.org Business Development Manager Jemma Still Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0361 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2014 e Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the speci c written permission of the Law Society of New South Wales. Opinions are not the o cial opinions of the Law Society unless expressly stated. e Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Claire Cha ey
Wendy Bacon trained as a lawyer and is a professor of journalism at the Australian Centre for Independent Journalism. Her first story for the LSJ is about the malicious prosecution case of Roseanne Beckett, formerly Roseanne Catt. A Significant Challenge p24
Julie McCrossin trained as a lawyer and is a writer, broadcaster and facilitator. Read her feature about former Sydney lawyer Peter Mason who is based in New York working for Unicef. Mason has travelled to almost 150 countries for his work. A Worldwide Mission p32
Sarah Edelman is a clinical psychologist who conducts workshops on Cognitive Behaviour Therapy. She is the author of bestselling book Change Your Thinking. Her first story for the LSJ oers useful tips for dealing with the oce narcissist. All About Me p56
Stephen Tully is a Sydney barrister at 6th Floor St James Hall Chambers. His legal update covers an International Court of Justice ruling on a case about Timor-Leste and Australia that involved the right of a state to a confidential relationship with its legal advisers. Privilege, Security and International Law p84
Cover photograph: Jason McCormack
Got an idea? We publish articles from a broad pool of expert members and we’re eager to hear 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 . We will provide editorial guidelines if we would like to publish it in the LSJ . We no longer accept unsolicited articles.
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22 HOT TOPIC Wendy Bacon explores an ongoing claim of malicious prosecution 26 COVER STORY The Hon. Michael Kirby tells how his NSW legal training helped in his report on North Korea 32 PROFILE Julie McCrossin reports on former Sydney lawyer and UNICEF legal advisor Peter Mason 36 FEATURE Claire Cha ey investigates how young lawyers can put themselves on the track to partnership
52 MOVE MORE, STRESS LESS How staying still at work is damaging your physical and mental health 54 FUELLING YOUR BRAIN Joanna McMillan advises on what to eat to maximise the performance of body and mind 56 ALL ABOUT ME Clinical psychologist Sarah Edelman sheds some light on the o ce narcissist
57 WALK YOURSELF WELL Time poor? Tips for getting the most from your lunchtime stroll 58 CITY GUIDE Your guide to spending 24 hours in elegant Kyoto 62 ADVENTURE
Get your thermals on and take the Antarctic Endurance Expedition
6 LSJ I OCTOBER 2014
8 MAILBAG 10 BRIEFS
66 LAW SOCIETY ADVOCACY 68 LEGAL RISK
Webcasting: not just for entertainment
News and events from the legal world 12 PROFESSIONAL NOTICES 15 FROM THE ARCHIVES 16 OUT AND ABOUT 18 CAREER MOVES Who moved where this month 20 GLOBAL FOCUS Legal news from around the world 25 PEARLS OF WISDOM 40 CAREER HUB 44 A DAY IN THE LIFE Jane Southward meets graduate solicitor Jessie Porteous Justice Julie Ward looks back on 30 years in law
70 WORKPLACE RELATIONS 72 INTELLECTUAL PROPERTY 74 CRIMINAL LAW 75 ETHICS 76 DISCRIMINATION 78 ELDER LAW 80 PROPERTY LAW 82 LITIGATION 84 INTERNATIONAL LAW 86 CASE NOTES: HIGH AND FEDERAL COURTS 89 GENERAL PRACTICE: THE LATEST IN WILLS & ESTATES AND FAMILY LAW
MANAGEMENT Four ways to enhance your competitive dierence 50 EXTRACURRICULAR
It’s not all between the lines for lawyer Paul Mallam
The latest in wine, books, events and style 83 LIBRARY ADDITIONS New books at the Law Society Library 98 EXPERT WITLESS Legal news to make you giggle
OCTOBER 2014 I LSJ 7
LETTERS TO THE EDITOR
Say ‘no’ to complacency Thank you for the interesting and inspiring article on Deng Adut (September LSJ ). His view of the world was a reminder that my life is a “goldfield” and that I need to stay “hungry”. Complacency in any form is a slow death. I am also heartened that we have such diversity entering our profession. appreciation of the article about Deng Adut. The LSJ is an informative journal, even if its new, rather self- congratulatory and aspirational reincarnation might not sit well with all members. For myself, I felt very humbled by Mr Adut’s story. I was honoured to read this account of how he came to the law, the enormous diculties of his youth and how he hopes to see his mother again and what he is doing in his new country. This story is the more compelling juxtaposed as it is with the fine dining, cars and holidays. Thank you so much for balancing things out in the Journal with this story. Janet de Castro Lopo, Sydney Amisguided change For more than 30 years solicitors have described demised premises as “Part of land in Certificate of title (or Folio Identifier) 1/11111 being Lock up shop no 300 High Street Smithtown or warehouse and oces no 300 High St Smithtown.” This description (arising from Re Lehrer (1961) 61 SR (NSW) 365) has been judicially recognised in several cases including Suzanne Tay, Sydney Feeling humbled I write to express my
Hardy v Wardy (2002) NSW Conv R 55-968 where the property was described as “Two-storey building being warehouses and oces at 76 Mitchell Road” Alexandria and noted in various Journal articles. However, this practice is now no longer accepted by Land and Property NSW whose ocers insist on the property being defined as (for example) Shop no 1 /300 High Street or by reference to a business name such as “Joe’s Cafe 300 High Street.” The ocers tell me they are concerned about notices being properly addressed. This causes problems. Firstly, because it takes no account of the actual address. Mail addressed to a known address will be delivered, mail addressed to an unknown address may not be. And the post oce knows a single shop occupying the whole of the land known as (to give a real example) 487 High Street Maitland as that. It does not know it as shop 1 /487 High St and it may not deliver a letter addressed shop 1/487 High St Maitland. Secondly, because the alternative – to use the business name – takes no account of the practice of assigning leases and the assignee wanting to change the business name. Indeed the LPI ocer to whom I mentioned this seemed to assume that every change in a business ownership resulted in a new lease –at least until I referred the ocer to section 39 Retail Leases Act If, as in Hardy v Wardy , it was enough to describe the demised property as “Two-storey building being
warehouses and oces at 76 Mitchell Road” (and Bryson J held it was) then it is enough to describe a single lock up shop or oce as being 300 High St Smithtown and with respect the LPI should revert to its previous practice. Peter Kirsop, Newcastle Relevant, real I found the August LSJ well- structured with very interesting and relevant articles. In particular I found the following articles informative and interesting: How gravitas can give you the edge, It shouldn’t be legal, Career strategies to put you ahead of the pack, A day in the life of barrister Jack Tyler-Stott, How to value your support team, and Don’t think about it . Keep up the good work. Greg Moore, via email Russian incursions Global Focus: Legal news from around the world is always captioned underneath the flag of the nation which gives rise to the report. The caption “Russia ordered to pay almost 1.9 billion euros in damages” (September LSJ) sits under a flag that looks anything but that of Russia. Russia may be making incursions into Ukraine that it ought not . . . but when did Russia claim to lord itself over China? Or vice versa? It is almost Clive Palmerish. C’mon! Such a fundamental mistake is embarrassing. I think someone should enter a plea of guilty and be sent o§ for a pre-sentence report (PSR) or at the very least a topography o§ender’s program (TOP) – or both! John Taylor, Freemans Reach Ed note: Guilty as charged
HEADHELDHIGH WHYCONFIDENCE ISCRUCIAL FORALAWYER’SSUCCESS WAYOUTWEST AUNIQUEKINDOFLEGALPRACTICE HIGH IMPACTSTATEMENTS NEWPOWERTOVICTIMSOFCRIME MENTORBEWARE AREYOUREALLYHELPING? MAKETHECHANGE SIMPLESTEPSTOGOODHEALTH THELONE DEMOCRACY IS ITTIMETORECONSIDER ANAUSTRALIANHUMAN RIGHTSCHARTER?
21/08/2014 3:11 pm
WRITE TO US: We would love to hear your views on the news! The author of our favourite letter each month will WIN LUNCH FOR FOUR at the Law Society dining room . Email: firstname.lastname@example.org CONGRATULATIONS! This month’s winner of lunch for four is SUZANNE TAY. Toomuch girl power Reading the July and August editions of the Journal has left me feeling so old. It is not just my 78 years, it is that I can still recall those way o§ days when men were solicitors too. George Gell An incredible life What a kaleidescope of life’s experience Maithri Panagoda has had ( A lyrical lawyer, September LSJ )! Such a rich backdrop against which to provide legal advice day to day. Thanks for the tip about leaving the coat (and your work problems) on the hook in the oce. Josephine Heesh, Sydney
8 LSJ I OCTOBER 2014
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NSWYL COMMITTEE EARNS PRESTIGIOUSAWARD The Law Council of Australia has announced the winners of its annual Australian Young Lawyer of the Year Award. The organisation award was presented to the New South Wales Young Lawyers’ Workplace and Safety Committee, while Queensland solicitor Kara Cook won the individual category. Law Council of Australia secretary-general Martyn Hagan said the award demonstrated the commitment and high calibre of work young lawyers across the Australian legal profession undertook on a daily basis. “The … award highlights the important contribution young lawyers make in the Australian community at both an individual and organisational level,” he said. First presented in 1999, the Australian Young Lawyer of the Year Award aims to encourage and foster young lawyer organisations to establish programs for the benefit of the profession and the community, and to recognise and reward the achievements and contributions of individual lawyers. The New South Wales Young Lawyers’ Workplace and Safety Committee received the organisation award for establishing a pro bono scheme at the Fair Work Commission in Sydney. The scheme is voluntary and assists parties in jurisdictional hearings before the Commission who are unrepresented, educationally disadvantaged or have language barriers. “The … award highlights the important contribution young lawyers make in the Australian community at both an individual and organisational level.” MARTYN HAGAN “The New South Wales Young Lawyers’ Workplace and Safety Committee arranges for two young lawyers each week to provide information to unrepresented litigants and assists them to present their applications to the Commission. This scheme reduces the time spent in hearings at the Commission and results in a fairer outcome for litigants,” Hagan said. Cook was bestowed with the individual award for her significant contribution to the profession as a volunteer in community legal centres providing legal advice to disadvantaged people, with a particular focus on women and victims of domestic violence and raising community awareness about domestic violence. “Ms Cook is a dedicated legal practitioner who is recognised for her services to the legal community being named as YWCA’s 125 Leading Queensland Women in 2013 and in 2012 being named as Women Lawyers’ Association of Queensland Emergent Woman Lawyer of the Year,” Hagan said. Chair of the Law Council’s Australian Young Lawyers Committee, Mitchell Strachan, said the recipients demonstrated the great work that lawyers did in their communities by volunteering their time, skill and effort. “As individuals involved in community groups and as organisations supporting community projects and their young lawyer colleagues, the recipients stand as an example to all young lawyers to continue their volunteer contribution,” he said.
MEMBERSHIPS OPEN FOR SPECIALISTACCREDITATION ADVISORYCOMMITTEES Applications to be considered for membership of several specialist accreditation advisory committees have now opened. Practitioners who meet the eligibility criteria are invited to apply. Specialist Accreditation is a professional development program that tests the knowledge and skills of practitioners to determine if they are specially competent in their areas of practice. Advisory committees are established to set and implement the assessments in each area of practice offered and the committees assess each candidate in their performance. Membership is available for the following advisory committees: Dispute Resolution; Government & Administrative Law; Local Government & Planning Law; Immigration Law; and Personal Injury. Being an advisory committee member offers the ability to: - Assist in the governance, policy development and business strategy of the scheme; - Contribute to the development of a specific area of practice for the benefit of the scheme; - Help improve the scheme for the benefit of the committee membership. Provided that at least 80 per cent of advisory committee meetings held each year are attended. Application forms must be submitted to the Specialist Accreditation department by close of business Friday 24 October 2014. More information and an application form are available at lawsociety.com.au/cs/groups/public/ documents/internetcontent/062531.pdf For general enquiries contact Anita Khosla, Specialist Accreditation Business Manager, at the Law Society, 170, Phillip Street, Sydney 2000, DX 362 Sydney, profession and the community; and - Claim 10 Continuing Professional Development points for each year of
phone 02 9926 0347, fax 02 9231 5809, email email@example.com.
10 LSJ I OCTOBER 2014
GOVERNMENT SOLICITORS CONFERENCEANDDINNER
Award winners Andras Markus (above) and Laura Joseph (above middle) with Doug Humphreys, chair of the Law Society’s Government Solicitors Committee (left) and Law Society CEO Michael Tidball (right). Australian Human Rights Commission president Gillian Triggs (far right).
The Law Society’s annual conference for government solicitors was held on 10 September and attended by 177 delegates. The Hon Justice Robertson Wright, president of the NSW Civil and Administrative Tribunal (NCAT), gave the keynote address on “The Implementation of NCAT” describing the drawing together of 22 tribunals or bodies into one “super tribunal”. In the first six months of operation, 41,000 matters have been finalised. Dr Mark Rix, senior lecturer at the University of Wollongong, discussed probity and the implications of outsourcing legal services. Michael R Hall, barrister, Nigel Bowen Chambers, gave delegates an opportunity to ponder a number of ethical issues during his presentation on “Ethics in Governance”. A panel discussion followed drawing together Phillip Salem, partner, Sparke Helmore Lawyers; Merilyn Speiser, Catalina Consultants; Megan Pitt, director, AGS Sydney; and Rose Crothers, Legal Aid NSW. Elizabeth Espinosa of Sutherland Shire Council was facilitator. The panel discussed careers and the pressures of budget restraints on government lawyers. The winner of the 2013 John Hennessy Scholarship, Rebecca Barrington of ODPP, was unable to attend the conference but Erin Gough, manager, Legal Policy Branch, Legal Aid NSW, presented the findings of Ms Barrington’s research, “A study of the United Kingdom’s specialist domestic violence courts”. Erik de Jong, psychotherapist, encouraged discussion on mental health and wellbeing and gave practical tips government lawyers can introduce into their day to encourage them to look after themselves. Dr Ashley Tsacalos, partner, Norton Rose Fulbright, returned to the stage this year to give an insightful presentation on the tort of misfeasance in public oce against public ocials. The conference closed with Rodney Spitzer, special counsel,
Clayton Utz and Nikki Robinson, partner, Clayton Utz, giving an informative update on contract law. The annual conference dinner, which was attended by 70 delegates, was held at the Hilton Hotel following the conference. Professor Gillian Triggs, president of the Australian Human Rights Commission, delivered an inspiring and thought- provoking after dinner speech. The well deserving winners of the Law Society’s John Hennessy Research Scholarship and Excellence Award in Government Legal Service were announced at the dinner. Congratulations to Laura Joseph, Justice Legal, Department of Justice, who is the winner of the 2014 John Hennessy Research Scholarship. Joseph will examine the protection and promotion of the interests of people in legal proceedings who are incapable of giving proper instructions to their legal representatives, who are under legal incapacity and where there is nobody willing or able to act on their behalf. Her research will look at existing models in Victoria and Canada and assess their suitability for the legal system in NSW. The 2014 Excellence Award in Government Legal Service was awarded to Andras Markus of the Australian Government Solicitor (AGS) Sydney. Markus has made a significant contribution to government legal practice, through his work at AGS over the past 30 years, and in particular through his supervision and mentoring of junior lawyers in addition to his significant case load. Highly Commended citations were also awarded to Steven Doumit of Legal Aid NSW for providing exceptional client service to legal practitioners and legally aided clients and to the NSW Civil and Administrative Tribunal (NCAT) Establishment Team for its work to ensure quality, consistency and transparency of tribunal services and to implement improved access to justice for the citizens of NSW.
OCTOBER 2014 I LSJ 11
ALS WELCOMES NEWCHAIRPERSON Ivan Simon (pictured) has been elected as the new incoming chairperson of Aboriginal Legal Service (NSW/ ACT) at a board meeting held in Bourke in August. Simon served as a member of the ALS board for two years and has held various leadership positions throughout his career, including more than 30 years working in the public sector to advance the rights of Aboriginal people in housing, community services, juvenile justice and Aboriginal Aairs. He is currently acting chief executive ocer of the Gandangara Local Aboriginal Land Council.
On 28 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Margaret Hole, solicitor, was appointed as manager of the law practice known as Michael B Reymond (Id: 10514) formerly conducted by Michael Bernard Reymond. On 28 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Riley Law (Id: 20198) formerly conducted by David Marshall Riley. On 29 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Gerard Flynn, solicitor, was appointed as manager of the law practice known as Ashlaw Associates (Id: 19184) formerly conducted by Margaret Gary John Ashworth. On 29 July 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Jenman Lawyers inc Karageorge & Co Solicitors (Id: 20598) formerly conducted by Patricia Jenman. The Council of the Law Society of New South Wales, at a meeting on 29 July 2014, resolved to immediately suspend the practising certificate of Patricia Maria Jenman pursuant to section 548 of the Legal Profession Act 2004 . On 4 August 2014, the NSW Civil and Administrative Tribunal, Occupational Division ordered that the name of Roderick Alexander Smith be removed from the Roll of Local Lawyers. On 28 August 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Carbon Legal (Id: 22085) formerly conducted by Catherine Eve Carney. On 8 September 2014, by resolution of the Council pursuant to section 616 of the Legal Profession Act 2004 , Richard Stephen Savage, solicitor, was appointed as manager of the law practice known as Mattila Lawyers (Id: 12813) formerly conducted by Jennifer Margaret Mattila. The Council of the Law Society of New South Wales, at a meeting on 29 July 2014, resolved to immediately suspend the practising certificate of Jennifer Margaret Mattila pursuant to section 548 of the Legal Profession Act 2004 .
“Indigenous services are going through di cult times, but I think it’s about regenerating the batteries and ensuring we’re capitalising on any new approaches being proered at a federal and state level to see what opportunities might exist for the ALS.” IVAN SIMON
Born in La Perouse in 1950, Simon is one of 11 children with ties to the Yuin Tribe and Worimii clan through his mother and father. He left school in year nine and, after many years as a labourer, was awarded the position of trainee asset ocer with Aboriginal Hostels Limited in 1980 under the old NEAT/NESA Training for Aborigines Scheme. Simon said the position kick-started his long-term commitment to working with Aboriginal people. “As soon as I made the decision to work specifically with and for my people, the job came along and I never looked back,” said Simon. “I’ve remained committed to improving the living circumstances and general wellbeing of my people, with a particular focus on maximising my people’s involvement in strategies to address the issues we’re faced with today and into the future. “Indigenous services are going through dicult times, but I think it’s about regenerating the batteries and ensuring we’re capitalising on any new approaches being proered at a federal and state level to see what opportunities might exist for the ALS. We have to work smarter with fewer resources to keep the service going for our people and to keep our people out of custody. Simon said one of his first steps would be to access data on first oenders and recidivism rates for young people to see what education programs may be able to be implemented. “Teenagers get led astray and sometimes they get into trouble. My interest is in ensuring they don’t get into more trouble when a bit of assistance is all they need,” he said. “The earlier we intervene, the better, and federal and state governments might be able to help with this.”
12 LSJ I OCTOBER 2014
THE VAGARIESOF EXPERT EVIDENCEDISCUSSED A panel of leading experts delved into the topic of expert evidence at a Law Society event held last month. The Hon Justice Patricia Bergin, Chief Judge in Equity; Robert Stitt QC, Seven Wentworth Chambers; Barry Morris, building and construction expert; and Stephen Odgers SC, Forbes Chambers, came together at the Annual One Day CPD Seminar: Evidence Act. The panel noted that there is more focus on preparing evidence these days and that it’s simply not a case of sending young lawyers into rooms to search thousands of documents. The panel also discussed how there are a number of peculiarities in the developments of concurrent evidence. The onus is on the lawyer to discuss with his or her opponent the benefits of a concurrent session. In addition, your obligation to your clients is foremost, so you should test the expert yourself. At the end of the day, opinions are opinions – but the judge determines the issues. According to the panel, the cost of expert opinion can be exceptionally high, and while the calibre of experts is critical, many so-called “professionals” are not reputable. The next seminar in the series is Annual One Day CPD Seminar: Advocacy, Saturday, 18 October 2014. C M
CY TIME FOR JUSTICE Twenty NSW and Victorian solicitors have pledged to each raise $5000 for a new campaign by International Justice Mission (IJM) Australia. The $100,000 will be used in Time for Justice, a new campaign that funds lawyers to help stop children being sold for sex in Cebu in the Philippines. K
“Australian lawyers have an incredibly important role to play in eorts to strengthen broken justice systems in Asia.” AMBER HAWKES
IJM launched in Australian in May and is headed by Amber Hawkes, a former Clayton Utz solicitor who has also worked for the Commonwealth Director of Public Prosecutions. More than 60 lawyers from King & Wood Mallesons, Clayton Utz and Norton Rose Fulbright have attended boardroom meetings about the not-for-profit’s campaigns. “Australian lawyers have an incredibly important role to play in e¦orts to strengthen broken justice systems in Asia,” Hawkes said. “All funds raised from Time for Justice will support the extension of a landmark project in the Philippines that has already dramatically reduced the rate of children being sold for sex.” Hawkes has worked with IJM as Special Counsel and Legal Fellow in Chennai and Bangalore. Visit ijm.org.au if you would like to get involved.
OCTOBER 2014 I LSJ 13
FWO LAUNCHES SMALLCLAIMSGUIDE A Small Claims Guide is the latest educational resource now available from the Fair Work Ombudsman to assist both employers and employees. The guide provides a detailed overview of what happens when an employee takes a small claims action to court to recover entitlements of up to $20,000. It can be downloaded at www.fairwork.gov.au/smallclaims. There is also a series of short educative videos covering topics explained in the guide. Fair Work Ombudsman Natalie James said the resources had been provided both to assist workers seeking to recover entitlements and for employers who needed to respond to claims filed against them. “The guide will help to ensure workplace disputes are settled quickly and fairly in the small claims process with minimum expense to the parties involved,” she said. “Having this guide available means we are now able to point workers and employers to an extremely helpful and thorough resource they can use to navigate their way through the process.” The Small Claims Guide covers the procedural rules that apply to matters such as who can make a claim, time limits on claims, fees that apply, where and how to file a claim in court, and serving the respondent. The guide also includes tips on completing court forms, filing evidence, what to expect on the day of the hearing, and tips for employers on answering a small claims application. When deciding whether to refer an employee to the small claims process, the Fair Work Ombudsman considers a range of factors. These include the amount and types of entitlements involved, how serious the allegations are, the availability of evidence (including written records), the employee’s capability to follow the process and how long ago the employment ended. James said the small claims process is quicker, cheaper and more informal than regular court proceedings. “Small claims matters are usually resolved with only one hearing and the simple process means there is generally no need for lawyers,” she said. “Unlike formal litigation cases, small claims matters are run in an informal manner, as the court is not bound by any rules of evidence or procedure in hearing them.” In some cases, a lawyer from the Fair Work Ombudsman may seek leave to appear as a “friend of the court”, assisting the court on points of law or raising awareness of important aspects of the case. During 2013–14, the Fair Work Ombudsman assisted with 200 small claims applications by employees. James said it was important to note that the Fair Work Ombudsman continued to resolve the majority of the thousands of cases of non-compliance it encountered each year without taking any enforcement action at all. “We continue to place a high priority on promoting a culture of compliance by giving Australian workers and businesses accessible, reliable information about the workplace laws that apply to their workplaces – and assisting them to rectify any inadvertent non-compliance issues that do arise,” she said. “Our preference for working co-operatively with employers and employees to resolve disputes through processes such as mediation and pre-complaint intervention is a strong feature of our work. We prefer to achieve compliance by helping parties to understand their obligations and come to a practical and sensible solution.”
INTERNATIONAL COLLABORATIVE PRACTICE TRAINERS INSYDNEY
Rita Pollak and Linda Solomon
Lawyers were treated to “motivating, insightful and
reinvigorating” training at the Collaborative Law Conference held in Sydney last month. Organised by Collaborative Professionals NSW and attended by collaborative professionals from Sydney and interstate, international trainers Rita Pollak, a highly experienced former litigation lawyer voted best collaborative lawyer in America several years running, and Linda Solomon, a mental health specialist, family therapist and counsellor, educated and challenged lawyers, financial specialists and social scientists in their roles within an interdisciplinary collaborative team. Role playing in teams, the attendees practised skills for bringing highly conflicted clients to a deeper, more insightful and ultimately consensual resolution of their issues. Lawyers reflected on and discussed the challenge of being a “collaborative advocate”, moving away from the adversarial approach while maintaining their duty to the client. The role of the “neutral” team member, whether a financial expert or social scientist, was explored in detail, giving attendees clarity, guidance and tips in management of the process and the team generally. At the end of an enjoyable, productive and educational day, the NSW Bar Choir, led by His Honour Peter Hidden, entertained the crowd.
14 LSJ I OCTOBER 2014
BRIEFS FROM THE ARCHIVES
review THE YEAR IN 2008 DE FACTORELATIONSHIPS ENTER THE MAINSTREAM
Take a trip down memory lane through the pages of the Law Society Journal.
LAWAND ORDER Three major criminal law amendments come into place, including what Nyman Gibson Stewart partner Dennis Miralis calls “arguably the most radical amendment to the Bail Act 1978 ” – a move towards one-shot bail. “Lawyers will now most likely advise defendants that they should delay making a bail application until they can make the best application possible, given that their right to unlimited bail applications has been removed,” Miralis wrote. “Depending on the circumstances of each case, this may mean that defendants could remain in custody anywhere from several days up to several months before an application is made.” “In this credit-crunch climate it can be tempting to drop the bundle, cut corners and take risks. It takes only one bad lawyer to bring the whole profession into disrepute. I urge members to continue to be ever-vigilant and to uphold the ethical standards and values for which our profession is recognised and respected.” IN THE GRIPS OF THE GLOBAL FINANCIAL CRISIS The world economy is in crisis and business is tight for NSW solicitors. The Journal reports that while times are tough, things are likely to get worse. “The latest prediction from the International Monetary Fund’s World Economic Outlook predicts Australia’s growth will almost halve over the next two years, financial conditions will likely remain dicult, and the eventual recovery from the global economic crisis will be gradual,” Law Society of NSW president Hugh Macken writes. Also in NSW in 2008, in a groundbreaking move, changes to the Status of Children Act change the definition of “parents” as always being of opposite sex. What it means is that same-sex female de facto couples who conceive via assisted reproductive technology can be listed on the birth certificate as parents, with no need to specify a (donor) father. Federal Parliament passes long-awaited changes to de facto financial matters. The law extends the financial settlement regime to parties in de facto relationships, which had been available only to married couples under the Family Law Act 1975 . “The advantages for de facto couples are obvious,” writes Alexandra Harland, an associate at Watts McCray. “Both same- sex and opposite-sex de facto couples will be able to access the family law system when their relationships break down. Instead of having to commence proceedings in two courts when there are parenting and property disputes, they will be able to commence proceedings in one court.”
VIRTUAL JUSTICE Appearances in court via audiovisual link are expanded under changes to the Evidence (Audio and Audiovisual Links) Amendment Act 2007 . The new law means evidence can be called via audiovisual link to include committal and sentencing and where evidence is called. “Once the legislation commences it will be possible to be convicted, sentenced and undertake an appeal without ever physically being inside a courtroom,” the Journal reports. “On the most basic level, there is the very grave concern that the over-use of audiovisual links will have the eect of ‘dehumanising’ the prisoner as far as the judge or magistrate is concerned, potentially resulting in unjustly harsher penalties.”
IN THE NEWS
Gillian Triggs , pictured, is appointed Dean of University of Sydney Law School. New workplace laws come into eect as the Howard Government’s Work Choices laws are rolled back by the new Rudd Government. Quentin Bryce is appointed Australia’s Governor- General, the first female appointee to the position. The new Succession Act commences.
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BRIEFS OUT AND ABOUT
YOUNG PROFESSIONALS CHARITY BALL 2014
This year’s Young Professionals Charity Ball was held at the Ivy Ballroom on 13 September. The theme was “Anonymity” and more than 430 young professionals including lawyers, doctors, accountants and engineers turned up wearing masks in support of the NSW Young Lawyers charity for 2014, the Indigenous Literacy Foundation.
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THOUGHT LEADERSHIP EVENT The Law Society of NSW’s Thought
Leadership lunch in September featured The Hon Michael Kirby AC CMG who spoke on Human
Rights in North Korea and his role as chair of the recent United Nations Commission of Inquiry (see story on page 26). About 80 members and guests attended the event.
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BRIEFS CAREER MOVES
MEMBERS ON THE
DAVID CORNWELL Now a partner in the corporate team Piper Alderman, Sydney
JAMES LAWRENCE Now a partner in the intellectual property team Piper Alderman, Sydney
AARON SUINE Now a partner in the construction team Piper Alderman, Sydney
STEPHENWATT Now a partner at Garland Hawthorn Brahe, Sydney
BRENDAN TOBIN Now a consultant partner at Nexus Law Group
NAWZER BILLIMORIA Now a consultant partner at Nexus Law Group
NICK KALLIPOLITIS Promoted to principal at Coleman Greig Lawyers
ANDREWCORISH Established his own law firm Corish & Co Family Law Specialists North Sydney
LORRAINEWHITE Appointed as partner at Baker Deane & Nutt Lawyers
TANYA NADIN Appointed as partner at Baker Deane & Nutt Lawyers
MICHAEL EYERS AM Now a consulting principal at Keypoint Law
MICHELLE MEYER Now a consulting principal at Keypoint Law
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
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LEGAL NEWS FROM AROUND THE WORLD
HONG KONG PROBONOENGAGEMENT GROWS ALONGSIDE PRO- DEMOCRACYACTIVISM Hong Kong lawyers are seeking to follow the trend of jurisdictions such as Australia and Canada in their growing engagement with pro bono legal services. The concept of pro bono work has not always been integral to the culture of legal practice in Hong Kong. However, a growing number of practitioners have become involved recently as a way of supporting the pro-democracy movement, highlighting growing concern over potential infringement on the city’s judicial independence by Beijing. Activist group Occupy Central has staged mass protests and threatened to paralyse Hong Kong’s main business district on 1 Oct over Beijing’s refusal to allow pro-democracy candidates to run for the city’s top position of chief executive in the 2017 elections. Lawyers are assisting protesters to ensure that their civil rights, including those in relation to obtaining bail, are understood and protected. China’s cabinet, the State Council, issued a white paper in June declaring that “loving the country” was a basic political requirement for all Hong Kong administrators, including judges. Hundreds of lawyers marched in protest and, in August, the President of the Hong Kong Law Society angered many by showing support for Beijing and the white paper. He subsequently resigned following a no-confidence vote.
REQUEST FOREUTHANASIA In a world-first ruling under Belgian law, a man serving a life sentence for murder and multiple counts of rape has been granted the right to die by medically assisted suicide. Frank Van Den Bleeken, who has served 30 years of a life sentence, refused earlier opportunities to apply for parole, declaring that he was a genuine ongoing risk to society as he was still unable to “control his violent sexual urges”. His alternative requests to be transferred to a Dutch forensic psychiatric clinic for treatment were denied. Existing treatment and rehabilitation programs within Belgian jails have been widely criticised as inadequate, so the prisoner, who was medically assessed as suffering from extreme psychological distress, sought to assert his right to die under Belgian law. Van Der Bleeken was due to be euthanised at a hospital in Bruges within days of the verdict. In 2002, Belgium became the second country after the Netherlands to introduce euthanasia laws. The laws apply to cases of extreme physical or psychological suffering, where patients with capacity have presented “voluntary, considered and repeated” requests to die. This year Belgium was the first country to extend the laws to allow terminally ill children of all ages to access medically assisted suicide.
In the ongoing worldwide search for alternative energy sources, Indonesia has passed a long-awaited law to enable it to tap into the energy created by some of the 130 volcanoes that cover its vast archipelago. Indonesia’s volcanoes reportedly hold up to 40 per cent of the world’s geothermal energy potential, yet to date Indonesia has lagged behind the Philippines in its use of underground energy. The government hopes the laws will stimulate investment in the country’s energy sector, which has been stalled by bureaucracy and legal uncertainty for years. The key change brought about by the law is that geothermal energy exploration and development will no longer be classified as mining. This means the vast rainforests on top of these potential sources of geothermal energy, which have been technically protected from mining, will now be accessible. Geothermal energy is considered to be a renewable energy source and much cleaner than coal. Although initially expensive to set up, it is ultimately cheaper than coal in the long term. Indonesia is the third-biggest greenhouse gas emitter in the world and outgoing President Yudhoyono has committed to an ambitious 26 per cent reduction of emission levels by 2020.
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USA BP FOUNDGROSSLY NEGLIGENTOVERGULF OFMEXICOOIL SPILL An American Federal Court has ruled BP “grossly negligent” in allowing the largest offshore environmental disaster in US history. Its Deepwater Horizon drilling rig exploded in 2010, killing 11 people and spilling 4.2 million barrels of oil into the Gulf of Mexico. Judge Barbier said BP knew the offshore Deepwater Horizon well was especially dangerous, and the company’s decisions amounted to “gross negligence” and “an extreme departure from the care required under the circumstances or a failure to exercise even a slight care”. A verdict of gross negligence means an automatic fine of US$4300 per barrel, bringing the total fines to an estimated US$18 billion. The court found BP was 67 per cent responsible, along with Transocean at 30 per cent and Halliburton at 3 per cent. BP was also found to have engaged in “wilful misconduct”. BP has announced its intention to appeal, arguing the verdict was “not supported by the evidence at trial” and that “the law is clear that proving gross negligence is a very high bar that was not met in this case”. A criminal case against BP was settled in 2012 with BP agreeing to pay US$4.5 billion in fines. This civil case is predicted to continue for months or years, with another hearing in January 2015.
BRITAIN PROPOSEDANTI-TERROR MEASURESREJECTEDAS UNLAWFUL Like many countries, including Australia, the United Kingdom has been grappling with ways to prevent British-born Islamic State of Iraq and the Levant (ISIL) fighters from returning to Britain. British Prime Minister David Cameron has said that up to 500 UK citizens are fighting in Syria or Northern Iraq and that they represent the biggest threat to the UK’s security. A range of the government’s proposed anti-terrorists measures were recently put on hold amid legal uncertainty. The government had proposed that the passports of British-born fighters in Iraq and Syria be confiscated as a way of preventing their return to the UK. The measures were rejected, as they would render such people stateless and would be in breach of international law and UK common law. Last year, the UK government granted the removal of passports from naturalised UK citizens who had the prospect of being a citizen of another state. The government has been advised by the former attorney-general and current MPs that the best course is still to prosecute such people within the UK court system under existing anti- terror laws.
CHINA DEATHSENTENCES AFTERONE-DAYTRIAL
Three people have been sentenced to death and one to life in prison following the gruesome mass knife attacks in the Chinese city of Kumning. Thirty-one people were killed and 141 injured in the random stabbings at a railway station on 1 March. In a statement, Kumning Court said four of the eight Uighur separatists who organised the attack were shot dead at the scene. Three of the remaining suspects were accused of “leading and organising a terror group and intentional homicide” and the fourth, a woman, was accused of “taking part in a terror group and intentional homicide”. Their trial was completed in just one day and the death sentences were imposed the same afternoon. The Chinese Government has vowed to fast-track the prosecution of terrorism suspects following a rise in terrorist attacks that it largely attributes to domestic Islamic extremists. Courts in Xinjiang province have been instructed to “deliver exemplary penalties”. The government has also imposed a media blackout. Uighur activists say their religion, language and culture are being systematically eroded by the Chinese Government. Uighurs are ethnically Turkic Muslims and make up 45 per cent of the Xinjiang region. They were once a separate state of East Turkestan, but China re-established control in 1949.
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