LSJ - September 2015
FOUR OF THE PROFESSION’S MOST POWERFUL LEADERS SHARE THEIR WISDOM
AWOMAN’SWORLD A SPOTLIGHT ON THE EARLY WOMEN LAWYERS WHO CHANGED THE GAME
MYSTERY SHOPPING INLAWFIRMS WHERE YOUR FIRM IS FALLING DOWN AVOICE FORCHILDREN INCOURT WHY AUSTRALIA IS LAGGING BEHIND THEHOCKEYVS FAIRFAXMATCH WERE THERE REALLY ANY WINNERS? WHENTWOWORLDSCOLLIDE THE TOP END’S INDIGENOUS INGENUITY
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A dequate and ongoing funding for legal aid services is an access to justice issue and must be a primary concern for the legal profession as a whole. To this end, I am pleased that the Law Council, with the support of its constituent bodies including the Law Society of NSW, is developing strategies to achieve a greater allocation of legal assistance funding in the 2016/17 federal budget. I will endeavour to keep members informed of speci c initiatives associated with this important project as they arise. e Gleeson review of the Independent Commission Against Corruption (ICAC) was released in mid-August. is came in the wake of controversy surrounding the High Court judgment in ICAC v Cuneen and provides a blueprint for a revised jurisdiction for the ICAC. It is hoped that the recommendations, all of which have now been adopted by government, will help to restore community con dence following months of uncertainty surrounding the work of the Commission. Signi cant changes made to the NSW workers’ compensation scheme back in 2012 seriously curtailed the bene ts available to injured workers. I am proud to say that since then e Law Society has been active in the ght to return bene ts to some of the most vulnerable people in our community. I am therefore pleased that legislation into NSW Parliament in August represents a step in the right direction by extending certain bene ts to injured workers. In addition, the changes have reformed the governance and regulatory arrangements of the scheme and restored access to legal advice. However, a number of scheme problems have not been addressed and e Law Society will continue its work to e ect improvement to the operation of the scheme. e 2015 Rural Issues Conference will take place on 23 October. Topics for discussion include the rural nancial counselling service, succession in rural law rms, water law and dividing the family farm. Further information is available at lawsociety.com.au/ruralconference. Finally, I am pleased to report that the transition to the Legal Profession Uniform Law, e ective from 1 July, is running smoothly. e Law Society is conducting a large number of CPDs with a speci c focus on the matter of costs. Just a reminder that Legal Profession Uniform Law factsheets on the changes can be found at lawsociety.com.au/lpul.
SEPTEMBER 2015 I LSJ 3
A WORD FROM THE EDITOR
Managing Editor Claire Cha ey Associate Editor
When I read the pieces from Michael Rose, Mary Padbury, Tony Harrington and Sue Kench for this edition’s cover story on page 26, “View from the Top”, I felt genuinely inspired. Far from being advertorials for their law rms, which are some of the largest in the country (and the world), the leaders in the profession delve into their personal experiences and share wisdom and anecdotes designed to inform, inspire and – in some cases – invite a good laugh. I particularly enjoyed reading about Mary Padbury’s experience. e global vice chairman of Ashurst has seen her fair share of personal tragedy but has remained resolutely upbeat. Importantly, she has maintained a wicked sense of humour and an art for self-deprecation that shines through in her account of life as a lawyer and her enduring faith in the power of optimism. I also found Michael Pelly’s piece on NSW’s rst women lawyers an important and fascinating read. As a woman in law, I marvelled at the challenges women faced in the early days as the profession slowly diversi ed and moved from a time a woman wasn’t even considered a “person” under the law. Oh how far we’ve come – and how much further we have to go.
Jane Southward Legal Editor Klara Major Assistant Legal Editor Jacquie Mancy-Stuhl Reporter Kate Allman Art Director Andy Raubinger Graphic Designer
Michael Nguyen Photographer Jason McCormack Administration O cer Juliana Grego Advertising Sales Account Manager Jessica Lupton Editorial enquiries firstname.lastname@example.org Classified Ads www.lawsociety.com.au/advertise Advertising enquiries email@example.com or 02 9926 0290 LSJ 170 Phillip Street Sydney NSW 2000 Australia Phone 02 9926 0333 Fax 02 9221 8541 DX 362 Sydney © 2015 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
Max Connery OAM was admitted in 1959 and practised until 2013 at Connery Partners Lawyers. Encouraged by his wife, Joan, and many lawyers, he set up Stepping Stone House in 1989 for homeless teenagers. A team of good sports p34
Julie McCrossin is a writer and trainer who studied law. In “Voice of the child” she interviews Kylie
Dr Jenny Bromberger is an integrative GP at Elevate Health Clinic, a partner that o ers discounts to members of the Law Society. She treats symptoms holistically and has an interest in anxiety, depression and stress. 5 tests to have by 50 p56
Patrick George is a partner at Kennedys law firm in Sydney. In an article in our legal updates section., he asks whether there were really any winners – in costs or in principle – in the recent Hockey v Fairfax defamation case. Defamation p70
Beckhouse, who manages 250 sta in the Family Law Division of Legal Aid NSW. Profile p42
Cover design: Andy Raubinger
Have an idea? We would like to publish articles from a broad pool of expert members and we’re eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an article, email a brief outline of your topic and angle to firstname.lastname@example.org. Our team will consider your idea and pursue it with you further if we would like to publish it in the LSJ . We will provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
NEXT ISSUE: 1 OCTOBER 2015
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24 HOTTOPIC The results of a mystery
58 TRAINLIKEANATHLETE Increased focus and planning can make each gym session reap faster, stronger results 59 FEEDYOURBRAIN Nicola Gates explains the importance of continued learning as we age 60 CITYGUIDE Ute Junker uncovers the buzzing art scene and local culture in Glasgow 64 PERFECTPARIS Dominic Rolfe takes his toddler to the city of love, staying in the decadent Peninsula Hotel
Michael Pelly investigates the history and growing numbers of women in the law 42 THECHILDREN’SLAWYER Kylie Beckhouse critiques the legal services for children in family law 54 EXTRACURRICULAR Litigator and arbitrator Tim Gri ths speaks to Claire Cha ey about writing his first novel 56 5VITALHEALTHTESTS Dr Jennifer Bromberger details five tests to have by 50
shopping exercise reveal why law firms need to rethink the client experience 26 COVERSTORY Four of the most powerful men and women in the profession share wisdom from their roads to success 34 INFOCUS Max Connery asks for help with Stepping Stone House, the brainchild of a group of rugby-playing lawyers trying to end homelessness
6 LSJ I SEPTEMBER 2015
54 64 80
47 CAREER101 48 FIONACRAIG 49 PRACTICE MANAGEMENT Succession planning 50 ADAY INTHELIFE
68 ADVOCACY: THE LATEST IN LAW REFORM 70 DEFAMATION: HOCKEY v FAIRFAX 73 CONTRACTS: HIGH COURT ON ILLEGAL ACTS 74 LANDRIGHTS: NEW AMENDING ACT NUANCES
News and events from the legal world
11 PROFESSIONAL NOTICES 18 FROMTHEARCHIVES 19 CAREERMOVES Who moved where this month
76 CRIMINAL: INTOXICATION AND CRIME 78 RISK: OVER RELIANCE ON COUNSEL 79 COURT: ASSISTING THE OTHER SIDE
Meet Magistrate Sue Duncombe from the NSW Youth Koori Court in Parramatta
80 INDIGENOUS: COMMUNITY LEGAL EDUCATION 82 CTP: CHANGES UNDER THE MAC REGULATION 84 EVIDENCE: THE LIMITS OF EXPERT EVIDENCE 86 CONSUMERCREDIT: CORRECTION OBLIGATION 88 PROPERTY: HOW TO SPOT MORTGAGE FRAUD 90 WILLS&ESTATES: BENJAMIN ORDERS 92 PROFESSIONALCONDUCT: HONESTY 94 ETHICS: ISSUES AND THE LATEST NEWS 95 CASENOTES: HCA, FCA, CRIMINAL, FAMILY &WILLS
20 OUTANDABOUT 22 GLOBAL FOCUS
The latest in books and events 91 LIBRARYADDITIONS New books at the Law Society Library 106 EXPERTWITLESS Legal news to make you giggle
Lessons in litigation from a Dutch climate change case
Q & A with the CEO of Community Legal Centres NSW
SEPTEMBER 2015 I LSJ 7
LETTERS TO THE EDITOR
All about the ashes
at that stage yet, but the door is being prised ajar. The FTA with China will be welcomed by many; will doubtless o er opportunities and if it gives comfort to those accepting them, I wish them luck in enforcing any claim against China. However, a proper appreciation of the agreement will not be helped until all the implications are out in the open and understood. Peter Gri n, Wagga Wagga Criminal description I am writing about the article ‘Partners in Crime’, which appeared in the August issue. The subjects of the article were Andrew Tiedt and Sam Murray. Andrew is a senior and highly-respected criminal lawyer, and Sam is an aspiring lawyer obviously impressive enough to have been o ered a graduate position at Corrs. In particular, the article was portion of their personal time for the benefit of those starting out in the profession. In those circumstances, I find it a little unfortunate that the article should commence with an unflattering assessment of the men’s appearance, and in particular that they “photograph like a couple of slapstick cartoon characters”. They would not have expected to be so ridiculed in the primary industry publication, especially in an article about their significant personal contribution to an industry in which respect and reputation are of such importance. Were it a male about how both men are contributing a significant
the decision-maker. Wouldn’t it be nice if the investor could eliminate part of that risk? Or, better still, pass that risk onto someone else? Driven by investors, happily accepted by the suppliant suitors of investment, that is what these clauses can do – pass risk that is properly theirs from investors onto the Australian government and, through it, onto you and me. Risk which belongs to foreign decision-makers is now on your shoulders and mine. At work is the old adage: “privatise the gains; socialise the losses”. Why do our leaders accede? Because others do? Two wrongs do not make a right. More deeply, it lends weight to the contention that major international companies with their large resources and longer time-frame than policies on issues key to them. In this country we have only to look at the campaign of the big iron-ore miners and the outcomes they achieved for their own ends over one, then two, then three Australian Prime Ministers. Such clauses threaten a surrender to big international corporations the power of our government to determine our own laws and define our own society; a surrender of power from democratically-elected governments to foreign corporations that act solely in the interests of profit, without social or environmental conscience or responsibility. In the extreme, it is selling o Australian sovereignty. It isn’t elected politicians have controlled government
The update on wills and estates ( LSJ , August 2015, p. 99) mentioned that the author was not aware of any judgment on the disposition of the deceased’s ashes following cremation. LSJ readers may be interested to know that there is at least one reported case on this very topic. In Robinson v Pinegrove Memorial Park Ltd (1986) 7 BPR 15,097, Waddell CJ in Equity held that an executor had the right to possession of the ashes of a deceased and could direct how they shall be disposed of. This decision was cited in Smith v Tamworth City Council (1997) 41 NSWLR 680 by Young J; his Honour further stating that ‘[c]remation is nowadays equivalent to burial’ when considering rights of burial (at 694).
VICARIOUSTRAUMA HOWLAWYERSAREHARMEDBY EXPOSURETOPAINANDSUFFERING
APROJECTFROMTHEHEART INNOVATIONLEADSCHANGE INDUBBO DON’TBLAMETHEJUNIORS WHYSENIORLAWYERSNEEDTOSTEPUP E-CONVEYANCING:THEVERDICT USERSREACTTOTHENEWSYSTEM SUFFERINGINSILENCE BEHINDTHEBORDERFORCEACT
23/07/2015 1:37 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 . E: email@example.com Please note: we may not be able to publish all letters received. CONGRATULATIONS! Jerome Entwisle has won lunch for four. Please email firstname.lastname@example.org for instructions on how to claim your prize.
Jerome Entwisle, associate, Allens
Risky business with China Ignoring one of the key features and potential outcomes of such clauses helps the authors of the article ‘ChAFTA: Understanding ISDS
clauses’ (August LSJ, p74) make their case for these agreements. Every businessperson or, to use the term investor, addresses risk. Any
businessperson from one of these countries investing in Australia will assess the risks: business risks; human risks; political risks; risks outside the control of either party. Assessing risk is the key task of
8 LSJ I SEPTEMBER 2015
journalists writing about two female lawyers I am sure such an assessment of the subjects’ physical appearance would not have been published. Andrew Campbell, Hunt & Hunt
346) where Barrett J held that the description “Two-storey building being warehouses and o ces at 76 Mitchell Road, Alexandria” was su cient to properly identify the property. That wasn’t the only reason the lease was rejected. The execution of the parties, including guarantors, did not fit at the foot of the page of the lease where the clauses and schedule ended, they spilled over to the next page where one guarantor signed on what was then the last page of the lease. The requisition was ... “the last page of the annexure must be signed by all parties to the dealing(s).” I was a speaker at the Accredited Specialists Conference last year at which many practitioners shared stories akin to mine – that the LPI o cers were taking what can only be described as a peculiar and pedantic view in issuing requisitions. Peculiar in that many (not just the issues referred to above and in my letter last year) requisitions are contrary to law and pedantic in that others are a triumph of form over substance (as I submit the requisition regarding signatures I referred to above is). My letter to the Journal brought further comments from some local practitioners to the same e ect. This is a pity; the legal o cers at LPI are uniformly helpful, they go out of their way to assist practitioners with di cult or unusual issues. The problem seems to be that the legal o cers’ courtesy and knowledge doesn’t filter down to the sta on the lodgement counters. Perhaps the Society’s Property Law Committee can take these points up with the Registrar-General’s o ce. Until it does, perhaps practitioners may wish to protect their lessee clients by lodging caveats rather than trying to have leases registered. Peter Kirsop, MRM Lawyers
What’s in a name? Last year I wrote to the Journal
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criticising the LPI’s practice in refusing to register leases of part of the land in a folio identifier where the part leased was shown as “Lock-up shop being 100 Smith Street Anytown”. I pointed out that such a description had been judicially approved as a su cient description. I am pleased that the LPI has now corrected this practice and allows such leases to be registered, though it did not help my client whose lease had already been rejected and whose lodgement fees forfeited. The LPI didn’t o er to reimburse my client for this – nor for the costs and disbursements I’d incurred but which I’d not charged to my client for arguing the issue with its o cers, advancing the same arguments to the o cers as I did in my letter to the Journal; arguments that have prevailed as a result of the airing in the Journal . I’d be delighted to stop there with an endorsement for the Journal . Clearly it carries weight. But now the LPI has gone back to its old ways. A lease of part of the land in a folio identifier where the part leased was shown as “Lock-up shed and enclosed yard known as Unit 4 XXX Any Street Anytown” (I’ve deleted the actual street address for the privacy of my client) has been rejected: “the description is not a unique identity”. The requisition required a plan (for which, of course, there is an additional fee). Clearly, the LPI again has failed to take notice of cases such as Hardy v Wardy (2002) NSW Conv R 55-968 (which hass been noted in various journal articles including 76ALJ
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SEPTEMBER 2015 I LSJ 9
Reflections and newbeginnings Elizabeth Broderick, pictured, will step down as Australia’s Sex Discrimination Commissioner on 4 September. After eight years in the job, she reflects on her achievements. BY JANE SOUTHWARD
Most pleasing aspect of the role? I love everything about this role. It has been my dream job. But what I enjoy most beyond the politics, the policy, the legislation, the statistics are the incredible individuals I’ve met along the way. This role has taken me from 200 metres under the sea in a submarine to camping out with Aboriginal women in Northern Australia, from slaughterhouse production lines in South Australia, to the mountains and valleys of Afghanistan. It has taken me to remote communities, company board rooms, small but powerhouse community organisations, government agencies, the Parliament, the decks of frigates, the Pentagon, NATO, the United Nations, the World Bank and everywhere in between.
Biggest achievements? When I first came into my role, I realised pretty quickly that I needed an approach that was strategic – not reactive. I worked out on day one that you could easily spend your whole day commenting on “inopportune” remarks by politicians and others about gender. The Gender Equality Blueprint launched in 2008 set out five areas of focus: balancing paid work and caring responsibilities, ensuring women’s lifetime economic security, promoting women in leadership, preventing violence against women and sexual harassment and strengthening gender equality laws and agencies.Reviewing our progress, I am pleased to say that much has changed. Australia now has a national paid parental leave scheme. We now also have two weeks of dad and partner pay. Under law, we have the right to request flexible
work. The number of women on boards has more than doubled. We have a strengthened Sex Discrimination Act. And most importantly we now have employers acknowledging that domestic violence is a workplace issue and are taking action. Main challenge for the next Sex Discrimination Commissioner? There is still work to be done. One in four women has been sexually harassed in the workplace in the past five years, two women a week this year have been murdered by their intimate partner as a result of domestic and family violence; most of the unpaid caring work, whether that’s caring for children, or a family member or friend with disability is undertaken by women; the gender pay gap stands at $700,000 for a typical career, which is enough to buy an
Welcome tonewFederal Court judge
The Law Council of Australia has welcomed the appointment of Brigitte Markovic (pictured) as a judge of the Federal Court of Australia. Law Council President Duncan McConnel said the prominent commercial litigator would make an outstanding addition to the Federal Court bench. Markovic’s principal areas of practice over many years are the bread and butter of the Federal Court: administrative law, corporations and insolvency and broader commercial litigation, often involving the Commonwealth Government as a party. “Ms Markovic’s depth of experience in complex matters will undoubtedly be a great asset to her new judicial role,” McConnel said. “The added dimension of her experience as a solicitor-advocate managing complex litigation in a team environment is a very good alignment with the Federal Court’s progressive approach to case management and specialised litigation, particularly in light of the establishment of the National Court Framework and National Practice Areas.” Markovic’s appointment follows her success as a member of the senior leadership team, heading the litigation and dispute resolution department in one of Australia’s largest firms. She has been the recipient of a number of awards for her work in litigation, public law, regulatory practice and alternative dispute resolution.
10 LSJ I SEPTEMBER 2015
wrongs – in other words, powerful men – heard these stories first hand. We made arrangements so that the Chiefs could hear and feel what extreme exclusion means; what it’s like to be on exercise for two months when no-one speaks to you; what it’s like to have sexually explicit images of you circulated to your work mates; what it’s like to lead a life where you can no longer leave your house or answer the phone because of abuse; what it means to have your career ruined because you spoke out. I’ll certainly never forget that first face- to-face session – the service chief sitting uncomfortably in his chair – the mother nervously escorting her daughter to the chair beside, a box of tissues in the middle. Then that courageous young woman said simply “Sir, I’m so nervous” and the Chief replied, “Believe me, I’m scared too.” What’s next for you? I’ll be having a three-month break and then coming back to a small number of what I hope will be high-impact roles - more a portfolio career. Whatever comes next for me must have meaning. I will continue to use my voice to create an Australia that welcomes women, that cherishes their voice and eagerly awaits their wisdom. I will use my influence to create a world where a woman’s value does not decrease because of another’s inability to see her worth.
average Australian home. Women have just over half the retirement income and savings of men. What’s your view on quotas? Gender equality is the unfinished business of the 21st century. If we don’t actively and intentionally include women, the system will unintentionally exclude them. The fact is that the idea you can just pour in women and stir is never going to work. That’s why embracing targets is important. It does not matter so much what the target is, it’s the act of agreeing on a target and making it public that is important. Targets and merit are not mutually exclusive. In fact, targets are necessary to allow women’s merit to be revealed. Biggest lesson in the job? Not only does the personal experience matter, it is precisely the thing that will ultimately spark change – it’s the stories that will enable us to take that next step. In 2011, I led a review into the treatment of women in the Australian Defence Force. As I travelled across Australia and beyond, a great many people told me stories – stories about how the ADF had served them well. That was the majority. Others, however, told deeply distressing stories – stories they had never told before. I started to understand that while it was important to document these stories, it was even more important that those who had the power to redress the
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PROFESSIONALNOTICES On 20 July 2015, the NSW Civil and Administrative Tribunal, Occupational Division, ordered that the name of Rabie Samaan be removed from the Roll of Local Lawyers, and that he pay the Society’s costs as agreed or assessed. On 15 July 2015, by resolution of the Council pursuant to Section 327(2)(b)(ii) of the Legal Profession Uniform Law (NSW), Aivars Rolands Mednis, solicitor, was appointed as manager of the law practice known as Liepins & Manass, formerly conducted by Juris Liepins. On 15 July 2015, by resolution of the Council pursuant to Section 616(2)(b)(ii) of the Legal Profession Act 2004 , Richard Gerard Flynn was appointed as manager of the law practice known as E-Lawyers Australia Pty Ltd, formerly conducted by Nancy Therese Najjarin.
Sydney, NSW2000 T +61 2 8488 6000 firstname.lastname@example.org rgl.com
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SEPTEMBER 2015 I LSJ 11
ATIMETOGIVE Australian lawyers are being urged to give their time to combat the sex tra cking of minors in the Philippines. The International Justice Mission (IJM) Australia is challenging solicitors to donating one billable hour to fund IJM’s anti tra cking work in Cebu. Time for Justice is an innovative national fundraising campaign that invites lawyers to donate the equivalent of their charge-out rate of one billable hour to IJM Australia. Funds raised are used to fund the equivalent amount of a lawyer’s salaries in Cebu. In 2014, its inaugural year, Time for Justice raised the equivalent of three lawyers’ salaries in Cebu. This year, the target is to raise the equivalent of the annual salary of seven full-time local lawyers who are working to combat sex tra cking. “IJM seeks to bring that same sense of society to those who are raped, beaten, abused and robbed; they deserve a just and fair society, too,” said John Sutton, Managing Partner Criminal Law at Armstrong Legal. “I am proud to be a small cog in the IJM plan to bring the rule of law to those in need.” Many firms have hosted boardroom lunches to discuss the issues and, on 8 October, NSW Premier Mike Baird and Chief Justice John Pascoe AO will join an IJM Australia event at NSW Parliament House. For details, visit
On page 75 of the June 2015 LSJ , reference was made to Lawcover not honouring any claim in relation to immigration assistance on the basis that such work is not “legal work”. This is incorrect. Lawcover considers, and has for many years, that a claim arising from a legal practitioner providing immigration assistance in accordance with section 276 of the Migration Act 1958 (Cth) is entitled to indemnity under the Lawcover policy, provided that the practitioner does so in his or her capacity as a registered migration agent. Immigration assistance in this context is a “legal service” as defined in the Lawcover policy.
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12 LSJ I SEPTEMBER 2015
Stepping Stone House will host its inaugural sleepout to raise funds for homeless youth in NSW on Friday, 18 September. The charity hopes to raise $30,000 and you can contribute by signing up for the sleepout or sponsoring someone taking part. The charity, set up by a group of lawyers almost 30 years ago, has thus far helped 400 homeless young people. You can read more about it in “A Team of Good Sports” on page 34 of this issue of the LSJ. Sleepout fundraiser
WOMENINLAWFORUM A new series of breakfast forums at the Law Society of NSW is drawing a crowd as the profession focuses on inclusive leadership. Women in leadership roles in the legal profession are embracing the opportunity to network, share experiences and develop more supportive and collegial relationships with like-minded, aspirational female colleagues through a new series of breakfast forums at The Law Society. The first session, held on 12 August, covered the topic, “Perception Rules: Building the Case – Assertive over Aggressive” and was followed by a brief address by facilitator Jill Arkell. It was then over to the group to contribute, challenge and consider di erent perspectives. A lively hour of discussion followed, with some key insights revealed. The next forum will be held on 14 October from 8am to 9am at The Law Society’s Phillip Street o ces. The topic will be “Leading Indicators: the Evidence of Leadership”.
For details visit:
LEGAL PRACTICE MANAGEMENT COURSE
If you want to become a sole principal, partner , solicitor-director or in-house solicitor on the record , the College’s Legal Practice Management Course meets all NSW Law Society requirements. SOLE PRACTITIONERS 26, 27 and 28 November 2015 COMMUNITY LEGAL CENTRES 28, 29 and 30 October 2015 SMALL-MEDIUM FIRMS 15, 16 and 17 October 2015 CORPORATE + GOVERNMENT 12, 13 and 14 November 2015
LOOKING FOR A 2016 COURSE? REQUEST A 2016 HANDBOOK TODAY! Call 02 9965 7111 or email firstname.lastname@example.org
SEPTEMBER 2015 I LSJ 13
ALRCFREEDOMS INQUIRY–CALLFORSUBMISSIONS The Australian Law Reform Commission (ALRC) is calling for submissions in response to its Interim Report on the Freedoms Inquiry Traditional Rights and Freedoms— Encroachments by Commonwealth Laws . The ALRC was asked to review Commonwealth laws that encroach on
“traditional” common law rights, freedoms and privileges. These include areas surrounding freedom of speech, religion, movement and association as well as personal privileges attached to property rights, client legal privilege, the right to a fair trial and access to the courts. Nineteen rights, freedoms and privileges have been listed in the Government’s terms of reference. “There are laws in Australia that can be seen as encroaching on traditional common law rights and freedoms,” said Professor Rosalind Croucher AM, President of the ALRC. “The ALRC’s task is to identify these laws and examine their justification, in the context that fundamental rights and freedoms should be limited only when strictly necessary. “The ALRC has highlighted areas of law that may merit further scrutiny, in terms of their effects on traditional rights, freedoms and privileges. It is in these areas in particular that the ALRC is seeking further comment from the community.” Submissions close on 21 September. For more information go to:
Small Business in focus
The Policy Dimension: initiatives to help SMEs Expert insights into the Franchising Code of Conduct How Corporations Law affects SMEs today
Date: Thursday 29 October 2015 Time: 10.00am– 6.00pm Venue: The LawSociety of NewSouthWales 170 Phillip Street, Sydney 2000 CLE: 6 Points
Register online: lawsociety.com.au/SME
14 LSJ I SEPTEMBER 2015
LAWSOCIETYLEASECOMESOFAGE It is now 21 years since the Law Society Lease, designed to satisfy the requirements of the Retail Leases Act 1994 (NSW), was introduced in 1994. The Law Society’s Property Law Committee has played a key role in the evolution of the Law Society Lease, focusing on simplicity, clarity, plain English and, importantly, an even balance of the rights of the lessor and lessee. The current version of the Law Society Lease was adopted in 2007. The Law Society Lease is well regarded in the leasing industry generally and is often the go-to lease for law firms that do not have their own precedent commercial or retail lease, or when a particular transaction requires a simpler form of lease. A review of the Retail Leases Act 1994 is underway. It is expected that any amendments made to the legislation will once again be incorporated into a revised version of the Law Society Lease so that this precedent lease can continue to be a useful document for practitioners. The Law Society Lease also has the benefit of having been considered judicially. Dennis Bluth, partner at HWL Ebsworth, part-time senior member at NCA, and longstanding member of the Property Law Committee, and Michelle Wong, solicitor at HWL Ebsworth, have written a commentary on the background of the Law Society Lease and a number of useful recent decisions that consider the specific clauses of the Law Society Lease. Practitioners can access this resource on the property page of the Law Society website: Commissioners demand same respect as Judges The public attacks on Commissioner John Dyson Heydon AC QC being played out through the media are unacceptable and damage the basis on which tribunals and courts operate, says the president of the Law Council of Australia. Mr Duncan McConnel spoke out on the issue last month, saying that Commissions of Inquiry, like courts, are conducted impartially and independently of government or political influence. “Where circumstances arise that would create a reasonable apprehension of bias in the Judge or Commissioner, the proper course is for an application to be made to the Court or Inquiry for the Judge or Commissioner to stand aside,” he said in a statement. “Royal Commissions provide a vital forum for understanding significant and often far-reaching issues which a ect the Australian community. The person who sits as a Royal Commissioner is entitled to the same respect, inside and outside of the Inquiry, as a Judge in a Court. The proper way for dealing with any question of bias, including apprehended bias, is to make an application for the Commissioner to recuse himself, and for the Commissioner to consider and rule on the application.” lawsociety.com.au/lawsocietylease
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ClaytonUtz claims teamprizeat Lawski Howling wind and rain couldn’t dampen the spirits of 350 enthusiastic skiing and snowboarding lawyers at the annual Lawski event in Thredbo last month.
Now in its 28th year, Lawski ran over the first weekend in August and involved a number of social events, as well as the illustrious ski and snowboard races. Although competitors shivered through a 45-minute wait as the ski lifts were placed on wind hold, the rivalry between law firms was no less heated. Thomas Jalland from Ashurst was crowned the fastest male skier, while Anna Lochead from Sixth Floor Selborne Chambers claimed the prize for the females. Clayton Utz took out the team prize after being knocked into second place last year by Herbert Smith Freehills. Other awards included the “Wig and Robe Award” for best costume – which went to the mystery “man in the wetsuit”. Skier Frank Bannon from Clayton Utz was judged the biggest klutz on the mountain, earning the prestigious “Best Crash Award” for the most extraordinary fall of 2015. There was also a myriad of lucky door prizes given away at the Presentation Dinner, including two North American ski holidays to Whistler and Aspen, courtesy of Skimax. Every year, Lawski chooses a di erent organisation to support through a charity auction held at the Presentation Dinner on the Saturday night. This year the unanimous choice was made to support the Katrina Dawson Foundation, with a record $25,850 raised for the charity. “This year’s auction was a particularly heartfelt a air, given that many in the room knew Katrina and know the Dawson and Smith families,” said Lucinda Steggles, President of the Lawski Committee from Gadens. “We are very pleased to have been able to make such a meaningful contribution to the Katrina Dawson Foundation.” Katrina’s husband and brother attended the dinner, and presented a moving video that included footage of Katrina enjoying one of her favourite pastimes – skiing. For more photos of the event see page 20.
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Study reveals career intentions of lawstudents Just 61 per cent of students studying a law degree at university intend to practise as a lawyer, according to a survey by the Women Lawyers Association of NSW (WLA). The final report of the Career Intentions Survey was launched on 30 July with a number of distinguished guests in attendance. The Honourable Acting Justice Jane Mathews AO was the keynote speaker, followed by speakers Jane Needham, president of the NSW Bar Association, and Doug Humphries, Treasurer of The Law Society of NSW. Of the 1,403 law graduates who participated in the survey, the results showed that 28 per cent were not sure whether to practise as a lawyer and 11 per cent did not intend to practise as a lawyer. Women were significantly more likely than men to study law because they had an interest in social justice, while men were more attracted to the good income, prestige and status that a legal career entails, the survey found. Women were also found to be more reluctant to become barristers due to stress, pressure and a perception that a career at the Bar was not family-friendly. “The report recommends that the law schools themselves, with the assistance of the professional bodies, provide students in the latter stages of their legal studies with meaningful information about professional life, and with mentoring opportunities,” said Justice Mathews. “The survey reveals a surprising lack of understanding on the part of many students as to the realities of professional life.” Full results of the survey can be viewed at:
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BRIEFS FROM THE ARCHIVES
review THE YEAR IN 2009
Take a trip down memory lane through the pages of the Law Society Journal.
FACINGTHEGFC The industry is buzzing with talk of job freezes, cancelled Friday night drinks and the boomerang e ect of lawyers returning from overseas as the global financial crisis (GFC) hits hard. NSW Young Lawyers holds a forum on the e ects of the GFC and o ers advice on finding and keeping a job. Danny Gilbert of Gilbert + Tobin advises young lawyers to “remind themselves of what those traditional values (of the law) are” and “to go forward holding them very dear”. “Inevitably, as time goes on, the public is going to judge lawyers a little more harshly than in the past,” Gilbert says. Barrister Elizabeth Olsson urges lawyers to hone alternative dispute resolution skills. “Don’t let yourself be a victim, be empowered and knowledgeable,” she says. “This is possibly as bad as the 1930s and the first recession for 17 years, and for those in their 20s and 30s a novel experience.” Law Society president Joseph Catanzariti, in a note in the Journal , says: “Our ability to respond to the global economic challenges is being tested most acutely in regional, rural and remote areas of our state. We have a responsibility to ensure that the strength and resilience of the profession is maintained through these di cult times but equally to maintain community access to the law. In NSW, the percentage of lawyers working in non- metropolitan regions in the last decade has fallen from 15.4 per cent to 13 per cent in 2008.”
WHAT’SNEW? The Mental Health Legislation Amendment (Forensic Provisions) Act 2008 comes into e ect in March. The Act makes the Mental Health Tribunal the determining authority for the treatment, care, detention and release of persons found not guilty by reason of mental illness or unfit for trial. About 320 people are subject to the provision of the Act. The Law Society of NSW celebrates 125 years since 36 solicitors signed up to form the Society. Justice Michael Kirby resigns as Justice of High Court of Australia. Justice Virginia Bell is sworn in as his replacement. A Canadian man is charged and convicted of two counts of murder for having had unprotected sex with a number of women, two of whom contracted HIV and died within two years of diagnosis. A group of Aborigines living in the Northern Territory makes a formal complaint to the United Nations in January against the race-based intervention measures adopted in 2007. The complaint raises concerns about the discriminatory nature of the policy. standards o ering minimum working conditions to all employees under the federal system. These include a right to request flexible working arrangements for the care of a child under school age or with a disability, a right to 12 months unpaid parental leave, and an obligation on employers to take a worker’s family responsibilities into account when requiring them to work overtime. THE FAIRWORKACT A new era in workplace relations begins when on 1 July the Fair Work Act comes into play with 10 national employment
(l to r): Danny Gilbert, Jason Elias, Elizabeth Olsson and Law Society President Joseph Catanzariti.
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BRIEFS CAREER MOVES
MEMBERS ON THE
MARCCHIARELLA Promoted to partner, Insurance Colin Biggers & Paisley
MICHAELRUSSELL Promoted to partner, Insurance Colin Biggers & Paisley
BOBMILJEVIC Promoted to partner, Property Colin Biggers & Paisley
ALEXRHYDDERCH Promoted to partner, Commercial Colin Biggers & Paisley
KYLIEAGLAND Promoted to partner TressCox Lawyers
AARONKLOCZKO Promoted to partner, Commercial Maddocks, Sydney
ALICIAALBURY Promoted to partner, Property Maddocks, Sydney
MICHAELWINRAM Promoted to partner, Planning & Environment Maddocks, Sydney
NICKNOONAN Promoted to partner, Employment law Kemp Strang
MICHAELWIRTH Promoted to partner, Dispute Resolution & Insolvency Kemp Strang
MARKFARADAY Promoted to partner, Dispute Resolution & Insolvency Kemp Strang
JONI YOUNG Promoted to partner, Property & Commercial Kemp Strang
Know someone with a new position? Email us the details and a photograph (at least 1MB) at: firstname.lastname@example.org
JUNE 2014 I LSJ 1 SEPTEMBER 2015 I LSJ 19
BRIEFS OUT AND ABOUT
LAWSKI More than 350 enthusiastic skiing lawyers hit the slopes in Thredbo in August for the annual Lawski weekend, raising more than $25,000 for the Katrina Dawson Foundation.
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The court found there were three key questions at the heart of the case: 1. How serious is the problem? What is the scope of the stated danger of climate change? 2. Does the government have a legal duty towards Urgenda on the stated dangers of climate change, to achieve additional emission reductions? 3. Is this a case that belongs in the courtroom (the crucial question that would only need to be dealt with if the court found a duty under question two)? In terms of the seriousness of climate change, it was, perhaps, helpful that, in its reply, the Government acknowledged all the facts on climate change, including the potentially devastating consequences if no action was taken. The Government also seemed to acknowledge that it was not doing its share to avoid dangerous climate change. In terms of a duty of care, Urgenda argued that this arose from many sources, including: – the Dutch Constitution, which provides that “[i]t shall be the concern of the authorities to keep the country habitable and to protect and improve the environment” (Article 21); – the “no harm” principle, which arises from international obligations; – the UN Climate Change Convention, with associated protocols; and – the Treaty of the Functioning of the European Union (TFEU) with the Emissions Trading Scheme Directive and Effort Sharing Decision based on TFEU (Article 191).
CLIMATECHANGE LITIGATION: LANDMARK DUTCH RULING RAISES QUESTIONS FOR AUSTRALIA
BY SUE HIGGINSON, PRINCIPAL SOLICITOR, ENVIRONMENTAL DEFENDERS OFFICE NSW
A recent landmark case in The Netherlands has set a new bar for climate change litigation globally. In this case – bought by Urgenda, an environmental organisation – the District Court in The Hague ordered the Dutch Government to reduce its greenhouse gas emissions by at least 25 per cent by 2020 compared to 1990 emissions levels. The Dutch Government in its defence had confirmed that its emissions reduction target for this period was set at 14–17 per cent. The woman at the centre of this case was Marjan Minnesma, the director of Urgenda (a contraction of “urgent agenda”). Marjan recently was in Australia and I was fortunate enough to meet her and we did a brief speaking tour together. Her energy and enthusiasm is infectious and her faith in the
legal system to protect people and the planet is inspired and refreshing. The case has attracted much attention around the world with similar litigation now apparently being contemplated in Belgium and Norway. So how did Urgenda do it? Urgenda found legal accountability for climate change in tort law. Relying on the Dutch Civil Code for standing, Urgenda argued that its Government had a duty of care to protect its citizens against the dangerous impacts of climate change and was acting unlawfully by not contributing proportionally to preventing global warming of more than two degrees. In its summons, Urgenda laid out the facts and evidence on climate change and why emissions needed to be reduced in accordance with scientific consensus to avert potentially catastrophic damage.
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by. Australia is one of the worlds’ highest emitters per capita yet it is part of the global commitment to limit global warming to two degrees above pre- industrial levels. However, the evidence suggests the recently announced target means we will not be doing our fair share. Additionally, there is the issue of future generations, as it is they who will bear much of the future risk. A comparative law perspective on the case raises some interesting issues. The development of environmental law in Australia – predominantly since the 1960s – has come about in no small part due to the inadequacy of tort law doctrines, such as nuisance and negligence, to protect the environment. Furthermore, torts has developed in Australia in the absence of a civil code that provides the capacity to have a reflex effect that can be informed by concepts such as international obligations developed as part of the European Union. The jurisprudence of Australian torts has also not included the doctrine of hazardous negligence, nor does it readily dispense with the “but for” test. Perhaps most notable is that tortious matters ordinarily have not involved any direct determination by the courts on the exercise of the discretionary power of the Crown. It is a sad indictment on the state of our climate and environmental laws in Australia that we are looking back to torts for opportunities to hold governments to account.
The court held that while Urgenda could not directly derive rights from these sources, they still held meaning in relation to the question as to whether the Dutch Government had failed to meet its duty of care towards Urgenda. It found that these sources limit the degree of discretionary power open to the Dutch Government and, further, they were relevant in determining the minimum degree of care the Government was expected to observe. Accepting that the evidence suggests the risk at stake is hazardous climate change, the court found that the doctrine of hazardous negligence, as explained in the literature, bears a resemblance to the theme of hazardous climate change, so that several criteria stated can be derived from hazardous negligence jurisprudence in order to detail the concept of acting negligently towards society. The court ultimately found that due to the severity of the consequences of climate change and the great risk of hazardous climate change occurring – without mitigating measures – the Government had a duty of care to take such measures. It held that it did not matter that the current Dutch contribution to the present global greenhouse gas emissions was small. It explored notions of causation from a proportional perspective, seeing that the Dutch emissions had contributed to climate change and would continue to do so. In this regard, the court essentially dispensed with the “but for” test that is central to the law of negligence in Australia. As for the final question, the Government argued that if Urgenda obtained the relief sought, the court would be in breach of the separation of powers. In other words, the setting
of emission reduction targets was a political matter and not the domain of the courtroom. The court commented that Dutch law didn’t absolutely separate powers – in this case between the executive branch and the judicial branch. Instead, it described a division of responsibilities between the two branches and the legislative branch with the goal of balancing the powers. The court noted that, in a general sense, none of the branches had precedence over the others and each had its own assignments and responsibilities. The court noted that its role was to offer judicial protection and decide legal disputes, if it was requested to do so. The court also noted that it was an important characteristic of a state governed by the rule of law that even independent and democratic political institutions could, and sometimes even should, be judged by an independent judiciary. The court held that it was able to rule in this case as it was the responsibility of the court to offer judicial protection against imminent unlawful behaviour, including in cases against the Government. Lessons for Australia What lessons can be learnt from the case in Australia? Like The Netherlands, Australia has just announced its emissions targets of at least a 26 per cent reduction on our 2005 emissions by 2030. The target is significantly below that called for by the Australian Government’s own Climate Change Authority, which called for a 40-60 per cent cut on 2000 levels by 2030. Another similarity is that, as with the Urgenda case, issues of equity are close
Sue Higginson is the principal solicitor at the Environmental Defenders Office NSW.
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