LSJ SEPTEMBER 2020
Policing the pandemic Which states have best responded to COVID-19 – and at what cost? Rough seas ahead How Australia’s law firms are coping in the face of recession Securing your cyber How to protect yourselves and your clients in a remote world Unconsciously biased What law firms can do to address the underlying inequities in our profession
ISSUE 70 SEPTEMBER 2020
Bya thread Why our laws need to better respond to the threat of emotional and psychological control
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24 Hot topic
36 Weathering the recession As the economy slumps and law firms face slowing business, firms are finding new ways to survive 38 Policing a pandemic Which legal strategies have been successful against COVID-19? Paul Maley investigates
48 Life outside the law
PR and legal departments don’t often agree. But who should take over in crisis?
Lawyer James Stewart is thriving while working remotely; running his own gin label from Tasmania
Political journalist Annabel Crabb smashes glass ceilings and a Vietnamese meal with Kate Allman
Online volunteering is on the rise and Angela Tufvesson says it has important benefits for mental health
28 Cover story
Should we criminalise psychological abuse? Amy Dale explores coercive control in domestic violence
Angela Heise shares what self- care really means, and why it’s important now more than ever
Start planning your post-lockdown getaway: travel guru Ute Junker explores the stunning Barossa Valley
ISSUE 70 I SEPTEMBER 2020 I LSJ 3
6 From the editor 8 President’s message 10 Mailbag 14 News
The latest developments in advocacy and law reform
Taking the mickey at work: could it be your downfall?
Defamation reform: Much Ado About Nothing Much
The limitations of the employee/ independent contractor dichotomy
23 Expert witless 23 The LSJ quiz 42 Career matters 44 Mindset 47 Career coach 50 Health 58 Youwish 60 Books and lifestyle 62 The case that changedme
68 Consumer law
High Court guidance on damages and counterfactuals
10 tips for cyber-safe Zooming
Legal and ethical considerations regarding ransom demands
Choosing arbitration amid the disruption of COVID-19 72 Diversity and inclusion How to tackle the persistent challenge of unconscious bias The Motor Accident Injuries Scheme & common law costs 76 Practice and procedure Recent judgments concerning online cross-examination 78 Superannuation Super death benefits and tips for more effective will drafting 74 Personal injury
Managing the risks of remote staff supervision
88 Compliance Risks
Establishing an Incorporated Legal Practice under the Uniform Law
New laws put residential developers on notice in NSW
92 Library additions 106 Avid for scandal
93 Case notes
The latest High Court, family, criminal, and elder law and succession judgments
4 LSJ I ISSUE 70 I SEPTEMBER 2020
Legal Aid NSW – improving our engagement
We value you. So we’re improving the ways we work with you. Panel lawyers are critical to ensuring Legal Aid NSW can deliver services and support to our clients across NSW. We know legal aid work can be demanding and we want to make it easier for you to do business with us. One of the first and biggest changes is to our panels applications process.
Because you told us the panels process was too cumbersome...
There is a single application form to join all panels, which can be made at any time
Law firms rather than individuals will apply to join our panels
We’ve consolidated the number of panels to better reflect the work you do
Once you are on a panel, you don’t need to reapply
From October 2020, existing panel members will be invited to transition to our new and streamlined panel process in stages. Please keep an eye out for emails from Legal Aid NSW and information on our website. New law firms that want to join our panels for the first time will be able to apply from early 2021. Want to know more? Email firstname.lastname@example.org
Better processes. Better support.
A word from the editor
As the months of this strange year pass on by, we find ourselves still writing about COVID-19. Each and every topic we broach is, in some way, impacted by the pandemic. This edition is no different, with our three main features touching on themes directly or indirectly connected to the pandemic. Amy Dale’s cover story, “Criminalising coercion” on page 28, is a bleak insight into the emotional and psychological
Managing Editor Claire Chaffey Legal Editor Klára Major Assistant Legal Editor
Jacquie Mancy Online Editor
abuse that often precedes or accompanies physical violence in domestic relationships. It broadens one’s understanding of what sort of behaviour can constitute family violence, and rightly asks whether the law should also broaden its reach in order to prevent worst case scenarios. Sadly, the article also highlights how COVID-19 is impacting rates of family violence – and not in a good way. In some good news, though, just as we were putting LSJ to press, the Morrison Government announced that it will establish a $13.5 million pilot program to better identify and support families entering the family law system who are at risk of domestic violence. Known as the Lighthouse Project, the program will screen participants in parenting matters for risk factors when a matter is filed. Cases will be triaged according to risk level and supports provided to families in need. You can find out more about the program by Googling “The Lighthouse Project”. Until next time.
Kate Allman Journalist Amy Dale
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© 2020 The Law Society of New South Wales, ACN 000 000 699, ABN 98 696 304 966. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced without the specific written permission of the Law Society of New South Wales. Opinions are not the official opinions of the Law Society unless expressly stated. The Law Society accepts no responsibility for the accuracy of any information contained in this journal and readers should rely upon their own enquiries in making decisions touching their own interest.
Noel Davis Superannuation p78 Noel is a Sydney barrister and former Member, Superannuation Complaints Tribunal. Here, he explains the importance of considering the relationship between deceased estates and
Christopher Kerin Property p90
Amy Dale Cover story p28
Paul Maley Feature p38
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Christopher is a principal of Kerin Benson Lawyers
Amy is a journalist at LSJ . She has previously worked in government social policy and media relations, as a court reporter and is a published true crime author. This month, she asks how NSW could make coercive control laws work.
Paul is a Walkey Award- winning journalist who has covered politics and national security issues for more than 15 years. He compares the effectiveness of lockdown strategies in different jurisdictions fighting COVID-19.
where he specialises in construction and strata law. Here, he and Nicholas James explain the new laws that have NSW residential apartment developers on notice.
Policingthepandemic Which stateshavebest responded toCOVID-19–andatwhatcost? Roughseasahead HowAustralia’s lawfirmsare coping in the faceof recession Securingyourcyber How toprotect yourselvesand yourclients ina remoteworld Unconsciouslybiased What lawfirmscando toaddress the underlying inequities inourprofession
ISSUE70 SEPTEMBER 2020
super death benefit nominations when drafting a will.
Bya thread Whyour lawsneedtobetterrespondtothe threatofemotionalandpsychologicalcontrol
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 LSJ . We will provide editorial guidelines at this time. Please note that we do not accept unsolicited articles.
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6 LSJ I ISSUE 70 I SEPTEMBER 2020
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ISSUE 70 I SEPTEMBER 2020 I LSJ 7
It’s now been six months since Australia went into lockdown due to the global COVID-19 pandemic. Despite Australia’s early success with stemming the spread of the virus, the resurgence of COVID-19 in Victoria (and a smaller, second wave in NSW and across the ditch in New Zealand) has confirmed that the battle against the virus has become a marathon, more than a sprint. It’s clear that physical distancing measures, border closures, and other social restrictions will remain for the time being and will continue to have an impact on our economy, our way of living, how we practise law and, crucially, how people access justice. Here at the Law Society, we will continue to re-evaluate how we connect and support our solicitor members during these ever-changing
times. Mindful of the hardships many in our profession have or will experience, we have reduced the Law Society membership fees to just $10 for 2020, launched a new Solicitor Outreach Service, and developed COVID-specific communications to keep the profession informed and connected. We also moved the bulk of our Continuing Professional Development program online and re-designed our traditional face-to-face offerings, including our Graduate Services, Sydney Law Careers Fair, mentoring programs, Thought Leadership series and FLIP program, for an online audience. We also created some new initiatives along the way such as the Future Lawyers Program, Working Smart with Microsoft Outlook &Teams, and the Mindfulness Series with Michael Bunting. At the time of writing, The Australasian Institute of Judicial Administration (AIJA) Online Conference Series, held in collaboration with the Law Society, held the first of its five weekly online sessions on “providing justice in a viral world”. FromMonday 7 September to Friday 11 September 2020, the Law Society will host Government Solicitors Week, replacing the annual Government Solicitors Conference. Practitioners will have access to an extensive program of online sessions and panel discussions, which can be watched online in real time or on demand. This year’s program is exceptional and includes a presentation by Brett Walker SC on the issue of legal professional privilege with respect to secrecy, including national security and parliamentary and statutory inquiries. We have also re-worked our highly anticipated annual Rural Issues Conference. It will now be held as an online Rural Issues Day on Friday 23 October and feature a full program of seminars that are uniquely relevant to regional and rural practitioners. In late November, the Law Society’s Specialist Accreditation Week will provide online seminars over five days on the latest legal developments across five specialist streams. Moving our events program online has been a monumental task, but the learnings have been great and will serve us well into the future. Importantly, it has resulted in record numbers of solicitors accessing our events, regardless of where they live or practise.
Richard Harvey , President, Law Society of NSW
8 LSJ I ISSUE 70 I SEPTEMBER 2020
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Mailbag LETTERS TO THE EDITOR
Aclassoftheirown? AsVictoriachanges the ruleson contingency fees,willNSW follow? Unearthingdirtysecrets A stringofcomplaintshas revealed agrim realityaboutourprivacy laws Endingtheshamegame Why theprofessionmustchange theway it talksaboutharassment It’samatteroftrust Howdutyand land tax surcharges will impactdiscretionary trusts
ISSUE69 AUGUST 2020
Thank you for the obits It was great to read the obituaries in this month’s LSJ (Mailbag). The Bar Association has published these for some time, and I think it might good for us as a profession if we had a section in the journal and that people knew they could be published. Thanks again. Daniel Stoddart There are other options, you know Okay. Here goes. It is with a huge degree of trepidation that I query whether the $60,000 pledged by the Law Society on research to investigate strategies for achieving gender equality in Australian legal workplaces is a worthwhile investment. It seems that the research is motivated by the desire to see equality of outcomes between men and women across all aspects of the legal profession, particularly within the larger firms. Figures of women making up 52 per cent of all solicitors but only 27 per cent of partners in large- and medium-sized firms are cited. With respect, the research begs the question – perhaps it should first consider whether there is, as suggested, a “glass ceiling”. I understand this to mean a structural impediment to advancement which works against a person based on their sex (I posit there is not). In my view and experience, the large firms are indeed strict meri- tocracies that value personal achievement and output. A person’s sex is irrelevant to considerations for progression. Research quoted by Jordan Peterson has shown that men and women make different choices during their lifetimes about family and career. Maybe it is as Peterson has suggested; why would women raising chil- dren want to work the 70-80 hours a week needed to become partners in the larger firms? There are other options, you know. And women choose them. Without accepting those
choices and why they are made, the researchers will simply avoid identifying the real issues. They will continue to focus on red herrings of structural discrimi- nation and a lack of workplace flexibility. At the end of the day, there seems to be a paradox at work. Women fought long and hard for the right to choose. They have that right. Do we now suggest they are making the wrong choices? Or are we saying in order to achieve equality we need to be unfair to men? Hadyn Oriti A Loong time in the law Like Maria Linkenbagh (August Mailbag), I was admitted in 1970. How, indeed, times have changed since. Instead of a then-Anglo male-domi- nated profession, gender and cultural diversity currently pre- vail, reflecting less privilege and more egalitarianism. Articles of clerkship have been abolished in favour of regulated PLT programs, ensuring equity to admission and consistency in training. Switchboards, tele- phone handsets, typewriters, carbon paper (for copying), slow mail etc are relics of the past. Advanced technology and electronic procedures/ platforms are now the norm, translating to greater efficiency and fewer errors. Even, dare I say, the former staid Journal has been transformed! How very satisfying it’s been to have per- sonally witnessed all this. Edward Loong In answer to your question ‘What 97 per cent?’ in the header to HR Cole’s letter (Mailbag, LSJ Aug 2020), may I refer you to the Frequently Asked Ques- tions section of the Skeptical Science website. Briefly, climate scientists generally accept the consensus on human-caused global warming without feel- ing compelled to restate their We know the earth is round
position ad infinitum in the same way that geographers no longer bother to tell us that the earth is round whenever they write a geography article. Your readers and letter writers should not feel uninformed about this climate consensus in the scientific community. As recently as 2017, pollsters found that almost 90 per cent of Americans had no idea there was a scientific consensus on global warming. Fossil fuel activists in US administrations from Dick Cheney to Rex Til- lerson and Mike Pompeo have ensured the lack of scientific certainty on global warming has dominated US climate debate – even though there is, in fact, no uncertainty. Of course, uncer- tainty feeds into the oil industry narrative that fossil fuels are safe, and losing a few“ obscure insects” (to quote HR Cole) is somehow less important than “human life and property”. If only biodiversity were that simple. Up to 140,000 spe- cies of plants and animals are disappearing each year due to overexploitation of the earth’s ecosystems. It’s happening so fast that scientists (the consen- sus ones) have classified this as the sixth mass extinction event in history, with the last one having occurred some 66 million years ago. If anyone is in any doubt about what we’re doing to our common home, they need only compare today’s maps of the world’s largest rainforests to the same maps 30 years ago. As renowned naturalist David Attenborough says, things can only get worse. Things will only get better when we stop burning fossil fuels for energy. Small wonder that the biggest promoter of renewable energy on the Australian stock exchange is AGL with its plans to replace the Liddell coal-fired power plant with renewable battery storage. And the world’s two biggest miners, Australia’s BHP and Rio Tinto, plan to reach zero net emissions by 2050.
The shadowof injustice
Whypeopleofcolourareatadistinct disadvantagewithinour legalsystem
23/7/20 6:52 pm
WRITETOUS: We would love to hear your views on the news. The author of our favourite letter, email or tweet each month will win lunch for four at the Law Society dining room.
Please note: We may not be able to publish all letters received and we edit letters. We reserve the right to shorten the letters we do publish.
CONGRATULATIONS! Peter Neil Wilson has won lunch for four at the Law Society Dining Room. Please email: firstname.lastname@example.org for instructions on how to claim your prize.
10 LSJ I ISSUE 70 I SEPTEMBER 2020
LETTERS TO THE EDITOR
Of the land and the law
There is a consensus on human-caused climate change, like it or not, and con- trarian views are entertaining but not to be taken seriously. Peter Breen
My father died recently at the age of 96. He was
a farmer and grazier all his life, having bought his last mob of cattle not long before his demise. In the course of searching his memorabilia I came across two items which may be of interest to readers of LSJ . One is a cutting from The Narromine News and Trangie Advocate , Friday 22 May 1987. I am unsure which anecdote tickled his fancy more – the first, ending with the quote “a good lawyer can’t lose“, or the second, now politically incorrect, entitled “ambition“. As it transpired, his eldest son, your correspondent, became and remains both a farmer and solicitor. And I am pleased to say the latter quip is belied by the fact I have the privilege to act as a consultant to three capable young women who are the current pro- prietors of my old firm, now known as Cheney Suthers at Orange. The other item is a photo of dad (on
Hotel quarantine not that bad
We were locked down in the same hotel at the same time as Sarah Liberty ( LSJ August 2020). She escaped on our second night there. Her assertion of “instant co ee, Weetabix and not much else” is incorrect. The menu was fixed and food was great except for no choice if you stayed with the Dept of Health menu. Best steak sandwich ever and the curries not too bad either. There was the full hotel menu to order from if you didn’t like the food provided and a lim- ited range of wine. The menu included oysters and Thai. Whatever her reasons for escaping it could not have been the “instant co ee, Weetabix and not much else” she asserts. Good on the Marriott keeping us secure, free from disease and well-watered and fed in very trying times. Michael Rhodes
the left) and his twin brother Murray on the day of admission of Murray’s eldest son Eric (now Eric Wilson SC) and me on 21 December 1977. Between the two of us we will in December have clocked up some 86 years as lawyers. If you add to that the “stints” of Eric’s grandfather Eric Green and his uncle Frere who practised as Lovett and Green in Warren, you come to a com- bined total of 182 years. Phew! I think I will go and check the
ewes and lambs. Peter Neil Wilson
Practising Expert Witness for 20+ years. Original author of handwriting comparison curriculum for CIT Dip. of Document Investigation. Disputed Signatures & Handwriting Expert Forensic Investigation
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ISSUE 70 I SEPTEMBER 2020 I LSJ 11
Mailbag LETTERS TO THE EDITOR
Hilda died when George was eight. Keith, happily, remarried several years later and George was later blessed from that union with a brother and sister, Richard and Adair. In 1942, the family moved from Grenfell to Sydney where Keith who, to use George’s words “had the good fortune to be too young for one war and too old for the next one”, worked as a censor with the Department of the Army. George attended North Sydney Junior High and then North Sydney High where, he said, his performance was “adequate but undistinguished”. While at North Sydney High he became involved with the Kinema Theatre in Mosman as a projectionist. This led later to his membership of and involve- ment in the Sydney University Film Society and to a lifelong love of film, most particularly the 1942 classic Casablanca . When the war ended, the family returned to Grenfell where Keith resumed practice as a solicitor. George was a boarder at Cran- brook School where he became Captain of Debating and Dux of the School. George remained in close contact with Cranbrook and took from his years there, among many other things, his house master’s philosophy that everyone should be allowed to be good at something. George certainly was. George’s son, Bill, followed in his father’s footsteps at Cranbrook. Bill pursued a successful career in radio with George’s enthusiastic support. Bill has observed that if George was ever disappointed in his lack of interest pursuing law, he hid it well. George had no such disappointment. He was exceedingly proud of Bill’s achievements. George attended Sydney University and was a member of St Paul’s College where he was a member of the College revue committee, editor of the Valete section of the College magazine, and three-times stage manager of the SRC revue. George graduated from Sydney University with a Bachelor of Arts followed by a Bachelor of Laws, the latter
with first class honours. In the meantime, George found love at Womens’ College in the person of Cherry Hope. Their courtship started in 1949. They were married in 1955. George was sustained throughout his life by his marriage to Cherry, who has survived him. There were two children, Prue and Bill, already mentioned, who, to again adopt George’s words “have now, in turn, presented Cherry and George with a smart and decorative collec- tion of grandchildren”: Thomas, Josephine, Emily and Chiara. There was much more to George than a distinguished lawyer. He became a director of the Crown Street Women’s Hospital and was President of that hospital from 1976 until its untimely closure in 1983. He also served on the boards of Country Television Services Limited and McGraw-Hill Book Co Australia Pty Limited. His principal consuming extra- curricular interest was the city of Venice which he and Cherry visited many times. George had a long and contented retirement and remained in close and loving contact with his extended family and his many friends. He also enjoyed many entirely satisfactory steam train trips. He was an enthusiastic carpenter, skilled in making almost anything out of a stick, nails and lots of glue. He was a master of the subtleties of language. If he did not want to do something, it was a “pleasure deferred”. If one mispronounced some- thing, it might be repeated correctly without reference to the error. Those of us who knew him as friends will miss his razor-sharp intellect, his sparkling wit, his wonderful gift with the spoken and written word and, most of all, his kindness and loyalty. His family will miss him as a loving and devoted husband, father and grandfather and, as Cherry said, they will especially miss his lively face and smart answers. He was a good, good man. Justice James Stevenson and Geoffrey Hilton
VALE George AlfredWeaver (26 July 1930 – 21 July 2020) George Alfred Weaver, a distin- guished solicitor and leading authority in Australia on the law of banker and customer, died in Sydney on 21 July 2020, five days shy of what would have been his 90th birthday. George practised as a solicitor for 50 years from 1955, first as a partner, then as sole proprietor of the law firm Iceton Faithfull and Baldock, then as a partner, and ultimately senior partner of Henry Davis, York & Co, later Henry Davis York and finally as a consultant to the firm. In 1975, in collaboration with his friend and colleague Charles Robert (“Bob”) Craigie, then Chief Manager, Legal Admin- istration at the Bank of NSW, George published the seminal text, The Law Relating To Banker and Customer in Aus- tralia . It immediately became the leading text on the subject in Australia, and an essential resource for any legal prac-
titioner needing access to a clear and comprehensive guide to banking law. A second edi- tion of the work, also authored by George and Bob Craigie, was published as a loose-leaf service in 1990. Craigie died the following year. George’s daughter, Ms Prue Weaver, her- self a distinguished author and academic in the area of banker and customer and of whom George was immensely proud, is one of several editors of the current work. It is a monument to the vital work represented by the venerable first edition that a copy is a treasured component of many a banking lawyer’s collection of reference works. George was recognised as a life member of the Australian Banking Law Association for his contribution as co-author of the work. George Weaver was born in Grenfell on 26 July 1930 to Keith Richardson Weaver, a solicitor, and Hilda Weaver (nee Baldock). He was the second child born, the first being his elder sister Judith. Tragically,
12 LSJ I ISSUE 70 I SEPTEMBER 2020
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The Commonwealth vs Bernard Collaery The report by Professor Spen- cer Zifcak (Human Rights, LSJ August 2020) has expertly highlighted the ugliness of this callous prosecution. What also turns my stomach is that the scandalous bugging of the cabinet offices of a relatively impoverished, emerging nation was approved – in my name as an Australian citizen – by our smug, self-satisfied, pompous and legally qualified Foreign Minister. What does that say about his respect for ethics? David Grinston The disgrace of strata Regrettably, having been an owner-occupier in two strata schemes since 1991 – the first for 16 years, my current scheme for 13 years – I am forced to see the ruthless, negligent miscon- duct of solicitors in these two schemes regarding legal costs, inter alia. They are answerable to no one, unless one person, maybe, can wake up a whole building/strata scheme of owners, many of whom live overseas, don’t speak English, have no legal background, no training/education in strata, or many other laws. Strata owners have no legal – or any – recourse against the unpro- fessional, often champertous, misconduct and overcharging of these strata solicitors. No protection under the LPA or SSMA 2015. None from the Law Society, nor from the LSC. At one stage, s.302A LPA 2004 existed … which gave a glimmer of hope to third-party payers … owners who see the [ill]legal costs problems but are forced to pay for dazzlingly incom- petent/gross overcharging/ negligent misconduct from a lawyer, often including perjury. But that section was removed from the LPA a few years ago. [A] costs expert [once] said at a Law Society seminar, “The topic of legal costs in strata schemes is a very vexed area of law. Nothing is yet available to protect strata owners … but the time will come …’. I remember it well. I have attended most
Law Society seminars for years which deal with strata, legal costs, public risk, insurance etc. Excellent. Legal costs can be a really tricky area of law … so how can anyone, especially the politicians, expect the man in the street/on the Bondi tram to understand strata legal costs i.e. what strata owners/Owners Corp (OC) are being made to pay for, too many times with- out the OC’s knowledge or consent (only understood by its shonky lawyers and maybe those in on the gig) or anyone else. Query: how many OCs have had to pay massive strata legal costs which the OC itself does not understand, let alone the owners/payers? Too many strata cases have had the legal costs exceed $1 million – with small or no chance of an assessment of costs – though the Supreme Court’s Costs Assessment branch will pay attention to objections if the issue goes so far. In fact, no justice. A lacuna of law and justice. Another huge injus- tice in strata law/living is that, whatever the legal costs may be, investors can take them off their tax, but owner-occupiers cannot. Strata law itself needs overturning and redrafting. It disenfranchises almost 25 per cent of the NSW population, all unknowingly to the inhabitants – a topic for another day. I am strongly of the view that the Law Society should assist purchasers into strata schemes with great- er disclosure in the Contracts for Sale etc and maybe even face-to-face meetings to try to ensure the purchaser knows what he/she is getting into. Too many strata purchasers are ambushed. In my case, the secretary ran duplicate sets of files for years, no disclo- sure. Also, compliments to all. Especially to the editor. LSJ s have not been so interesting for years … a real pleasure at the range, depth, very contem- porary and difficult issues dealt with, in very challenging times. Very best regards to you all P. L. Hill
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ISSUE 70 I SEPTEMBER 2020 I LSJ 13
DEFAMATION World’s defamation capital nomore? NSWpasses reforms
BY KATE ALLMAN
Between 2014 and 2018 Australia earned the title of “world defamation capital”, recording 10 times as many libel claims as the UK on a per-capita basis. But NSW politicians are hoping to drop this unflattering label as the state becomes the first jurisdiction in Australia to make changes to its defamation laws. Long-awaited amendments to the Defamation Act 2005 passed the NSW upper house on 6 August, following a two-year review of the model national defamation laws led by NSW Attorney General Mark Speakman. The changes include introducing a new “serious harm threshold” aimed at weeding out minor or vexatious claims, a single publication rule for online pub- lications, and a new public interest de- fence to protect responsible journalism. Speakman told LSJ the changes were critical to stemming the surge of minor claims arising from comments made on social media and other digital publica- tions, like online reviews. “Since the laws were last reviewed in 2005, we’ve entered the social media age. We’ve seen the advent of Facebook, Twitter, Instagram and so on, which has rapidly increased the volume of com- mentary, and litigation that often con- cerns fairly minor comments and little damage,” Speakman said. “Currently, there are 10 times the amount of defamation cases acted out in Sydney as there are in London. The majority of those are at the lower end of the scale. Typically, people getting upset about comments on Facebook that are
probably better resolved over a cup of coffee and don’t really involve much in the way of damage or financial loss.” Research by the University of Tech- nology Sydney (UTS) Centre for Media Transition in 2018 found 51 per cent of defamation cases filed in NSW courts between 2013 and 2017 involved digital publications. In contrast, in 2007, the number was only 17 per cent. The UTS research also found that, of 87 awards of damages between 2013 and 2017, more than half were under $100,000. An article by District Court Judge Judith Gibson, published in Australian Defamation Law and Practice , found 23 cases between 2007-2019 that awarded damages less than $20,000. Such minor feuds being hammered out in NSW courts have led some trial judges to note the costs of conducting defamation proceedings often exceed the damages awarded. At the other end of the damages scale, NSW has seen a series of record awards including an historic $2.9 million pay- out to actor Geoffrey Rush following al- legations of sexual harassment published in The Daily Telegraph . The amendments passed in August seek to reduce such ex- orbitant pay days by introducing a new cap on damages for non-economic loss. Speakman said the serious harm threshold would help to keep minor “backyard” claims out of court. But some legal practitioners remain dubious. Defamation barrister Bruce McClin- tock SC wrote on page 64 of this mag-
azine that the threshold is “highly likely to achieve nothing except to increase the costs of defamation cases”. “How do you determine whether there is serious harm without carrying out some form of mini trial or leaving it to the trial itself?” he asked. Controversy has also surrounded a new public interest defence, which is modelled on UK law and aims to protect “responsi- ble journalism” where the section 30 de- fence of qualified privilege has previously come up short. McClintock wrote that its introduction is unnecessary. “There is no deficiency in section 30. All it does is require a media defendant to establish that it acted reasonably,” wrote McClintock. “It is extremely easy to tell, when ad- vising a client to sue a media organisa- tion, whether the defence will succeed or not. If it is competent journalism and balanced, the defence will succeed, and the case will not be brought. I have given such advice on many occasions.” NSW has not yet set a commence- ment date for the new laws, preferring to wait for other jurisdictions to imple- ment the same changes as part of the uniform system. Speakman said the Council of At- torneys-General had “agreed that each jurisdiction would act as quickly as possible to introduce the Model Defa- mation Amendment Provisions in their respective Parliaments”. “The sooner this is done, the earlier Australia can have consistent and modern defamation laws,” he said.
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Government SolicitorsWeek The Law Society of NSW is doing the annual Government Solicitors Con- ference differently this year. From September 7 to 11, the conference will deliver five days of virtual panels and presentation sessions from the government sector’s brightest legal minds. Watch them live online or on-demand by registering at law- society.com.au/government-solici- tors-week-2020 Save yourself the hassle of a Friday night restaurant reservation and let the Law Society’s expert chefs take care of dinner for you. Order by Tues- day morning to receive your delicious hamper home delivered on Friday. For every home-delivered hamper pur- chased, FoodBank will provide a box of essential items to a family in crisis. Place your order at lawsociety.com. au/dining-room-delivers Rural Issues Day The Law Society is in planning stages for the 2020 Rural Issues Day, to be held online on Friday 23 October. Join us for a full day of seminars on topics that are uniquely relevant to regional and rural practitioners. Full program and list of speakers to be available soon; express your interest at lawso- ciety.com.au/rural-issues-day Dining Room Delivers
TonyMcAvoy SC Australia’s first Indigenous silk and fierce proponent of the Walama Court
One of the key measures of the moral prosperity of any society is the manner in which it treats its most vulnerable.
ISSUE 70 I SEPTEMBER 2020 I LSJ 15
sixminuteswith MICHAEL KINGSTON
What made you want to pursue a career in law? To be honest, when I was thinking about going to university my focus was on an arts degree, principally history and polit- ical science. I decided to combine arts with law as I was not sure what type of employment would come from a BA. Fortu- nately, I quite enjoyed studying law. What challenges have you faced due to COVID-19? AGS has had to do a range of urgent work connected to the public health, biosecurity, and economic responses to the COVID-19 pandemic. Also, by and large, we have done all of this while not being in the office. We have lawyers and support staff in every capital city in the country and I’ve been very impressed with the good will, tolerance, and application with which they’ve adapted to working from home. The pandemic has seen the federal government work alongside its state counterparts in an unprecedented way, with some successes as well as challenges. How have you seen this work at a national level? e Secretary of the Department of Prime Minister and Cab- inet has said the National Cabinet has proven to be an ef- fective intergovernmental body for coordinated national deci- sion-making in response to COVID-19. He pointed to a number of factors that underpin the success of the National Cabinet, including a single focus on the health response to the pandemic, a commitment to taking decisions in the national interest, a shared sense of purpose, flexibility to implement decisions, confidentiality of discussions, direct tasking, and receipt of expert advice. Michael Kingston has been the Australian Government Solicitor (AGS) since 2016 and is the keynote speaker at the upcoming Government Solicitors Week 2020. Previously he has worked as Chief Legal O cer of the Australian Securities and Investments Commission (ASIC) and as a partner at Mallesons Stephen Jaques. Kingston tells FLOYD ALEXANDER-HUNT about his career, the public sector and responding to COVID-19.
What has been your biggest career highlight to date? What comes to mind is not so much a particular matter, or piece of advice, or day in court, but my years as a relatively junior solicitor at Mallesons in Melbourne and Slaughter and May in London. e opportunity to work with outstanding senior lawyers on projects that really stretched my capacity meant I was able to learn a huge amount, not just about sub- stantive law, but about the practice of law and how to behave in demanding, competitive environments. What advice would you give to government solicitors? I am drawn back to comments of Finn J in Hughes Aircraft Systems International v Air Services Australia (1997) to the ef- fect that an agency of government generally has no private or self-interest of its own separate from the public interest it is constitutionally bound to serve. A government lawyer needs to be cognisant of the interest of their client. at is not an invitation to pursue one’s own personal beliefs or idiosyncratic view of the public interest. It does emphasise the need to be aware of the constitutional, statutory, and other legal frame- works within which your client is required to operate. Outside of work, what do you like to do in your spare time? I normally divide my working week between Canberra and Melbourne, but at the moment I am in Melbourne full time observing Stage 4 restrictions. So, what I like to try to do in my spare time is get my allotted hour of outdoor exercise each day. Reading Tiberius with a Telephone and Night Boat to Tangier is also providing welcome diversion.
The Government Solicitors Week will be delivered virtually this year from 7-11 September. For more information visit: lawsociety.com.au/govsolsweek
16 LSJ I ISSUE 70 I SEPTEMBER 2020
COVID 19 COVID fuels surge in legal work for online businesses
Large sections of the economy have been forced shut by the pandemic, but re- search by a Sydney law firm shows a sur- prising uptick in the number of online businesses setting up shop. Commercial law firm LegalVision found a 52 per cent increase in enquiries from people seeking legal help to set up online businesses in the second quarter of 2020 compared to the first. e firm mined almost 10,000 enquiries to its phone lines and website between January and June 2020 to conduct the research. e data showed a 17 per cent in- crease in business structuring enquiries, including new business formation, part- nership structuring and business owners protecting assets through trusts. e firm
lawyers as they prepare to launch new businesses or move their existing business online,” said Lachlan McKnight, CEO of LegalVision. McKnight said the results provided insights into how businesses were trying to adapt and survive amid COVID-19, but also highlighted the devastating im- pacts of lockdown, border shutdowns and the receding economy. e firm saw a 29 per cent decrease in corporation immigration enquiries as few- er businesses sought to hire overseas talent due to border shutdowns. ere was also a substantial decrease in enquiries about selling businesses, with McKnight citing a poor economic climate not conducive to selling a business right now.
Lachlan McKnight, CEO of LegalVision
also saw a 27 per cent increase in regu- latory and compliance enquiries as more businesses look to import more goods or obtain licenses to trade online. “Businesses are contacting us in the thousands every month to quickly get privacy policies, terms and conditions and shareholders agreements drafted by
NOMINAT IONS CLOSE FRIDAY 25 SEPTEMBER 2020
ISSUE 70 I SEPTEMBER 2020 I LSJ 17
COURTS ACT votes to raise the age
Samira Friis Joined as Lawyer Edwards Family Lawyers
Hanaan Indari Promoted to Managing Partner Carrol O’Dea Lawyers
Claire Tota Promoted to Partner HBA Legal Sydney
Elise Fordham Joined as Associate Lawyer Edwards Family Lawyers
The Australian Capital Territory has made the nation’s first tentative steps towards raising the age of criminal re- sponsibility for children from 10 to 14 years. The state’s Legislative Assembly voted in favour of the change when a Greens motion was introduced to the Parliament on 20 August. The La- bor government agreed to start early planning on legislation to support the change but warned it could take some time. “It’s certainly not a stroke-of-the- pen sort of thing,” Attorney-General Gordon Ramsay told The Canberra Times . Ramsay said he preferred a national approach through the Council of Attorneys-General. “It’s very clear that the best out- come for the children of Australia ... would be for us to have national con- sensus on this matter,” Ramsay said. “I will continue work with other ju- risdictions and we want to make sure that children are diverted from the criminal justice system.” ACT Law Society President Chris Donohue said he was “cautiously opti- mistic” about the decision. “The proposal, brought before the Assembly by Shane Rattenbury MLA, brings us one step closer to this much-overdue reform. We should be treating children like children, not criminals,” Donohue said.
Chris Nielsen Promoted to Partner McCullough Robertson Sydney
Jeremy Perier Promoted to Special Counsel McCullough Robertson Sydney
AlisonWalshe Promoted to Senior Associate McCullough Robertson Sydney
CatherineWilliams Joined as Senior Solicitor in Family Law Mullan & Lindsay
MaryannMelhem Joined as Associate Newnhams Solicitors
Elaine Clarke Joined as Senior Associate Newnhams Solicitors
Anneka Frayne Promoted to Director Stacks Law Firm, Tamworth
Vince Baudille Appointed as Co-Head of Global Real Estate Practice Bird & Bird Australia
Know someone with a new position? Email us the details and a photograph (at least 1MB) at firstname.lastname@example.org
18 LSJ I ISSUE 70 I SEPTEMBER 2020
BY LINDEN BARNES , SENIOR ETHICS LAWYER
My own legal matter – surely I am the best solicitor for that?
Do I start with “A fool for a client …” or “It was bluebell time in Kent …”? Is the latter only relevant to the fact that it is bluebell time in Sydney? No, it is also relevant because, if you know the rest of Lord Denning’s judgment (Hinz v Berry  2 QB 40), it was about a horrible car accident. My point is, we might think we are the best solici- tor for our own legal matter, that the bluebells look beautiful, but there are hazards beneath. Here are three that frequently come up with queries to the Ethics hotline: 1. Our obligation to act with “profes- sional independence” (Rule 4). We would all struggle to step aside from our own interests and be dispas-
sionate about the matter, however clinical it might be. And family law and criminal matters, for instance, are unlikely to be clinical. (See Bell Lawyers Pty Ltd v Pentelow  HCA 29 at 18) 2. The no-contact rule (Rule 33). Can we communicate directly with the other party? The Ethics Commit- tee’s FAQ notes: “doing so may give rise to an argument that the solici- tor has (possibly inadvertently) used their skill and expertise as a solicitor to gain an unfair advantage or to exercise undue influence”. They rec- ommend communicating with the other solicitor instead. 3. Conflict with other clients (Rule
12). Who else are we acting for at the same time? It might be a simple situation where we are the only client, but it might be a tangled web of family issues involving relatives, companies, trusts and superfunds. We might not even realise there are other clients involved because we are not clearly analysing the situa- tion. That directly links to our lack of professional independence. As the Law Society’s own ad cam- paign said, “Stop looking for advice in all the wrong places. Consult a lawyer instead.” It will give you more time to enjoy those bluebells.
BROUGHT TO YOU BY THE LAW SOCIETY OF NSW COSTS COMMITTEE
Q: What if a client complains about costs I’m trying to recover?
A: Under Chapter 5 of the Legal Pro- fession Uniform Law (NSW) (LPUL), a client may be entitled to complain to the Legal Services Commissioner about a “costs dispute”, as defined in section 269 of the LPUL. If such a complaint is made after the practitioner or the client has already applied for assessment of the costs con- cerned, the assessment will ordinarily be stayed until the complaint has been determined, by virtue of section 197 of the LPUL.
By virtue of the same section, if there is not already a costs assessment underway, any fresh application for as- sessment made before resolution of the complaint will automatically be stayed. However, this automatic stay does not necessarily mean the practitioner is able to relax and do nothing about a pending assessment or deadline. A complaint to the Legal Services Com- missioner will not pause or extend: • the time to respond to a request for objections/response by the Manager,
Costs Assessment, in an existing as- sessment (which cannot be extend- ed, even by the Manager); or • the 12-month period for practi- tioners to apply for assessment of their own costs under section 198(3) of the LPUL (as discussed in the April 2020 edition of LSJ ). Accordingly, practitioners need to ensure they comply with these dead- lines even if the balance of the costs assessment process has been stayed.
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