LSJ - October 2016
ISSUE 27 OCTOBER 2016
HAPPILY KILLING THE BILLABLE HOUR WHY MORE LAWYERS AND FIRMS ARE TAKING THEIR EYES OFF THE CLOCK – AND LOVING IT
FINDINGMORALCOURAGE GENERAL DAVID MORRISON ON WHY CULTURAL CHANGE HAS NO SPACE FOR BYSTANDERS
DEFENDINGRIGHTS INTHEREGION LAWASIA MEMBERS UNITE IN COLOMBO KEEPINGOFFENDERSOUTOF PRISON INSIDE THE HUNTER DRUG COURT SUCCESSIONPLANNING: DOORDIE WHY SOONER IS BETTER THAN LATER LANDMARKNATIVE TITLERULING FIRST-EVER COMPENSATION ASSESSMENT
THEHIGH (ANDPAINFUL)COST OFSENDINGWOMENTOPRISON FAMILIESDOING HARDTIME
UPSETTINGAVERY DELICATEBALANCE ISTHENSWGOVERNMENTLEGISLATINGAWAY OURFUNDAMENTALRIGHTSANDFREEDOMS?
BLAME ITON THEBRAIN
FROMTRAGEDY SPRINGSHOPE A YEAR SINCE THE LINDT CAFÉ SIEGE, KATRINA DAWSON’S LEGACY THRIVES
OURMEDIALAWS ANDDEMOCRACY PETER GRESTE ONWHY FREEDOM OF SPEECH IS UNDER THREAT IN AUSTRALIA
HOWNEUROSCIENTIFICEVIDENCE IS CHANGINGCASELAW INAUSTRALIA
THEENDOFLAWFIRMS? ACCLAIMEDFUTURISTRICHARDSUSSKIND ONWHYLAWASWEKNOW IT ISDYING
NEVERSAYNEVER LARISSABEHRENDTONBOWRAVILLE, COMMUNITYANDTHEPOWEROFSTORIES
LAWYERS:WHAT’SNEXT? WHYANEW INQUIRY INTOTHEFUTURE OFTHELEGALPROFESSION ISVITAL
APASSIONFORCHANGE THE AFGHAN REFUGEE DEVOTING HIS LEGAL CAREER TO DEFENDING HUMAN RIGHTS
THE INNOVATIONERA THE ROLE OF LAWYERS IN MALCOLM TURNBULL’S VISION FOR THE NATION
THEMYTHOFLAWFIRMDIVERSITY WHY IT’STIMEFORMORETHANJUSTTALK LEARNINGHOWTOCAGETHERAGE ANDWHY ITMIGHTSAVEYOURCAREER 7STEPSTOAMORERESILIENTYOU SMARTWAYSTOBUILDASTRONGERSELF UNTANGLINGTHETANGLEDWEB THEMURKYWORLDOFGRANNYFLATS
AHUNDREDYEARSSINCEPAINANDMISERY SOLICITORS INTHEBATTLEOFTHESOMME JUDGINGABOOKBYITSWRINKLES ISAGEISMATWORKHOLDINGYOUBACK? AVERYDIFFICULTPILLTOSWALLOW WHYFESTIVALSNEEDDRUGCHECKING THEETHICSOFLAWFIRMINCORPORATION LESSONSFROMSLATER&GORDON’SWOES
INGANDHI’SNON-VIOLENTFOOTSTEPS THEROLEOFLAWYERS INPEACEFULPROTEST CRASHING,BURNINGANDLOVINGIT WHYFAILING ISTHEBESTEDUCATION MAKEHAYWHILETHESUNCORPSHINES ADAY INTHELIFEOFAN IN-HOUSEGIANT COMMONLAWUNDERTHESPOTLIGHT THEALRC’SLANDMARKFREEDOMS INQUIRY
THEPAINFULLYHIGHCOSTOFSUICIDE A LAWYER’S ACCOUNT OF PERSONAL LOSS LOSTINTRANSLATION(ANDTHENSOME) A DAY IN THE LIFE OF A COURT INTERPRETER THEFEDERALCIRCUITCOURTINCRISIS A JUDGE’S PLEA FOR GOVERNMENT ACTION AREDFLAGFORCONTRACTNEGOTIATIONS PAVLOVIC V UNIVERSAL MUSIC EXPLAINED
DON’TMESSWITHTHEPLUMBING:BATHURST EXAMINING LEGISLATIVE ENCROACHMENT WE’LLALWAYSHAVETHEPARISAGREEMENT WHAT DOES IT MEAN FOR CLIMATE CHANGE? WHYMENNEEDFLEXIBILITY,TOO A DAY IN THE LIFE OF A NEW-AGE LAW FIRM UNFAIRCONTRACTSANDSMALLBUSINESS A LOOK ATCHANGES ON THE HORIZON
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EACHAND EVERYMONTH. OUR AWARD-WINNING EDITORS AND JOURNALISTS BRING YOU MUST-READCONTENT
lawsociety.com.au/lsj Find it today in print, online, or via our app.
Thank you for your ongoing support.
22 GLOBALFOCUS The 50th annual LAWASIA conference united a regional association of lawyers facing challenges to the rule of law, writes Claire Cha ey 26 INFOCUS Baroness Jean Corston calls for reform to how the nation treats women in the criminal justice system 28 COVERSTORY With disruptor firms shaking up the legal environment, the end of the long-standing billable hour may be in sight, writes Kate Allman
34 NEXT INLINE
Succession planning often falls in the too-hard basket but is imperative for small firms and sole practitioners, reports Dominic Rolfe 42 CAREERCOACH Fiona Craig suggests seven ways to motivate and engage millenial employees 48 DAY INTHELIFE Jane Southward speaks with Judge Paul Cloran about his unusual and powerful work in the Hunter Drug Court
Bhangra dancer and young lawyer Harsimran Kaur has a frenetic routine between work and dancing. Tia Singh reports on how Kaur finds balance 54 HEALTHYLIVING Nutritionist Joanna McMillan explains why cholesterol is still an important health issue 58 THEBESTOF LOSANGELES Ute Junker o ers a guide to the grand old buildings, hip bars and cafes of Downtown LA
ISSUE 27 I OCTOBER 2016 I LSJ 3
68 ADVOCACY: THE LATEST IN LAW REFORM 70 CYBERSECURITY: AND THE LEGAL PROFESSION 72 ENVIRONMENT: SAVING THE GREAT BARRIER REEF 74 RISK: DUTY OF CARE TO INTENDED BENEFICIARIES 76 NATIVETITLE: FIRST COMPENSATION ASSESSMENT 78 EMPLOYMENT: 3RD PARTY ACCESSORIAL LIABILITY 80 COSTS: FAIR WORK & VALUE OF SETTLEMENT OFFERS 82 STAT INTERPRETATION: CONTEXT & BENEFICIALITY
8 PRESIDENT’SMESSAGE 10 MAILBAG 12 NEWS 16 THE LSJ QUIZ 20 CAREERMOVES Who moved where this month 38 PROFILE On the eve of his Tristan Jepson Memorial Foundation address, Julie McCrossin speaks to General David Morrison AO 44 CAREER101 Meet Jo Daniels, Managing Partner of Baker & McKenzie in Myanmar 46 DOINGBUSINESS Fashion, etiquette, and tips on how to land those unadvertised jobs
How walking meetings can boost productivity
The importance of listening
When LA’s jet set need a break, they head to One & Only Palmilla in Baja California. We check it out
84 PROPERTY: NSW STRATA REFORMS 86 DEEDS: DRAFTING DEEDS OF RELEASE
Book reviews, events and our movie giveaway
66 NON BILLABLES
88 CLASSACTIONS: CURRENT & FUTURE RISK 90 BANKRUPTCY: DIVISIBILITY OF PROPERTY 92 TAX: GST TAX STINGS 93 CASENOTES: HCA, FCA, FAMILY, WILLS & CRIMINAL
Yarns we can’t bill for 67 LIBRARYADDITIONS 106 EXPERTWITLESS
Because if we can’t laugh at ourselves ...
4 LSJ I ISSUE 27 I OCTOBER 2016
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A WORD FROM THEEDITOR
To work in publishing is a privilege. e act of going to work every day to create something new and beautiful can be incredibly satisfying. As I sit at my desk writing this note for the LSJ , I have beside me the rst copies of the brand new book Defending the Rights of All: A History of the Law Society of New South Wales . It’s hot o the press. e authors, Michael Pelly and Caroline Pierce, have done a masterful job at bringing to life what is a fascinating, controversial and hugely important tale. Beginning in 1842, the
Managing Editor Claire Cha ey Associate Editor
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
journey of lawyers and the legal profession in this state has been anything but dull. ere have been scandals and adversaries, hard-fought battles and political stalemates, triumphs and losses, untimely deaths and stories of great inspiration. ere is an unexpected pace to the book’s narrative, as well as anecdotes that are sometimes shocking, sometimes hilarious, and swathes of previously lost detail around signi cant periods in the history of both NSW and the Law Society. ese ensure you’re in for a good read. Importantly, too, the book is beautiful. e 250-odd historical photographs render this book truly special, and we hope you’ll enjoy reading it. To pre-order a copy, visit lawsociety.com.au/defendingtherightsofall
Michael Nguyen Photographer Jason McCormack Publications Coordinator Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries email@example.com Classified Ads www.lawsociety.com.au/advertise Advertising enquiries firstname.lastname@example.org or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2016 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
Joanna McMillan is a nutritionist, author and expert in the low GI diet. She explores the science of cholesterol and explains why this fat is still worth keeping top-of-mind. She o ers some important tips to help keep your cholesterol levels healthy. Health p54
Kate Allman talks to lawyers in big and small firms and finds innovations that are changing the way solicitors are billing their clients. Is the end of the billable hour in sight? For some lawyers, well and truly. Cover story p28
Dominic Rolfe is a Sydney journalist. His feature story “The next in line” looks at succession planning, an issue a new study has found is a big issue for solicitors. Rolfe discovers why planning for the future should be a priority for all firms. The next in line p34
Alexander Edwards is a barrister at Level 22 Chambers. He explains some of the tips and traps involved in drafting deeds of release and covers why using the right language is so important. A deed should “read” like a deed. Deeds p86
Cover photograp: Jason McCormack
HAPPILYKILLING THEBILLABLEHOUR WHYMORELAWYERSANDFIRMSARETAKING THEIREYESOFFTHECLOCK–ANDLOVING IT
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 email@example.com. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
FINDINGMORALCOURAGE GENERALDAVIDMORRISONONWHYCULTURAL CHANGEHASNOSPACEFORBYSTANDERS
DEFENDINGRIGHTSINTHEREGION LAWASIAMEMBERSUNITE INCOLOMBO KEEPINGOFFENDERSOUTOFPRISON INSIDETHEHUNTERDRUGCOURT SUCCESSIONPLANNING:DOORDIE WHYSOONER ISBETTERTHANLATER LANDMARKNATIVETITLERULING FIRST-EVERCOMPENSATIONASSESSMENT
NEXT ISSUE: 1 NOVEMBER 2016
6 LSJ I ISSUE 27 I OCTOBER 2016
T he Law Society launched “CTP Changes: Adding Insult to Injury” this month. It’s our state-wide campaign publicising the very serious impact the NSW Government’s new hybrid “no fault” CTP motor accident insurance scheme will have on benefits for injured people and their ability to access legal representation. Advertising was placed in national and key regional and suburban media, and the Law Society’s Facebook, Twitter and LinkedIn accounts hosted a sustained social media campaign.
Owing to the facilitation of the Law Society and the NSW Bar Association, The Daily Telegraph and the ABC’s 7.30 program published in-depth coverage arising from interviews with local solicitors and their injured clients who have benefited from current compensation but would have fared poorly
under the proposed scheme. The Law Society and other stakeholders have put together an alternative proposal that would reduce fraudulent claims without slashing the benefits of injured motorists and their families. I said in my Opening of Law Term speech that as much as we look to the future, we must remember our roots as a Law Society. This month, we will officially launch Defending the Rights of All: A History of the Law Society of New South Wales – Michael Pelly and Caroline Pierce’s opus that tells the story of the Law Society since its fledgling inception in 1842 and the broader history of the legal profession of NSW. Visit the Law Society Shop online or Level 1 of 170 Phillip Street to order a copy. The book is a fascinating read, interwoven with anecdotes, interesting primary sources and pertinent analysis along with plenty of pictures. Last month, I experienced one of the standout moments from my year as President as I awarded certificates to our members who have served as solicitors for 50 years. Personally recognising their service was a distinct privilege for me. I also would like to thank the profession for your ongoing support for the President’s Charity for 2016: Ovarian Cancer Australia. Following a remarkable effort in the City2Surf by our Law Society team, benefiting OCA, and “The Teal Games”, a trivia evening to raise awareness for the cause, we have seen tremendous support for the charity. With more to be raised before our target of $50,000 is met, I would encourage all solicitors to contribute what you can. At the time of writing I am attending the International Bar Association (IBA) Annual Conference inWashington DC. Australian lawyers have a high profile at the conference due the important positions a number hold within IBA as well as the speaking roles of our lawyers and judges at various sessions. It has also been an opportunity to showcase Sydney which will be the venue for the IBA Annual Conference from 8 to 13 October 2017. As a final note, I congratulate the capable editor of the LSJ , Claire Chaffey, and her associate editor, Jane Southward, for their well-deserved gongs at the 2016 Publish Awards this month of Editor and Journalist of the Year (Business) respectively. Andy Raubinger and Kate Allman were recognised as finalists for Designer and Young Journalist of the Year respectively. Well done to all.
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ISSUE 27 I OCTOBER 2016 I LSJ 9
LETTERS TO THE EDITOR
Gender and the law When I brief a barrister, their gender is irrelevant. The Bar is the last bastion of true capitalism in that only those who perform succeed. The ratio of male to female barristers and that of partners in law firms reflect just how partner in a legal practice. It has taken me more than 20 years to develop a successful legal practice. Barristers who went to the Bar at the same time I began practising law are now successful juniors or senior counsels. Not because they are male, but because of many years of uninterrupted and competent work. If women choose to have children and take time off, work part-time or interrupt their careers for other reasons, it will affect their career development. There is no pay gap. There is a difference in what people earn for work done. If you choose to take time off to have children, work part-time or pursue less lucrative areas of the law, then the pay you receive is not due to gender but choice. I would have loved to have spent time in the Himalayan mountains contemplating my navel, but I chose to work full-time (long hours) for the past 20 years to get to where I am now. I will not support subsidising someone’s lifestyle choice because they complain they are earning less than someone else. Further, I would think it is insulting to female barristers to suggest they need special assistance long it takes to establish oneself as a competent barrister or to become a
with their careers because they are less competitive than their male counterparts. It is a choice to work full-time or not. There is a price to be paid for developing a successful legal career. It involves hard choices and sacrifices. The days of the “old boy’s club” is long gone, if it ever existed. By imposing quotas you are creating a de facto “women’s club”. Do not blame males for being successful when we die at much younger age than women, which I suspect is due to our lifestyle choices. Young female legal practitioners should pursue excellence, not advancements through insulting and demeaning quotas and other misguided social justice policies. Excellence will elevate them to the top of their profession. profession?” ( LSJ August) and echo the longheld frustration of legal professionals who have found themselves confined in their law careers by what Mr Steinwall so accurately calls the “bamboo ceiling”. While the empirical evidence of lack of diversity in the judicial and quasi-judicial offices of the legal profession is undeniable, there is little overall recognition of just how dismal are the prospects for advancement of an Australian lawyer of ethnic minority background. With these very issues in mind, our Brendan Manning Manning Lawyers Cultural diversity I applaud Ray Steinwall’s article ‘“When will we see cultural diversity in our
Subcontinent Lawyers Group was set up in April to provide a peer networking forum for legal professionals with subcontinent backgrounds. We meet regularly in a social setting and, while we also discuss everyday issues of law and practice, our object above all is to consider ways to promote a public awareness of the blatant lack of diversity in the upper reaches of our profession. While it is early days for us, as we grow in number and capability it is our eventual goal to raise the consciousness of politicians and senior government officials to the very real existence of the bamboo ceiling. We hope to enjoy the immediate benefit of networking with our peers and, in time, to play some small part in realising the aspiration of cultural diversity in the legal profession. Ejaz Khan Juris Australia Lawyers Bravo Trevor Khan It as almost with a sense of excitement that I read the article by the Hon. Trevor Khan MLC ( LSJ September) on the proposed cross-party committee working towards a Voluntary Assisted Dying Bill. It would be my hope that this comes to fruition and is not frustrated as have attempts in prior years to allow the suffering of the terminally ill (and their families) to be brought to an end. Many years ago, after a series of surgeries over a couple of weeks, my elderly mother was allowed to pass away in peace. Her
TWEETS,HASHTAGS ANDJUSTICE THEPOWERAND INFLUENCEOFSOCIALMEDIA IS HUMANISINGTHECOURTS BUTATWHATCOST?
THECASEFORDIVERSITY WHYCULTURALLYBLANDLAWFIRMSWILLLOSE OUTTOTHOSEEMBRACINGDIFFERENCE
SEEKINGTHERIGHTTODIEWITHDIGNITY THEPUSHTOWARDSALAWFORASSISTEDDYING EATINGTHEFROGFORBREAKFAST WHY IT’SBESTTODOTHEWORSTJOBFIRST THEPROBLEMOFTEENMARRIAGEININDIA WHENTHELAWDOESN’TMATCHPRACTICE THERISEOFBLOCKCHAINTECHNOLOGY ANEWWORLDOFSMARTCONTRACTS
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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: firstname.lastname@example.org Please note: we may not be able to publish all letters received. CONGRATULATIONS! Ejaz Khan has won lunch for four. Please email email@example.com for instructions on how to claim your prize.
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last words to me were, “It’s been good”. It summed up her life. I would hope that when my time comes to die I will also say, “It’s been good”. I would not want my last days of a wonderfully enjoyed life to be spoiled by a last few months, weeks, or even days of unnecessary suffering. Brian Doyle OAM Retired Life Member Dressed to impress I write to agree with Sian Aldis, ( LSJ September) regarding the regular inclusion of the “Dressed to Impress” piece. It is an unworthy inclusion in a professional journal. Such superficiality is irritating and offensive. Your response noted that there had been some men included and that the section was started after senior partners wanted their juniors to get some help with appropriate dressing. Trivialising men as well as women based on how they look and dress is no defence to what is simply an exercise in silliness and, why don’t those senior partners actually get their hands dirty by appropriately mentoring their junior staff? Anne M. Thompson Thompson Madden, Orange Thank you Sian Aldis I write to thank Sian Aldris for her Letter to the Editor in the September 2016 edition and for her articulate criticism of the “Dressed to Impress” piece in the LSJ . I managed to read about two words of the “Dressed to Impress” piece each time before I turned
the page. Perhaps the author should consider a career at Australian Vogue. Sian raised a very important point that this rubbish is reinforcing old and worn out stereotypes which we have had to reform over a long period of time. I was surprised to read the Editor’s response that the piece was started ‘after advice from senior partners.’ Perhaps those particular senior partners should advise someone to draft a Dress Code, to be introduced in situations such as at staff meetings or for office morning teas. There could even be a Dress Code for offsite team building days. Kim Boettcher pleasure the letter from Bill Windeyer which appeared in the September LSJ . He is someone who has given so much for so long to the profession. A longstanding city practitioner, he served as the Society’s President in 1987-88. Appointed as firstly a Master and then a judge of the Supreme Court, Mr Windeyer’s judgments regularly gave practical guidance to practitioners. I recall Miro v Fu Pty Limited  NSWSC 1009 (about correctly stating the price on a Contract for Sale of Land) and Robinson v Spratt  NSWSC 426 (on the procedure for taking instructions for preparation and upon execution of a will), but there are many others. While a judge, he regularly wrote letters to the Law Society Journal using the pseudonym “Fred”. A lesser Wording counts I read with growing
known contribution is his and his family’s philanthropic gift of a collection of rare law books to a legal library. The former judge’s continued willingness to engage with the profession and contribute his large knowledge and experience is very welcome. Long may it continue. The LSJ and its readers are better for it. Mr Windeyer has mentioned that unless a will provides otherwise outgoings must be paid by the life tenant. The following statement from the decision of Corbiere v Dulley  QSC 134,  supports that position: “Where there is a life tenancy, it will usually be presumed that the testator intended for the life tenant to be obliged to pay any outgoings with respect to the property over which the life tenancy is granted in the absence of a contrary intention to be discerned from the will”. With the assistance of the former judge’s guidance, I feel that the comments of
Slattery J in Finlay v Tucker  NSWSC 560 should have been understood by me to mean that if expenses usually born by one person (eg the life tenant) are imposed on another (eg the remainderman), such as maintenance, repairs, rates or taxes in relation to the property, this imposition alone is unlikely to confer a different interest in property. There is one matter upon which Mr Windeyer and I disagree. I like the expression “portable life estate”. Although not literally accurate, it is a well-understood shorthand expression to describe a will clause which allows the same arrangement as available under a Crisp order. However, I’m open to the use of a better expression if readers have any suggestions. Darryl Browne BROWNE.Linkenbagh Legal Services
ISSUE 27 I OCTOBER 2016 I LSJ 11
COURT FUNDING AND STUDENT TRAINING ARE MISSING THE MARK FLIPCommissionof Inquiry BY JANE SOUTHWARD AND TIA SINGH
Court funding and resourcing are at crisis point in NSW and the legal education of future lawyers must adapt to a “skills-based” approach to better prepare students for the changing legal industry, the Law Society’s FLIP Inquiry has been told. Stephen Scarlett OAM told the Law Society’s Future of Law and Innovation in the Profession (FLIP) Commission of Inquiry on 7 September that judges were not being replaced quickly enough and a lack of resourcing meant unacceptable court delays. He said court lists were full until “well into 2018”. The increase in those appearing in court without a lawyer was adding to the load and delays. Huge cuts to legal aid meant more people were self-represented litigants, said Scarlett. “When I started as a judge in 2000, it used to be about 10 per cent of people. Now, it is more than 20 per cent of people. These cases take longer, because you have to ensure procedural fairness, which means explaining things in detail.” Several community legal centre heads spoke of increasing strain on services and huge concerns about Federal and State government funding cuts due to come into play from mid-2017. “A number of services will close or merge,” said Jonathon Hunyor, the new Chief Executive of the Public Interest Advocacy Centre. Helen Campbell, the executive officer at the Women’s Legal Service NSW, said 3,000 callers had been unable to access the service by phone due to limited resources. The FLIP session, held in late August, focused on legal education, information systems, and training.
“Students need to understand that the change in the legal industry is rapid.” Current fourth-year UNSW law and commerce student Adrian Agius said the course content needed more focus on technology and the issues surrounding technology. He questioned why modern-day concepts such as “smart contracts” weren’t taught in the current contracts courses. Digital disruption appeared undeniable and most law school deans noted they now had to try to introduce modern mediums of content delivery, for example having online lectures. The witnesses said this was challenging, considering that, at least by perception, a law degree was heavily clothed with tradition and convention. Professor Tania Sourdin, Head of School and Dean at Newcastle Law School, University of Newcastle, said that while there was a push for a transition to “blended learning”, her law school, similar to most law schools in NSW, still focused on face-to-face delivery and education. However, technological changes had opened doors for students to have increased access to a legal education, especially in rural areas. Professor Paul Martin, the Acting Head of School at the University of New England, said the industry “can do a great deal with online education” and that his distance education students “learn skills from a different mode of delivery” and, as a result, were “more enterprising”. Professor Adams said the idea of “digital citizens” might help bridge gaps in access to not only education, but also to legal services. The FLIP Inquiry continues, with hearings on various themes relevant to the legal industry in a number of public sessions to be held until November. Visit lawsociety.com.au/flip for more information.
Business skills and commerciality were hot topics among the inquiry witnesses, who were quizzed by the FLIP Commission panel comprising Law Society President Gary Ulman, Brookfield Property Partners General Counsel Claire Bibby, and UNSW Associate Professor Michael Legg. The panel asked witnesses their views on the relevance of the “Priestley 11” (the 11 law subjects required to be completed successfully for candidacy for admission as a legal practitioner in Australia). The Dean of the University of Sydney Law School, Professor Joellen Riley, said that while the content of the Priestley topics was still important, she believed strongly that “revision of the Priestley 11 to focus on the skills that students are getting out of their law studies would be beneficial”. Western Sydney University may have an advantage in that respect, having redeveloped the first year of its LLB course to focus on the underlying skills that develop through a legal education. Professor Michael Adams, Dean of the Western Sydney University School of Law, said the critical challenge facing law schools was how schools should frame their law degrees when “half of your cohort does not want to practise law in the traditional sense”. Need to focus on skills Professor Adams noted that the definition of the legal profession was changing and that with the dynamic landscape it was imperative that legal education providers adapted to the changes. A focus on skills was critical, he said. Professor George Williams AO, Dean of UNSW Law School, said resilience as a skill among his students was important, and Professor Lesley Hitchens noted the importance of “adaptability”. “We are taking in students and training them for a profession that doesn’t exist yet,” Professor Williams said.
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The Law Society hosted a special event in Sydney in August for a group of solicitors who have practised law for 50 years. Thirty of the eligible 46 members attended the celebration and shared some memorable stories over lunch. LAWYERSCELEBRATEAHARD EARNEDHALFCENTURY
Pictured in the top row from left are : John Quinn, Maxwell Einfeld, Kenneth Burke, Garry Penhall, David Grant, Geo Older, Rodney Halstead, Denis Shultz, William Meehan, Tony Salier, Christopher McCa ery, Clas Einberg, David Coyle, Lex Brown, Kenneth Ramsay, Ray Stack. Bottom row from left: Michael Galland, Patrick Kerr, David White, Rodney Commins, Rupert Rosenblum, Norm Gibson, Robin Speed, Robert Hood, Kenneth Watson, Robert McCormack, Alan Conolly, Kaye Loder, Peter Benjafield, Michael Concannon. Absent are: Norm Henry, Bernard Galland, Geo Oliver, Judith Beswick, John Boland, Noel Brown, Peter Cleaves, Kenneth Davenport, James Field, David Geddes, Bruce Hamer, Wade Hewett, James King, Maxwell Mantach, Russell Norwood, Paul Sheridan, John Vaughan.
The LSJ made an error in our caption for the photo from last year’s 50-year celebration. We apologise. The attendees were (from left to right): John Conlon, Warwick Caisley, John Newnham, James (Jim) Warland, Brian Lane, George Williams, John Stinson, Victor Kelly, Alfred Rose, John Hegarty, Michael Fisher, Norman (Jim) Fiford, Ian Crichton-Browne, Michael Carnegie, Brian Butcher, David Bentley, Robert Bruce, John Bell and David Thomas. Those absent were: Neville Allen, Robert Armstrong, Maxwell Bisley, David Jones, Steve Masselos, Nicholas Papallo, Marita Ranclaud, Philip Slade and Peter Wood.
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ISSUE 27 I OCTOBER 2016 I LSJ 13
Small business is thenewblack BY KATE ALLMAN
Cross-examination Test your legal knowledge ... 1. Which country was the first in the world to pass a law recognising same-sex marriage? 2. In what year did the above law come into effect? 3. Roadside mobile drug testing (MDT) tests a person’s saliva for drugs that might impair their driving ability. Which three types of illicit drugs can MDTs detect? 4. How long was the prison sentence that Roger Rogerson and Glen McNamara received for murdering student Jamie Gao? 5. What is the Latin term for a case that is “under judgment” in the courts and therefore prohibited from public discussion elsewhere? 6. Is ignorance an adequate defence to a breach of the law referred to above? 7. How many minimum entitlements are listed in the Australian National Employment Standards? 8. What is the rule against double jeopardy? 9. A barrister may put any misleading, annoying, harassing or insulting question to a witness in cross- examination. True or false? 10. Global law firm White & Case recently
Primary franchising, unfair contract terms, equity funding and access to justice opportunities for small businesses were themajor topics discussed at the 2016 Small andMediumEnterprise (SME) Conference at the Law Society of NSWon 25 August. Alan Wein, the author of the Franchising Code of Conduct 2013, chaired an expert panel that included Bruce Bilson, Executive Chair at the Franchising Council of Australia, Michael Scaper, Deputy Chairman of the Australian Competition and Consumer Commission (ACCC), and newly appointed Small Business and Family Enterprise Ombudsman Kate Carnell. Carnell, who previously headed the Australian Chamber of Commerce and Industry, stepped into her new role created by the Federal Government in March. She explained the value of her duties as an Ombudsman to advise government in developing small business legislation and act as an advocate for small businesses and an intermediary for dispute resolution between small businesses and other entities. “We want to ensure legislation and regulation is small-business friendly and to help small businesses stay out of the courts,” said Carnell. “When a small business goes to court with a business with deep pockets, it can be death for small business. Small businesses are in a difficult negotiating position against big businesses.” According to the Australian Bureau of Statistics, small businesses (businesses that employ fewer than 20 people) account for about 45 per cent of private sector employment, the largest share of total employment in Australia, and this grew by 3.2 per cent in the 12 months to 30 June 2014. Panellists at the Law Society’s conference agreed that jobs and economic growth in Australia over the next few decades would rely on the success of entrepreneurs creating and building small businesses. Bilson noted that it was important for government to develop easy-to-understand regulations for small businesses to encourage such growth. “We need incentives for people to innovate and create businesses and support disruptors,” Bilson said. “Economic wisdom resides in everyday Australian families juggling their own households. Let’s bring that creativity and entrepreneurship to small business.”
welcomed 10 new partners from which top-tier Australian firm?
Answers on page 65.
On 18 August 2016 and pursuant to s.327(2)(b) (ii) and (iii) of the Legal Profession Uniform Law (NSW), the Law Society Council appointed Richard Stephen Savage, solicitor, as manager of the law practice known as Bechara & Company for a period of two years. PROFESSIONALNOTICES
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LSJ EARNSTWO GONGSATTHE 2016PUBLISH AWARDS The LSJ team had reason to celebrate in September with two team members taking home Publish Awards. Managing Editor Claire Chaffey was named Editor of the Year (Business), edging out rivals from In The Black and Human Resource Director , while Associate Editor Jane Southward was named Journalist of the Year (Business). LSJ ’s Art Director Andy Raubinger was a finalist for Designer of the Year (Business), while Kate Allman was a finalist in the Young Journalist of the Year category.
The LSJ and communications team: Michael Nguyen, Alexandre Lacoste, Lisa Whyte, Jessica Lupton, Jacquie Mancy-Stuhl, Jane Southward, Claire Chaffey, Kate Allman, Juliana Grego, Andy Raubinger.
We specialise in agency appearances for all Sydney CBD courts and tribunals To obtain our services or for more information call (02) 9239 0555 or visit www.sydneymentions.com.au No time for city court appearances? “Don’t mention it...we will.”
Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney
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TEALGAMES Solicitors tested their trivia knowledge on 15 September to help raise money for the Society President Gary Ulman’s chosen charity Ovarian Cancer Australia. More than $12,000 was raised.
Journalist Caroline Pierce and the President of the Law Society, Gary Ulman, celebrate the arrival of the first copies of the Law Society’s book Defending the Rights of All: A History of the Law Society of New SouthWales . The hardcover book written by Pierce and Michael Pelly has more than 250 historic photographs and will be launched on 17 October. You can pre-order the book by 17 October for $35 and save $5 on the members’ sale price. Visit lawsociety. com.au/defendingtherightsofall for details or visit the Law Society Shop on Level 1 of 170 Phillip St, Sydney.
PHOTOGRAPHY: CHRIS GLEISNER
YOUNGJUSTICEPROGRAM BY EMILY RYAN, NSW Young Lawyers Vice-President
What do Gary the Goat, Captain Planet, and a station wagon full of potatoes have in common? They all feature in this year’s NSWYoung Lawyers Young Justice program. The program introduces social justice themes and the Australian legal system to children in Years 5 to 8. It aims to entertain and inspire the lawyers of tomorrow to make a di erence in their schools and their communities today and in the future. It does this through interactive workshops on topics including human rights, climate change, animal rights, and some of the more unusual laws from around the country. The 2016 Patron of NSW Young Lawyers, Emeritus Professor Gillian Triggs, pictured above with students from Queenwood School for Girls and Waverley Public School, opened this year’s program at the Supreme Court with an inspiring address on human rights and the responsibilities that go hand in hand with these rights. Fazed by neither their surroundings nor their company, the students enthusiastically engaged in thoughtful and creative discussion with Professor Triggs at the Supreme Court and with guest presenters at the Law Society. The young students gave encouraging feedback on how they were going to put what they learnt during the day into practice.
Visit ovariancanceraustralia. net.au to donate.
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The Government Solicitors Conference was held on Government Solicitors Conference 6 September with the opening address by Law Society President Gary Ulman. The address focused on the unique contribution government solicitors make to the community. Justice Robert Bromwich, of the Federal Court, also addressed delegates on the value of government solicitors. He observed that government solicitors added to a strong Australian legal system, formed part of the administrative arm of government at the apex for regulating citizens, created a collective trust in the legal system, designed and implemented legislative improvements, acted as model litigants, and were at the forefront as keepers of corporate memory, ethics and fearless advice. Nicholas Cowdery AM QC delivered a paper dealing with the aftermath of the Margaret Cunneen case. In discussing the case history of the challenge to the jurisdiction of the Independent Commission Against Corruption (ICAC), the subsequent investigative reports and ultimately the amendment of the ICAC legislation, he opined that in the “aftermath” the ICAC retained a broad jurisdictional criteria on matters of corruption as well as new areas to investigate including, collusive tendering and defrauding public revenue. Cowdery was of the view that ICAC remained a robust investigative body. Sarah Ryan, from the Crown Solicitor’s Office, and Michael Waterhouse, General Counsel Department of Education, addressed the conference on government agencies’ responses to historical child abuse claims in terms of the guiding principles used in minimising trauma during settlement conferences. On the basis of the model litigant policy, such conferences were conducted to avoid the
Adam Booker, who won the John Hennessy Research Scholarship, Bill Gerogiannis, winner of the 2016 Michelle Crowther PSM Excellence Award in Government Legal Service and Jenny Lovric, who was highly commended in the same award category.
and Disability Services Commissioner, discussed how the Ombudsman had moved to a solution-focused approach facilitating resolutions. Elizabeth Wing, Acting President of the NSW Anti- Discrimination Board, discussed the nature of complaints received and the outcome- focused conciliation process adopted by that agency. Roxane Marcelle-Shaw of the Information and Privacy Commission NSW discussed navigating the regulatory framework of the Commission. Chris Wheeler, Deputy NSW Ombudsman, addressed delegates on the nature of public interest as a concept of acting honestly and in good faith in the process of government decision-making. He expressed the view that the fundamental problem for the government solicitor is not to deny and defend a decision but to make the decision in the public interest. Norman Laing, of Waratah Partners, discussed the issue of who spoke for country in respect of Aboriginal people and groups in determining financial and cultural benefits when dealing with government and private businesses. Doug Humphreys discussed decision- making principles and the ethics that encompassed such decision-making. He said an ability to be flexible and creative, manage the risk and balance individual and organisational requirements ensured an ethical decision. The conference concluded with a cocktail function at which Justice Brigitte Markovic of the Federal Court addressed the delegates on issues of gender diversity and the challenges women face in the legal profession.
confrontational environment of court and at the forefront of such a process was the unconditional apology. Peter Holt, of Holding Redlich Lawyers, spoke about the evolution of the planning system in NSW and how the development of the legislation increasingly had engaged the community in the decision-making processes of government. However, it was stressed that reform in the planning system over time had never been easy, but good outcomes had been achieved. Doug Humphreys OAM, Chair of the Government Solicitors Committee, announced the winner of the John Hennessy Research Scholarship, which was awarded to Adam Booker from the Office of the Director of Public Prosecutions in NSW. The scholarship will fund research into the sociological and criminology perspective of Indigenous Australians in the legal system. The 2016 Michelle Crowther PSM Excellence in Government Solicitors Award was awarded to Bill Gerogiannis, Senior Solicitor of Legal Aid. Jenny Lovric of Legal Aid was highly commended for her work in far west NSW, as were the lawyers in the NSW Fair Work Ombudsman team for producing exceptional outcomes through innovation in advancing the rights of employees. The conference included a panel discussion chaired by John McKenzie, the NSW Legal Services Commissioner, about how to navigate various agencies’ complaints frameworks. Steve Kinmond, Deputy Ombudsman and Community
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mind your ethics
TIPS AND TRICKS FOR PLAYING BY THE RULES ...
For the full round-up of Law Society advocacy, see page 68.
THEDANGEROF FAMILIARITY INCOURT
Treatment of asylumseekers and offshore processing The Human Rights Committee wrote a letter to the Prime Minister noting its continued opposition to offshore processing, and to note alternative support for regional processing that conformed to the guidelines of the UN High Commissioner for Refugees. The submission also expressed concerns about the ongoing reports of assaults, sexual abuse, self-harm attempts, child abuse and living conditions of asylum seekers held by the Australian Government. AbortionLawReform (Miscellaneous Acts Amendment) Bill 2016 The Human Rights and Criminal Law Committees prepared a joint submission to the Greens MLC, Dr Mehreen Faruqi, on the Bill to decriminalise abortion and introduce safe exclusion zones for abortion clinics. The submission noted that the objectives of the Bill were controversial and that there were differing views within the legal profession and the community concerning those objectives. The submission addressed legal and human rights issues, without expressing a view on the merits of the Bill. ApprehendedDomestic Violence Orders involving childdefendants The Juvenile Justice Committee wrote to the Attorney General seeking an amendment to s 27(6) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The committee noted that it may not always be appropriate to require police officers to automatically make an application for an interim ADVO in domestic violence matters involving child defendants. This was particularly the case if the victim was the parent or guardian and was reluctant to make such an application against their child. The committee considered that children should be treated differently to adults and that the Crimes (Domestic and Personal Violence) Act 2007 (NSW) should be amended to create a discretion in relation to children who were the defendants in domestic violence matters.
BY LINDEN BARNES, ETHICS SOLICITOR
Can I tell my favourite rabbit joke in court? I was once at a question and answer session for the profession with the bench. Someone asked about humour in court. There was a collective intake of breath before a deathly silence. Unsurprisingly, the answer did not encourage budding comedians. Conduct Rule 18 says that solicitors must not “deal with a court on terms of informal personal familiarity which may reasonably give the appearance that the solicitor has special favour with the court”. The case of Wilson v Department of Human Services  NSWSC 1489 involved the care of a young child. One of the practitioners routinely greeted the bench with “Good morning, your Honour”. The court said that the “apparent familiarity with the judge could have caused a misapprehension in the mind of [the mother], already distrustful of the judicial system, that [the practitioner] enjoyed a relationship with the judge which was something more than merely professional”. We have an important role as officers of the court. We must ensure that justice not only is done but appears to be done. If there is an appearance of favour, then justice may not appear to be done. So perhaps keep your rabbit jokes to accompany your culinary skills at rabbit stew. TRISTANJEPSONMEMORIAL FOUNDATIONLECTURE Solicitors are invited to hear the Australian of the Year, General DavidMorrison AO, speak at the annual Tristan Jepson Memorial Foundation annual lecture on Thursday, 13 October. Morrison will speak on “How leadership creates opportunities to give voice to the powerless” at 6pm at the Federal Court in Queens Square, Sydney. Visit tjmf.org.au for more details. You can read Julie McCrossin’s profile of General Morrison on page 38 of this issue of the LSJ .
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six minutes with
PETRA STIRLING HEADOF LEGAL TRANSFORMATION STRATEGY, GILBERT + TOBIN
Petra Stirling helped implement a new program at Gilbert + Tobin in May that teaches lawyers to code and design apps. More than 60 lawyers joined about 120 of the firm’s clients to participate in a week of workshops run by the Coder Factory Academy and smart contract expert Taylor Gerring. Stirling says the program will help Gilbert + Tobin lawyers assist clients that are developing new technologies by fully understanding the potential of blockchain and smart contracts themselves. She speaks to KATE ALLMAN .
Why did your firmdecide to teach lawyers to code? Our view is that it’s important for lawyers to have the skills to use the technology that is developing. To truly understand and commission technology products for our clients, we need to have a look under the hood and understand how those products work. How does the programbenefit your firm? Our lawyers are not just learning how to code and build websites. A large part of what we do in our program is to help them look for internal efficiencies within the suite of products we use every day for legal work. Our lawyers have patented technologies that have been developed in-house to create more efficient searches, for example. This saves our lawyers time when conducting searches in the course of due diligence. Technology such as smart contracts benefits the individual lawyer by allowing them to focus on the substantive legal issues of a project. It also benefits our clients because it ensures we will deliver the most time-efficient and productive work.
Do all lawyers at Gilbert + Tobin learn to code? Not necessarily – it is an opt-in program. We had 60 lawyers at the first stage of the coding program, and a further 30 in the blockchain program that we ran. It’s available to all our lawyers whether they come from a background of classics and the arts, or they have a second degree in commerce, or they’ve been mining for bitcoins in their bedroom since the age of 14. We have many senior practitioners who simply want to better understand how to commission technology. Have you participated in the program? I have and I fell into the category of “lawyers who haven’t touched a bit of code since the early years of the internet”. I found it really exciting and a great program to be a part of. It’s pretty exciting that you can have everyone in the same room – from senior partners to brand new lawyers to the firm and people who have been summer clerks with us – all developing a new capability for the benefit of our clients. It’s a very collegiate and non-hierarchical group of people and the skill level is not based on age or position within the firm.
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