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ISSUE 14 AUGUST 2015

AUGUST 2015

A WOMAN OF
INFLUENCE
JENNIFER ROBINSON ON WHATS BEEN
KEEPING HER BUSY SINCE ASSANGE

VICARIOUS TRAUMA
HOW LAWYERS ARE HARMED BY
EXPOSURE TO PAIN AND SUFFERING

A PROJECT FROM THE HEART


INNOVATION LEADS CHANGE IN DUBBO
DONT BLAME THE JUNIORS
WHY SENIOR LAWYERS NEED TO STEP UP
E-CONVEYANCING: THE VERDICT
USERS REACT TO THE NEW SYSTEM
SUFFERING IN SILENCE
BEHIND THE BORDER FORCE ACT

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Of One Substance:
Painting & Place
Works by Pijaji Peter Skipper

From the Collection of the late Duncan Kentish

25 - 29 August 2015

The Depot Gallery


2 Danks Street
Waterloo NSW 2017
m +61 (0) 414 873 597
greer@greeradamsfineart.com
greeradamsfineart.com

LSJ

JUNE 2014

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PRESIDENTS MESSAGE

n my address at the Opening of Law Term in February, I


outlined a program of engagement on ethics in the legal
profession and beyond. As part of this, the Law Society will
host a one-day conference focussing on the relationship
between ethics and public policy governance. The Reflections
on Corruption conference on 29 August will include a keynote
from Washington State University academic Professor J Patrick
Dobel. Professor Dobel, who is an expert in leadership, ethics and public
management, will be joined by high-profile panellists for a detailed
discussion of the role of anti-corruption agencies and ethics in Australian
institutions. Visit rocc2015.com.au for more information.
At the Access to Justice and Pro Bono Conference in Sydney in June,
2015 Australian of the Year Rosie Batty spoke with great courage and
conviction about her dedication to raising public awareness around the
issue of family violence. As a profession, we are in a position to support
measures that contribute to the reduction of domestic violence in the
community. The NSW Government will soon be piloting a Domestic
Violence Disclosure Scheme, allowing a person who has concerns about
his or her partner to make an application to the NSW Police Force for
information on whether their partner has a history of domestic violence.
The Law Society supports measures that will help prevent domestic
violence and keep victims safe. However, the government has not
provided any evidence that individuals who think they may be at risk
of domestic violence, or who are experiencing domestic violence, will
choose to leave a relationship due to knowledge of previous offending.
The Law Society is of the view that the goal of preventing domestic
violence and assisting victims is best served through directing resources
at outreach, awareness, and the provision of specialist services that are
appropriate to the needs of specific groups.
A petition signed by local residents in Moree was tabled recently in
the NSW Parliament asking for the Magistrates Early Referral into
Treatment (MERIT) program to be introduced in the town. MERIT is a
pre-sentencing diversionary program for adult defendants with substance
abuse problems in the Local Court. The Bureau of Crimes Statistics and
Research has shown MERIT reduces the proportion of those reconvicted
of any offence by 12 per cent. In July, the Society called for the statewide
rollout of the program.
Finally, as part of our Advancement of Women project, we are
holding a range of breakfast forums on Women and Leadership.
Our 2015 forum series begins in August. Visit lawsociety.com.au/
ThoughtLeadership for more.

AUGUST 2015

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LSJ

23/07/2015 10:05 am

A WORD FROM THE EDITOR


ISSN 2203-8906
Managing Editor
Claire Chaffey
Associate Editor
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 Officer
Juliana Grego
Advertising Sales Account Manager
Jessica Lupton
Editorial enquiries
journal@lawsociety.com.au

Its hard being a lawyer. We all know it. I have no doubt that most lawyers have, at some
stage, found their role extremely challenging, for a variety of reasons.
Whether its the conditions under which we practise the long hours, the relentlessness of
billable units, the high demands of clients, or the intimidating spectre of the court system
or the nature of the work we do, working as a solicitor can be tough.
In this issue, LSJ reporter Kate Allman delves into the topic of vicarious trauma in The
Cost of Caring on page 38. In it she reveals the high cost many lawyers pay for becoming
deeply invested in their cases, for reliving the pain and suffering of their clients, for simply
caring too much. Or, in other words, for doing their job. The feature blows open a problem
that is too often taken as normal in the profession, with many practitioners suffering in
silence because work-related trauma and distress are simply seen as part of the job. Its an
important story for the very fact it shows that this is not something suffered in isolation
it is a common experience in the law and one we should confront head-on.

Classified Ads
www.lawsociety.com.au/advertise
Advertising enquiries
advertising@lawsociety.com.au or 02 9926 0290

Claire Chaffey

LSJ
170 Phillip Street
Sydney NSW 2000 Australia
Phone 02 9926 0333
Fax 02 9221 8541
DX 362 Sydney

Contributors

2015 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.
Cover photograph:
Newspix

NEXT ISSUE: 1 SEPTEMBER 2015

p4_Editors Note_August use this3.indd 1

Senthorun Raj
is a PhD candidate at
Sydney Law School and
a forthcoming visiting
doctoral fellow at NYU
Law School. He writes
about the implications
of the same-sex
legislation in the US
Supreme Court.
Global focus
p22

Julie McCrossin
is a writer and
trainer who studied
law. She travelled to
London to interview
solicitor Jennifer
Robinson, one of the
lawyers representing
Julian Assange.
A woman of
influence
p26

Lee Holmes
holds an Advanced
Certificate in Food
and Nutrition, teaches
yoga and is author
of the Supercharged
Foods series. She
gives the lowdown
on keeping the gut
healthy.
Health matters
p56

Alex Baykitch
is a partner at King &
Wood Mallesons and
President of the Australian
Centre for International
Commercial Arbitration.
He co-writes with Aleks
Sladojevic on ChAFTA &
investor-state dispute
settlement mechanisms
Legal updates
p74

Have an idea? We would like to publish articles from a broad pool of expert members and were
eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an
article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will
consider your idea and pursue it with you further if we would like to publish it in the LSJ. We will
provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.

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CONTENTS

26 38
FEATURES

24

34

56

Why senior lawyers need to


take responsibility for adequate
mentoring of their juniors

Tony Cunneen details the tragic


story of one NSW solicitor at
Gallipoli and beyond

Why a healthy gut is imperative


for brain and immune functions

26

38

Julie McCrossin meets highprofile human rights lawyer


Jennifer Robinson to discuss
her career and recent work
representing Julian Assange

Kate Allman reports on


the troubling trend of
secondary psychological
trauma for lawyers

HOT TOPIC

COVER STORY

32

IN FOCUS
Husband and wife Nikki and
Tim Lester speak about their
role as partners launching the
new Australian presence for
global firm Hogan Lovells

AUGUST OFFENSIVES

THE COST OF CARING

52

EXTRACURRICULAR
Jane Southward meets
Andrew Chalk, a Sydney lawyer
who is the brains behind an
innovative social program

54

YOGA AND WEIGHT LOSS

HEALTH MATTERS

58

POSITIVE CULTURE
Rachel Setti explains how strong
core values can be much more
than corporate rhetoric

60

CITY GUIDE
Where to eat, sleep and play in
Oslo Claire Chaffey explores
the delights of Norways
cosmopolitan capital

64

YOU WISH
Canberras incredible
Jamala Wildlife Lodge

Is it possible? Joanna McMillan


investigates

LSJ

AUGUST 2015

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52

60

REGULARS
8 MAILBAG
10 BRIEFS

News and events

from the legal world

10 PROFESSIONAL
NOTICES
17 FROM THE ARCHIVES
19 CAREER MOVES

Who moved where

this month

20 OUT AND ABOUT


22 GLOBAL FOCUS

Examining the US
Supreme Court stance
on marriage equality

44 CAREER HUB
How in-house lawyering
compares with private
practice

90

LEGAL UPDATES
45 CAREER 101
48 A DAY IN THE LIFE
A young law student
spends a day as a
criminal lawyer

50 PRACTICE
MANAGEMENT
Creating e-databases for
related litigation matters

68 ADVOCACY: THE LATEST IN LAW REFORM


71 RISK: LEGAL vs FINANCIAL ADVICE
72 REGULATORY: UNIFORM LAW & TRUSTS
74 ARBITRATION: FREE TRADE DISPUTES
77 TAXATION: HIDDEN STINGS IN WILL-MAKING
78 MIGRATION: BORDER FORCE CONTROVERSY
80 FOI: THE NEW AAT MEGA-TRIBUNAL

52 EXTRACURRICULAR

82 INTERNATIONAL: TREATY-MAKING

66 LIFESTYLE

84 FAMILY: JUST & EQUITABLE PRINCIPLES

The latest in books


and events

86 COSTS: PROPORTIONALITY IN ASSESSMENTS

95 LIBRARY ADDITIONS
New books at the
Law Society Library

106 EXPERT WITLESS


Legal news to make
you giggle

88 INDIGENOUS: CULTURE & HERITAGE


90 ANIMAL LAW: LEGAL PERSONHOOD
92 PROPERTY: E-CONVEYANCING Q & A
94 PLANNING LAW: DEVELOPING CROWN LAND
96 CASE NOTES: CRIMINAL, FAMILY & WILLS

AUGUST 2015

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23/07/2015 4:49 pm

MAILBAG

LETTERS TO THE EDITOR


ISSUE 13 JULY 2015

JULY 2015

ICE, VIOLENCE
AND JUSTICE

Worth a read

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.

Thanks to Nicholas Cowdery


and the LSJ for the article
on Magna Carta (LSJ, June
2015). Readers may be able
to find a book entitled 1215:
The Year of Magna Carta,
which was published a few
years ago. The book gives a
wide snapshot of British life
some 800 years ago. It is an
interesting read and worth
seeking out.

E: letters@lawsociety.com.au

THE EPIDEMIC CHANGING OUR


LEGAL AND SOCIAL FABRIC

Please note: we may not


be able to publish all letters
received.

WIVES AND WARRIORS


HOW AUSTRALIAN WOMEN FOUND
THEIR VOICE DURING WWI

7 ETHICS NIGHTMARES
YOU DIDNT EVEN KNOW YOU HAD
BURSTING AT THE SEAMS
THE SHAMEFUL STATE OF NSW PRISONS

CONGRATULATIONS!
Charles Stanford
has won lunch for four.

TERROR AND CITIZENSHIP


AN ANALYSIS OF GLOBAL TRENDS
CAPACITY AND LITIGATION
A BLUEPRINT FOR REFORM IN NSW

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WRITE TO US:

24/06/2015 11:50 am

Keith Osborne
Halton via East Gresford
Ed note: The Society library
confirms it has books on
legal history for members
to borrow.

Lawyer wants a
lunch date?
Little wonder that Erin
Eckhoffs letter (LSJ, July 2015)
won lunch as your favourite
letter, since hers was the only
one published! Incidentally,
when therere only three to
four letters printed, why not
offer complimentary lunches
for the writers alone to share
together and, if more than
four, the same to apply for
your favourite four letters? I
look forward to a lunch, on
the house, in the Law Society
dining room in August!
Edward Loong
Milsons Point

Tuesday 1 September 2015


9.00am 5.15pm
Sheraton on the Park, Sydney
6.5 CPD Units
This seminar is proudly sponsored by:

Book online: lawsociety.com.au/GSC2015

LSJ

AUGUST 2015

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23/07/2015 11:47 am

MAILBAG

Pricing pain
After paying $350 for the
privilege of spending 40
minutes in my dentists chair,
I reflected on the disparity
with our remuneration for,
and time we spend on, a
conveyance. We are selling
ourselves too cheaply.

came into force on 1 February


2015. Heres an example:
- Victorian driver second
PCA in the past five years
low range PCA convicted.

The ultimate Catch 22.

- Disqualified for a minimum


period of one month with
minimum interlock period
of 12 months.

More firms than


lawyers in SA?

Charles Stanford
Stanford Lawyers

- Completes disqualification
period.

Is the law an ass?

- Applies for NSW interlock


device and interlock
licence.

For the information of those


practising on the border
of New South Wales and
Victoria There appears to be
unintended consequences of
the NSW Mandatory Alcohol
Interlock Program, which

period and disqualified by


Vic Roads from holding a
licence for five years.

- Victorian resident cannot


obtain NSW interlock
licence.
- Now deemed to have failed
to complete the interlock

Andrew P. Melville, Corowa

I understand that you welcome


feedback about the LSJ. I
certainly enjoy reading it and I
like the new format. However,
on page 13 of the June edition
you have a chart showing the
state-by-state statistics for
solicitors. For South Australia,
the figure given is just 588
(even though the figure given
for firms is 876). I was not
able to find the statistic for

the number of solicitors in


that state, but the figure they
have for current members is
3,500. Since they have a fused
profession in South Australia it
would appear that this includes
barristers, but this is not likely
to be large in number. In short,
it would seem that the number
of solicitors in South Australia
is likely to be in the thousands
rather than just 588. Perhaps
you might consider including
some type of correction in
next edition.
Phillip C. Roberts, PCR Law &
Associates Sydney
Ed note: Right you are, Phillip
the figure should be 3,588.

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AUGUST 2015

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LSJ

23/07/2015 11:46 am

The future
of federalism
discussed
Sociologist and cultural
commentator Professor Eva
Cox AO, Dr Doug McTaggart of
the Commonwealth Reform of
the Federation Expert Advisory
Panel, and constitutional experts
Professor Cheryl Saunders AO and
Professor Lynch discussed their
visions for the future of federalism
at the Thought Leadership event
at The Law Society of New South
Wales in July.

PUBLIC INTEREST CAREERS FAIR


More than 300 law students attended the NSW Young
Lawyers Public Interest Careers Fair at the Law Society
of NSW on 9 July.
Edward Santow, Chief Executive Officer of the Public Interest Advocacy
Centre (and pictured below, top left), spoke about his experiences working
in the public interest sector.
Many of the attendees were members of the Australian Law Students
Association, which supported the event. The fair brought together a variety
of public interest organisations, government departments and community
legal centres so that law students and graduates could access information
about a diversity of career paths that they may wish to pursue upon
graduation.
Among the organisations and government departments that attended the
event were the Public Defenders Office, the Commonwealth and State
Departments of Public Prosecutions, Beyond Law, and Salvos Legal.

For information on upcoming


Thought Leadership events visit
lawsociety.com.au/
thoughtleadership

Prof Cheryl Saunders (top) and Prof Eva Cox.

10

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AUGUST 2015

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BRIEFS NEWS

CALL FOR STATEWIDE ROLLOUT OF


SUBSTANCE ABUSE PROGRAM
The Law Society of NSW has called for the statewide
rollout of a rehabilitation program that targets adult
defendants with substance abuse problems.
Law Society President John Eades said the Magistrates Early Referral into
Treatment (MERIT) program allowed eligible motivated defendants to receive
supervised treatment and rehabilitation as part of their bail conditions.
The MERIT program has been shown to be a highly effective pre-plea
diversionary program that specifically targets the underlying cause of many
crimes, namely substance abuse, Eades said.

The Law Society considers


that the demonstrated
success of MERIT in reducing
recidivist behaviour, and the
associated benefits this creates
for the community, justifies
the allocation of substantial
resources to the program
to enable it to be available
throughout the entire state.

CM

MY

CY

CMY

JOHN EADES

The program helps offenders address their substance abuse problem, which
is really important in terms of breaking the substance abuse-crime cycle.
Defendants assessed as suitable for MERIT undertake supervised treatment
as part of their bail conditions, and a magistrate is then able to consider the
defendants progress in treatment as part of final sentencing.
Eades said research by the Bureau of Crime Statistics and Research
(BOCSAR) had shown that MERIT was successful in reducing rates of
reoffending.
BOCSAR found that completion of MERIT reduces the proportion of those
reconvicted for any offence by 12 per cent, Eades said.
A petition signed by residents of Moree was tabled in the NSW Parliament
during the last sitting asking for the MERIT program to be introduced to the
Moree Local Court.
The Law Society considers that the demonstrated success of MERIT in
reducing recidivist behaviour, and the associated benefits this creates for the
community, justifies the allocation of substantial resources to the program to
enable it to be available throughout the entire State, Eades said.

AUGUST 2015

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LSJ

11

23/07/2015 3:58 pm

BRIEFS NEWS

PROFESSIONAL
NOTICES
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known
as Ronald M Fluit Solicitor, formerly
conducted by Ronald Marinus Fluit.
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known as
MER Legal Pty Ltd, formerly conducted by
Michael Edward Rogers.
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known as
Tereze V Dzitars, formerly conducted by
Tereze Vilhelmina Dzitars.
The Council of the Law Society of NSW,
at its meeting on 18 June 2015, resolved
to suspend the practising certificate
of Michael Edward Rogers pursuant to
Section 60(1) of the Legal Profession Act
2004 to 30 June 2015.

NEW PRO BONO PROGRAM


AT THOMAS MOORE ACADEMY
Pro bono legal experience will now be compulsory for students
studying law at the Australian Catholic Universitys Thomas
Moore Academy of Law.

The pro bono program provides students with an


unrivalled opportunity to experience and reflect upon
the operation of the law in a practice setting.
DOMINIC CUDMORE, ACU

The pro bono program requires ACU Thomas Moore students to complete a
minimum of 240 hours (equivalent to 30 days) of professional experience over the
course of their degrees. While most universities offer course credit for optional work
experience, the compulsory aspect of the ACU law program is unique.
The pro bono program provides students with an unrivalled opportunity to
experience and reflect upon the operation of the law in a practice setting, said
program coordinator Dominic Cudmore. It allows students to give back to their
communities and make a difference while gaining valuable practical legal experience.
Students have undertaken work in community-based support services such as Legal
Aid NSW, Macarthur Legal Centre and various law firms and government departments.
I got to experience and work with a huge variety of legal issues across fields of civil,
criminal and family law, said one student participant. This first-hand experience allowed
me to appreciate the intensity and fast-paced nature of work as a pro bono lawyer.
Any students or legal organisations interested in becoming involved with the program
should contact Dominic Cudmore at dominic.cudmore@acu.edu.au.

CBP Lawyers incorporates


After more than 100 years of trading as a
private partnership, CBP Lawyers began the
new financial year as a corporation. The firm
will now trade as Colin Biggers and Paisley Pty
Ltd under managing partner Dunstan de Souza.
De Souza, pictured, said the change was a historic moment
for the firm and cited rapid growth in recent years as the main
reason behind the decision to incorporate.
We have grown rapidly in the past five years, expanding to Victoria in 2012 and
Queensland the following year, said de Souza. As a result, we found ourselves with
a hybrid structure, with a partnership model in NSW and Victoria but an incorporated
model in Queensland. CBP now has more than 400 staff with offices in Sydney,
Melbourne and Brisbane. De Souza said converting to an incorporated model had
helped the firm achieve uniformity across the three states and would encourage
continued growth in the future.

12

LSJ

AUGUST 2015

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22/07/2015 11:30 am

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BRIEFS NEWS

Legal Enquiry Service

REMINDER FOR SOLICITORS RE


MOTOR COMP REFERRALS

WHAT
DO YOU
MEAN YOU
DONT KNOW
EVERYTHING?
The law can be technical, detailed
and even messy. And sometimes as
lawyers we have to quickly become
experts in areas of the law that we
dont usually specialise in.
Thats why our Legal Information
Officer assists members across
a range of legal issues, including
business law, criminal law, family
law, property law, wills and estates
and more.
Contact Peter Leggo today for help
to find the answers youre looking for.

(02) 9926 0333


1800 420 934 (Toll free)
Peter.Leggo@lawsociety.com.au

Solicitors are reminded that under Clause 24 of the Motor


Accidents Compensation Regulation 2015, which came into
effect on 1 April, a legal practitioner or close associate cannot
receive or pay a fee or other consideration for the referral of
a claimant to a legal practitioner.
Under the Regulation, close associate means an employee of the legal
practitioner, a partner of the legal practitioner, an employee or agent of the legal
practitioner or a family member of the legal practitioner.
This new prohibition in the costs regulation was inserted following feedback
from the Law Society that there are emerging risks in this area. As noted in the
July edition of the LSJ, businesses are emerging in NSW (as has been the case
overseas) which seek to recruit clients for potential compensation claims and
pass them on to legal firms for a fee. The Motor Accidents Authority (MAA) is
investigating this further.
The paying or receiving of any such fee by a legal practitioner is now prohibited
by the Motor Accidents Compensation Regulation, as is the paying of a fee for
referral of client from one practitioner to another.

Under the Regulation, close associate means an


employee of the legal practitioner, a partner of the
legal practitioner, an employee or agent of the legal
practitioner or a family member of the legal practitioner.
According to the MAA, the Regulation is in place is to set the maximum
recoverable costs for legal and medico-legal services provided in relation to
motor accident claims. The rationale for regulating the cost of these services
is to ensure that transaction costs relating to motor accident claims do not
unreasonably contribute to the cost of green slips payable by NSW motorists.
This is not new, but the remade Regulation, effective 1 April, provides for
increases in the maximum recoverable fees for legal and medico-legal fees. In
some cases, the increases are quite significant. There has been a general 8 per
cent increase in most stages. Practitioners now are able to charge for more than
one dispute in a medical assessment matter at the Medical Assessment Service.
Representation at Assessment conferences under s104 of the Motor Accidents
Compensation Act 1999 has increased substantially from $530 to $1250.
At the same time, the Regulation seeks to provide greater transparency in relation
to solicitor-client costs in motor accident matters by requiring legal practitioners
to disclose to the MAA a costs breakdown setting out the total amount paid by
an insurer in finalising a motor accident claim and breaking that total into various
components as required by the MAA. This provision will not become mandatory
until the MAA has issued a form and process for this disclosure of data.
The MAA is working with the Law Society and the Australian Lawyers Alliance to
pilot a data collection process, which is expected to be finalised within the next
few months. Further information on these requirements will be made available in
the LSJ.

14

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BRIEFS NEWS

MINDFULNESS LEADERSHIP FORUM ELDER ABUSE FORUM


27-28 AUGUST

13 OCTOBER

The Mindful Leadership Forum is a new event that brings


together leaders from the fields of business, science,
the arts and society to explore a new global movement
in leadership. Join world-leading thinkers from a range
of companies as they explore the revived importance of
mindfulness in leadership roles.

The Aged-Care Rights Service (TARS)


will hold a forum in October to discuss
the rights of elderly people. Audiences
will hear from keynote speaker Susan
Ryan, Australias Age Discrimination
Commissioner under the Australian
Human Rights Commission.

Being mindful encourages people to press pause on their often hectic


lifestyles to become more attuned to their current situation. For leaders
in our constantly logged-in, digitally-dependent corporate world,
mindfulness provides essential skills in compassion and authenticity
that should not be overlooked.
Companies such as Google, LinkedIn and the Harvard Business School have
already begun to realise increases in wellbeing, creativity and productivity
that mindful leadership can bring. Find out what the buzz is about at the
Concourse, Chatswood, between 27 and 28 August.
For registrations and more information visit

The forum will investigate age-based discrimination


for existing and future community workers from a
human rights perspective. Interactive sessions will
provide a platform for discussion and strategies
on addressing elder abuse in community and
residential settings.
The Elder Abuse Forum will run from 9:30am-3pm
at Auburn Town Hall.
For registrations and more information visit

mindfulleadershipforum.com/2015

elderabuseconference.org.au

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AUGUST 2015

p10_17_Briefs_News_August.indd 6

LSJ

15

23/07/2015 3:58 pm

BRIEFS NEWS

Salary and Employment Outlook


Prospects

Rewards

Demand

Retention

Work/Life Balance

47%

82%

51%

71%

74%

of legal employers
plan to increase
headcount
over the next
12 months.

of legal employers
will be rewarding
their employees
with a salary rise;
majority will be
rewarding a 1-5%
increase.

of legal employers
state that mid-level
professionals are
most in demand.

of legal employers
will be promoting
a strong company
culture to attract
new talent.

of employers offering
flexible working hours.

62%

26%
of legal employers
state that specialists
are in highest demand.

of employers will
be rewarding their
staff with a bonus.

68%
offering the option
to work from home.

68%
of legal employers
using the same
strategy to retain
top performing staff.

45%
offering increased
maternity/paternity
leave.

These figures are found in the 2015/16 Michael Page Australia Salary and Employment Outlook, launched in July 2015. Credits: Binoculars by Nathan Driskell,
Ribbon by Sofa Moya, Megaphone by Angelique Hering, Magnet by Arthur Shlain and Clock by Nick Green from Noun Project.

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16

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AUGUST 2015

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23/07/2015 3:58 pm

BRIEFS FROM THE ARCHIVES

review
THE YEAR IN

1963

Take a trip down memory lane through


the pages of the Law Society Journal.

THE MEANING OF STATUS


A LETTER TO THE JOURNAL
It is very noticeable how the use of the word status is increasingly
in the annual reports of the Law Society and in discussions
amongst members of the profession.
It has always been my opinion that although there are a limited
number of occupations which, by their nature, confer status on the
individual automatically, the fact is that generally speaking status is
a condition which must be earned by the seat of ones brow. It also
seems clear that by fair means or foul, a largish proportion of the
worlds population is actively engaged in seeking status.
W H A Womack

THE LAW SOCIETY


JOURNAL BEGINS

NSW YOUNG LAWYERS IS BORN

The first issue of the Law Society Journal is published in


March 1963. The Society announces there will be four
issues of the Journal each year.

The Law Society launches the Young Members Committee (later to


become NSW Young Lawyers).
Law Society President Barry McDonald is keen to involve young
solicitors in the Law Societys activities and encourage their
involvement in the legal profession. He believes that a Young
Lawyers Committee would have benefits for both the profession
and the broader community.
The new committee sees the immediate need for greater
communication between its members, establishing a number
of initiatives aimed at creating new networks for young lawyers,
including sporting competitions and social events such as the
Annual Law Term opening dinner.

HOW CAN THE SOCIETY HELP


THE PRACTITIONER?
In an extract from an address by Sir Thomas
Lund to practitioners in April, Lund says:
Public confidence flows from the fairness
of the law, a justifiable conviction that the
courts are completely impartial and available,
and a complete confidence in the integrity
and efficiency of the lawyers ... As regards the profession itself, we
certainly need to be very strict about our own discipline, because
this is a very vital matter as it concerns the public. We really need
to investigate every complaint and, if it is unjustified, to explain
carefully to members of the public concerned why it is to; and if it
is justified, to take immediate disciplinary proceedings.

Editor Roger J Atkins writes in the first editorial: The


Councils purpose in introducing it to you is to take one
step further forward in improving the relations between
members, and between members and their Society,
as part of a programme of improvement of the status
of the profession ... Continuous self-education in his
professional and ethical responsibilities is the duty of
every member The extent of these responsibilities has
been ably put by Mr Christian in his book A short History
of Solicitors, when he says: Few professions are so old as
the solicitors, and probably none so stringently regulated
or so jealously supervised by the State. From the first
day of his apprenticeship to the last day of his practice
every action of the solicitor is subject to regulations laid
down by Parliament, his education, his right to practise,
his relations to his employers, his remuneration, all are
minutely prescribed by the legislature. This then is your
Journal. Give it your assistance and there is no end of the
good it can do.

IN THE NEWS
From 1963 all Indigenous Australians are allowed to enrol
to vote in Federal elections after Prime Minister Robert
Menzies amends the Commonwealth Electoral Act 1918
in 1962. Other states allowed Indigenous Australians to
vote from 1949.
NSW Premier Robert Bob Heffrons Royal Commission
into the legalisation of off-course betting leads to the
establishment of the Totalisator Agency Board (TAB).
AUGUST
JUNE
2015
2014I LSJ
I LSJ171

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22/07/2015 2:36 pm

BRIEFS CAREER MOVES

MEMBERS ON THE

ANNETTE ENGLISH

MATTHEW GRAHAM

GUY BETAR

DAVID GILHAM

Now a partner, Equilaw,


and a director,
Thoroughbred Legal

Joined as a senior associate,


Commercial Team
Salvos Legal

Joined as a special counsel,


Commercial Team
Salvos Legal

Joined as a partner,
Corporate and Real Estate
McCullough Robertson, Sydney

AMANDA SEGUNA

PETER MCMAHON

PETER BAHLMANN

CLAIR HODGE

Appointed to senior associate


Meridian Lawyers, Sydney

Joined as a senior tax consultant


Baker & McKenzie, Sydney

Joined as partner
Hansons Lawyers, Wollongong

Joined as group corporate counsel


Transport for NSW

NATALIE BAINI

MAITHRI PANAGODA

MICHAELA SCHMIDT

ERIC ZIEHLKE

Joined as head of legal


Insight Legal Partners,
Drummoyne

Appointed adjunct professor of law


University of Notre Dame,
Australia

Promoted to partner
JMA Legal Business Lawyers,
Cootamundra

Joined as partner,
IP & Technology
Swaab Attorneys, Sydney

Know someone with a new position?


Email us the details and a photograph (at least 1MB) at:
journal@lawsociety.com.au

18

LSJ

p18_MOM_August.indd 1

AUGUST 2015

21/07/2015 4:38 pm

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10

21/07/2015 4:35 pm

BRIEFS OUT AND ABOUT

A2J CONFERENCE 2015


Guests, speakers, and leading minds in the profession gathered
to celebrate the opening of the National Access to Justice
and Pro Bono Conference, held on 18 & 19 June in Sydney.
The impressive line-up of speakers included Chief Justice
Tom Bathurst, Rosie Batty, Nicholas Cowdery AM QC, Stephen
Blanks, Rosalind Croucher AM, Hugh de Krester, Peter Greste,
Justice Ruth McColl AO, Gabrielle Upton MP, George Williams
AO, Acting Chief Judge McInerney, and Mark Dreyfuss QC.
PHOTOGRAPHY: CHRIS GLEISNER

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BRIEFS OUT AND ABOUT

AUGUST 2015

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21/07/2015 9:37 am

UNITED STATES OF AMERICA

DIGNIFIED FUTURES:
A QUEER CASE ON
MARRIAGE EQUALITY?

arely do appellate decisions


garner intense, wide-ranging
community interest. Yet
the recent US Supreme
Courts decision to endorse marriage
equality continues to generate
significant international celebration,
condemnation, and critique even in
Australia. Advocates for reform here
cite the US jurisprudence as a reminder
of what is at stake for same-sex couples:
equality before the law.
Over the past decade, a number
of states in the US have legislated to
allow for same-sex marriage. Many
others have ushered it through judicial
fiats. The most recent case, Obergefell
v Hodges, brought together 14 samesex couples and two gay men whose
partners were now deceased who sought
to challenge the state bans on samesex marriage in Michigan, Kentucky,
Tennessee, and Ohio. The appellants
had been successful in challenging the

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bans in their respective District Courts


but those decisions were reversed at the
Sixth Circuit. On appeal, a majority
of justices on the US Supreme Court
quashed the decision of the Sixth
Circuit on the basis that denying samesex marriage infringed on the Equal
Protection and Due Process guarantees
of the Fourteenth Amendment.
In order to understand the US
Supreme Courts decision, it is
necessary to reflect on the judicial
path that has helped facilitate the
recognition of gay and lesbian civil
rights. In 1996, the court invalidated
an amendment to the Colorado
Constitution that would preclude the
Colorado government from passing
anti-discrimination laws or funding
programs for gay, lesbian, and bisexual
people. In 2003, the court held that
all remaining state bans on sodomy
were unconstitutional because they
impinged on the right to private

intimate association. A decade later,


the court brought down sections of the
Defense of Marriage Act that prevented
the federal recognition of same-sex
marriages solemnised in states where it
was legal.
Obergefell adds to the above progay jurisprudence. Yet, what is
striking about the judgment is the
mix of sentimentality and optimism
that underscores the constitutional
analysis. Much of the majoritys
opinion, delivered by Justice Anthony
Kennedy, evokes visions of liberty,
equality, and dignity.
In delivering the opinion of the
court, Justice Kennedy gestures to the
transcendent importance of marriage.
From bans on interracial marriage to
the doctrine of coverture to denying
married women contraception, the
regulation of this transcendent
institution has never been static.
Marriage laws have shifted with
changing social and political norms.
However, while detailing the historical
development of the institution, he
carefully stresses how marriage has
been revered as a binding form of
intimacy throughout history. For
Kennedy J, the push for gay and lesbian
relationships to be recognised under
this evolving framework is far from
radical. Its one of destiny.
However, this should prompt us to
ask: has marriage equality been central
to the gay communitys destiny?
The judicial narrative of inclusion
and incrementalism with respect to
gay rights sits uncomfortably with
the broader activism for queer justice.
Specifically, activism associated with
the Stonewall Riots in 1969 the
precursor to the Sydney Gay and
Lesbian Mardi Gras in 1978 sought
to contest social institutions such as
marriage that stifled non-normative

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BRIEFS INTERNATIONAL

sexual intimacies or gender expressions. Now, claims for


civil rights rely on recognising the dignity of same-sex
couples through marriage. Far from undermining the
institution of marriage, the decision elevates the national
position of marriage. The court moves from romanticising
marital relationships as a union unlike any other to
discussing its stable safeguards for children to reiterating
the enduring significance of marriage to our social order.
In concluding the judgment, Kennedy J poetically
exclaims: No union is more profound than marriage, for
it embodiesthe highest ideals of love, fidelity, devotion,
sacrifice,and family. In forming a marital union, two
people becomesomething greater than once they were.
As some ofthe petitioners in these cases demonstrate,
marriageembodies a love that may endure even past
death. Itwould misunderstand these men and women to
say theydisrespect the idea of marriage. Their plea is that
they dorespect it, respect it so deeply that they seek to
fi nd itsfulfi llment for themselves. Their hope is not to
be condemnedto live in loneliness, excluded from one
of civilizationsoldest institutions. They ask for equal
dignity in theeyes of the law. The Constitution grants
them that right.
Connecting claims for dignity and love with the ability to
get married are enormously moving. The above paragraph
serves as a reminder of how jurisprudence can reach beyond
legal or technical definitions and touch us in profoundly
emotional ways.
Yet, at the risk of being labeled a killjoy, it is worthwhile
to pause and consider whether the judgments lyricism
narrows rather than broadens our visions for intimate
liberty. In a passionate dissent, Chief Justice John Roberts
critiques the majority for imposing their will upon the
Constitution, ignoring precedent, and taking the issue away
from legislatures or voters to decide on. Yet, Roberts CJ
also pushes the majoritys reasoning further: if the denial
of marriage interferes with a fundamental right to liberty,
why exclude people who wish to marry more than one
person? This question is interesting not because it conflates
same-sex marriage with polygamy but because it forces us to
broaden the majoritys questions about marital recognition.
Indeed, the Australian High Court has resolved this
issue, noting that the marriage power in the Australian
Constitution refers to consensual unions between people
(of which eligibility, rights, entitlements, obligations, and
responsibilities are defined by legislation).
Ultimately, marriage reform generates claims for

love, equality, and dignity. Such principles are powerful


and important to protect. However, as marriage equality
jurisprudence reflects on the evolving regulation of marriage,
and the push for social acceptance more broadly, we should
also be wary of claims that inadvertently exclude others.
No one should have to get married in order to have their
relationship respected or to access support from the state.
Love and family find expression in disparate ways. It would
also be parochial to assume that marriage equality will
eliminate the violence, harassment, and discrimination that
sexual and gender minorities are subjected to on a daily basis.
So, feel free to wash your Facebook profile pictures in
rainbow filters and campaign for marriage equality, but
remember that the push for social justice goes well
beyond that.

Senthorun Raj is a PhD candidate at


Sydney Law School and a forthcoming
visiting doctoral fellow at NYU Law School.

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AUGUST 2015

p22_23_GLOBAL FOCUS_August.indd 2

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23

21/07/2015 9:43 am

HOT TOPIC OPINION

Senior lawyers who fail


to adequately train and
mentor junior lawyers
must take responsibility
for poor outcomes, writes
JACQUELINE DAWSON.

Blame not the


junior lawyers

uch has been said in


recent times about
the abundance of law
graduates now entering
the workforce, not all of it flattering. In
my experience, there is a tendency for
senior lawyers to criticise more junior
lawyers for undesirable results without
necessarily considering whether they
should accept responsibility for failings
in the relationship.
In the age of significant billing
pressure, and where some junior
lawyers first experience of the law is
the day they start working full-time,
opportunities to learn have changed.
This can produce poor outcomes:
lawyers being asked to carry out tasks
in which they have no experience
and/or being left unsupported in
their employment. When this occurs,
outcomes will be poor for the client, the
firm, the system and the junior solicitor.
Just as much as graduates have a

24

LSJ

responsibility to work to improve their


skills, those who are senior to them have
a responsibility to nurture and assist the
careers of junior lawyers. Ultimately, this
comes down to good-quality mentoring.
Good-quality mentoring is arguably
not cost-effective in the short term. It
means taking time to discuss problems
and help the junior lawyer decide on
approaches. It includes permitting the
junior solicitor some non-billable learning
time, such as attending court to watch
proceedings, or attending meetings as an
observer. It can be profoundly damaging
to the confidence of a junior solicitor if
their first experience of such things is
when they are attending on their own,
and things go wrong. Thus, in the short
term particularly with new graduates
there may be a period where profitability
is compromised.
However, in the longer term, an
approach in which there is a generous
attitude to learning is far more likely to

be profitable. It is more likely to produce


confident solicitors who have capacity
to ably take on matters. So how does a
senior solicitor act as a good mentor,
and how does a junior solicitor know if
they are being mentored well?
What makes a good mentor?
Knowledgeable perhaps this is an
obvious point. However, anecdotally
it seems that junior lawyers are
sometimes employed to take over an
area in a firm in which their supervisor
has no expertise in that area.
Approachable if you cant be
available on a flexible basis, ensure
that you are available at regular times
of the day/week.
There is no one size fits all
approach acknowledge differences
in style and ability between various
junior solicitors and take time to
work with each solicitor individually.
Some will be ready to take on
particular tasks sooner than others.

AUGUST 2015

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21/07/2015 9:55 am

Solicitors Copy Service

It can be profoundly damaging to the confidence of


a junior solicitor if their first experience of [going to
court] is when they are attending on their own, and
things go wrong.
Generous about work actively look
for tasks for junior lawyers that are
commensurate with their ability.
Be balanced in relation to the need for
billing and the need for learning.
Recognise success and take
responsibility for failures. Ultimately,
matters are the responsibility of the
supervisor, and if something goes
wrong, little is achieved by blaming
the junior solicitor.
Be respectful towards the junior
solicitors you work with. This extends
to the obvious of not engaging in
bullying behavior or in behavior that
may be perceived as bullying.
Have reasonable expectations of work
practices this includes both hours of
work and the work that is expected.
If you are a senior lawyer, take a moment
to reflect: am I doing all I can for my
junior employees? And junior lawyers
perhaps need to consider whether their
mentor is doing everything they can.
In this tough legal market, it is
difficult for a graduate to be objective
about their own career. I suspect that
many lawyers simply believe they are
fortunate to be working, so they may be
reluctant to carefully assess whether they
are learning what they need to. However,
if a junior lawyer finds themselves in a
situation where most (if not all) of the
above criteria are not being met, they
need to carefully assess whether their
longer-term career needs are being met.
Similarly, if a senior lawyer finds
that junior lawyers never stay for long,
or if they are beset with a long list of
complaints from clients on a regular

basis, then they need to assess whether


their mentoring could be improved.
Of course, junior lawyers also have
responsibility for their part in the
equation. Here are few thoughts about
the mentees responsibilities:
What makes a good mentee?
Display awareness of what they do
and dont know.
Learn from mistakes.
Be open about mistakes do not
attempt to conceal them.
Actively seek learning opportunities.
Respond to the needs of your mentor
and your clients: do not ask for help at
inappropriate times.
Be respectful and display awareness of
your role in the firm.
Clearly communicate about your
needs and wishes (while keeping the
above points firmly in mind).
Adapt be willing to take on different
tasks as your abilities expand.
Mentors appear in many guises, not
all of them in the employee/employer
context. Interactions between solicitors
on opposing sides of matters can be
just as important and can have a big
impact on the learning and confidence
of junior solicitors. When we deal with
junior solicitors in any context, they
will learn something from us: for better
or worse.

FAST.
RELIABLE.
COSTEFFECTIVE.
COPY THAT?

(02) 9926 0221


printroom@lawsociety.com.au

JACQUELINE DAWSON is a
solicitor director at Sexton
Family Law in Milsons Point.

AUGUST 2015

p24_25_Hot Topic_August.indd 2

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25

21/07/2015 9:55 am

COVER STORY

A woman
of influence
Jennifer Robinson, legal adviser to Julian Assange and the United
Liberation Movement for West Papua, is Director of Legal Advocacy
for the Bertha Foundation where she established the Bertha Justice
Initiative that supports 120 young lawyers in 16 countries to practise
movement lawyering. JULIE MCCROSSIN speaks to her in London
about her work with filmmakers, lawyers and activists and her
journey from Bomaderry High on the south coast of NSW to the
centre of international legal activism.

t Yale Law School they


call it cause lawyering.
Other law journals
use the term radical
lawyering. At the Bertha
Foundation its movement lawyering.
Whatever you call it, 34-year-old
Australian lawyer Jennifer Robinson
does it and her goal is to ensure that
more human rights lawyers get the
chance to do it as well.
We meet on a very hot day in late
June on the roof of her office building in
Cavendish Square near Oxford Circus
in Central London. The park opposite is
packed with sun-baking office workers
quietly eating their lunch. The small
roof garden where we talk is surrounded
by flowers of every colour. It is a gentle
setting for a discussion that ranges
over many challenging international
legal issues facing some of the most
disadvantaged people on earth. As a
young graduate with an impressive
academic record, Robinson graduated

26

LSJ

from the Australian National University


with the university medal in law and
a Distinguished Scholar in Asian
Studies and won a Rhodes Scholarship
to Oxford where she graduated from
Balliol with a Bachelor of Civil Law
specialising in International Law
and Human Rights and a Masters of
Philosophy in Public International Law.
She was encouraged to do two years
in a corporate law firm and laughs as she
remembers her annoyance at this advice.
I was always frustrated by this
advice, she says. I didnt want to go
and do that. And frankly, I dont see why
reviewing financial services contracts in
the basement of a magic circle law firm
is ever going to put anyone in good stead
to litigate on human rights cases. I was
frustrated that so many bright young
lawyers take this advice and get caught
up in the corporate world.
The Bertha Foundation, a privately
funded family foundation where she
works, shared her frustration. (Robinson

will not say who started the foundation,


saying the founder prefers not to be
named.) Robinson has spent three years
establishing the Bertha Justice Initiative
program to offer an alternative.
We set out to create a program to
support young or emerging lawyers to
go into public interest legal work and
become human rights lawyers, she
says. We created a two-year fellowship,
partnering with the most radical
human rights litigating organisations
all around the world, to create paid,
entry-level opportunities for young
lawyers to get their start in this work.
Opportunities that, unlike in the
corporate sector, didnt previously exist.
We partner with organisations
that practice what we call movement
lawyering. They work together with
activist movements and use the law as a
tool to build power for these movements.
They take the really tough cases, cases
no corporate law firm will do pro bono.
We provide incentive funding for

AUGUST 2015

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22/07/2015 4:10 pm

two years to cover salaries, supervision


costs and training associated with
hosting a new lawyer. We support
organisations that are cutting edge
and that give emerging young lawyers
experience in doing this work.
Unlike a lot of other fellowships
which allow white, predominantly
elite university students to drop into
the developing world and get their
experience on the ground doing this
work, were really committed to building
local capacity by supporting lawyers
from the communities in which they
work and cultivating expertise for local
people from communities which are
historically disadvantaged.
In India, for example, were
supporting a number of lawyers from
the Dalits communities and historically
there has not been a lot of lawyers from
that caste who become lawyers.
Robinson is quick to offer further
examples of their work. In the US, we
support the Center for Constitutional

Rights, who I worked with on the


WikiLeaks issues and the Chelsea
Manning case. Theyve done fantastic
work, she says. They did the stopand-frisk litigation in New York and
they are doing the case against Scott
Lively for the persecution of the gay
community in Uganda.
In Pakistan, we support the
Foundation for Fundamental Rights
which is seeking accountability for US
drone strikes and to have a former CIA
station chief prosecuted for ordering
what in effect is extra-judicial murder.
We are their primary funder.
In Germany, we support the European
Center for Constitutional and Human
Rights which does a lot of trans-national
corporations litigation. They also took the
UK to the International Criminal Court
regarding allegations of mistreatment and
torture in Iraq. This was the organisation
to get the arrest warrant for Donald
Rumsfeld for torture and mistreatment in
Abu Ghraib and Guantanamo.

Does Robinson get involved in


other aspects of the work of the Bertha
Foundation? The Foundations website
talks about supporting enterprise,
passionate lawyering, storytelling and
activists working towards a decent and
just world. I ask about the storytelling
and the role she plays in this work.
On the storytelling side, which I
love, I get quite involved, she responds
quickly and warmly. We fund
documentary films, social justice films
and independent journalism. We fund
Democracy Now! (a national, daily,
independent news program in the US).
We fund the Sundance Film Festival.
We fund the Sheffield Doc/Fest film
festival. We fund a lot of content
creation through grants for social
justice documentary films and outreach
campaigns to ensure impact with these
films. I often assist where there are legal
issues involved.

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27

22/07/2015 4:10 pm

COVER STORY

Clockwise from left:


Jennifer Robinson with
her horse trainer father
Terry on the familys
Berry property; in 2011
with Julian Assange
and barrister Geoffrey
Robertson in London;
on the day she was
admitted as a solicitor
with her mother Lyndy
and father Terry.

We had two films nominated for the


Oscars last year. Citizenfour, which is a
documentary about Edward Snowden
and Virunga, a film about Virunga
National Park in the Congo and the
practices of a British corporation.
When one of our supported films
has legal issues and human rights issues
involved, I will often sit down with the
film makers to help them articulate the
issues and help them clarify what their
campaign will be with the film.
For example, in the case of Virunga,
the filmmakers came to me for advice
about how to hold a British corporation
accountable for its oil exploration
operations in the Congo that were
putting at risk Virunga National Park.
The company was accused of bribing
local warlords who were bribing
government officials for access to the
park and for violence and killings of
park rangers and the film makers
had evidence about this they wanted to

28

LSJ

show in the film.


I helped them to develop a legal
advocacy strategy which enabled
use of the evidence in the film and
the preparation of a submission
of a complaint to the UK Serious
Fraud Office to have the company
investigated under the Bribery Act.
As a result of the film and the
broader advocacy strategy and the
adverse publicity both have caused
a huge amount of money has been
divested from the company. This should
act as a deterrent to other companies:
behaving in this manner will have legal
and financial consequences.
At Bertha, we talk a lot about
cross- collaboration in our work, that is
bringing together film makers, lawyers
and activists to create social change.
Because I know as a lawyer, arguing
one case before a court rarely changes
systemic practices causing injustice
look at Australias system of asylum

seeker detention. Change requires


engaging people, communities and
raising awareness to create sufficient
political support to reform the system.
And sometimes, as the Virunga
example demonstrates, storytelling
and awareness raising can achieve
outcomes that filing any single legal
case could not.
On 1 July, a few days after our
interview, The Guardian newspaper
in the United Kingdom reported that
the Church of England in the UK had
sold its stake in a British oil and gas
company over allegations of bribery,
corruption and human rights abuses
and what it said was the companys
failure to unequivocally rule out
drilling for oil in Africas oldest national
parkVirunga in the Democratic
Republic of Congo, which is a World
Heritage site and home to about half
the worlds mountain gorillas.

AUGUST 2015

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n recent years, Robinson has


received extensive media coverage
in her role as legal adviser to Julian
Assange, a role she took up in
October 2010.
The founder and publisher of WikiLeaks
sought asylum in the Ecuadorian
embassy in London in 2012 to avoid
extradition to Sweden to face allegations
of sex crimes. Assange has consistently
denied wrongdoing in Sweden and
expressed concern that, if he went to
Sweden, he could face extradition to the
US to face charges with heavy penalties.
The key concerns, as identified
by Robinson, continue to be the
(unconfirmed) existence of a secret
indictment by the US Department of
Justice with a potential penalty of 45
years in prison if Assange is extradited
to the US, insufficient action by the
Australian Government on his behalf
and the assertion that credible legal
analysis supports the view that the
publication of classified material of

foreign powers, even friendly ones, is not


a crime in Australia.
In relation to what Robinson
describes as the sexual misconduct
allegations in Sweden, she says, Julian
is waiting to clear his name he has
been offering his testimony since 2010
in order to do so. We continue to ask
for assurances that, if he were to return
to Sweden to face trial, he would not be
extradited to the US. The reality is that
he has spent more time in detention
than he would ever have spent had he
been found guilty.
In the week before our meeting, an
interview with Assange in the Ecuadorian
embassy in London by Swedish
prosecutor Marianne Ny was cancelled,
to the disappointment of Assange.
What does Robinson want the
current Australian Government to do?
Ecuador has done what Australia
should have done, which is to grant
him asylum and to protect him from
US extradition, she replies. The

Australian Government has the right to


go to Sweden and say, He is our citizen.
We dont want him extradited to the US.
Give us an assurance that when he comes
here, he will not be extradited. And well
take him back to Australia. And then
what happens, happens after that.
There is another area of international
advocacy conducted by Robinson that
receives less media attention. Yet it is
highly regarded and shaped her as a
lawyer. It is the situation in West Papua.
Ben Saul, Professor of International
law at the University of Sydney Law
School, where Robinson is an adjunct
lecturer, says: Jennifers work on West
Papua is important because it is helping
to shine a light on unfinished business
from the end of the World War II: the
promise of decolonisation, the selfdetermination of peoples, and freedom
from foreign occupation. The world,
including close neighbours like Australia,
has forgotten the West Papuans and the

AUGUST 2015

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29

22/07/2015 4:11 pm

COVER STORY

Jennifer Robinson with Bill Murray and friend at the Clooney wedding in Venice in 2014.

violence done to them. Jennifers work


is strategically amplifying the voices of
these forgotten people and their search
for justice.
When I raise the issue in London,
Robinson responds with quick intensity.
Its timely to talk about West Papua
because the Melanesian Spearhead
Group (MSG) is meeting in Honiara as
we speak, deciding whether West Papua
will be admitted as a member of the
MSG. This would make it the first time
that the states in that region would
recognise West Papua as a separate
entity from Indonesia, she explains.
(The ABC later reported that the
United Liberation Movement for West
Papua applied to join the group but was
given observer status instead.)
I got involved in West Papua
because, as a student, I went to work in
Indonesia, Robinson says. I went to
work for a human rights NGO in West
Papua. I dealt with victims who had been
beaten and abused by police, women
who had been raped, political activists
who were under constant surveillance
and threatened with arrest for simply

30

LSJ

saying what they think. I worked on


Benny Wendas trial (Wenda is a West
Papuan independence leader). He was
a political prisoner who was accused of
something he didnt do because of his
political leadership of an organisation
advocating for independence.
I was just flabbergasted that this
wasnt on anybodys radar. It wasnt being
talked about internationally. Nobody was
reporting upon it. There was no support
for the independence campaign, when
actually the illegal incorporation of West
Papua into Indonesia is a huge injustice.
They have the international law right to
exercise the right to self-determination, in
the same way that East Timor had a vote.
I got to know Benny and his family
and helped them eventually leave the
country and get asylum in the UK. Ive
been involved since I was 21 and it has
been the driving force that solidified in
my mind why I wanted to be a lawyer.
When it comes to her personal life,
Robinson prefers to maintain her
privacy. When I ask about her friend
and fellow lawyer Amal Alamuddin
whose marriage to actor George

Clooney Robinson attended in Venice


she simply smiles and says, She is a dear
friend who deserves every accolade.
Amal Clooney works with Geoffrey
Robertson QC. Robinson worked
as a legal researcher and assistant
to Robertson from 2007 to 2009.
Robinson describes Robertson and
the Hon Justice Michael Kirby as her
most influential mentors. She credits
her teacher librarian mother, Lyndy
Cracknell, with encouraging her
educational pursuits and her father,
Terry, and her late grandfather, Kevin
Robinson, for instilling her work ethic.
My grandfather, who unfortunately
passed away 10 years ago, was a
legendary horse trainer and my father
followed him into the business. So did
a lot of my family, she says. They
work so hard. Its seven days a week.
Up at 4 oclock in the morning. He still
rides track work, my dad.
When I ask about her pursuit of Asian
Studies at university, she points to Paul
Keating and teachers from Bomaderry
High. Im a product of the Paul Keating
policy of introducing Asian languages
in public schools. I had the wonderful
opportunity of studying Indonesian
at high school, she says. When I was
16, my teachers Ms Lymbery and Mrs
Fitzgerald took us on a school trip to Bali
and Sulawesi. It was my first experience
of living abroad and it opened my eyes.
Our conversation in London ends
suddenly as Robinson is called to
her next meeting. As a young lawyer,
there is more to be done and there will
be many more reasons to thank the
teachers of Bomaderry High for taking
their promising student on her first trip
overseas.

Julie McCrossin is a writer


and trainer who studied law.

AUGUST 2015

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IN FOCUS

Global
love
match

For husband-and-wife team Tim and


Nicky Lester, launching global law firm
Hogan Lovells in Australia is a timely,
exciting and personal affair and regional
managing partner Patrick Sherrington
couldnt agree more. They speak to
CLAIRE CHAFFEY.
PHOTOGRAPHY: JASON MCCORMACK

icky and Tim Lester make a


glamorous couple. Standing
in Sydneys Martin Place,
peering towards where
Hogan Lovells new office space will
be, they ooze confidence, charm and
clear-cut ambition. Nicky and Tim
met as partners at Allens and, in 2011,
created a deeper kind of partnership by
marrying and merging their families of
two and three children respectively.
Both are finance specialists and the
opportunity to launch Hogan Lovells
which boasts offices in 45 countries
and for which Tim was Hong Kong
managing partner for four years until
2008 was something they could not
pass up.
According to the firms regional
managing partner, Patrick Sherrington,
who is based in Hong Kong and visits
Australia regularly, the firm being a
relative latecomer to Australias global law

32

LSJ

firm market has been a distinct advantage,


as it has been able to observe other firms
successes and failures.
We have had plenty of opportunities
to come here over the past five years and
we have looked at all sorts of different
modes of entering, but nothing seemed
right for us until this opportunity arose,
he explains.
But if you look at what others have
done, certainly the anecdotal evidence
would suggest that those firms that
arrived in the thick of the economic
boom overexpanded and are having to
lay people off.
They took on too much space that
is a lesson. Another lesson is that a lot of
firms did mega mergers or mega tie-ups,
which I think have produced internal
stresses in some of those partnerships
both internationally and in Australia,
and there is certainly a slimming down of
those firms in Australia.

Starting out as a partnership of two


Nicky based in Sydney and Tim in
Perth the firm will focus on finance,
energy, resources and infrastructure, and
is looking to grow over the next six to 12
months, but there are certainly no plans
to become a full-service firm with a foot
in the domestic market.
Our small size is important, because
if you hire the way some firms have
taking 15 partners from another firm
there is almost an imperative for those
people to think they have to be busy, so
they go and grab any work on offer, says
Sherrington. You then have a diffuse
practice that doesnt have the strategic
focus we want. It is really important to
us that we stick to our knitting.
According to Tim, there are several
reasons why now is the right time for
a firm such as Hogan Lovells to be
joining what arguably is a saturated
legal services market.

AUGUST 2015

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21/07/2015 9:59 am

The market is perhaps not as strong


as it was in the past. It gives us an
opportunity to grow with the market,
which is actually really exciting for us,
he says.
The low Australian dollar and low
commodity prices mean there is much
more foreign capital coming into the
country, taking advantage of that.
Some countries are in distress and
having to rebalance their portfolios,
so that presents a lot of good
opportunities for us in leveraging the
global platform.
Landing in an over-serviced legal
market has other advantages, too, says
the trio legal talent on the move and
ripe for the picking.
The partner market is so fluid in
Australia, in part because the legal
market has not grown for a number of
years, and there are a lot of new market
entrants, so people are scrambling for
work, explains Sherrington.
Law firms are looking at how they
maintain profitability, and one way of
doing that is to cut out partners. There
are a lot of partners on the market
because they are being eased out and
frankly we dont really want to pick
them up and on the other end of the
spectrum there are a lot of partners
who say, Gee, the culture has changed.
This is not the world I bought into
and so they feel less comfortable in
their homes. That is not a criticism of
the Australian legal market virtually
all legal markets have become more
fluid because of the economic and
competitive pressure. This affects
people everywhere and they naturally
start to think about where they want to
be long term and whether the firm has
the culture they want.

Our small size is


important, because
if you hire the way
some firms have
taking 15 partners
from another firm
there is almost
an imperative for
those people to
think they have to
be busy, so they go
and grab any work
on offer.
PATRICK SHERRINGTON,
REGIONAL MANAGING PARTNER,
HOGAN LOVELLS

And when it comes to creating the


right culture, Nicky has no illusions
about the sort of colleagues theyre
seeking. Lawyers are naturally quite
risk-averse creatures, and the kind of
people we are looking for probably are
more entrepreneurial than the typical
lawyer who is happy to come in and do
the work and go home, she says.
This is a huge opportunity for us
and one that we feel deeply personally
invested in. In terms of skin in the
game, we are very ambitious people
and we want this to be incredibly
successful and profitable and
rewarding. It does feel personal,
because we are building this from the
ground up. We are going to take our
time and bring in the right people who
have the same passion and energy that
we have. Its really fun. This is a really
exciting time to be doing this.
Exciting as it may be, does such
a close personal and professional
relationship ever cause tension?
The simple answer is no, says
Nicky. Obviously we are a husbandand-wife team, but we actually have a
very similar approach to winning work,
engaging with clients, service delivery
and so forth. The way we met and got
to know each other was when we were
launching the finance practice in Perth
we did that together, so we have a
really similar approach to dealing with
clients and building our practice.
Tim also sees the positives in
working so closely: Our professional
backgrounds are very similar, as is the
way we approach work and our passion
towards the way we project ourselves
and the firm. We rarely clash, but
when we do clash we do so with a lot
of passion and energy.
AUGUST 2015

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33

22/07/2015 6:09 pm

FEATURE

FIGHTING
MAC

SOLICITORS AND THE AUGUST


OFFENSIVES ON GALLIPOLI
Sydney solicitor Charles Melville Macnaghten led heroic
charges above ANZAC Cove and at Lone Pine, but his story
took a strange and shadowy turn as he came to terms with an
unassailable fact. He struggled to deal with the fact that amid
the death and against all the odds, despite his own reckless
efforts and all the laws of chance, he was alive when so many
men he had led into battle were not. TONY CUNNEEN reports.
IMAGES: STATE LIBRARY OF NSW

harles Melville
Macnaghten was the
son of a distinguished
British Commander of
Scotland Yard, Sir Melville Leslie
Macnaghten. Charles came to Sydney
in 1903 and, after he was articled to
Arthur Hyman (who also served on
Gallipoli and the Western Front), was
admitted to practice as a solicitor in
November 1908. He joined Dodds and
Richardson in 1913 and had a solid
but unspectacular legal career, which
was overshadowed by his military
pursuits. He personified the imperial
warrior tradition: an old Etonian with
all the swagger and style of a British
upper class officer with aristocratic
connections. His powerful voice and
imposing physicality dominated the
parade ground in Sydneys Domain
as he transformed inner-city larrikins
into a well-drilled militia unit. But
there was a fragility to Macnaghten.

34

LSJ

People who knew him from those days


described him as a restless spirit
having a highly strung, sensitive
temperament. This imposing, vigorous,
impetuous warrior was lucky to have a
supportive wife who remained loyal to
him throughout his very turbulent and
unusual career.
Pre-war Australia was very much a
hierarchical society and Macnaghtens
connections, however tenuous, to
the British upper class were much in
demand. He was a member of the right
clubs. He was the ceremonial aidede-camp to Governor Strickland at
the Governor-Generals garden party
at Yaralla on 31 July 1914. Many of
the guests who stood on the sweeping
lawns on that wintry afternoon
watching Macnaghten process along
the driveway made promises that
bound them to the service of King
and Empire. Later, they fulfilled those
promises by squandering their lives and

those of their men in battle on Gallipoli


and the Western Front.
Gallipoli

When war was declared, Macnaghten


became a close confidante of Sydney
barrister Colonel Henry MacLaurin.
The two men formed the First Brigade
of some 4,000 men from NSW to travel
to help Britain in its hour of need. Many
of the officers were lawyers or members
of the prosperous professional classes.
Macnaghten was keen to fight. He
was one of the first men of his brigade
ashore on the afternoon of 25 April.
The next day, while the troops were
crouching in makeshift trenches
above ANZAC Cove, a messenger
burst into headquarters on Boltons
Ridge and blurted out, The line is to
make a general advance. That was all
Macnaghten needed. Famously, he said
to his commanding officer, Colonel
Onslow Thompson, Ill take the right,
Colonel, if youll take the left. That

AUGUST 2015

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was their plan for the first attack on an


area Macnaghten called The Lonesome
Pine. Off they went with their men up
the slopes towards the enemy.
War correspondent Charles Bean
wrote that, Led by two of the bravest
and most highly trained officers in the
force, without the vaguest instruction
or any idea as to an objective, the 4th
Battalion ... went blindly on. Defeat
was inevitable. Macnaghten did his
best to rally the fleeing troops. He was
shot in the chest, but went on. Then he
was shot in the throat. He staggered
back to an aid post and collapsed but
the noise of battle was too much, and
the men were falling back. He revived,
drew his revolver, and set off again at
the enemy. He only stopped when he
collapsed again, unconscious. He was
evacuated to recover at Alexandria
before returning to make preparations
for the series of battles known as the
August Offensives.
Reinforcements

While Macnaghten recovered from his


wounds in Alexandria, many lawyers
joined the Australian reinforcements
for overseas. Among the troops who
left Sydney was solicitor Captain John
Malbon Maughan, and Lieutenant
Cecil Rodwell Lucas, a barrister from
Waverly. Both men had served in
Rabaul. Other lawyers to leave included
Captain Errol Wharton Kirke, a
27-year-old managing law clerk from
Manly; Edmund Ralston Raine, a
20-year-old law student whose father
was in practice in Pitt Street; Allan
Costello, an 18-year-old law clerk from
Lidcombe; Joseph Henry Murphy, a
24-year-old managing law clerk from
Ryde; Private Robert Patrick Callaghan
Lloyd, a 26-year-old solicitor from
Narrabri who practised in Tamworth;
Private Cornelius Thomas Dempsey, a

26-year-old law clerk from Manly; and


Percival Edward Addison, a 40-year-old
private who had been the Clerk of Petty
Sessions at Kiama. Addison was one of
many lawyers who enlisted in the lower
ranks, despite his more mature years, as
a conscious example to others.
On 25 June, Ceramic steamed out
of Sydney Harbour with the 18th
and 19th Battalions on board. The
commanding officer of the 18th
Battalion was a 46-year-old police
magistrate, Lieutenant Colonel Alfred
Ernest Chapman from Crows Nest.
His second-in-command was a 45-yearold solicitor, Major Arthur James
McDonald of Double Bay. Also in
headquarters was a 36-year-old Sydney
barrister, William Samuel Hinton.
Other law professionals in the unit
included Lesley Webster Sherring, a
19-year-old law clerk from Mosman;
Norman Philip Scheidel, a Bellevue
Hill law clerk who had already served
in New Guinea; Captain Horace
Charles McLean Morris, a 32-year-old
law clerk from Ashfield; and Lennox
Ross Owen Douglas, a 20-year-old
articled law clerk from Orange. The
18th Battalion had a tragic fate.
The 19th Battalion left at the same
time and was commanded by barrister
Lieutenant Colonel William Kenneth
Seaforth Mackenzie. He had some
very high-profile lawyers in his unit.
His second-in-command was Major
James Whiteside Fraser McManamey,
a 53-year-old barrister and successful
rugby player from Milsons Point.
Major Alexander Windeyer Ralston, a
29-year-old barrister from Strathfield,
and Lieutenant Francis Coen, a 31-yearold barrister from Yass, were in the
unit as was Captain George Heydon,
a medical practitioner and the son of
Judge Charles Heydon of the Industrial
Court. Captain John Milton Edgley, a

32-year-old solicitor from Dorrigo, and


Lieutenant Eric William Atkinson, a
24-year-old law student from Ashfield,
were also in the Battalion. All manner
of lawyers were enlisting. On 1 May,
Charles Leonard Gavan Duff y, a
32-year-old barrister, joined the Field
Artillery. Duff y was the older son of
Justice Gavan Duff y of the High Court.
Other lawyers among the May
enlistments went into the NSW 20th
Battalion. This unit was particularly
close to the legal profession, as Justice
David Ferguson of the Supreme Court
was the energetic chairman of its very
efficient Comforts Fund. His son,
Arthur Ferguson, a 23-year-old law
student, was in the battalion. Justice
Ferguson became intensely interested
in Gallipoli. Other lawyers in the unit
included a Scottish barrister from North
Sydney, Major James Logie Harcus. The
Battalion Adjutant was a 31-year-old
solicitor from Pymble, Captain Gordon
Arthvael Uther, who was with the firm
Bradley and Son. Other lawyers and
associates in that unit included Hubert
Thompson, a 29-year-old solicitor from
Bathurst; Herbert Ralph Briant, a
33-year-old English solicitor; and John
James McCredie, a 27-year-old law clerk
from Randwick.
The latter part of Gallipoli, after the
rush of the landings and the failure of
the Turkish counterattack, settled into a
debilitating miasma of disease and static
trench warfare. The August Offensives
on Gallipoli were to be the last attempt
to move to higher ground before the ice
and snow of winter trapped them on
the exposed lower slopes.
On 6 August, a number of units
attacked the heavily defended Turkish
positions at Lone Pine on the ridge
leading up to the plateau.

AUGUST 2015

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35

21/07/2015 1:23 pm

FEATURE

The staff of the 1st Australian Infantry Brigade during training at Kensington before Gallipoli. From left: Major Irvin, Colonel Thompson,
Colonel MacLaurin and Captain MacNaughton.

he solicitor and notary


Colonel Leonard Dobbin,
founding partner of the
firm Dobbin & Spier,
observed the action at Lone Pine for
the Brigade staff. The indefatigable
Macnaghten, newly promoted to
Lieutenant Colonel and partially
recovered from his earlier wounds, led
the 4th Battalion in the battle and was
commended for his masterful handling
of that unit. Macnaghten was again
wounded, this time in the knee, but the
mental damage was worse. His name
reappears throughout the accounts of
Lone Pine calling for reinforcements,
replacing officers hurt or killed in action,
clearing the trenches of wounded, and
organising the defence against Turkish
assaults. Another commendation stated
that he had exhibited great dash and
gallantry and distributed his men after
the first assault through the intricate
trenches to the best advantage while

36

LSJ

reorganising for further attack. The


battle was a chaotic brawling confusion
of attack and counterattack in a
subterranean world of covered trenches,
blind corners, stabbing bayonets, rifle
fire and explosions caused by showers
of bombs. Turkish soldiers counterattacked repeatedly. They either came
en masse or crept along the maze of
trenches so that turning any corner
could bring death. Macnaghten led
from the front. The attack was almost
a year to the day after he had escorted
Governor Strickland in ceremonial
procession along the tree-lined driveway
at Yaralla on the Parramatta River to
meet the Australian Governor-General,
Sir Ronald Munro Ferguson.
There were many sad losses in
August. Among the men killed at
Lone Pine was South African-born
solicitor Private Rayner Garlake. His
death seems particularly poignant.
He had enlisted after only two years

in Australia. He had gone ashore


on Gallipoli on 6 August, led by a
charismatic Anglican firebrand preacher
with a death wish, Everard Digges La
Touche. Garlake had virtually gone
straight into action and disappeared.
His death was only confirmed when
his body was discovered in 1919. He
probably had not had time to unpack
his gear and have a sleep before he was
killed. Even more tragic and certainly
deserving far more attention than it has
received so far was the fate of the 18th
Battalion, commanded by the police
magistrate from Crows Nest in Sydney,
Alfred Chapman. The battalions fresh
appearance inspired an unjustified
confidence and they were massacred on
Hill 60 on 20 August 1914, losing more
than 380 men, barely two days after
they arrived on Gallipoli. Chapman was
completely traumatised by the carnage.
He had a blazing row with higher
command when later told that he was

AUGUST 2015

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21/07/2015 1:23 pm

to lead the survivors into another attack


on Hill 60 to redeem their honour.
Somewhere in the ugly exchange he was
insulted to the extent that he resigned
his commission, in effect becoming a
civilian on Gallipoli. He was sent home
in disgrace, never to be put in command
again. His unit lost another 250 men on
29 August, and virtually ceased to be a
fighting unit. Chapman continued with
his legal career and acted as a magistrate
with considerable courage until his death
on 14 September 1933.
Other units were sent into the meat
grinder of Hill 60. The 17th Battalion
attempted an attack with 230 causalities.
Among the survivors was solicitor
Robert Lloyd. He was promoted
afterwards and served with the unit at
Quinns post, where he was wounded
and forced to return to Australia. He
carried the effects of the injury for the
rest of his life. He rarely spoke of his
involvement in the army and practised
as a sole solicitor in Sydney until shortly
before his death. His sons, Robert and
Frank, continued the practice after him.
The 13th Battalion also went into
action in that violent August. Keith
Waugh, a solicitor from Neutral Bay,
entered battle with them and suffered a
shrapnel wound to his shoulder. Captain
Edgley, the solicitor from Dorrigo, crept
about the slopes of Hill 60 collecting
the bodies of men killed in action. On
5 September, Major James Whiteside
Fraser McManamey, the 53-year-old
barrister and well-known rugby identity
from Milsons Point, was killed by
artillery fire with the 19th Battalion.
While the August battles went on, in
Sydney the Incorporated Law Institutes
annual report now included an account
of the professions involvement in
the war. It mentioned the number of
solicitors who had enlisted, the names of
some of the dead, and the donation of

money and time to help the Red Cross


Missing and Wounded Inquiry bureau
and other war-related activities. Such
mentions would be a constant presence
for the duration of the conflict.
On 29 August, the 12th Light Horse
landed on Gallipoli with Glen Innes
solicitor and MP Lieutenant Colonel
Percy Phipps Abbot in command. He
was appalled by the ferocity of trench
warfare, proud of the Anzacs, and
scathing about British strategy. A sick
Abbott was evacuated to England where
he commanded Australian staging
camps. Tragically, one victim in the 12th
Light Horse was a middle-aged solicitor
from Wagga Wagga, Ernest Nulla
Roberts, who had refused the offer of a
safe role from his friend Percy Abbott,
insisting that he serve in the front line.
He was fatally unlucky on 17 September.
Conditions on Gallipoli deteriorated
steadily in November 1915. Torrential
rain actually drowned some men in
the gullies. Snow fell on 27 November
and the deaths continued. On 28
November, Frederick Warren Muir, the
young articled clerk in the 1st Battalion,
died of his wounds. His father, James
Muir, had practised as a solicitor in
the Wollongong area for many years.
Solicitor Gordon Uther was killed by
Turkish artillery on 11 December,
along with Sydney barrister James Logie
Harcus, while planning the route for the
withdrawal of the 20th Battalion.
Post-war trauma

Charles Macnaghtens life after


Gallipoli provides an insight into the
debilitating effects of battle. He was
evacuated, wounded and sick, off the
peninsular after Lone Pine. The army
did not seem to quite know what
to do with him. He was appointed
Camp Commandant at Tel-el-Kebir in
Egypt where, in February 1916, he was

awarded the Most Distinguished Orders


of St Michael and St George (CMG)
for his work on Gallipoli. He was
soon admitted to hospital, diagnosed
with neurasthenia, later compounded
by gastritis. He was invalided to
Australia in June 1916. He was a wreck;
unnerved by the memorial services
for the dead and angry that his men
were not given sufficient recognition
for their efforts on Lone Pine. He was
appointed Officer Commanding the
Royal Military College at Duntroon.
Then he disappeared, going officially
absent without leave. He re-enlisted in
Brisbane on 19 October 1916 under
the pseudonym Ciam MacMilville and
returned to action overseas. He was too
well known for his ruse to last.
Macnaghtens condition deteriorated
and he returned to London where he
came before a medical tribunal. He was
diagnosed with a complete nervous
breakdown marked by sleeplessness
and loss of memory. He resigned his
commission on 10 October 1917. Lone
Pine had pursued him mentally and
physically. He corresponded with Justice
Ferguson, who tried to help him gain
admission as a solicitor in England.
Ferguson was loyal to the increasingly
pathetic Macnaghten when many other
people fell away. His war was finished.
He never returned to Australia. He
eventually moved to Canada and found
a niche among the other expatriate
veterans, working quietly as a clerk in
the Canadian Pacific Railroad. He died
on 4 February 1931, forever haunted by
his experiences in the war.

Tony Cunneen teaches


at St Pius X College in
Chatswood and has written
extensively on the history of
the legal profession.

AUGUST 2015

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37

24/07/2015 10:07 am

FEATURE

The
high cost
of caring
There is an epidemic
in the legal profession,
writes KATE ALLMAN,
and many lawyers are
suffering in silence.
ILLUSTRATION: ANDY RAUBINGER

38

LSJ

AUGUST 2015

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21/07/2015 2:32 pm

ts 5pm at the Immigration Advice and


Rights Centre on Kent Street, Sydney.
Ali Motjahedi is one of five solicitors
at this small community legal centre,
for which its minimal government
funding will not pay a cent past the hour.
Yet he, along with a number of volunteer
administrative staff, will continue to toil on
client cases that play on his mind through the
darkening hours.
Do some of my cases keep me awake at
night? Its not an easy thing to admit, but
yeah, Motjahedi says.
Motjahedi has worked in the community
legal centre sector his entire career, helping
countless traumatised refugees, homeless
immigrants and domestic violence victims.
He regularly pieces together cases of
families that have been torn apart by
offshore processing. Working through such
emotionally charged material is a heartrending daily task.
You worry not necessarily about their
legal issues, but about other aspects, says
Motjahedi. A lot of our clients have serious
mental health issues. Our clients have
committed self-harm, attempted suicide.
Some have committed suicide.
Motjahedi shudders as he recalls the time a
family of Pakistani refugees with a two-yearold child wound up in his office, seeking
protection in Australia from religious
persecution. The mother, who was severely
injured and bleeding internally, had been
refused emergency medical treatment at
three hospitals because she didnt have a
Medicare card.
That case stayed with me because it made
me so angry, says Motjahedi. To have
someone who is bleeding turned away from
medical treatment, repeatedly, is appalling. It
sort of shows you that we are not just making
legal representations in our job you deal
with the whole package. [The work] affects
your life, it affects your mood, and it affects
your view of the world. After working here
for a while, I noticed I was different.

I think of
vicarious
trauma as a
psychological
infection. We
cant allow what
other people
have experienced
to inhabit us as
well. Treatment
of vicarious
trauma is no
different from
washing your
hands after
you have been
dealing with a
patient.
ROB GORDON, PSYCHOLOGIST

Compassion fatigue
Motjahedi attributes the personal changes he
has experienced to what he calls compassion
fatigue. Apparently, this is a mental health
issue for lawyers who simply care too much.
Unbeknown to him, compassion fatigue is a
colloquial term for a recognised psychological
ailment threatening a great number of legal
professionals.
The cost of caring for clients welfare
takes a largely unacknowledged toll on
lawyers, manifesting in a condition known
as vicarious trauma. This term was first
coined by Pearlman and McCann in their
1990 paper published in the journal Journal
of Traumatic Stress Vicarious traumatization:
A framework for understanding the
psychological effects of working with
victims and refers to the distress experienced
by a person who hears or sees traumatic
material. The person engages empathetically
with the victim and takes on the trauma as if
experiencing it firsthand.
Vicarious trauma means, I am
traumatised by somebody elses
experience, explains psychologist Rob
Gordon. That is to say that somebody
elses experience takes on the life of me
and has a damaging effect on me.
The classic symptoms of vicarious trauma
come in the same three categories as
symptoms for firsthand trauma, explains
Gordon. These are the inability to forget
about the traumatic material, an unwanted
state of heightened arousal or anxiety as if
reliving the event, and feelings of numbness
or detachment from daily realities.
Motjahedi can attest to these warning
signs. You become numb to certain things,
he says. You might hear of something quite
horrific and you may not react to it the way
that you should. I also think you become
more emotional about, for example, the
Kleenex ad.

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39

21/07/2015 2:32 pm

FEATURE

found that 78 per cent of attorneys


surveyed were suffering severe levels of
compassion fatigue.
Robyn Bradey, a psychologist with
35 years experience in social work and
mental health roles, believes the nature
of legal work places lawyers at a greater
risk of suffering vicarious trauma than
other professionals.
I think its because they read so
much detail about whats happened
to people, says Bradey. The problem
with lawyers is that theyve received no
training in emotional intelligence, in
being aware of their own stress. They
usually wont know that a story might
have distressed them until they are too
far down the track.

lawyer experiencing
vicarious trauma often
will form mental images
of what their client
experienced, Gordon
says. Such images can intrude on reality
in the same way a war veteran with posttraumatic stress disorder (PTSD) might
revisit a harrowing battlefield memory.
This is particularly so if the experience
is described in a very vivid way, or is
scrutinised over and over in detail
tasks that are familiar to any lawyer
preparing a case.
The trauma can also be a little more
detached, says Gordon.
For example, if I hear about a
traumatic experience for a child, I
might look at my child and think,
What if it happened to him or her? or
What right have I got to have happy
children when this child has been so
injured? and so on.

40

LSJ

The risk for lawyers


While vicarious trauma has been
recognised in the emergency services,
the police force and among social
workers since the 1970s, the risk
for legal professionals has gone
undocumented for years. It was only in
2003 that the first systematic study on
vicarious trauma affecting attorneys
in the US was conducted. From this
study, Levin and Greisberg concluded
that lawyers experience the highest
levels of vicarious trauma among all
the professional groups surveyed
higher than both mental health and
social workers.
In a 2011 study in the United States
by Levin, Albert and Smith, 74.5 per
cent of attorneys reported symptoms
similar to those of PTSD, as well
as depression and functional (workrelated) impairment due to vicarious
trauma. More recently, a 2013 survey
by the US State Bar of Wisconsin

Who is most at risk?


Josh Bornstein is an employment
lawyer at Maurice Blackburn. He
began speaking publicly about the risks
of vicarious trauma when he noticed
that most people he worked with
were suffering some form of distress,
anxiety or other mental health issue.
Like many plaintiff lawyers working in
social justice areas, Bornstein invests
enormously in his work, pursuing
outcomes for the little guy in a
range of situations that can become
traumatic.
I have seen too many employees
destroyed by sociopathic workplace
bullies, their careers trashed along with
their health, says Bornstein.
In asbestos cases, it is usually the
case that your client dies. Our asbestos
lawyers confront that reality every day.
We have lawyers dealing with terrible
cases of medical negligence, terrible
workplace accident cases, and personal
injury cases.
The bushfires class action involved
some horrific stories of people suffering
during the Victorian bushfires in 2008.

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21/07/2015 2:36 pm

Bornstein explains that any lawyer who


deals directly with victims of trauma is at risk
of experiencing vicarious trauma themselves.
If youre working in mergers and
acquisitions, there are probably other mental
health risks, but this is probably not an issue,
he says. If you are working in tax, I dont
think its an issue. But if youre working with
people who have been traumatised it might
be crime, family law, personal injuries, or
employment law anything of that nature
makes vicarious trauma an issue.
Bill Dickens, the principal solicitor of
Legal Aid in regional NSW, has found that
lawyers working in regional areas have a
heightened risk of suffering vicarious trauma.
Fewer staff in regional offices means solicitors
are exposed to a broader range of highly
traumatic crimes, with fewer team members
to help them cope.

I have seen too


many employees
destroyed by
sociopathic
workplace bullies,
their careers
trashed along
with their health.
JOSH BORNSTEIN,
EMPLOYMENT LAWYER,
MAURICE BLACKBURN

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There are lots of young solicitors who


start out here in their first job and then get
flogged, says Dickens.
Newly-admitted solicitors find themselves
acting for clients charged with very serious
offences. Sometimes they are crimes of
significant violence and sexual assault.
Often the clients have suffered violence,
family breakdown, have little education, and
have been exposed to drug and alcohol abuse
as children. Coping with this and the volume
of work is very challenging.
It is not surprising that some suffer
burn out and probably what you would call
vicarious trauma.
Chris Day, the principal solicitor at the
Aboriginal Legal Services (ALS) office in

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AUGUST 2015

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41

23/07/2015 4:01 pm

FEATURE

Dubbo, says the confronting, often


frantic nature of regional work causes
most new ALS solicitors to drop out in
less than two years.
When I first started working with
the ALS, it was common knowledge
that there was a shared view about what
it meant to work at the ALS, says Day.
Essentially, it is seen as a fast-track
learning curve. Two years at the ALS
can be like five years anywhere else.
If you are not physically taking a file
home to work on in the late hours of the
night or the early hours of the morning,
you take home the matter mentally.
It jostles with your mind for
attention rather than focusing on
other things, like winding down or
attending to other life matters.

42

LSJ

The social injury


Gordon explains that the more stressful
or traumatic the experience, the more
egocentric humans become as they
go into survival mode. A lawyers
emotional resources can be exhausted
by seeing or hearing a particularly
traumatising case and, as a result, they
may find it more difficult to engage
with mundane daily realities. It might
be harder, for example, to go home
and listen to ones partner complaining
about the broken washing machine.
The social injury is the effect of
trauma and being caught up in your
own experience, says Gordon.
It gets between you and the rest of
your social network.
Issues of alcohol and substance
abuse often become involved. These

are ways people have of damping their


sensitivity when its being overloaded.
You might start to see black humour
creep in as a way of dealing with it.
People are trying to self-medicate.
Ugur Nedim, a criminal defence
lawyer at Sydney Criminal Lawyers,
experiences a certain kind of
detachment when buried in a case.
I have a partner and Ive been with
her for many years and she notices that
I go into my zone like a lot of lawyers
do, he says.
When I say in the zone, I mean
the real working zone where you
are putting your heart and soul into
a case. People can be doing a lot of
things around you and you dont
really notice.

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23/07/2015 4:01 pm

This detachment from personal life


becomes understandably frustrating
for Nedims partner when, even on
holidays, he locks himself into the
zone. During a recent holiday to
New Zealand he worked for an average
six hours per day on cases that were
troubling him.
When youre sitting there at your
computer for six hours, its not exactly
fair, says Nedim. I think the type
of personality that can dissociate
themselves from clients and trauma
will last [in criminal law]. But if I had
the choice, Id rather have a lawyer
represent me who actually puts their
heart and soul into it, rather than just
going through the motions.
The need for culture change
As a young criminal lawyer, Nedims
experience of vicarious trauma was
darkened by the shadow of billable
hours. Any time that I wrote to the
prosecution and got a case dropped,
my bosses would say, Why did you do
that? Weve lost so much money, says
Nedim. I was actively dissuaded from
getting cases dropped because that
would make the firm less money.
All the while I would be sitting
there feeling really responsible for the
clients welfare, rather than plodding
along from hearing to hearing. The
main reason I started my own practice
in 2001 was because I was not happy
about what was being done in the
practices I was in.
Speaking at mental health forums
around Australia, Bradey has met a
number of lawyers who would attest to
Nedims experience.
The culture of the firm is still
competitive and money-based, says
Bradey. The whole billable hours thing
just reinforces the notion of Youre here
to make money for us. We dont care

what quality of work you do, we just


want those billable hours.
Ive had young lawyers say that
when they came into the job they were
told, We dont care if we burn you
out in two years because theres plenty
more where you came from. Law firms
basically need a culture change.
Bornstein argues that an integral part
of this cultural change is the increasing
acceptance and acknowledgement of
mental health issues in the workplace.
When I started at [Maurice
Blackburn], the major OHS risk we
discussed was back injuries, he says.
Now that barely rates a mention. We
all now recognise that mental health is
the major issue.
We need to try to normalise
vicarious trauma to help people feel
confident to raise their hand and say
they are struggling. It is a part of the
law. Its part of litigation. Its part of
acting for people who have suffered
terrible trauma. Its pretty normal for
that to sometimes impact you.
Education and preparation
The US studies into vicarious trauma,
mentioned earlier in this article, noted
that most attorney responses conveyed
a lack of systematic education regarding
the effects of trauma and was a
significant contributing factor for their
compassion fatigue. Lawyers, it seems,
need to be better prepared to deal with
vicarious trauma as an inherent risk of
legal work.
Its not something that a law degree
can prepare you for, says Motjahedi,
while Bornstein believes that the earlier
specific trauma training is integrated
into legal education, the better.
You could tackle it at law school or
at least at the point of recruitment,
he says. At my firm it is part of
continuing legal education, and a

part of our training. There is specific


trauma training for all staff, including
administrative and support staff.
Gordon is one of five psychologists
working on a new mental health
support program for judges in
Melbourne. The first of its kind
in Australian courts, the Judicial
Resilience Program provides Victorian
judges an opportunity to debrief with
counsellors about the distressing cases
they see daily.
Gordon advocates the necessity of
a similar program for lawyers, as the
opportunity to debrief is fundamental
to overcoming trauma. Simply speaking
to someone about a troubling case can
help process the emotions involved.
An emotionally charged set of
images will sit in the part of your brain
that processes visual and emotional
information, says Gordon.
If the person simply describes
what keeps giving them trouble,
they convert that into words, so they
involve the other part of the brain the
language part. Thats the part that gives
meaning, the part that puts things
into perspective, puts in time frames,
and generally reduces the emotional
intensity of things.
Gordon likens education and
treatment of vicarious trauma among
lawyers to the task of preventing
infection in a hospital. Of all the
complex treatments and procedures
that are provided in a hospital, often
the most fundamental task is for nurses
to wash their hands properly.
I think of vicarious trauma as a
psychological infection, says Gordon.
We cant allow what other people
have experienced to inhabit us as well.
Treatment of vicarious trauma is no
different from washing your hands
after you have been dealing with a
patient.
AUGUST 2015

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21/07/2015 2:37 pm

CAREER HUB ADVICE

A different
breed of lawyer
An in-house lawyers role and skill set differ fundamentally from those of
their private practice colleagues, writes CORALIE KENNY. So what are the
major differences and what should those moving in-house expect?

rivate practice lawyers use


two primary skills: technical
legal knowledge and an
ability to deal with clients. As
a general rule, clients approach private
practice lawyers when they have a matter
requiring legal expertise. They generally
accept that their lawyer will advise on
and progress the matter (albeit with
their instruction) in line with their legal
knowledge and experience.
While in-house lawyers also
use technical skills, their overall
requirements can be quite different,
primarily because although in-house
lawyers fulfill a role as legal adviser, they
often also wear a commercial hat. An inhouse lawyers client is the organisation
by which they are employed. In order
to meet their primary obligation as an
officer of the court, and to strengthen
their clients ability to avail itself of
legal professional privilege, an in-house
lawyer should be independent from the
organisations business. Independently
looking after the interests of a client
organisation can sometimes create
tension between legal advice and the
requirements of the clients executives.
As a result, in some circumstances
in-house lawyers can be seen as
constraining business outcomes.
Over recent years, in-house lawyers
are increasingly finding their legal

44

LSJ

and commercial roles blurring. The


value in-house lawyers can provide
is also being better recognised. Both
clients and regulators are looking to
in-house lawyers and their involvement
in organisational decision-making to
be integral gatekeepers in ensuring
organisations have better governance
structures and make better decisions,
particularly in areas such as conflict of
interest and disclosure.
When working in-house, the
involvement in commercial aspects of
the business operations is often one
of the most professionally satisfying
elements. Lawyers can be valuable
contributors to the commercial
operations of organisations for which
they work and are naturals at mitigating
risk. Another major difference that
comes with working in-house is the
relationship and interaction with your
client. Seasoned in-house lawyers will
say you are doing well if your client deals
with you as a partner, or looks to you for
advice and then actually accepts that
advice. Often, the business or another
area, such as compliance may not heed
the legal advice provided or regularly
challenges such advice, which is
something that rarely happens in private
practice. When faced with numbers,
the business will defer to the skills of
an accountant or actuary, but when

it comes to legal matters, the business


sometimes thinks it can be its own
lawyer particularly if it has dealt with
something remotely similar in the past.
As an in-house lawyer, you must
accept that you are not necessarily going
to be deferred to, nor is your client
necessarily going to take your advice.
Sometimes this is because your client
has commercial or strategic requirements
that dont align with your advice, and
they havent necessarily communicated
this. The better your relationship with
the business is, the more it will allow you
to understand its needs and the context
in which you provide advice and the
more likely it is that your advice will be
taken and recognised as adding value.
The professional regard with which a
client generally holds a lawyer in private
practice is frequently not as apparent
when working in-house. It might be
that the business appears to exhibit a
lesser regard for the skills of an in-house
lawyer to those of external lawyers. If
the business does not like your advice, it
may ask for external legal advice on the
same issue, whereas in private practice
asking for a second opinion is generally
required only in complex matters. After
all, the in-house legal function is not core
to an organisations operations it is a
cost centre as opposed to a profit centre
and can be obtained from external legal

AUGUST 2015

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21/07/2015 11:40 am

CAREER HUB 101

MAYSAA PARRINO shares the


ups and downs of her career.
sources if need be. This can be somewhat
demoralising and professionally draining for
an in-house lawyer, particularly if they have
worked in private practice previously.
A clients attitude to their in-house
lawyers is often a cultural issue, driven from
leadership level. A non-supportive attitude
towards in-house counsel, although not
common, is probably the most concerning
difference between working in-house and
working in private practice, purely because
of the wearing impact it can have on an inhouse lawyers confidence as a professional.
However, such attitude is not something
you would necessarily become aware of
until you have worked in-house.
Hopefully, you never come across such
things. If that is the case, count your
blessings and hope that, as time goes by
and the value that in-house lawyers add
is appreciated increasingly, such attitudes
diminish and eventually are eliminated.
In-house lawyers can then operate as an
integral part of their organsiations team
to add value and incur the professional
recognition and personal satisfaction
they deserve.
CORALIE KENNY is a Law
Society of NSW councillor
representing in-house
practitioners and a member
of the Corporate Lawyers
Committee.

MAYSAA PARRINO is a partner in the Planning and Environment Team


at Colin Biggers & Paisley in Sydney, where she has worked for 10 years.
She regularly advises a range of clients on various aspects, including
environmental offset agreements, voluntary planning agreements, and
contaminated land agreements. Maysaa has had the opportunity to work on
innovative projects with clients such as UTS, Holdmark, and Crown Lands.
She is also an ambassador of Colin Biggers & Paisleys corporate responsibility
foundation, which provides pro bono and community contributions.

What did you learn from your first job (and where was it)?
My first job was working at my parents food wholesale business from the age
of 10. At a very early age I learnt the benefits of camaraderie and business
basics. I did learn a lot in those 10 years, but the most enjoyable lesson was
how to drive a forklift at 13.

Why did you study law?


I learnt to communicate with a range of wholesale customers and suppliers.
I enjoyed price negotiations with suppliers and addressing product disputes.
This early exposure to problem solving sparked my interest in the law.

First break?
Having the opportunity to work on an exciting planning dispute when
working in strata law. This prompted my interest in planning and development
and led to my current role at Colin Biggers & Paisley. This work reignited a
long-time passion of mine I renovated my first house in my early 20s. At the
time, my funds were limited and I recycled bricks to renovate. Cleaning the
bricks resulted in significant savings and satisfaction. I did suffer many calluses
and cuts but it was thoroughly worth it!

Biggest lesson week one in the job?


In my first week, a colleague pulled me aside and said, Dont ever bring a
briefcase to work again, otherwise it will become a habit to take work home.
Its much more important to have a designer handbag. A designer handbag
did become my staple accessory. Balance is important.

Best advice so far?


Be true to yourself. It is very easy, whether in the role of advising a client or
managing your practice, to make decisions based on what you believe people
want to hear. Act on your beliefs and values.

Career turning point?


Joining Colin Biggers & Paisley and working with Anthony Perkins, who
encouraged and supported the growth of my career and practice.

When you are 70, where will you be?


Healthy and travelling the world with my husband, children and
grandchildren.

AUGUST 2015

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45

21/07/2015 11:41 am

CAREER HUB CAREER COACH

legal
Dominate your market
love what I do, but Im also human, which
means there are days when I take longer
to get out of bed and start my day than
others. Im guessing you might feel the
same way. Thats why its important for
me to be part of a group that gives me a
shot in the arm when I need it whether
thats a shot of inspiration, backside-kicking, or
hand-holding.
Recently, my group delivered exactly what I
needed, and then some. I sat in on a webinar with
a very successful business owner in my industry. I
literally came off the webinar buzzing. There were
three reasons for that:

Your self-esteem is your biggest weapon. You


simply MUST believe in yourself and perhaps
have a healthy dose of self-delusion, too.
Becoming a thought leader in your area
is crucial for real success. Give away your
knowledge and content regularly, and
generously. Most people will take it, but not
implement it, which means they will pay a
premium for you to help them implement.
Have a lead generation strategy that
encompasses lots of things content, speaking,
writing and be consistent, adding value at
every turn.

1. His energy was infectious and palpable it was


impossible not to get caught up in it.

You need to be extremely active in your business


development. No resting on your laurels.

2. It left me with a feeling of huge possibilities and


opportunities for my clients and my business.

Have a strong sales strategy where you are the


prize, not the other way around (read above re
self-esteem).

3. It showed me that doing what you love is one


thing combining that with a smart business
model and activity is the key to real success.
This coach has completely dominated in his niche
for the past few years, so much so that he said he
had saturated the market and had, in effect, done
himself out of business. He is a true influencer in
his industry.
While we were talking about building a successful
and sustainable coaching business, there were
many lessons the presenter shared that could
be applied in any industry and in any career,
including legal.
In terms of dominating your market and moving
from insignificant to influencer, here are some of
the key points that stood out for me:

Building your profile and your practice means


you need to be juggling lots of different balls. And
there are times (lots of them!) where it can feel
overwhelming, confusing and daunting and as
though youre dropping some of the balls. Thats
where learning from those who have successfully
gone before you can help.
So lets not re-invent the wheel. Use the five
points above to help you focus, and gain clarity on
whats missing.
Take some time to determine where you are
strongest, and where you need to do the
most work. Then make a plan, get some good
accountability and go out there and aim for
industry, business and world domination.

Do you want to learn more about the work I do with individual lawyers and teams helping them build influence, income and impact?
Email me at fiona@fionacraig.com.au to set up a time to talk. Meantime, make sure you connect with me on LinkedIn at linkedin.com/in/fionacraig

46

LSJ

AUGUST 2015

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21/07/2015 11:29 am

5D Quantity Surveyors & Construction Expert Opinion

5D Quantity Surveyors & Construction Expert Opinion

THE HEART OF THE


PROFESSION IS ITS

kitchen

Lunch with your peers, colleagues


and clients at the Law Society Dining
Room. $39 for two courses and a
glass of wine.

Level 2, 170 Phillip Street, Sydney 2000 | Open for lunch weekdays 12 to 3.00pm
Menu: lawsociety.com.au/dining | Reservations: 9926 0224

AUGUST 2015

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23/07/2015 4:09 pm

Partners in

crime
ANDREW TIEDT and SAM MURRAY
make an unconventional pair.
At 1.8 metres tall, with an
immaculately shaved head, Tiedt
towers over Murrays 1.5 metres and
his messy student mop-top. They
photograph like a couple of slapstick
cartoon characters, yet have found
themselves perfectly matched in
a new mentoring initiative run by
the NSW Young Criminal Lawyers
Committee. BY KATE ALLMAN

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PROFESSIONAL DEVELOPMENT

PHOTOGRAPHY: JASON MCCORMACK

oung Criminal Lawyers is


a branch of the NSW Law
Society Young Lawyers,
headed by chairperson
Andrew Tiedt, a Senior
Associate at Armstrong Legal. Sam
Murray acts as student representative for
the committee, liaising with university
law societies around NSW to engage and
prepare interested students for a possible
career in criminal law. Recently, Murray
became the mastermind of a new
program designed to cushion the landing
for graduates who previously were often
thrown straight into the deep end.
Originally, it was going to be a
mentoring program, says Murray.
We then re-branded it as A Day in the
Life of a Criminal Lawyer to expand
interest from the practitioner side.
The program provides an experiential
tester day for students, where they
shadow a lawyer to see what a standard
work day in criminal law is like. I
thought, All we really need to do is
get a list of students and then a list of
criminal practitioners and pair them up.
I thought it wasnt going to be much
work because all I would need to do is
put people in touch with each other.
Murray contacted the student law
societies in the Sydney region and
gathered together 30 practising criminal
lawyers who were keen to be involved as
mentors. Some were happy to take on
more than one mentee, so it looked as
though there would be about 40 places
for interested students. Optimistically,
he was expecting 100 applications.
Long story short, we got about
400 applications for 40 positions,
Tiedt recalls. Sam went through
all the emails and allocated each of
the students a lawyer. At the end of
it someone said, You didnt allocate
yourself Sam are you kidding me?
At which point I said, Thats it Sam,
youre coming with me!

The day
On the day of the program, Murray
met Tiedt in his office at 8am. Tiedt
had three short matters scheduled at the
Downing Centre two licence appeals
and an application matter.
It was convenient that Sam was
there on that day because [that kind of
work is] bread and butter for a young
criminal lawyer, says Tiedt. Its the
kind of stuff where, worst case scenario,
someone loses their drivers licence. No
one is going to jail; no ones going to be
doing 100 hours of community service.
If youre doing criminal law, this is kind
of your every Monday.
According to Tiedt, a typical work
day for a junior criminal lawyer involves
some combination of a stock set of
court matters. These are licence appeals,
applications to quash habitual offender
declarations, sentences for drinkdriving, sentences for shoplifting, or
sentences for possessed prohibited drugs.
In order to nail these types of matters
in the short time available, Tiedt says
young criminal lawyers need to acquire
an emotional intelligence that cant be
taught in law school.
A huge part of criminal law is the
law you cant do without it but thats
only the first step, he says. Young
lawyers need to learn what a magistrate
wants to hear or what is persuasive.
Thats half experience and half thinking
to yourself, Its a human being standing
there, with all the same interests and
predilections as I have. What can I say
to convince that person?
Expectation versus reality
While Murray was astonished by
the speed with which the magistrate
churned through cases, Tiedt seems to
have long ceased batting an eyelid.
Its a sausage factory, really, Tiedt
says. Her Honour would have dealt
with 50 to 100 matters that day. Easily.
That is court 4.3 Downing Centre,

application day. As a practitioner you


cant speak for more than five minutes.
Youve got to have high volume, but
youve really got to nail it, too. Thats
what is hard for the young lawyer
because they have the bottom billing
rate for whatever firm they are at.
Theyve got to rely on quantity, whilst
not sacrificing the quality of the work.
As an erudite final year law student
at Sydney University, Murray also
was shocked by the lack of precedents
and case law that Tiedt cited. Among
the papers shoved haphazardly into
his briefcase, there were certainly no
law school-formatted footnotes or
bibliographies to be seen.
It was all kind of, This person
needs their car to service the local
community or This person needs their
car for work or this argument will be
sufficient, says Murray says. That sort
of argument is based on experience
and general intuition, as opposed to
anything you would learn in the very
specific university curriculum.
The future career path
Having spent a day in the life of a
criminal lawyer, does Murray want to
pursue a career in Tiedts footsteps?
I was always interested in criminal
law in a general sense, but after a
while I decided my preference would
be litigation in a corporate firm, he
replies. It took me a while to come to
that conclusion, so for me the value of
the program was to give me a sense of
what criminal law was like and to come
to a decision. Many students dont have
that opportunity.
Sam Murray has accepted a graduate position for
2016 in the litigation team with Corrs Chambers
Westgarth and still acts as student liaison for
Young Criminal Lawyers. Young lawyers under 36
or in their first five years of practice are welcome
to join him and Andrew Tiedt at their meetings
at the Law Society of NSW, held at 6pm on the
last Wednesday of each month. Or catch the
boys having a beer and a meal afterwards at
the NSW Leagues Club. Contact the chair via
crimlaw.chair@younglawyers.com.au for more
infoinformation.

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24/07/2015 10:16 am

PRACTICE MANAGEMENT

EFFECTIVE MANAGEMENT OF

RELATED
LITIGATION
By KYLIE PETERSEN

ost litigators are conscious


of the challenges posed by
matters involving extremely
large evidence collections. For
many litigators, these matters become the
catalyst for application of technology to
evidence management.
However, there is another type of matter
that, although seemingly innocuous at
the outset, can become equally if not
more challenging from an evidence
management perspective: matters sharing
a common evidence collection. As with
large and complex matters, technology
can offer significant advantages in
the management of related litigation.
However, in my experience, very few
litigators are aware of the options
available to them and many think it
necessary to build a from-scratch solution
to implement an effective evidence
management strategy. This is not true.

What are related matters with


common evidence?
There are number of circumstances that
give rise to matters with common or
shared evidence. Consider, for example,
the management of:
Class actions
Related actions
Regulatory actions giving rise to civil
actions and/or criminal actions
Management of materials for an inquiry
Cases arising out of corporate distress
In these examples, and many others,
litigators would benefit from a solution that
efficiently manages the common

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body of evidence while maintaining


the flexibility to deal with the individual
requirements of unique evidentiary
components.

The objectives
The challenge in related-matter
management is to ensure common
evidence is managed in a way that
maintains evidentiary integrity with
reduced scope for error while providing
unfettered ability to manage the unique
evidentiary items in each of the specific
actions.
Using a paper-based strategy, the task
invariably requires treatment of the
matters independently, copying the
common evidence as many times as there
are related matters. This has cost and
resource consequences and, if any of the
related matters is large, or the evidence
contains natively electronic materials, a
paper-based strategy is inappropriate.
Is there a simple solution offered by
litigation support technology?

Not all software solutions are equal


The answer to this question is: it depends
on the solution you adopt.
Litigation support products typically are
built around the expectation of a single
case with a single collection of relevant
evidence. If two or more cases address
a common or overlapping evidence
collection, then typically a number of
databases are created and the common
evidence is copied to each of those
databases.
While the underlying database structure
will offer the usual benefits in terms
of collaboration, management and
analysis and the evidence, the approach

of copying the common collection is


cumbersome and the challenge of keeping
the collection up-to-date and uniform as
the matters progress results makes room
for error.
Select current generation software
does offer a superior alternative to this
methodology, although litigators are often
unaware it exists.

The superior solution


So what should litigators be looking
for as a superior alternative to related
matter management? The solution is
not complicated: it requires a software
architecture that maintains a commonly
accessible database for the common
evidence while allowing separate
databases containing unique evidence to
access that common collection. In other
words, it requires a solution that reflects
the nature of related matters. The benefits
of this solution are clear:
1. The common evidence collection is
maintained as a single collection. When
new files are added, or tasks such as data
coding are undertaken, this requires a
single effort only, eliminating the need
to replicate the effort across multiple
databases. Accordingly, the cost of
creating and maintaining the common
evidence collection is minimised, as is
the risk of error.
2. Because the unique elements of each
of the related matters are discrete
from the common evidence and from
each other, the related matters can be
uniquely configured to meet the specific
purposes of each of those matters. This
provides unlimited flexibility in treatment
of each of the related matters and
uncompromised security.
If you are a litigator dealing with related
matters, you should seek out a solution
that delivers these benefits to you, your
team and your client without a cost
premium. Your litigation technology
consultant should recommend current
generation software thats tailored for
related matters and is the right fit for you
and your practice.

Kylie Petersen is e.laws


Director, Consulting & Services.

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EXTRACURRICULAR LIFE OUTSIDE LAW

A PROJECT FROM

THE HEART
A Sydney lawyer is applying his experience helping build houses in the Philippines
to an innovative social program in Dubbo. JANE SOUTHWARD reports.

Lawyer Andrew Chalk in his Sydney office.

ndrew Chalk has his wife


to thank for a life-changing
volunteer experience in the
Philippines. Hearing that some
fathers were preparing to undertake their
own version of the volunteer experience
their sons school offers the boys, Chalks
wife encouraged him to join the dads
to find out whether it was just feel-good
tourism or something more substantial.
The two-week visit in 2010 was a turning
point. Chalk found that the development

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that centred around the home building


was the heart of the program and he
decided to investigate if the approach
could help poor Indigenous communities.
I am conscious that Australia is a
very different place to the Philippines
and that the problems in the Philippines
are both similar and different to what
we have here, says Chalk, principal of
Chalk & Fitzgerald in Sydney, a firm
with eight lawyers who specialise in
acting for Indigenous clients. But I

am also conscious that nothing we have


done in the past 40 years has really made a
sustained impact in addressing Aboriginal
disadvantage. We must change that.
Within a year of his trip, Chalk had
returned to the Philippines project
twice to learn more. On one trip he was
joined by Hal Wootten AC QC, a Royal
Commissioner into Aboriginal Deaths
in Custody and the founding dean of the
UNSW Law School where Chalk studied.
Chalk also stepped up as the first country
chairman of Gawad Kalinga (GK), the
community development organisation
that hosted him in the Philippines. GK
volunteers have, since 2003, funded and
helped residents build more than 2,000
communities, involving 60,000 homes for
300,000 people.
Having worked on building sites between
school and university, I was impressed by
the teamwork that existed between the
workers, Chalk says of Gawad Kalinga,
which in Tagalog means to give care.
But it was hearing the back story to that
village that got my interest. The people
I was working with were former gang
members, some from opposing gangs, and
some of them had been involved in fairly
serious crimes and many had done time.
One principle that GK is working on
is that if somebody helps you build your
house, you dont then go and steal from
them. When GK started in Bagong Silang,

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a slum near Manila with a million people,


in 2003, the Philippines had one of the
highest murder rates in the world and
the area was regarded as one of the most
dangerous places in the Philippines. These
days it has one of the lowest crime rates
in the region and a lot of that has been
credited to the work of GK in building
these communities.
The question for me is, How do you
build a community of hope and promise
that is actually sustainable? That they
could build 2,000 of these communities
suggested it didnt depend on individual
brilliance and leadership, but that there
was a method to it that worked.
After a year of preparation and
discussion, in June this year GK started
its first project in Australia, cleaning up
Apollo Estate, a housing area for 250
disadvantaged families in Dubbo. This
project was initiated by Riverbank Frank,
a bloke who lives in a caravan without
electricity or running water, Chalk says.
It is his belief that this is what his
community and his people need. Our
committee in Dubbo comprises former
drug addicts and professionals working
together, and that really is the model.
The way it is structured, the poor
arent the objects; they are the active
participants and drivers in the outcomes
they are seeking. The project has multiple
elements helping people get loans
to buy their homes instead of renting
from the Government, neighbourhood
beautification programs including
monthly clean-ups in the area with the
help of volunteers. At the same time, we
want to develop youth programs and build
a community centre with sporting and
arts facilities. Its ultimately directed at
education and employment but it depends
on the wider community getting involved.
Dubbo is a very community-minded town
and there are already people putting up
their hands to help.

The volunteer work is ideally suited for


professional service firms, such as lawyers.
The thing we want lawyers doing is just
engaging with the community, sending
teams for a weekend build or clean-up,
working with the community on it.
Chalk, 52, credits his interest in social
justice to his Catholic upbringing,
schooling at St Aloysius College, and the
approach of UNSW law school.
I want to live in a country where
people arent left behind, he says. Theres
no reason why, in a country like this,
we should have this entrenched poverty,
particularly for Aboriginal communities. I
went through law school on the back of a
rights agenda and much of our practice at
Chalk & Fitzgerald involves the assertion
of rights. It is a lawyers stock in trade and,
in our case, its often about running land
claims and native title claims.
But theres always a risk to a rights
agenda that is actually disempowering.
I dont think its sufficiently recognised
that it casts responsibility and, more
particularly, the solution at the feet of
others, the idea that My life will be better
when you recognise my rights.
In Australia, we regard the problem
of addressing Aboriginal disadvantage as
primarily the governments responsibility.
Government can do a lot and has an
important role to play but much of its
role is about writing cheques. The focus
at GK is to address poverty through
relationships, breaking down the us and
them approach.
In Dubbo, you are dealing with three
generations of people who have been on
welfare and the loss of capability and
confidence that comes with that isnt
going to be helped by more welfare.
I went back to GK in the Philippines
looking for all sorts of sophisticated
reasons to explain their success. But at the
heart of it is an attitude of love thats
really what drives it.

The principle that


GK is working
on is that if
somebody helps
you build your
house, you dont
then go and steal
from them.
ANDREW CHALK

Top and bottom right: Andrew Chalk working with


Gawad Kalinga in the Philippines; bottom left:
Riverbank Frank working hard in the Philippines.

For details on how you or


your firm can contribute visit

gkaustralia.com

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21/07/2015 11:14 am

HEALTH WELLBEING

Is yoga good for


weight control?

Yoga is an increasingly popular form of


exercise and most health clubs and gyms
offer classes. You can also go to specialist yoga
studios or practise in your home with the help
of an app or a DVD. But can yoga help you to
lose weight? JOANNA MCMILLAN reports.

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he answer to whether yoga


can help control weight is
most certainly yes, but dont
expect the fat to be melting
away just because you get yourself to
a yoga class a couple of times a week.
As with all forms of exercise, yoga
will help you lose weight only when
combined with a reduced-kilojoule
eating plan. But yoga just might help
with that side of things, too.
Those who doubt yogas usefulness for
weight loss usually are looking at it only
from a kilojoule-burning perspective.
They argue that a typical yoga class
burns far fewer kilojoules than a more
intense, cardio-style workout. However,
this ignores the bigger picture.
The truth is that even a really tough
workout will burn only about 2,000kJ,
and we can eat 2,000kJ in the caf
afterwards with a slice of banana bread
or a muffin. The benefits of exercise
go far beyond the kilojoules burned
through the session. Exercise changes
the way the body works, making
it more efficient at burning fat and
preserving glycogen, building muscle
so your body is burning more kilojoules
every minute of every day, and keeping
your body healthy in numerous ways.
Put yoga into this context and the
difference in kilojoules burned is
irrelevant.
A study published in 2005 (Kristal
AR et al (2005) Altern. Ther. Health
Med Jul-Aug; 11(4):28-33) of more than
15,000 middle-aged men and women
found that regular yoga for four years
or more reduced weight gain over the
period and did help those who were
overweight to lose weight. Additionally,
a review published in 2007 (Yang K
(2207) Evidence-Based Complementary
and Alternative Medicine Vol 4, Issue 4;
487-491) found that yoga not only had
beneficial effects on weight, but also

helped reduce blood pressure, blood


cholesterol and blood glucose.
It is important, however, that you
dont choose a relaxing, meditative yoga
class, mentally tick the exercise box on
your to-do list, then do nothing more.
Often, all other exercise goes out the
window. There are numerous types of
yoga with a spectrum of challenges and
benefits. Some classes are extremely
strong and energetic, while others
focus far more on the meditative and
stretching aspects. You need to find one
that brings the benefits you need most.
There is little doubt yoga can benefit
most of us in our quest to become
lean and heres how:
Yoga is a fantastic stress release.
When you spend an hour or more
focused on your breathing and
postures, work and life worries are
pushed aside. I always feel more
balanced and calm after a yoga class.
When youre less stressed you tend to
eat and sleep better, and your mood
is improved.
Yoga, particularly the more powerful
flow-style classes, is an awesome
muscular workout. Holding warrior
poses gives you seriously strong
legs and butt, moving through sun
salutations uses pretty much every
muscle through your shoulders, arms
and core, right to your toes, and all
the while you are only using your
body weight. This all helps create that
long, lean, muscular yogi body.
Flow classes, or power yoga classes,
will give you a cardio workout.
While you may not be puffing and
panting as much as if you went for
a run, you will certainly find your
heart rate elevated, you will work
up a major sweat (not counting the
additional sweating that happens in
heated-room classes this does not

mean you are working harder), and


your breathing will become deeper
as your body is using more oxygen to
perform the muscular movements.
Yoga is seriously good for flexibility
and balance. These are underplayed
aspects of fitness that you only realise
the importance of later in life, or
when things go wrong. Bad backs
often are the result of too much time
spent sitting such that hip flexors
are shortened, upper backs rounded,
and muscles literally wither away
from lack of use. Yoga helps balance
the body and gain strength and free
movement through joints. With a
better functioning body, all other
forms of exercise are improved. Many
runners, swimmers and cyclists say
regular yoga improves performance.
Yoga is a fantastic mind-body
connection that encourages
mindfulness the skill of being
present in a moment with focus and
little noise. In the fast-paced modern
world, this is something many of us
could benefit from. Yoga can help
you become more mindful in the
way you eat and live, with knock-on
benefits to your health.
All up, yoga is well worth your
consideration. Try a number of different
classes so you find one that connects
with you. Once you find one you
enjoy, and is challenging but doable,
then stick with it and make it a regular
practice. Combine it with other forms
of exercise even a brisk daily walk
and you will reap the benefits.

JOANNA MCMILLAN is a
nutritionist, dietitian and
author. Visit drjoanna.com.au
for more health advice.

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WELLBEING NUTRITION

health
MAT TERS

Indispensable wisdom for your mind, body


and spirit, with LEE HOLMES.

The lowdown on gut health

ix years ago I was diagnosed


with a non-specific autoimmune
disease. To begin my expedition
into healing the symptoms, I had
to do a lot of research on the gut and
how it affects your health.

harmful substances such as carcinogens


and toxins, gleaning and absorbing
energy, nutrients and fatty acids from
the foods you eat, recycling hormones,
training the immune system, and
communicating with your brain.

Your gut is not just your belly or your


waistline, its the gateway to the health
of your brain and immune system. Two
thousand years ago, Hippocrates, the
ancient Greek physician, said, All disease
begins in the gut.

Did you know that 70-80 per cent of


your immune tissue is located within your
digestive system?

Did you know that your body is host


to about 11 trillion living organisms?
Although you cant see them, you have a
smorgasbord of bacteria on the skin and
in your body. They outnumber your own
cells 10 to one. They live in your hair, on
your skin, inside your nose, your mouth
everywhere. But the largest concentration
of these bacterial entities is in your gut.

Bad bacteria are microbes capable of


causing disease in the body by producing
infection and increasing cancer risk.
Research has found that the presence
of particular harmful bacteria in mice
leads to overeating, metabolic damage
and insulin resistance. This highlights
a possible connection between bad
bacteria and obesity and other weight
disorders.

Microflora is the complex, diverse group


of microorganism species that live in your
digestive tract. These organisms, also
referred to as gut flora, are most easily
understood as fitting into the categories
of either good bacteria or bad bacteria.

A healthy balance of gut flora is about


85 per cent good bacteria and 15 per cent
bad bacteria. However, our modern diet
which is high in sugar, carbohydrates,
preservatives and additives is the perfect
breeding ground for bad bacteria that will
kill off your healthy gut flora quickly.

Good or friendly bacteria perform


a multitude of tasks within the body,
but their common responsibilities
include working to regulate the gut by
neutralising some of the toxic byproducts
of your digestion, preventing the
growth of harmful, pathogenic bacteria,
controlling your metabolism, reducing

An imbalance in your gut flora can lead to


an overgrowth of a yeast called candida,
a type of fungus that lives naturally in
the human body and aids digestion and
nutrient absorption. When your candida
levels are out of balance, the organism
is kept in check by your good bacteria.
Candida and bad bacteria feed off sugar.

If your microflora is imbalanced, however,


candida can become destructive,
breaking down the wall of the intestine
and penetrating the bloodstream
releasing toxic byproducts that can cause
a raft of debilitating symptoms such as
chronic fatigue, brain fog, muscle and
joint pain, thrush and fungal infections. If
you have an autoimmune problem theres
a good chance you have an imbalance in
your gut microflora and an overgrowth of
yeast in your body.
HERES A SIMPLE TEST YOU CAN DO
to see if yeast has overgrown in your
body. It takes 15 minutes and all you
need is a glass of water and a sample of
your saliva.
1 Within 30 minutes of waking up, fill a
glass with water and spit into it, Make
sure you do this before you rinse, spit
or eat or drink anything,.
2 Wait 15 minutes.
If your saliva floats on the surface, your
yeast levels are likely to be normal. High
levels of yeast are suggested if the glass
is cloudy and your saliva sinks to the
bottom. If your saliva floats but has tiny
strings hanging down that make it look
like a jellyfish, or you see specks in the
water, this could also mean you have too
much yeast in your system.
If youre worried about your yeast levels,
see your medical practitioner who can do
tests to check for yeast overgrowth.

LEE HOLMES holds an Advanced Certificate in Food and Nutrition, teaches yoga and is author of the Supercharged Foods series.
See superchargedfood.com for information. Her new book Heal Your Gut will be released by Murdoch Books in September.

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WELLBEING PSYCHE

THE IMPACT OF CORE VALUES AT WORK

DEVELOPING A POSITIVE
CORPORATE CULTURE
BY RACHEL SETTI

ore values essentially,


they are a set of beliefs
so ingrained and so
fundamental to our personal
make-up that most of us rarely question
or challenge them. They underlie
our attitude, behaviour and working
style, and can have a profound impact
on our wellbeing and satisfaction at
work. Values are a set of rigid rules
regulating how we run our lives. They
are developed at a very young age and
quietly underpin our sense of right and
wrong, good and bad. They are like our
own inbuilt satellite navigation system,
directing us in a certain way. We can
override them for a while, though in
contrast to our electronic sat navs they
are not easily disabled.
Unlike behaviours, values are not
readily seen. Rather, they exist under the
surface and can seem invisible. So how
can we identify and influence them?
Social psychologist Milton Rokeach, one
of the first to scientifically study this area,
concluded that there are two types of
values: terminal values, which are goals
a person would like to achieve (such as
happiness, recognition or wisdom) and
instrumental values, which are modes
of behaviour employed to achieve the
terminal values (such as ambition,
self-control and capability). Corporate
culture is the institutionalisation of

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certain core values. It is highly resistant to


change, which is a good thing when the
values are healthy. Conversely, outdated
or counter-intuitive systems can remain
unchallenged simply because thats the
way we do things around here.
So what can firms do to develop a
positive corporate culture and ensure
a good employee-organisation match?
Considering the factors that constitute
a healthy corporate culture is a good
starting point. Professor of Human
and Organisational Learning, Dr Neal
Chalofsky, says the values embraced by
good workplaces are pride, credibility,
respect, fairness and camaraderie.
These are often displayed in three
ways. Firstly, senior echelons within the
business really live people-centred values.
Managers embrace work/life balance
by displaying the relevant behaviours
rather than just talking about them. They
communicate the cultural landscape
through words (e.g. open discussions
about a tangible vision for the future) and
actions (e.g. setting metrics to measure
important changes and rewarding
people for meeting them). Secondly,
employees are treated as true associates
and addressed with respect, trust and
inclusion. They are consulted and their
opinions matter. Subsequently, they are
more likely to be intrinsically motivated
to work hard, regardless of the material

perks of the role. Finally, these organisations


hire the right people for the job, invest in
communication and collaboration on the
corporate mission, and give employees the
trust and autonomy to do a good job.
Individual-corporate value alignment
needs to exist at the start, and be reinforced
throughout the individuals tenure.
Reruitment processes that consider whether
candidates motivational drivers align with
the current or aspirational company values
are far more likely to ensure a positive
outcome. Questions to be asked at the outset
include, What is our desired culture?,
What type of person would thrive here?,
What kinds of behaviours wouldnt fit
in this environment?, What personality
attributes would be unsustainable?, What
do we need to assess during recruitment?,
and How can we recruit to our values and
still maintain diversity within the firm?
Though these can be challenging questions
to answer, organisational change expert
Manfred Kets de Vries claims that individuals
who are recruited based on cultural fit will
often contribute faster, perform better and
stay in the organisation longer.
Simply put, corporate culture plays a key
part in employee behaviour, satisfaction
and wellbeing. A healthy values system
can propel the firm towards sustained
commercial success via the positive, inspired
and motivated behaviours of its people.
Change can be achieved by doing a holistic
review of the firms behavioural modus
operandi, prioritising positive values, clearly
communicating and, above all, openly
displaying the desired values. Critical to
this is the need for change to be driven by
the senior echelons of the firm successful
transitions have to come from the top.
RACHEL SETTI is an
organisational psychologist
and coach who specialises
in effective leadership and
interpersonal skills.
rachelsetti.com

AUGUST 2015

p58_Psyche_August.indd 1

22/07/2015 4:30 pm

August 2015 Program

LEGAL
KNOWLEDGE

CPD UNIT

CALDERBANK OFFERS
REVISITED: PERSPECTIVES
FROM THE BENCH

10

LEGAL
KNOWLEDGE

CPD UNITS

LEGAL
KNOWLEDGE

CPD UNIT

THE ROLE OF
THE EXPERT &
EXPERT EVIDENCE

SPECIALIST
ACCREDITATION
CONFERENCE 2015

LEGAL
KNOWLEDGE

CPD UNIT

LEGAL
KNOWLEDGE

CPD UNIT

INTERGENERATIONAL
ISSUES IN FAMILY
LAW MATTERS

BAIL ACT REFORM:


PANEL DISCUSSION

BUSINESS,
PROPERTY
AND PERSONAL
INJURY LAW
WEBCAST AVAILABLE

Wednesday 5 August 2015

Fri. 7 Sat. 8 August 2015

Tuesday 11 August 2015

5.30pm 6.30pm
Member:
$92.00
Non-Member: $120.00

Member:
$990.00
Non-Member: $1287.00

1.00pm 2.00pm
Member:
$92.00
Non-Member: $120.00

LEGAL
KNOWLEDGE

PRACTICE MANAGEMENT
AND PROCEDURE

PRACTICE MANAGEMENT
AND PROCEDURE

ADR PANEL - ELUSIVE


RESOLUTION - WHY DO
SOME CASES SETTLE
& OTHERS NOT?

ONLINE WILLS &


PROBATE PROCEDURES
FOR SUPPORT STAFF

ONLINE WILLS &


PROBATE PROCEDURES
FOR SOLICITORS

Wednesday 19 August 2015

Mon. 3 Sun. 30 August 2015

Mon. 3 Sun. 30 August 2015

1.5

CPD UNITS

5.30pm 7.00pm
Member:
$75.00
Non-Member:
$97.50

PRACTICE MANAGEMENT
AND PROCEDURE

CPD UNITS
PER DAY

CONVEYANCING
FUNDAMENTALS
FOR SOLICITORS

Wed. 19 & Thu 20 August 2015

9.30am 4.30pm
Member:
$820.00
Non-Member: $1,020.00

Member:
Non-Member:

PRACTICE MANAGEMENT
AND PROCEDURE

August ADS_FPC.indd 9

CPD UNIT

COSTS UNDER THE


NEW UNIFORM LEGAL
PROFESSION REGIME

Wednesday 26 August 2015

1.00pm 2.00pm
Member:
$40.00
Non-Member:
$52.00

Register: eshop.lawsociety.com.au

All prices inclusive of GST.

$340.00
$438.00

Member:
Non-Member:

CPD UNITS

$563.00
$732.00

Wednesday 12 August 2015

5.30pm 6.30pm
Member:
$92.00
Non-Member: $120.00

PRACTICE MANAGEMENT
AND PROCEDURE

PRACTICE MANAGEMENT
AND PROCEDURE

CONVEYANCING
PROCEDURES
FOR SUPPORT STAFF

COMMUNICATION OF
ADVICE AND COSTS UNDER
THE NEW UNIFORM LEGAL
PROFESSION REGIME

Wednesday 12 August 2015

9.00am 5.00pm
Member:
$340.00
Non-Member: $438.00

1.5

PRACTICE MANAGEMENT
AND PROCEDURE

PROFESSIONAL
SKILLS

FAMILY LAW
PROCEDURES
FOR SUPPORT STAFF

WOMEN IN LEADERSHIP FROM MANAGEMENT


TO LEADERSHIP

Thursday 27 August 2015

Tuesday 25 August 2015

9.30am 4.30pm
Member:
$340.00
Non-Member: $438.00

Thursday 13 August 2015

5.30pm 6.30pm
Member:
$75.00
Non-Member:
$97.50

CPD UNITS

8.00am 9.30am
Member:
$118.00
Non-Member: $153.00

Email: education@lawsociety.com.au

Seminars proudly sponsored by:

CPD UNITS

Thursday 13 August 2015

3.00pm 5.00pm
Member:
$40.00
Non-Member:
$52.00

MANDATORY
CPD

CPD UNITS

RULE 6.1
HALF DAY SEMINAR
FOR BUSINESS LAWYERS

Tuesday 18 August 2015

9.00am 12.30pm
Member:
$153.00
Non-Member: $199.00

Call: 02 9926 0250

JUNE 2014

LSJ

21/07/2015 3:35 pm

TRAVEL CITY GUIDES

OSLO
Norway is perhaps best known for its stunning fjords,
mountains and lakes, but the Nordic countrys modest yet
progressive and liberal capital city, Oslo, is well worth a visit.
With a cosmopolitan feel and a latent sophistication, its an
increasingly popular destination but just make sure you save
your pennies before you go, writes CLAIRE CHAFFEY.

VISIT
One of the delights of the laidback
Norwegian capital is the hugely
popular Vigeland Sculpture Park.
Set within tree-lined gardens
that are open all year round, the
park is home to more than 200
imposing, life-like sculptures forged
by Gustav Vigeland from bronze,
granite and wrought iron. Many of
the sculptures feature naked men,
women and children in bizarre
positions, and its sometimes hard
to work out just what the scenes
depict but it is well worth a
visit, even in winter. Vigeland was
also in charge of the design and
architectural layout of the park,
which was constructed during WWII
and makes for a lovely stroll.

vigeland.museum.no/en/

vigeland-park

The iconic towers of Oslo


City Hall, overlooking the
promenades and marinas
of Aker Brygge

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Having just won Trip Advisors


Travellers Choice award for 2015,
The Thief Hotel is THE place to
stay in Oslo. Its incredibly chic,
spectacularly sexy and just a little
bit cheeky with a powerful
combination of great food, eclectic
events and the good fortune of
being in the heart of Oslos hippest
area. The hotel offers views over
Oslo Fjord and the rooms are
decked out with designer furniture
and contemporary art. This is liberal,
progressive, trendy Norway at its
best but with rooms starting at
about $420 per night, you pay for
the privilege.

thethief.com

iStock by Getty images

STAY

AUGUST 2015

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21/07/2015 3:14 pm

DAY TRIP

DISCOVER

About a 30-minute drive from Oslo,


to the east of the stunning Oslo
Fjord, youll find the tiny fishing
village of Drbak. Dating back
to the 18th century, the quaint,
cobbled streets and typically Nordic
wooden houses provide a glimpse
of a Norway gone by. The centre
of Drbak is home to Tregaardens
Christmas House and Santas
Post Office, where children from
around the world put in their annual
requests. If you venture there in
summer, Badeparken, to the north
of town, provides swimming at
its most pristine. Regular ferries
leave from Sjtorget to the nearby
fortress Oscarsborg. Built in the
mid-1800s, the fortress is best
known for being the site from which
Norwegian gunners managed to foil
the German invasion by sinking the
German heavy cruiser Blcher on
9 April 1940. In the summer, regular
ferries leave from Aker Brygge to
both Oscarsborg and Drbak.

Each December Oslo celebrates


the Nobel Peace Prize, named after
Alfred Nobel who, in 1895, declared
in his will that his wealth was to be
spent on the award each year of
five prizes to those who, during the
preceding year, shall have conferred
the greatest benefit on mankind.
Visitors can head to the Nobel
Fredssenter, or Nobel Peace Center,
to see the Nobel Peace Prize
museum, which has both temporary
and permanent exhibitions themed
around war, peace and the heroes
and heroines of conflict resolution.
There is a shop and caf onsite, as
well as regular events.

nobelpeacecenter.org

visitoslo.com/en

DINE

Dyna lighthouse and fog bell


(Dyna Fyr), a landmark in the
Oslofjord since 1874, on the
islet of Dyna

While you can pretty much


find most types of food in the
cosmopolitan capital, you cant miss
the chance to sample traditional
Norwegian fare much of which
revolves around seafood. A local
favourite is Hos Thea, a small but
modest fine dining option in the
Skillebekk area. Chef Sergio opened
the restaurant in 1987 and it was
immediately a hit and still is. The
menu changes daily depending on
what produce is available, and a sixcourse menu will cost about $120.
Try the hardanger mountain trout
on sauted spinach or the fallow
deer tenderloin on butternut squash
puree and syrup with dark berries.

hosthea.no/en

AUGUST 2015

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21/07/2015 3:16 pm

TRAVEL CITY GUIDES

DARE
A winter visit to Oslo wouldnt be
complete without an attempt at
cross-country skiing and with
more than 2,600 km of ski trails
running throughout Oslos pristine
forests there are plenty of options.
Skiers can drop in to 44 log cabins
along the trails, and you can stay
overnight in some if you have the
gear. Others offer roaring fires, hot
drinks and pastries to warm the
cockles of your heart. The most
surprising thing about this type
of skiing is the silence the deep
snow dampens the sound, and the
empty tracts of pine forest become
incredibly beautiful, serene places in
which to get a feel for Norway (not
to mention a great workout!).
oslo.com/en/your-oslo
winter/cross-country-skiing

EXPERIENCE
If theres one thing Norwegians like
more than cross-country skiing
its rock music, and the summer
months are a smorgasbord of
opportunities to see local and
foreign acts throughout the capital.
The hugely popular ya Festival
runs from 1115 August 2015 and
features Beck, Florence and the
Machine, and a bunch of Norwegian
up-and-coming rockers. If you
find yourself in Oslo in December,
dont miss the fabulously quaint
and charming Christmas markets,
right in the centre of Oslo, where
the mulled wine flows, and there
are reindeer aplenty (some you can
eat, some you cant). The deliciously
warm and fragrant atmosphere will
fend off the sub-zero bite.

iStock by Getty images

oyafestivalen.com

Svarttjern, a black metal


band from Oslo, with
vocalist Hans Fyrste

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AUGUST 2015

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24/07/2015 10:21 am

Cultural escapes
January 2016

Next January, swap the torpor of the Australian summer for the invigorating cultural sites of Burma, Naples, Rome,
London, or Cuba! Academy Travels popular January program features long-stay tours and exotic destinations.
Expert tour leaders and carefully-planned itineraries ensure an experience that is out of the ordinary.

Burma

December 27, 2015 January 11, 2016, From $8,450 per person, twin share (land content only)
Discover Yangon, Inle Lake, Maymyo, Mandalay and Bagan, with an overnight
Ayeyarwaddy River cruise, on this carefully-paced journey.

Palermo & Naples: art, history AND culture

December 29, 2015 January 12, 2016, From $6,950 per person, twin share (land content only)
A feast for the senses, with seven nights each in Palermo and Naples where centuries
of diverse cultures come together in art, architecture, food and culture.

The City of Rome: from Antiquity to the 21st-century


January 7-21, 2016, From $6,890 per person, twin share (land content only)

Enjoy a two-week stay and explore wonderful art and architecture from the Romans
to the 21st-century, with great meals and music.

London music AND theatre

January 14-26, 2016, From $8,150 per person, twin share (land content only)
A feast for lovers of opera and orchestral music, with performances at Covent Garden,
all Londons great orchestras and new-season theatre productions.

Cuba: then AND now

January 28 February 11, 2016, From $7,850 per person, twin share (land content only)
Travel to colonial towns and plantations in the countryside before exploring the
charms of Havana now is the time to visit this enchanting island!
tailored small
group Journeys
Expert tour leaders
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August ADS_FPC.indd 9

Academy Travel
Tailored Small Group Journeys
Academy Travel offers a program
of over 50 tours to Europe, the
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Americas. Our tours combine the
pleasures of independent travel
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For a detailed itinerary


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academytravel.com.au
or call 02 9235 0023.

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Email: info@academytravel.com.au

academytravel.com.au

22/07/2015 2:33 pm

TRAVEL YOU WISH

ANIMAL

LUXURY
Forget Africa if you want a quick
animal safari, head to Jamala Wildlife
Lodge in the National Zoo and Aquarium
in Canberra, writes JANE SOUTHWARD.

oud think that cramming four


guests into a king-size room
would be undesirable, but at
Jamala Wildlife Lodge at the
National Zoo in Canberra, the two extra
residents are the highlight of our stay.
The two-year-old cheetahs outside our
Jungle Bungalow are a complete surprise.
Sure, we have booked the Cheetah Jungle
Bungalow, but the details of what this
involved were vague before our arrival.
When we open the door to our
L-shaped haven, I start to weep happy
tears as I see Innes and Jura cuddled up
behind the glass between our luxurious
suite and their enclosure. The pair the
fastest land mammals on earth stays
near the glass for almost all our visit
thanks to a heated pad under their
straw. It is Canberra in winter, after all.
There are blinds for privacy but we
keep them open day and night, which
means the animals watch us and us
them while we shower, bathe in the
brown marble egg bath, drink from the

64

LSJ

complimentary mini bar (half bottles of


sparkling, white, red and a selection of
beers and soft drinks) and watch a movie.
Proximity to the animals is the key
element of a visit to Jamala. Not only do
you get to sleep near them, but zoo keepers
run morning and afternoon small-group
tours with expert commentary and some
behind-the-scenes experiences.
A night at Jamala isnt cheap $1,200
for two if you choose the high-end option
of the Jungle Bungalow with either
cheetahs, lions, a brown bear, a Malayan
sun bear or a Sumatran tiger but it is
much more than dinner and a room with a
view. The cost covers a 10-hour experience
that begins with afternoon tea in the foyer
of the resort, which is the upper level of
the aquarium. As you munch on salmon
sandwiches and sweet muffins, and are
served cappuccinos and hot chocolates, a
large groper, black tipped reef sharks and
other fish swim past you. From the sun
deck you can look down on a couple of
white lions, two of nine in the zoo.

At 2pm, before the first zoo tour, keepers


introduce a metre-long American alligator
and a Burmese python, which we pat. In
front of us are half a dozen monkeys that
appear schizophrenic at one moment
lazing silently on their branches, the next
tearing around in a game of chasey. Out
the front is a swimming pool and sun
deck an area I imagine would be most
pleasant in the summer months.
The dark wooden den that is the
resort foyer is full of African homewares
and animal statues collected by the zoos
owners, Richard and Maureen Tindale,
Canberra developers who love Africa
and developed the resort to share their
passion and raise money for breeding
programs (the couple has lived at the
zoo since 1998).
After the first zoo tour, we are shown
to our rooms and given two hours before
we will be picked up for drinks and
dinner. As the zoo isnt lit at night it
may be luxurious, but it is actually there
for the animals its too dark to walk to

AUGUST 2015

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21/07/2015 2:53 pm

the restaurant. The evening begins with


unlimited Moet champagne and canaps
served on a terrace from which we watch
the keepers feed hyenas the eerie sound
of animals crunching on bone is
something Ill never forget. We are told
that hyena faeces are often white because
they eat so much calcium.
Dinner is a sit-down, three-course
affair with unlimited drinks at communal
tables. There are about 40 of us and the
mood is electric as we share stories of
our animal encounters in our rooms. An
elderly woman with a terminal diagnosis
explains she is here because she isnt well
enough to travel to Africa for the safari
she has long wished for. She and her
daughter have booked the lion Jungle
Bungalow and are told that their 245kilo lion has 15 kilos of hair in his mane.
The restaurant is in what used to be a
shark tank in the National Aquarium.
Its called the cave and for good
reason. Just metres from the communal
tables are two small glass enclosures and,

as entre is served (platters of antipasto),


two white lions and two hyenas enter
their dens to watch us eat.
The next day starts at 7am for
continental breakfast followed by a
morning zoo tour before it opens to the
public. A highlight is hand-feeding a
1200-kilo rhinoceros.
The Jungle Bungalows are the most
expensive option but you can also book
a Giraffe Treehouse from where you can
feed the giraffes ($1,000 for two). The
least expensive room is Ushaka Lodge,
from $1,000 a couple, plus $180 for
every other guest in the same room.
I have been fortunate to travel to
South Africa and visit Kruger National
Park, seeing the big five (lion, elephant,
buffalo, leopard and rhinoceros). Is this
as good? Its close and easier! And,
in a way, sleeping in luxury with the
cheetahs outside my window feels like
a far more intimate animal encounter.
Highly recommended.

CHECKLIST
Jamala Wildlife Lodge is in the National
Zoo near the Tuggeranong Parkway in
Canberra.
Rooms for two begin at $1,000 which
includes a 10-hour experience with two
guided zoo tours, afternoon tea, breakfast
and dinner with unlimited drinks.
Clockwise from top left: guests enjoy
the up-close and personal experience in
the cheetah jungle bungalow at Jamala
Wildlife Lodge; soaking up the beauty in
the bear jungle bungalow; dinner with the
lions; the giraffe treehouses; part of the
three-course meal included in the cost;
and pool and sundeck, which would be
handy in a Canberra summer.
The author travelled courtesy of
Visit Canberra.
Visit jamalawildlifelodge.com.au to book.

AUGUST 2015

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21/07/2015 2:53 pm

LIFESTYLE

books
HACK ATTACK

WHY DID THEY DO IT?

BY NICK DAVIES

BY CHERYL CRITCHLEY
AND DR HELEN MCGRATH

REVIEW BY JANE SOUTHWARD

After so much has been written and


broadcast about the British press and
its phone-hacking scandal, you have to
wonder if there is an appetite for more
on the issues. But if there is one voice to
listen to, it has to be Davies.
After all, he led The Guardians coverage
of the saga, the political ramifications
and the fallout. His investigations began
with a random call from a stranger he
has never identified and who he calls
Mr Apollo. Mr Apollo spilled the beans on hacking at the News of
the World, a practice that had seen the papers royal editor jailed
in 2007 for intercepting the voicemails of three people working at
Buckingham Palace.
Davies was freelancing for The Guardian when he covered the story
that unfolded over years. The story, and this book that playwright Tom
Stoppard calls the most important book of the year, are as much
about the practice of journalism as the scandal that engulfed it. As
Davies humbly explains, Whats the difference between a reporter on
The Guardian and a reporter on a paper like the News of the World?
Dont believe anybody who tells you that it has anything to do with
moral fibre, or intelligence, or sensitivity The difference is in the
office, in the hierarchy in the Bully Quotient Im allowed to fail.
Davies style takes you inside his world and the result is a book
that reads like a fast-paced piece of fiction. The sad truth, though,
is that the events happened and this detailed account leaves the
reader gasping at the cover-ups and the widespread dishonesty.
Sadly, Davies, the investigative reporter who was named Journalist
of the Year for the more than 100 news stories about crime in Rupert
Murdochs News of the World, is pessimistic about the future, writing,
For a while, we snatched a handful of power away from one man.
We did nothing to change the power of the elite.
Hack Attack offers two key things: an on-the-record account of the
whole affair as well as a tantalising behind-the-scenes look at the
editors, journalists and characters of the Fleet Street press and how
they work together and against each other. Intoxicating stuff.

REVIEW BY CLAIRE CHAFFEY

This is a fascinating look into a


range of personality disorders
that have been attributed to
some of our countrys most
normal killers.
Penned by psychologist and
prolific author Professor
Helen McGrath and veteran
investigative journalist Cheryl
Critchley, the book is as much
a down-the-line snapshot of a number of chilling murders
as it is a practical handbook on how to recognise and deal
with personality disorders.
The book is broken down into parts based on the type
of personality disorder being examined: avoidant (think
Robert Farquharson, who drowned his three young sons
by driving his car into a dam); narcissistic (think Keli
Lane, who still protests her innocence over the killing of
her infant daughter); borderline (think Katherine Knight,
who beheaded and skinned her husband before cooking
his body parts); and antisocial (think Adrian Bayley, the
father-of-four who raped and murdered Jill Meagher in a
Melbourne laneway).
As The Hon Alastair Nicholson AO QC says in his
foreword, the significance of the book lies in the analysis
of the offenders behaviour in light of their personality
disorders which fall short of legal insanity and perhaps
gives some insight into the reasons why these "seemingly
normal" people did what they did.
The books structure makes it easy to read and the
diagnostic charts at the end of each chapter offer a guide
for lay persons wanting to recognise personality disorders.
Mercifully devoid of psychobabble, the book presents
convincing and unsettling arguments as to the role of
personality disorders in some of Australias worst crimes.

OUT NOW

66

LSJ

BANTAM
THE TRUTH ACCORDING TO US

FEDERATION PRESS
THE AUSTRALASIAN CORONERS MANUAL

BY ANNIE BARROWS

BY HUGH DILLON AND MARIE HADLEY

At last a new book about eccentric


characters in a small town from
the co-author of the bestseller The
Guernsey Literary and Potato Peel Pie
Society. This one is set in 1938 and in
small town USA. Its a family mystery
uncovered by a 12 year old.

A 2015 manual written by a leading Australian


coroner and an academic lawyer with a special
interest in the cultural diversity of death rites and
customs. This practical book provides guidance not
available in any other single publication in Australia
and includes useful models and checklists for
coroners and practitioners.

AUGUST 2015

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22/07/2015 6:03 pm

LIFESTYLE

MOVIE GIVEAWAY
FAR FROM MEN

THE LIVING AND THE DEAD


IN WINSFORD
BY HKAN NESSER
REVIEW BY PETER ARNOLD

When Swedish literature professor


Martin Anderson is accused of rape,
he and his 55-year-old wife, Maria,
decide to run away to avoid the
limelight. After a six-hour ferry ride
from Sweden to Germany, the couple
decides to head to Morocco where
Martin was planning to write a new
explosive novel about the goings on
in a writers commune he was part of
decades earlier.
The couple doesn't make it to Africa and Maria ends up alone
in the United Kingdom on the moors in a town called Winsford
on Exmoor. Her only aim, she declares, is to outlive her dog,
Castor. But strange things start happening and the intrigue only
builds as Maria starts to suspect she is being stalked and sees
emails destined for her missing husband.
This is a mystery story by Hkan Nesser, the Swedish
bestselling author of the Van Veeteren series that has sold more
than 10 million copies worldwide. Part of its beauty is in the
matter-of-fact way Maria reflects on the momentous events
that have enveloped her.
As the weather worsens, so do the conclusions she reaches
on her married life, the death of one of her siblings, and her
distance from her children. Nesser is a master in building
tension, partly through the things he doesnt reveal about the
key characters and the locals in stormy England. What dark
events happened in Morocco? Who is stalking Maria?
This is a well-paced read with terrific descriptions of Marias
travels in London and across Europe as she tries to stay hidden
yet keeps moving so she can keep checking her and her
husbands emails.
On her return to Sweden, Marias life only becomes more
complex. The book has a clever structure and is easy reading,
though there are a number of loose ends that Nesser uses to
build tension but never resolves.

IN CINEMAS 30 JULY
We have 10 double passes
to see the new western
FAR FROM MEN. Featuring
a career-best performance
from the multi-talented Viggo
Mortensen and a superb
original soundtrack by Nick
Cave and Warren Ellis, FAR
FROM MEN is a gripping tale
of morality and friendship
set during the Algerian
War, against an unforgiving
mountainous landscape. Widely acclaimed at the Venice
Film Festival where it premiered, this is grand, big-screen
adult entertainment at its finest.
To enter, email postal contact details with FAR FROM MEN
in the subject line to filmoffers@lawsociety.com.au
by 10 August.

Visit lawsociety.com.au/lsjgiveawayterms for terms and conditions.

MUST SEE

MATILDA THE MUSICAL


PENGUIN
CERTAIN ADMISSIONS: A BEACH,
A BODY AND A LIFETIME OF SECRETS
BY GIDEON HAIGH
A true crime book about a 1949 murder in
Melbourne from the journalist, cricket fanatic
and author of more than 30 books. Painstaking
detail of the police procedures of the time, the
courtroom dramas and the mystery surrounding
the death of a young typist after a night out.

28 JULY TO 25 OCTOBER
Sydney Lyric Theatre, Pyrmont

The brainchild of Australian comedy songwriter Tim


Minchin, this highly anticipated musical adaptation of Roald
Dahls classic tale has finally arrived in Sydney. It won 50
major international awards, including 12 for Best Musical.
No doubt Minchins trademark political and social satire will
give the piece extra intellectual punch for the adults.
ticketmaster.com.au
AUGUST 2015

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22/07/2015 2:47 pm

LAW SOCIETY
COUNCILLOR LIST

LAW SOCIETY ADVOCACY POLICY & PRACTICE

PRESIDENT
John Eades Noyce, Salmon & DAquino
DX 5902 Griffith; 6969 0000

LAW SOCIETY ADVOCACY

SENIOR VICE PRESIDENT


Gary Ulman Minter Ellison
DX 117 Sydney; 9921 8888
JUNIOR VICE PRESIDENT
Pauline Wright PJ Donnellan & Co Pty Ltd
DX 7206 Gosford; 4324 3988
TREASURER
Doug Humphreys Veterans Review Board
L2, 280 Elizabeth Street, Sydney; 9213 8603
IMMEDIATE PAST PRESIDENT
Ros Everett Law Society of NSW
DX 362 Sydney; 9926 0333
Andrew Boog Austen Brown Boog Solicitors
21 Church Street, Dubbo 2830
DX 4017 DUBBO; 6882 5333
Darryl Browne Browne Linkenbagh
21 Grose Street, Leura 2780; 4784 2177
Justin Dowd Watts McCray Lawyers
DX 8224 Parramatta; 9635 4266
Elizabeth Espinosa Sutherland Shire Council
DX 4511 Sutherland; 9710 0478
Jane Glowrey Glowreys - Riverina Chamber
DX 5567 Deniliquin; 03 5881 3766
Richard Harvey Richard Harvey & Assocs
DX 9318 Mosman; 9968 3471
Zora Kekeff Kekeff & Associates Solicitors
DX 7805 Newcastle; 4927 1994
Coralie Kenny
coralie.kenny@gmail.com
Ann-Marie Lumsden Legal Aid NSW
323 Castlereagh Street, SYDNEY 2000
DX 5 SYDNEY; 9219 6324
Robert Mooy Mooy Lawyers
DX 12020 Bondi Junction; 0409 129 946
Blanka Moss Schindler Lifts Pty Ltd
36-38 Lord Street, BOTANY 2015
P.O. Box 7153, ALEXANDRIA 2015; 9931 9900
Thomas Spohr
Office of Director of Public Prosecutions (NSW)
DX 11525 Sydney Downtown; 9285 8602
Terry Stern Terence Stern
DX 12012 Bondi Junction; 9387 2399
Pamela Suttor L. Rundle & Co
L4, 50 York St Sydney 2000; 9299 1828
Jodie Thurgood Stacks the Law Firm
Suite 7 10-12 Short Street, PORT MACQUARIE 2444
DX 7417 PORT MACQUARIE; 6583 8366
Joanne Van Der Plaat Blaxland Mawson & Rose
DX 5522 Cooma; 6452 1266
Juliana Warner Herbert Smith Freehills
9225 5000
Mark Warton
L6, 185 Elizabeth St, Sydney; 9267 9432
CHIEF EXECUTIVE OFFICER
Michael Tidball
SECRETARY
Charles Cawley
CHIEF OPERATIONS OFFICER
Kenneth Tickle
DIRECTOR, POLICY AND PRACTICE
Gaby Carney

68

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NSW Domestic Violence Disclosure


Scheme Discussion paper
The NSW Government recently
announced that it is developing a model
of a Domestic Violence Disclosure
Scheme (DVDS) to pilot in NSW. The
model will be based on an initiative
introduced in the United Kingdom which
enables a person who has concerns
about his or her partner to make an
application to the NSW Police Force for
information on whether the partner has
a history of domestic violence.
The NSW Government discussion
paper outlined a range of options for
implementing the model.
The Criminal Law, Juvenile Justice,
Indigenous Issues and Human
Rights Committees contributed to
a submission in response to the
discussion paper. The Committees
expressed their support for measures
which contribute towards reducing the
incidence of domestic violence in the
community. They noted, however, that
domestic violence is a complex issue
that is not easily amenable to simple
solutions. Concerns were raised that the
discussion paper provided no evidence
that individuals who have knowledge of
previous offending will in fact choose to
leave a relationship.
The Committees view is that the goal
of preventing domestic violence and
keeping victims safe would be better
served through directing resources at
outreach, awareness and the provision
of specialist services that are tailored to
the needs of specific groups.
The Committees submitted that
implementation of any scheme should
be delayed until after the UK model has
been evaluated. This would ensure that
any scheme implemented in NSW will
have been proven to be effective with
regard to its intended aim. However,
as the Government intends to pilot a
DVDS in NSW, the Committees made

a number of comments in response to


the options and questions outlined in
the discussion paper and sought the
opportunity to be involved in further
consultation once the Government has
decided on a model for the scheme.

Amendments to Binding Financial


Agreement provisions in the Family
Law Act
The Family Issues Committee made
a submission to the Commonwealth
Attorney-Generals Department on an
exposure draft bill and consultation
paper. The proposed amendments had
been sought by the legal profession for
a number of years and are required to
remove existing uncertainties around
requirements for entering, interpreting
and enforcing out-of-court private
financial agreements. In general, the
Committee supported the proposed
amendments.

Royal Commission into Institutional


Responses to Child Sexual Abuse
The Criminal Law Committee made a
submission to the Royal Commission
into Institutional Responses to Child
Sexual Abuse. It raised an issue
which relates to child sexual abuse
in both an institutional and noninstitutional context. This is the failure
to comply with the sexual assault
communications privilege provisions
in the Criminal Procedure Act 1986 in
respect of subpoenas. The Committee
is concerned that privileged material
routinely comes before the parties and
the court without the consent of the
alleged victim/protected confider.
The Committee suggested that possible
reforms to address this issue include:
(1) Implementing regulations requiring
that a standard form be sent with
any subpoenas outlining the sexual
assault communications privilege
provisions to the subpoenaed party.
(2) The creation of a prescribed form for
a subpoena in criminal proceedings.

AUGUST 2015

22/07/2015 4:40 pm

LAW SOCIETY ADVOCACY POLICY & PRACTICE

The form could include a declaration


by the party seeking the issue
of the subpoena that either the
material subpoenaed does not call
for production of material which
may be subject to sexual assault
communications privilege, or that
it does and that leave to issue it has
been granted.
(3) Addressing the failure to
comply with the sexual assault
communications privilege provisions
in the Criminal Procedure Act 1986
through better education of the
judiciary, court staff, prosecutors and
defence practitioners.

Review of the Bail Act 2013


The Juvenile Justice and Criminal Law
Committees made a submission to
Judge Hatzistergos review of the Bail
Act 2013.
The Committees emphasised that the
fundamental principles of the NSW
criminal justice system, including the
presumption of innocence and the
general right of the accused to be
at liberty before trial, should be an
important consideration of the review.
Bail legislation should emphasise
balancing these rights with securing
a persons attendance at court and
ensuring the safety and welfare of the
community.
In the Committees view, the
determination of the content of the
test for the show cause requirement
ought to be left to the common law to
develop. They also suggested that the
threshold for s 16B(1)(h) should be raised
so that it is less likely to inadvertently
capture minor offending.
Submissions were also made in relation
to: the increase in remand figures; the
need for further training for police who
make bail determinations; and the s 29
pre-release requirements.

Lack of judicial resources and


Commonwealth budget measures
The Family Issues Committee made
a submission to the Commonwealth
Attorney-General about the lack of
judicial resources in the Family Law
Court and Federal Circuit Court, and a
proposal to increase Court fees by up to
50 per cent.
The Committee is concerned about the
increasing workload of judges in the

Federal Circuit Court and the size of


the dockets of individual judges (500700 matters). The resulting delays and
increased costs adversely affect parties
(including children) and the community
in general.
The Committee also expressed concern
about the impact of an increase in court
fees on access to justice. The increase
proposed for court fees for family law
matters is significant. Such an increase
could have the result that spouses who
separate no longer seek a divorce and
may instead make alternative informal
arrangements. Informal arrangements
are generally unsatisfactory and will not
work in high conflict relationships. The
Committee expressed its concern about
the legal consequences of informal
arrangements on spouses and children.

Review of police oversight


The Criminal Law, Juvenile Justice,
Indigenous Issues and Government
Solicitors Committees contributed to a
submission to the review of the police
oversight system.
The Committees submitted that a
body that is independent, transparent
and impartial is necessary to carry out
police oversight. The Criminal Law and
Juvenile Justice Committees submitted
that this body should also be responsible
for the investigation of complaints.

Proposed amendments to social


housing policy and legislation
The Human Rights and Indigenous
Issues Committees made a submission
to the Minister for Family and
Community Services noting rule of
law concerns in respect of proposed
amendments to social housing policy
and legislation.
The submission dealt with proposals
that had been announced prior to the
2015 NSW election.
Of particular concern were the
proposals to remove the discretion of
NCAT to review decisions to terminate
social housing tenancies, and to allow
for neighbour impact statements.
While the Committees understand
that the Government is concerned
about addressing criminal and antisocial behavior in public housing, the
Committees were concerned that the
measures were not adequately balanced
with the right to adequate housing,
procedural fairness requirements, and

other policy goals such as supporting


rehabilitative outcomes in the criminal
justice system.

Commonwealth legal assistance


funding for community legal centres
The Indigenous Issues Committee
wrote to the Commonwealth AttorneyGeneral expressing concern about
inadequate funding for community legal
centres (CLCs) in the context of the
impending finalisation of the national
partnership agreement. The Committee
was advised that CLCs faced a 30 per
cent cut in funding in two years. It
noted that CLCs play an important role
in the legal assistance sector, providing
complementary services to Legal Aid,
particularly in respect of civil law matters.
The Committee noted that the
Productivity Commission had already
identified a justice gap in civil matters.
This includes assistance in respect of
family violence and care and protection
matters that have a disproportionate
impact on Indigenous people.
Given this, it was submitted that CLCs
should receive adequate funding in
order to be able to provide services to
clients most in need, and to contribute
to improving outcomes for the
community through law reform and
advocacy work. This includes CLCs that
are staffed by Indigenous people, as
well as those which provide Indigenoustargeted services.

Aboriginal Legal Services (ALS)


NSW/ACT funding for the custody
notification service
The Law Society wrote to both
Commonwealth and State Attorneys
General, calling on both governments
to provide funding for the ALS custody
notification service (CNS). The
CNS is an example of the successful
implementation of a recommendation
of the Royal Commission into Aboriginal
Deaths in Custody.

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69

22/07/2015 4:40 pm

LAW SOCIETY
REGIONAL PRESIDENT LIST

LAW SOCIETY ADVOCACY POLICY & PRACTICE

Albury & District Law Society


Deborah Culhane Belbridge Hague Solicitors
deculhane@live.com.au
Bankstown & District Law Society
Julian Mortimer Edgeworth Legal Pty Limited
juliancm@optusnet.com.au
Blue Mountains Law Society
Andrew White Benetatos White
awhite@benetatoswhite.com
Central Coast Law Society
Stuart Tipple Brennan Tipple Partners
presidentccls@gmail.com
Central West Law Society
Kristi McCusker Kenny Spring Solicitors
k.mccusker@kennyspring.com.au
City of Sydney Law Society
Stephen Bell Stephen W Bell & Associates
stephen@sblaw.com.au
Clarence River & Coffs Harbour Law Society
Cassandra Banks Susan Green Legal Practice
cassandra@susangreenlawyer.com
Eastern Suburbs Law Society
Ben Noonan Lang Noonan Legal
bennoonan@langnoonanlegal.com.au
Far North Coast Law Society
Greig Lamond Mitchell Playford & Radburn
mprcas@bigpond.net.au
Far South Coast & Monaro Law Society
Andrew Fleming Elizabeth Fleming
Andrew@fleminglaw.com.au
Far West Law Society
Kelly Oxford Warra Warra Legal Services
kelly.oxford@warrawarra.org.au
Hunter Valley Law Society
Warwick Hill Hills Solicitors
wjh@hillsol.com.au
Inner West Law Society
Maria Daniele Daniele Scott
maria@danielescott.com.au
Liverpool & Fairfield Districts Law Society
Geoff Shelton G Shelton & Associates
geoffshelton@ozemail.com.au
Macarthur Law Society
Brett McGrath Mardens Law Group
bmcgrath@marsdens.net.au
Mid North Coast Law Society
Tracy Flintoff Flintoff Lawyers
tracy@flintofflawyers.com.au
Nepean/Hawkesbury Law Society
Roderick Storie Roderick Storie Solicitors
mail@rodstorie.com.au
Newcastle Law Society
Gary Fox Attwaters
gfox@attwaters.com.au
North & North West Law Society
Penny Waters Penny Waters Armstrong Legal
pwaters@pwalegal.com.au
North Metropolitan Law Society
Danny Bricknell Bricknell Legal
danny.bricknell@bricklegal.com.au
Northern Beaches Law Society
Philippa Grant Medcalf Grant Lawyers
pip@mglegal.com.au
Orana Law Society
Andrew Boog Austen Brown, Boog Solicitors
agb@austenbrown.com.au
Parramatta District Law Society
Danielle De Paoli Maurice Blackburn Lawyers
DDePaoli@mauriceblackburn.com.au
Riverina Law Society
John Eades Noyce, Salmon & DAquino
johneades@nsdlegal.com.au
Shoalhaven & District Law Society
Lauren Howes Marriott Oliver
lhowes@marriottoliver.com.au
South West Slopes Law Society
Maggie Orman Maggie Orman Pty Ltd
Maggie.Orman@bigpond.com
Southern Tablelands Law Society
Andrew Herring Herring & Associates - Lawyers
andrew.herring@herringlawyers.com.au
St George-Sutherland District Law Society
Peter Fowler Haydon Fowler Corbett Jessop
peter@hfcj.com.au
Wollongong & District Law Society
Martin Culleton RMB Lawyers
martinc@rmblawyers.com.au

LAW SOCIETY ADVOCACY

70

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p66_68_Advocacy.indd 3

CONTINUED
It is also a legislative requirement in
NSW that police notify the ALS when an
Aboriginal person is taken into police
custody. Further, Aboriginal people
taken into police custody are entitled to
immediately speak to an ALS lawyer.
The Law Society is advised that the
service responds to over 300 calls
weekly, yet costs only $526,000 to run
annually. This equates roughly to $32
per call. Since its establishment, there
have been no Aboriginal deaths in police
custody in NSW and the ACT. The Law
Society understands that this is not true
of other jurisdictions without a custody
notification service. The Commonwealth
Government has since announced that it
will provide $263,000 to the CNS, which
equates to half of the necessary funding.

NSW Workers Compensation Scheme


Benefits Reform
The Injury Compensation Committee
provided a submission to the WorkCover
Authority which had sought feedback
from shareholders with respect to the
investment of additional solvency funds.
The Committee submitted that the
return of medical benefits to injured
workers should be a high priority of any
reform package that may be introduced
by the Government.
Problems with respect to the operation
of s 59A of the Workers Compensation
Act 1987 (1987 Act) were raised,
including its impact on medical treatment
decisions and its disincentive in effecting
a return to work.
The Committee recommended that s
59A be repealed or at least substantially
amended, and that s 60(2A)(a) of the
1987 Act (dealing with prior approval for
medical treatment) be repealed.
The Committee made various
recommendations with respect
to reforms to weekly payment
entitlements. These included increasing
the first entitlement period to 100
per cent of pre-injury average weekly
earnings, removing the 52 week stepdown in the calculation of pre-injury
average weekly earnings, and removing
the subjective discretion of an insurer
to determine capacity in ss 38(2) and

(3) of the 1987 Act. The Committee


also recommended that the suitable
employment test be recast to reflect
actual labour markets.
With respect to permanent impairment,
the Committee recommended that the
benefits scale be increased to reflect
the non-economic loss scale in other
personal injury jurisdictions.
It was submitted that the threshold for
permanent impairment claims should be
lowered to a threshold of greater than
5 per cent permanent impairment, and
that workers should be permitted to
bring subsequent claims where there is
a deterioration of 5 per cent.
The Committee recommended that
the threshold relating to seriously
injured workers be lowered to 20 per
cent whole person impairment; and
that impairment from separate injuries
should be permitted to be aggregated
for the purposes of eligibility to be
treated as a seriously injured worker.
The Committee reiterated its position
that the current dispute resolution
process has become unnecessarily
complex and disjointed, and that
changes to this system should
accompany any benefits reform.
The submission summarised the
convoluted dispute notification process
and recommended the process of
rationalisation be started by providing
that only one form of notification should
be required.
It also recommended that all disputes
should be dealt with in the one dispute
resolution system by properly trained
and experienced judicial officers.
The Committee submitted that all
parties should have access to legal
representation and advice with respect
to any disputed matter.
Finally, the Committee considered that
the restrictions that currently apply to
commutations should be removed, and
that such removal would be consistent
with the Ministers stated objective of
supporting injured workers and getting
them back to work.

AUGUST 2015

22/07/2015 4:46 pm

LEGAL UPDATES RISK

THE RISKS OF MIXING LEGAL


AND FINANCIAL ADVICE

Toby Blyth is a senior


associate with Colin
Biggers & Paisley. He
specialises in insurance
and commercial dispute
resolution.

By Toby Blyth

ost solicitors will know the rule


in Citicorp Ltd v OBrien (1996)
40 NSWLR 398 without any
real need to refer to Rileys. This
is because the rule in Citicorp has been
woven into the fabric of legal training and
practice in Australia since 1996.
When a client proposes to enter into a
transaction, his or her solicitor should
refer to the Citicorp case as the conduct
standard, and advise the client that:
the financial aspects of a transaction
are not a matter in respect of which the
solicitor can advise; and
the client should obtain independent
financial advice as to the merits of the
transaction.*
The New South Wales Court of Appeal
came to reconsider Citicorp again in
Dominic v Riz [2009] NSWCA 216, at [58]
after a trial judge had suggested:
... it is often difficult ... to disentangle legal
and business or practical analysis, and a
solicitor who is carrying out a transaction
for a client is not justified in expressing
no opinion when it is plain that the client
is rushing into an unwise, not to say
disastrous, adventure.
The Court of Appeal in Riz rejected that
finding and reinforced the Citicorp rule:
If, however, the solicitor during the
execution of his or her retainer learns of
facts which put him or her on notice that
the clients interests are endangered or at
risk unless further steps beyond the limits
of the retainer are carried out, depending
on the circumstances, the solicitor may be
obliged to ... bring to the attention of the
client the aspect of concern and to advise
of the need for further advice either from
the solicitor or a third party ... (at [90]).
A recent decision of the High Court of
England and Wales in Kandola v Mirza
Solicitors LLP [2015] EWHC 460 (Ch)
is a very good example of the problem
in practice.
The transaction was unusual because the
deal involved the purchaser of a property
paying the deposit to the vendors
solicitors as agents for the vendor (only).
The vendor did not complete, and the
deposit was lost because the vendors

Solicitors must be conscious


of the difference between
financial and legal advice and
know when to advise a client of
the need to obtain independent
financial advice .
It is important to record file
notes of any advice, and for more
unusual risks, to confirm that
advice in writing to the client.
solicitors disappeared amidst allegations
of fraudulent misuse of client money.
The conveyancer advised the purchaser
of the risk that:
the deposit would not be recoverable if
the vendor did not complete;
the vendor might not be able to
complete if the vendor could not
obtain releases of relevant charges; and
since the conveyancer did not know
how much was secured by those
charges, the purchaser could not
know if they could be paid off from the
purchase money.
Importantly, in view of the unusual nature
of the transaction, the conveyancer also
obtained written confirmation of the
advice from the purchaser as follows:
... I have also been advised against
releasing the deposit ... to the seller. I am
also aware that I risk losing my deposit if
the seller is unable to complete the sale.
The Court in Kandola summarised the
position as follows:
... a general duty to make checks about
risk of future insolvency ... [cannot] arise
merely because the client is incurring a
risk of loss if the counterparty becomes
insolvent. Nor in my view does such a
duty arise merely because the transaction
takes an unusual form which does
involve a solvency risk (e.g. on release of
a deposit) where the more normal form
would not (deposit held as stakeholder).
In such cases the duty of the solicitor
is to advise of the unusual risk, but not
to seek to evaluate it unless specifically

instructed to do so. In part that is because


the decision whom to trust in business is
a commercial decision for the client to
take and not the solicitor ... Just because a
solicitor (or other professional) could take
a particular step does not mean that it is
his duty to do so (at [51]-[52]).

Citicorp and good risk


management practice
A lawyer can adopt a simple risk
management practice in commercial
transactions by considering the following
questions:
(a) What could go wrong and what are
the consequences of things going
wrong?
(b) What is the likelihood of things going
wrong?

Question (a) is a legal question, and the


solicitor has a duty to advise on that.
For a sophisticated client, the duty would
more likely be to advise that the loan was
unsecured and the client would rank as an
unsecured creditor (assuming the lawyer
knew the client understood these terms).
For an unsophisticated client, proper
advice might extend to pointing out
the practical consequences of the legal
obligations arising from the document.
For instance, if the borrowers business,
of which the client knew nothing apart
from representations made by her son
(principal of the borrower) failed, the
client could lose her home and livelihood,
(see Provident Capital Ltd v Papa [2013]
NSWCA 36).
Question (b) is a question for a non-legal
expert (e.g. a financial adviser). Whether or
not the client asks this question, it may be
prudent to advise the client to obtain the
relevant non-legal advice.

Document your advice


As usual, a lawyer should document
advice in a file note. A lawyer could do
worse than using the two questions in
the file note. For more unusual risks, the
advice should be confirmed in writing, as
the conveyancer did in Kandola.
*Lawcover draws the attention of readers to
clause 8(a)(iii) of the 2014/15 PII Policy, which
excludes claims arising from financial services
as set out in detail in that clause. Lawcover
would be happy to discuss readers insurance
requirements on an individual basis.

AUGUST 2015

p71_LEGAL_Risk.indd 1

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71

22/07/2015 6:05 pm

LEGAL UPDATES REGULATORY

TRUSTS & TRANSITIONAL PROVISIONS


UNDER THE NEW LEGAL PROFESSION
UNIFORM LAW
Chelly Milliken is a Legal Policy Advisor, Policy
and Practice for the Law Society of NSW.

By Chelly Milliken

n 1 July 2015, the Legal


Profession Uniform Law (the
Uniform Law) and the Legal
Profession Uniform General
Rules 2015 (the Uniform General Rules)
commenced in New South Wales and
Victoria. While it is anticipated that for
much of the profession it will be business
as usual, some changes will occur.
This article highlights key changes to
trust accounting requirements and
provides information about transitional
provisions relating to practising
certificates, legal costs, incorporated
and unincorporated legal practices, and
managed investment schemes. New
provisions in relation to compliance
audits and management systems
directions are also covered.

Trust money and trust accounts


Authority to receive trust money
The Uniform Law requires practising
certificates to be subject to a condition
that the holder is authorised or not
authorised to receive trust money (s
47(2)). Unless it determines otherwise, the
Law Society Council has resolved that:
all principal practising certificates will
be issued on the condition that the
applicant is authorised to receive trust
money on behalf of the law practice;
and
all other practising certificate types
will not be authorised to receive trust
money on their own account.
Receipt of trust money
Under the Uniform General Rules, law
practices must provide a receipt as soon
as practicable after trust money has
been received (r 36(1)). Under the Legal
Profession Regulation 2005 (NSW) (the
2005 Regulation), receipts were only
required to be provided on request
(r 61(6)).
Withdrawal of trust money
The Uniform General Rules provide that
money can be withdrawn from a trust
account for payment of legal costs seven
business days after the client has given
a bill relating to the money if the person
does not object to the bill

72

LSJ

The Legal Profession Uniform


Law and Rules commenced in
New South Wales and Victoria
on 1 July 2015.
While most day-to-day
requirements for trust
accounting are unchanged,
there are some key changes that
practitioners should be aware
of, such as the requirement to
provide a receipt whenever trust
money is received.
Practitioners should also be
familiar with the transitional
arrangements set out in the
Uniform Law, including in
relation to managed
investment schemes.
(r 42(3)(a)). Previously, this timeframe
was seven calendar days (cl 88(4)(a) and
(b)(i) of the 2005 Regulation). In addition,
the bill must now refer to the proposed
withdrawal (r 42(3)).
Deficiency in trust account or ledger
Under the Uniform Law, a person, legal
practitioner or law practice may be liable
for a deficiency in a trust account or
ledger or a failure to pay trust money
(s 148). Under the Legal Profession Act
2004 (NSW) (the Legal Profession Act),
only legal practitioners were liable (s 262).
In addition, the maximum penalty for a
deficiency in a trust account or ledger
has been increased from 200 penalty
units to 500 penalty units, imprisonment
for five years, or both (s 148).
Notification of authority to operate
a trust account
The Uniform General Rules require
law practices, during July each year, to
provide the Law Society with written
notice of the persons authorised to sign
cheques or otherwise effect, direct or
give authority for the withdrawal of funds
from the general trust account of the
practice as at 1 July of that year, unless
these details have already been provided

in the external examiners report for


that year (r 50(2)). The Law Societys
Trust Account Department will arrange
for these details to be included in the
Law Practice Confirmation and Trust
Money Statement. Law practices are no
longer required to provide notification
of the appointment or termination of an
authorised person.
Computer records
Under the Uniform General Rules, law
practices that maintain their trust records
by means of a computerised accounting
system are no longer required to keep
paper copies of trust records. Records
may be kept electronically, in readable
and printable form, provided that these
records cannot be modified (r 38).
Trust account statements
From 1 July 2016, trust account
statements will need to be provided in all
matters except where the balance of the
ledger or record is zero (as at 30 June)
and no transaction affecting the account
has taken place within the previous 12
months (r 52(5)).
Until 1 July 2016, exemptions also apply
where:
the ledger account or record has been
an option for less than six months; or
a trust account statement has been
furnished within the previous 12
months and there has been no
subsequent transaction affecting the
ledger account or record
(r 52(6)).
Controlled money accounts
Under the Uniform General Rules,
controlled money account statements
must now be reviewed by a principal
of the law practice who is authorised
to receive trust money, and that review
must be evidenced on the statement
(r 64(9)).
External examinations
The Uniform General Rules now require
law practices to provide the Law Society
with written notice of:
an external examiner being appointed
within 30 days after first receiving
trust money (other than transit money);

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LEGAL UPDATES REGULATORY

an external examiner ceasing to be


appointed within 7 days after the
appointment ceasing;

consumers and practitioners to assist legal


practitioners to meet their costs disclosure
requirements under the Uniform Law.

a successor external examiner being


appointed within 30 days of the
former examiners appointment
ceasing (r 66(2)).

Incorporated and unincorporated legal


practices
Transitional provisions provide that an
entity that was an incorporated legal
practice within the meaning of the Legal
Profession Act immediately before 1
July 2015 is taken to be an incorporated
legal practice within the meaning of the
Uniform Law (Sch 4, cl 14(1)). Likewise,
an entity that was a multi-disciplinary
partnership within the meaning of
the Legal Profession Act immediately
before 1 July 2015 is taken to be an
unincorporated legal practice within the
meaning of the Uniform Law (Sch 4, cl
14(2)).

In addition, law practices now require


the prior approval of the Law Society
Council to terminate the appointment of
a law practice (r 66(3)). Under the 2005
Regulation, approval was not required,
only notification (r 93).
The Uniform General Rules state that the
deadline for providing the Law Society
with an external examination report
each year will be published on the Legal
Services Council website (r 69).

Transitional provisions
Practising certificates
The Uniform Law provides that practising
certificates granted prior to 1 July 2015
under the Legal Profession Act are taken
to be to be granted under the Uniform
Law. Any conditions attaching to the
certificate continue to apply (Sch 4, cl
12(1) and (4)).
If an application for a practising
certificate was made under the Legal
Profession Act, but not determined
before 1 July 2015, the application will
be determined as if it were an application
made under the Uniform Law.
A practising certificate already held by
the applicant remains in force until a new
certificate is granted or the application is
refused (Sch 4, cl 12(2)).
Legal costs
The Uniform Law introduces new costs
provisions which apply to a matter if the
client first instructs the law practice on
or after 1 July 2015. The costs provisions
contained in the Legal Profession Act
continue to apply to a matter if the
client first instructed the law practice in
the matter before 1 July 2015 (Sch 4, cl
18(1)).
The Law Societys Costs Committee has
updated the standard costs agreement
and costs disclosure, and the conditional
costs agreement and costs disclosure,
to reflect changes introduced by the
Uniform Law. The Committee has
also provided a form of notification to
accompany bills issued for matters where
first instructions are received on or after
1 July. Other costs precedents and the
costs guidebook will be updated shortly.
In addition, the Legal Services Council has
designed user-friendly costs disclosure
forms along with information sheets for

Managed investment schemes


The Uniform Law prohibits a law
practice from:
promoting or operating a managed
investment scheme; and
providing legal services in relation
to a managed investment scheme
if any associate of the law practice
has an interest in the scheme or the
responsible entity for the scheme
(however, the Law Society Council
may grant exemptions from this
prohibition on a case by case basis)
(s 258(1)(a) and (3)).
The Legal Profession Uniform Law
Application Act 2014 (NSW) provides
that these prohibitions will not apply
in NSW until 1 July 2018. Instead, the
existing prohibition on incorporated
legal practices conducting a managed
investment scheme, and the requirement
for law practices to give clients notice of
any interest in the scheme, will continue
to apply (Sch 9, cl 10).
Mortgage practices
The Uniform Law prohibits law practices
from negotiating the making of, or acting
in respect of, a mortgage when acting
as the legal representative of a lender
except in certain circumstances.
In NSW, existing arrangements set out
in Part 3.5 and Schedule 8 of the Legal
Profession Act will continue to apply
where the mortgage was entered into
before 1 July 2015 (Sch 9, cl 10).

Compliance audits
The New South Wales Legal Services
Commissioner and Law Society Council
may audit a law practices compliance
with the Uniform Law.
Audits can only be conducted where
the Commissioner or Council considers

there are grounds to do so based on the


conduct of, or a complaint against, a law
practice or associate (s 256).
Under the Legal Profession Act, there
was no threshold test for conducting an
audit (s 670).

Management system directions


The Uniform Law provides that the
New South Wales Legal Services
Commissioner and Law Society
Council may also issue management
system directions to ensure law
practices implement and maintain
appropriate management systems, if the
Commissioner or Council considers it
reasonable to do so after carrying out a
trust record examination or investigation,
compliance audit or complaint
investigation (s 257).

Responsibility and liability of principals


The Uniform Law requires principals of
a law practice to take reasonable steps
to ensure that all legal practitioners of
the law practice, and the legal services
provided by the law practice, comply
with the Uniform Law and Uniform Rules
(s 34).
A principal may be liable for a
contravention by the law practice if
the principal knowingly authorised or
permitted the contravention, or if the
principal was in or reasonably ought to
have been in a position to influence the
conduct of the law practice in relation
to the contravention and failed to take
reasonable steps to prevent it (s 35(1)).
Under the Legal Profession Act, the
principal was deemed liable unless he or
she could establish otherwise (s 719).

Further information
The Law Societys website provides
a wide range of information about
the new regulatory framework,
including factsheets on: incorporated
legal practices; unincorporated legal
practices; billing; costs disclosure;
consumer complaints; unqualified legal
practice; managed investment schemes;
admission of foreign lawyers; liability of
principals; solicitors stamps; transitional
arrangements for corporate and
government lawyers.
A number of CPD seminars and live
webcasts addressing aspects of the
Uniform Law are also scheduled on costs
disclosure and trust accounting among
other topics.
Queries about the Uniform Law can be
directed to the Professional Standards
Department. T: 9926 0390, or
E: psd@lawsociety.com.au.

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73

22/07/2015 6:48 pm

LEGAL UPDATES FREE TRADE AGREEMENTS AND ARBITRATION

UNDERSTANDING
INVESTOR-STATE
DISPUTE SETTLEMENTS
By Alex Baykitch and Aleks Sladojevic

lobally, there are currently


over 3,000 investment treaties
in force, providing crucial
legal protections for foreign
investors in increasingly interdependent
domestic markets. The Investor-State
Dispute Settlement (ISDS) provisions
contained within many of these treaties
are a crucial means of redress for
aggrieved investors. With roots dating
back to the mid-twentieth century, the
ISDS system is not new.
Where a treaty between two or more
states contains ISDS provisions,
investors in one state have the ability to
commence arbitration against another
state party where that state has breached
investment protection obligations.
The ability of investors to bring
proceedings against a state is somewhat
unique in international law, where rights
are typically enforced between states
and not private actors.
ISDS mechanisms are predominantly
embedded in Bilateral Investment
Treaties (BITs), which are designed to
encourage foreign investment in one
contracting state from investors in the
other. Australias first BIT was entered
into with China in 1988.
Today, Australia has BITs with over 20
countries, all of which contain ISDS
mechanisms.
In addition to BITs, ISDS provisions are
becoming increasingly commonplace in
free trade agreements (FTAs). Australias
FTAs with Singapore, Thailand, Chile,
ASEAN and, more recently, Korea and
China each contain ISDS provisions.
Collectively, Australia has BITs and FTAs
containing ISDS provisions with over
29 economies. However, this pales in
comparison to other countries such as
China and the US, with over 120 and 50
investment treaties respectively.
Australia continues to grapple with
concerns about ISDS provisions,
particularly in the context of the TransPacific Partnership (TPP) negotiations.

74

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Alex Baykitch is a partner at


King & Wood Mallesons &
President of the Australian
Centre for International
Commercial Arbitration.
Aleks Sladojevic is a law
graduate at King & Wood
Mallesons.

The China-Australia Free


Trade Agreement (ChAFTA),
signed 17 June, represents
a historic milestone, giving
Australian businesses the
ability to operate in China and
trade with Chinese firms in a
significantly more favourable
business climate with few
restrictions and greater
investment opportunities.
The Investor-State Dispute
Settlement (ISDS) mechanism
in ChAFTA provides Australian
investors with the ability to
enforce investment protection
obligations contained in the
agreement, and to partly
mitigate any sovereign and
political risk of investing in
China.
Australia however continues
to grapple with concerns
about ISDS provisions in
general. With the Trans-Pacific
Partnership (TPP) also on the
horizon, now is a good time
to address some common
misperceptions.
ISDS in the China-Australia Free Trade
Agreement
On 17 June 2015, Australia signed a
free trade agreement with the worlds
second-largest economy. The AustraliaChina Free Trade Agreement (ChAFTA)
represents a historic milestone,
promising to deliver a boost to trade and
economic growth in both countries over
the coming years.
Australian businesses now have the
ability to operate in China and trade with
Chinese firms in a significantly more
favourable business climate, with fewer
restrictions and greater investment
opportunities than ever before.

This article explores one of the more


controversial aspects of ChAFTA its
ISDS provisions.
ISDS mechanisms have become a
vital feature of international trade and
an important tool in developing and
promoting the rule of law globally. Given
the current TPP negotiations, now is a
good time to set straight some of the
misperceptions on ISDS enforcement
mechanisms. The ISDS mechanism in
ChAFTA provides Australian investors
with the ability to enforce investment
protection obligations contained in the
agreement, and to partly mitigate any
sovereign and political risk of investing
in China.
The investment obligations contained in
ChAFTA are still in their infancy, however,
negotiations between Australia and
China over the next few years will likely
result in a more robust protection regime
for investors.

Investment protection obligations


under ChAFTA
Section A of Chapter 9 of ChAFTA sets
out Chinas and Australias obligations
with respect to investments. Under
the agreement, the states commit to
obligations only in respect of investment
by persons of one state in the territory of
the other.
The investment protection obligations
can be divided into two temporal
groups:
(i) first, the obligations arising on
ChAFTAs entry-into-force; and
(ii) second, the obligations arising as a
result of the forward work program
and, specifically, the negotiations
around a comprehensive Investment
Chapter set to take place over the
next three years.
Put simply, in its current form, Chapter
9 provides a bare bones framework
of investment protections that will
be added to as a result of further
negotiations between the two states.

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LEGAL UPDATES FREE TRADE AGREEMENTS AND ARBITRATION

There are currently two substantive


investment protections in Chapter 9.
The first, in Article 9.3, protects the
other states investors and investments
from being treated less favourably than
nationals in comparative circumstances
(national treatment).
The second, in Article 9.4, commits both
states to most-favoured nation treatment
(MFN treatment). In effect, this protection
requires China to treat Australian
investors no less favourably than other
foreign investors under any future treaty
arrangements, and vice versa.
Article 9.8 provides general exceptions
for measures adopted or enforced by
either state, provided that such measures
are not applied in a manner which
would constitute arbitrary or unjustifiable
discrimination between investments or
between investors.

Before arbitration can take place,


ChAFTA requires that a compulsory
negotiation or consultation take place
between the investor and the state. If the
dispute cannot be settled by consultation
within 120 days, the claimant may refer
the dispute to arbitration under any one
of the following bodies of rules:
(a) International Centre for Settlement
of Disputes (ICSID) Convention and
Rules;
(b) ICSID Additional Facility Rules;
(c) the United Nations Commission on
International Trade Law (UNCITRAL)
Arbitration Rules (with certain
modifications); or
(d) where the claimant and respondent
agree, any other arbitration institution
or rules.

(b) necessary to ensure compliance with


laws and regulations consistent with
ChAFTA;

Importantly, Article 9.17 of ChAFTA sets


out requirements for transparency in any
arbitral proceedings that take place.
In addition to providing for public
hearings, ChAFTA requires the
respondent state to make certain
documents such as pleadings available
to the public, subject to certain
exceptions. Compared to a number of
other arbitral regimes, ChAFTA provides
a relatively high degree of transparency.

(c) imposed for the protection of national


treasures; or

Australias resistance to ISDS


mechanisms the Philip Morris case

(d) relating to the conservation of


exhaustible natural resources.

Australian resistance towards ISDS


mechanisms was brought to the fore in
2011, following the Labor Governments
announcement that it would no longer
agree to investor-state arbitration
clauses in future international investment
treaties.

The exceptions apply in respect to


government measures:
(a) necessary to protect human, animal
or plant life or health;

The effect of these exceptions is to


preserve both states freedom to regulate
in the public interest. These policy
carve-outs are further reinforced by
Article 9.11 (4), which protects measures
that are non-discriminatory and for the
legitimate public welfare objectives of
public health, safety, the environment,
public morals or public order from being
subject to a claim.
The provisions establishing the ChAFTA
ISDS mechanism are set out in Section
B of Chapter 9. Crucially, Article 9.12
provides that an investor claimant may
only submit to arbitration claims that
concern an alleged breach of Article 9.3
(national treatment) and result in loss or
damage to the claimant.
The very limited scope of claims that can
be arbitrated will likely be broadened
as further investment protections
are negotiated in the comprehensive
Investment Chapter. It is in the interests
of investment certainty for this scope to
be clarified sooner rather than later.

Apprehensive public sentiment was


further heightened by the initiation
of arbitral proceedings against the
Government by Philip Morris Asia
(Philip Morris) under the 1993 Agreement
between Australia and Hong Kong
for the Promotion and Protection of
Investments (Australia-Hong Kong BIT).
This is the first and remains the only
investor-state dispute that has been filed
against Australia.
Philip Morris raised its claims against
the Government in response to the
Tobacco Plain Packaging Act 2011 (Cth),
which came into effect on 1 December
2011. It argues that the plain packaging
legislation expropriates the companys
intellectual property, in breach of
Article 6 of the Australia-Hong Kong
BIT and, further, that the legislation
is in breach of the fair and equitable
treatment obligation under Article 2 (2).

In addition to providing
for public hearings,
the China-Australia
Free Trade Agreement
[ChAFTA] requires
the respondent state
to make certain
documents such as
pleadings available to
the public ... Compared
to a number of other
arbitral regimes,
ChAFTA provides a
relatively high degree
of transparency.
Philip Morris referred its claim to
arbitration under Article 10 of the
Australia-Hong Kong BIT, which provides
that any disputes between an investor
of one contracting party and the other
contracting party that have not been
settled amicably shall, after a period of
three months of notification of the claim,
be submitted to arbitration under the
UNCITRAL rules.
The case is still in its preliminary stages,
with submissions being received on
Australias preliminary procedural
objections. Notwithstanding that
proceedings are still in motion, and
that we are still quite some time away
from an award being handed down,
critics contend that by agreeing to ISDS,
Australia jeopardises its ability to regulate
on public policy grounds. There is no
evidence, however, to suggest that this is
in fact the case.
Further, and as mentioned earlier, certain
provisions in Chapter 9 of ChAFTA plainly
preserve the Governments freedom to
regulate in matters of public policy.

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LEGAL UPDATES FREE TRADE AGREEMENTS AND ARBITRATION

Criticisms of ISDS mechanisms


ChAFTA provides a key opportunity to
respond to a number of criticisms that
have been levelled at ISDS mechanisms
more generally.
In response to the argument that ISDS
provisions erode state sovereignty in key
areas of public policy, such as health
and environment, it is important to
emphasise that states are only bound to
obligations they agree to.
Further, and as mentioned earlier,
public interest carve-outs are becoming
more commonplace. It is both sensible
and reasonable to provide aggrieved
investors with appropriate means to hold
states accountable for breaches under
BITs and FTAs. Without recourse to ISDS,
the investment protections contained
in such treaties become illusory and
ultimately not worth the paper they are
written on.
In the case of ChAFTA, it will be
important for both the Australian and
Chinese governments to negotiate
broader investment protections over the
next few years, in addition to extending
the scope of the ISDS mechanism so
as to allow arbitration on claims arising
under these protections.
Another contention that has been
directed at the ISDS system is that it
lacks democratic legitimacy due to
the proceedings being determined by
an unaccountable group of elites, a
lack of transparency, and the absence
of public participation. It is true that
investment arbitrations are heard before
individuals appointed by the parties or,
in the absence of party agreement, by
an arbitral body. The same criticism,
however, can be levelled at many
leading judicial systems that rely on
an independent judiciary, comprising
individuals that are not elected.
Further, the lack of election does not
make tribunals inherently unaccountable.
The movement for greater transparency
is gaining ground in investment
arbitration, and proceedings are
gradually becoming more open and
transparent. The Australian Government,
for instance, has a website dedicated
to the arbitration against Philip Morris.
There, members of the public can access
publicly-available arbitration documents,
summaries of procedural orders made,
and updates on the progress and
conduct of the proceedings.
Public participation, too, is becoming
more accepted. The ISDS provisions in
ChAFTA allow third parties to file amicus

76

LSJ

curiae submissions to the tribunal in


relation to matters within the scope of
the dispute.
While there may still be room for
improvement in bolstering arbitration
accountability and transparency, the
system has come a considerably long
way since the 1960s and it is moving in
the right direction.
Critics also contend that investment
protection provisions enforced through
ISDS mechanisms create a bias in
favour of foreign investors. Under ISDS
provisions, only foreign investors can
bring a claim against the state hosting
the investment, and this may sometimes
have the effect of conferring greater
legal rights on foreign investors than
local businesses. To the extent that this
is true, there is nothing to stop domestic
investors from lobbying the Government
to bring their rights in line with those of
foreign investors.
Critics, including the Chief Justice
of the High Court of Australia, have
also voiced concern that investment
arbitration decisions may overrule
domestic courts. It is plain, however,
that ISDS proceedings have no ability to
overrule domestic court proceedings.
The separation in jurisdictions is very
clear: domestic courts are to consider
domestic law and ISDS tribunals are
to consider international law and the
terms of the investment protection
treaty. In any event, Australias
agreements typically include a fork in
the road provision, requiring investors
to choose whether they pursue claims
in international law or through the local
court system.
The costs of defending ISDS proceedings
have also attracted criticism. While it
is true that ISDS claims are expensive
to defend, it is also equally costly for
claimants to pursue these claims.
Arbitration brought pursuant to ISDS
mechanisms is often a measure of
last resort in order to protect valuable
investments.
It is important also not to forget that
over a period of 28 years where Australia
has been open to potential ISDS claims,
only one registered claim has been made
against it.

Going forward the imperative for


ISDS mechanisms
Put simply, without effective
enforcement mechanisms, investment
protections in BITs and FTAs become an
illusory concept and are not worth the
paper they are written on. Without an

Without an InvestorState Dispute Settlement


mechanism, Australian
investors are left with local
judicial systems to defend
their investments. This
provides very little comfort
in states where local
courts are characterised
by corruption, bias and a
lacuna in the rule of law.
ISDS mechanism, Australian investors are
left with local judicial systems to defend
their investments. This provides very little
comfort in states where local courts are
characterised by corruption, bias and a
lacuna in the rule of law.
White Industries Australia Limited v
Republic of India (UNCITRAL) is a case
in point. In that case, White Industries,
an Australian mining company, was
attempting to enforce an International
Chamber of Commerce award through
the Indian courts.
After nine years with no outcome from
the local judicial system, and having
already incurred significant costs, in 2010
White Industries commenced arbitration
against India under the India-Australia BIT.
The Tribunal made an award for
compensation and costs in favour
of White Industries, on the basis that
India had breached a BIT obligation to
provide investors with effective means
of resolving disputes. The case is a clear
demonstration of the imperative for ISDS
mechanisms.
It goes without saying that every dispute
resolution process has its flaws.
There should be no doubt, however,
that the ISDS system has undergone
considerable evolution and reform since
the 1960s when it first came to be.
Providing investors with the ability to
enforce investment protection treaties
has been, and will continue to be, an
important development for trade and the
rule of law globally.
Australia should be looking to be a leader
in both, and ChAFTA represents a small
yet positive step in the right direction.

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LEGAL UPDATES TAXATION

WILL-MAKING
AND HIDDEN TAX STINGS

Jim Maine is an
accredited business
law specialist and a
chartered tax adviser.
He is also a director
of JMA Legal, Sydney,
Cootamundra,
Gundagai.

By Jim Maine

ndrew made me promise,


Sheila tells you, that we would
always treat the children
equally. Yes, you reply, poor
old Andrew, how long since he died?
Ten long years, Sheila replies, and oh my
goodness! How things have changed
since then!
Do you know, she goes on, that our son
Michael married that woman we never
got on with and has moved to the UK
just to get away from us? And James,
our youngest, has worked so hard in the
business Andrew bought into in the late
1980s and is not even a shareholder!
Then theres Jane and her marriage is
very shaky.
Goodness, you say, what a mix. And of
course you have a big share portfolio,
dont you? And your house is worth a
fair bit, I guess. And then theres that
investment property you have that
Michael once said hed like to have if he
ever moved back to Sydney.
Yes, says Sheila, its all so difficult. I dont
know what to do. Dont worry, you say.
We can fix it.
Firstly, so far as Jane is concerned, you
suggest a capital protected testamentary
trust controlled by Jane to help if her
marriage does in fact fail. Sheila is happy
with this and doesnt think Jane would
have a problem with it.
Secondly, you suggest that Sheila, in
her will, give Michael an option to buy
the investment property. He could then
choose between buying it for effectively
two-thirds of the value or letting it go
equally between the three children
under the will.

Thirdly, in the family company there are


two issued shares, as initially Andrew and
Sheila had one each and Andrew left his
share to Sheila in his will. You suggest
a condition in the will requiring the
executors to issue a third share to Janes
testamentary trust, with the other two
going to the other offspring, James
and Michael.
Sheila gives you the go-ahead and tells
you how grateful she is for your help.

After 12 months she gets to the general


discount of 50 per cent but still 50 per
cent of the full price.

Transfers to beneficiaries of a
will under a power of sale or
testamentary option are not
CGT-free.
Be careful preparing wills
where there are non-resident
beneficiaries.
Never make a will of
any complexity without
consulting other family
advisers especially the family
accountant.
A few months later you hear that Sheila
has passed on, and soon afterwards the
three kids make an appointment to go
through the will. They also appreciate
the equal and considered treatment.

The stings
The problems start when you consult
Sophie, the family accountant for many
years. She says, with feeling, I so wish
you had spoken to me about this before
the will was signed.
Worriedly, you ask why.
Firstly, Sophie says, that share portfolio.
Michael is obviously a UK resident for
tax purposes. This means the gift to him
of one-third of the share portfolio will
trigger CGT event K3, which happens
when certain assets including listed
shares pass to a foreign resident
(see Income Tax Assessment Act 1997
(ITAA 1997) s 104.215).
What you should have done is give him
different assets of the same value for
example, cash or even that investment
property, which as real estate is not
subject to CGT event K3 (see ITAA 1997,
s 855.15 ).
Secondly, Sophie says grimly, that share
you required to be issued to Janes
testamentary trust. The cost base of
the share will be nil (s 112.20(3)) so that
if she sells it within a year, 100 per cent
of the value will be added to her
assessable income.

What you should have done is organised


for the two shares to be split into six and
given two to each child. That way, each
of them would have the advantage of
whatever the cost base of the shares was
when Sheila died.
And thirdly, Sophie says with increasing
heat, if Michael exercises that option to
buy Sheilas investment property, there
will be a heap of CGT to pay because
when the house is transferred it wont be
a CGT-free transfer under a will. It will be
just the same as if it was sold at market
value to anyone else (ITAA 1997,
s 128.20(2), withdrawn ruling IT 2664 and
Reference 1012614140562 in the ATOs
Register of Private Binding Rulings).
What you should have done is find out
from Michael, before Sheila made her
will, what he wanted to do. If the house
was simply given to him in the will it
would have passed to him CGT-free.
In despair you say, my goodness I have
stuffed up is there no hope? Sophie
says, well, you did do one good thing,
that testamentary trust for Jane. Not only
does it give protection in the event of
divorce but it is very tax effective. Thatll
help a bit with your other stuff-ups, at
least for Jane.
As you sadly walk away from Sophies
office you reflect on the difficulties you
face and the importance of involving all
relevant professionals when making any
wills other than the most simple.

You should have [found]


out from Michael, before
Sheila made her will, what
he wanted to do. If the
house was given to him
in the will it would have
passed to him CGT-free.
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21/07/2015 10:53 am

LEGAL UPDATES MIGRATION LAW

OF SECRECY AND ENFORCEMENT:


AUSTRALIAN BORDER FORCE ACT

Khanh Hoang is an
Associate Lecturer
with the Migration
Law Program at the
Australian National
University.

By Khanh Hoang

n Wednesday 1 July, the


Australian Border Force Act
2015 (Cth) (the Act) came
into force. It provides the
legislative basis for an Australian Border
Force (ABF) to be established within the
Department of Immigration and Border
Protection (DIBP). The creation of the ABF
ushers in a new era for the immigration
portfolio, which has historically been
focused on nation-building and ensuring
economic prosperity, by shifting
the focus towards enforcement of
immigration-related matters.
This article considers two issues arising
from the creation of the ABF. First, it
considers how an increased focus on
enforcement might affect visa decisionmaking. Second, it highlights the
controversy surrounding the secrecy
provisions in the Act and analyses
how they interact with whistleblower
protections under the Public Interest
Disclosures Act 2013 (Cth).

Background to the Australian


Border Force
In May 2014, following a
recommendation of the National
Commission of Audit, the Australian
Government announced its intention
to consolidate the border control
functions of the DIBP and the Australian
Customs and Border Protection
Service into a single agency. The ABF
is the operational enforcement entity
within the Department, focusing
on investigations, compliance, and
detention operations offshore and
onshore. The ABFs formation completes
the governments militarisation of the
immigration portfolio, which began with
the introduction of Operation Sovereign
Borders in 2013.

Regulating employee conduct


The Border Force Act provides that a
Commissioner is to be appointed with
control of the ABFs operations. The
Commissioner has wide powers to
issue binding directions on employees
regulating the performance of functions
and the exercise of powers under the
Act (s 27). Such directions may relate to
essential qualifications, organisational

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LSJ

The Border Force Act 2015 (Cth)


provides the legislative basis
for the establishment of the
Australian Border Force within
the Department of Immigration
and Border Protection.
The focus on enforcement
is likely to result in greater
numbers of visa refusals and
cancellations.
There are strict secrecy
provisions that prevent the
disclosure of information by
an employee. It is unclear to
what extent whistleblower
disclosures would be protected
by the Public Interest Disclosure
Act 2013 (Cth).
suitability, or the reporting of serious
misconduct. The Commissioner may
also require an ABF employee to
make an oath or affirmation before
commencing their duties (s 24).
An ABF employee can have their
employment terminated on the basis
that the Commissioner reasonably
believes the employees conduct
amounts to serious misconduct that is,
or is likely to, have a damaging effect on
morale or reputation of the Department
(s 32). The Commissioner can also make
a serious misconduct declaration, with
the effect of depriving the employee of
the right to seek remedy in relation to
their dismissal under the Fair Work Act
2009 (Cth) (s 32(5)).

Greater emphasis on enforcement


and integrity measures
The ABF is likely to result in an attitudinal
change within the Department, marked
by a greater emphasis on enforcement
and compliance.
Earlier this year, the secretary of
the Department, Michael Peluzzo,
flagged in Senate Estimates that the
Department needs to reconsider visa

decision-making to empower our


officers to say no more often where
the circumstances warrant as well as
ensuring that our staff have training and
support to make defensible, adverse
decisions (Budget Estimates, Legal
and Constitutional Affairs Legislation
Committee, 23 February 2015).
This attitudinal shift needs to be
considered in the wider context of
recent reforms to the Migration Act
1958 (Cth) that give greater powers to
decision-makers to refuse or cancel
visas. Practitioners and migration
agents should be aware of the potential
impact of the Migration Amendment
(Character Cancellation and General
Visa Cancellation) Act 2014 (Cth) and
the Maritime and Migration Amendment
(Resolving the Legacy Caseload)
Act 2014 (Cth) on visa refusals and
cancellations. For example, character
provisions have been amended such that
a person is taken to fail the character test
under s 501 of the Migration Act where
they have been sentenced to terms of
imprisonment that add up to more than
12 months (previously 24 months).
Practitioners should expect to see an
increase in the number of visa refusals
and cancellations on character grounds,
protection visa refusals, and greater
numbers of visas rejected on the basis
of the fraud criterion (Public Interest
Criterion 4020) in the coming year.

Secrecy provisions and


whistleblower protections
The Border Force Act contains strict
secrecy provisions. Section 42 makes it
an offence for an entrusted person to
make a record of or disclose protected
information. The penalty for the
offence is two years imprisonment.
An entrusted person is widely defined
to include an employee, consultant
or contractor of the Department, a
public service employee or anyone
else who makes their services available
to the Department (s 4). Protected
information includes any information
a person obtains in the course of their
employment (s 4(4)).

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It is important to emphasise that the


Act specifically outlaws the recording
of any information unless it is part of an
entrusted persons job, or is authorised by
law or by an order or direction of a court
or tribunal. No standalone exception or
defence exists under the Border Force
Act for a person who records information.
This means, for example, an employee
would breach the secrecy provision by
recording instances of child abuse in
detention centres in a diary or on their
mobile phone. By extension, a journalist
who assists or encourages the recording
of information by an employee may also
be aiding and abetting the commissioning
of an offence under the Criminal Code Act
1995 (Cth), (Div 11.2(1) of the Schedule).

However, a person who relies on an


exception bears the onus of proof.
Therefore, whistleblowers must make
judgments about whether a threat to life
or health is serious enough to warrant
disclosure and then be willing to defend
their actions in court. This alone may
have a deterrent effect on disclosure.

The secrecy provisions have drawn heavy


criticism from health professionals and
lawyers who fear that the legislation
would have a chilling effect on
whistleblowers. However, both the
government and opposition have argued
whistleblowers would be protected in
making disclosures by virtue of the Public
Interest Disclosure Act 2013 (Cth).

While the ABF Commissioner, Roman


Quaedvlieg, has said it is unlikely that
medical staff will be prosecuted, the
reality is that future whistleblowers
are stuck between a rock and hard
place. Disclosure may not result in
imprisonment, but it could lead to a loss
of employment, without any protection
from the Fair Work Act.

So, how might the laws affect


whistleblowers?

Interaction with the Public Interest


Disclosure Act 2013 (Cth)

Limited defences available under the


Border Force Act

Subsection 42(2)(c) of the Border


Force Act allows for disclosures that
are required or authorised by or under
a law of the Commonwealth, a State
or Territory. This provides an opening
for disclosures to be made under the
Public Interest Disclosures Act 2013 (Cth)
(PIDA). The PIDA protects whistleblowers
from criminal, civil, and administrative
liability for public interest disclosures.
Permitted public interest disclosures are
defined in s 26 to include:

The Border Force Act contains a number


of exceptions to the secrecy provision
(ss 43-49). Disclosures are permitted if:
the disclosure is authorised by the
Secretary of the Department (s 44, 45);
or
the disclosure is required for their work
with the Department (s 42(2)(b)); or
the disclosure is required or
authorised by or under a law of the
Commonwealth, a State or Territory
(s 42(2)(c)); or
the disclosure is required by an order or
direction of a court or tribunal
(s 42(2)(d)); or
the information in the disclosure has
already been made to the public (s 49);
or
if the disclosure is about a particular
person, and that person or body has
consented to it (s 45); or
the disclosure is necessary to prevent
or lessen a serious threat to the life
or health of an individual and the
disclosure is for the purposes of
preventing or lessening that threat
(s 48).
Of these exceptions, s 48 appears to
provide strong protection for doctors
and health professionals to disclose
information about child or sexual abuse.

The exception sits uneasily with other


provisions of the Act that regulate
employee conduct. For example, if the
ABF Commissioner issues a direction
that information related to the health of
individuals not be disclosed to the media,
a failure to follow a direction may be
grounds for termination of employment
on the basis of serious misconduct
under the Act.

a disclosure within the government,


to an authorised internal recipient or
a supervisor, concerning suspected
or probable illegal conduct or other
wrongdoing (referred to as disclosable
conduct); or
a disclosure to anybody, if an internal
disclosure of the information has not
been adequately dealt with, and if
wider disclosure satisfies public interest
requirements; or
a disclosure to anybody if there is
substantial and imminent danger to
health or safety; or
a disclosure to an Australian legal
practitioner for purposes connected
with the above matters.
Under the PIDA, unless there is an
imminent danger to health or safety,
whistleblowers must first disclose matters
internally. If they wish to go public, they
must be confident that the matter has

not been adequately dealt with under


internal review procedures, and that the
disclosure is not, on balance, contrary to
the public interest. However, there is little
guidance in the PIDA as to what is, or is
not, in the public interest.

Qualifications to going public


There are further qualifications for
anyone wanting to go public with
information under the PIDA. Subsection
26(2A) provides that a response to
an internal disclosure is taken not to
be inadequate to the extent that the
response involves action that has been,
is being, or is to be taken by a Minister.
In addition, a person cannot make a
public disclosure only on the basis that
they disagree with the course of action
that has, is being, or is proposed to be
undertaken, by the Minister (s 31(b)). For
example, if an internal disclosure is made
that raises concerns about the health
of a detainee and the Minister makes a
decision that the person is to be sent to
India instead of Australia for treatment,
such information cannot be disclosed.
In addition, a person cannot make a
public disclosure only on the basis that
the person disagrees with government
policy (s 31(a)).
Secondly, the PIDA prohibits public
disclosure of intelligence information,
the definition of which includes sensitive
law enforcement information (s 41). This
is widely defined to include information
that is reasonably likely to prejudice
Australias law enforcement interests.
The government could use these
qualifications to argue that much of what
happens in detention centres amounts to
sensitive law enforcement information
that cannot be disclosed.
The internal hurdles in conjunction with
the ambiguities around what is sensitive
law enforcement information mean it is
far from certain that whistleblowers will
be protected under the PIDA if they go
public with information.

Conclusion
The Border Force Act 2015 (Cth) provides
the legislative basis for an Australian
Border Force to be created within the
DIBP. The Australian Border Force ushers
in a new era for the DIBP with renewed
focus on enforcement and integrity
measures. Practitioners should expect to
see greater numbers of visa refusals and
cancellations. The secrecy provisions of
the Act are controversial and it remains
to be seen whether whistleblower
protection provisions under the PIDA are
adequate to protect disclosures made in
the public interest.

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LEGAL UPDATES FREEDOM OF INFORMATION

NEW MEGA-TRIBUNAL
RESERVES SPACE FOR
FREEDOM OF INFORMATION

Sophie Farthing is a
senior policy officer
at the Public Interest
Advocacy Centre.

By Sophie Farthing

n 1 July 2015, the


Administrative Appeals
Tribunal (AAT) became
a one-stop shop for
thousands of review claims in the
federal jurisdiction. The Tribunals
Amalgamation Act (the Amalgamation
Act) amends the Administrative Appeals
Tribunal Act 1976 (Cth) (the AAT Act) to
create a single tribunal with jurisdiction
over administrative review, migration
and refugee appeals, social security
appeals and the review of certain child
support decisions. The Migration/
Refugee Tribunal and the Social Security
Appeals Tribunal have been abolished.
The new mega-tribunal, which will
be known as the AAT, will field over
40,000 applications per year. The
decisions made will often be significant,
such as whether an individual can
access Centrelink benefits, or whether
an applicant for refugee status can
be reunited with a family member.
The Public Interest Advocacy Centre
(PIAC) hopes that the creation of
this single tribunal will mean a more
straightforward path to access justice.
Of particular interest is a specialist
stream in the new AAT for the
consideration of freedom of information
(FOI) appeals. This article considers
the significance of this amendment
against the background of radical
reform proposed in another, more
controversial, parliamentary bill the
Freedom of Information Amendment
(New Arrangements) Bill 2014 (FOI
Amendment Bill). This Bill, if passed,
threatens to undermine the federal FOI
regime and, accordingly, the ability of
individuals and organisations to hold
government to account.

A new structure but business


as usual?
The creation of a single review
tribunal has its genesis in a report of
the Administrative Review Council in
1995. The Amalgamation Act passed
through both Houses of Parliament with
support across all political parties and
independents. The reform follows the

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On 1 July 2015, the


Administrative Appeals Tribunal
(Cth) became a new mega
tribunal with jurisdiction
over administrative review,
migration and refugee appeals,
social security appeals and the
review of certain child support
decisions.
A new specialist stream has also
been created within the AAT for
consideration of Freedom of
Information appeals.
The current Freedom of
Information Amendment
(New Arrangements) Bill 2014,
is however a counterpoint to
the generally positive reform
in the AAT. Among other
things, the Bill proposes
to abolish the Office of
the Australian Information
Commissioner. If passed, it
threatens to undermine the
federal FOI regime.
move to amalgamate disaggregated
tribunals in State jurisdictions, including
in New South Wales, Western Australia,
Victoria and South Australia. In PIACs
experience, tribunal amalgamation in
NSW has made the process of seeking
merits review of administrative decisions
more straightforward for marginalised
clients. The hope is that the new AAT
at the federal level will similarly provide
certainty, simplicity and procedural
fairness.
This reform is primarily one of
structural change, with the mechanics
of making an application remaining
largely the same. There are, however,
some changes that will influence
how the AAT is run in future. There
is, for example, an enhanced focus
on efficiency. The statutory objective
to provide merits review that is fair,
just, economical, informal and quick,

which was a hallmark of the separate


tribunals, remains. In addition, the new
AAT has the objectives of providing a
review mechanism that is accessible,
proportionate to the importance and
complexity of the matter and which
promotes public trust and confidence
in the tribunals decision-making (AAT
Act, s 2A). The AATs President is also
obliged under the Act to ensure that
the tribunal operates efficiently and
expeditiously and fulfils these statutory
objectives (AAT Act, s 18A). Further,
parties will be obliged to use his or her
best endeavours to assist the AAT to
achieve its objectives of efficiency (AAT
Act, s 33(1AA)).
Just how this focus may affect
applicants and their representatives
remains to be seen. The first review
assessing the operation of the new AAT
will not take place until 2017.
Certainly the effective management
of the huge caseload will be vital to
ensure the proper administration of
justice. Efficiency and expedition of
matters is no doubt important. It should
not, however, impact on the equally
important function of effectively
probing administrative decisions that
can have such a substantive impact on
individual lives, including in relation to
peoples human rights.

Allocating expertise
The AAT will have seven specialist
divisions, including in relation to: General
Matters; Refugee and Migration; the
National Disability Insurance Scheme;
Security; Social Services and Child
Support; Taxation and Commercial; and,
as mentioned, Freedom of Information.
Further divisions can be appointed by
way of regulation.
Division and Deputy Division heads
will be appointed to manage the seven
streams. The Attorney-General will
appoint non-presidential members
to one or more of the divisions when
satisfied the prospective member has
the relevant training, knowledge or
experience appropriate for that division
(AAT Act, ss 17C to 17H).

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The initial bill did not include a specialist


FOI stream; rather all applications to
review the refusal of a government
department to publish information were
to be directed to the general division.
As discussed further below, should
the radical reform of the FOI regime
proposed in the Freedom of Information
Amendment Bill go ahead, there will be
a significant loss of FOI expertise and all
applications to review refusal decisions
will have to be lodged with the AAT.
During parliamentary debate on the
FOI Amendment Bill, the Government
claimed that transferring the review
of FOI decisions to the AAT would
align FOI legislation with other merit
review processes across the Australian
government. However, in PIACs
experience, the decision whether or not
to release information in accordance
with an FOI request requires particular
expertise to balance the often
competing interests of the public benefit
of disclosure and the government desire
to withhold information.
PIAC accordingly urged the Legal
and Constitutional Affairs Committee
to recommend, in light of proposed
changes to the FOI regime, that a
specialist division for FOI be created
in the new AAT. The Labor Committee
Members additional comments adopted
this recommendation; subsequently
an amendment was moved during
parliamentary proceedings by Labors
Senator Collins to add a specialist
division in the AAT Act. The amendment
was unopposed. Should radical
reform of the FOI regime ultimately be
approved by Parliament, this important
amendment will go some way to
mitigate the impact of the proposed loss
of FOI expertise.

Radical change afoot in the federal


FOI regime
The FOI Amendment Bill includes
a number of proposals in relation
to privacy and FOI. Chief among
these is the proposal to abolish the
Office of the Australian Information
Commissioner (OAIC). The OAIC has
only been in place since November
2010. The OAIC is tasked with providing
free review of FOI refusal decisions,
supporting government departments
in their application of the Freedom of
Information Act 1982 (FOI Act) and
issuing guidance to FOI decisionmakers. While there have been issues
with the OAICs operation, including
lengthy delays in the processing of
reviews, it is feared that its abolition

will lead to a weaker FOI regime. It will


mean the loss of a champion of open
government and a free avenue of review
of decisions to refuse publication of
information pursuant to an FOI request.
Instead, it is feared the high application
fee in the AAT may deter many wouldbe applicants.
A well-functioning FOI regime is a
central plank of open government,
ensuring transparency and accountability
for decisions made by those who
have been elected to govern. FOI also
supports the fulfilment of representative
and responsible government enshrined
in the Australian Constitution.
The FOI Amendment Bill has been
presented as a cost-saving measure;
however there is no apparent costbenefit analysis weighing the projected
savings of $10.2 million over four
years with the additional costs these
changes will induce elsewhere in
government. For example, there will be
an influx of review applications to the
AAT, likely involving a greater number
of unrepresented litigants. This will
necessarily involve an increase in the
operating costs of the AAT.
The Government has also claimed the
Bill will give applicants access to an
improved and simplified merits review
system for FOI decisions. However, in
practice, the Bill will actually mean that
most review applicants to the AAT will
face a fee in the region of $800, which
may be reduced in a select number of
cases. For many disadvantaged clients,
the fee will simply prevent them from
bringing an application to review an
access decision.
PIAC has opposed the implementation
of this Bill. At minimum, it has
recommended that the proposed
reform be postponed for a 12-month
period to enable proper consultation
regarding the suggested changes and to
allow for the Government to respond to
the recommendations for reform made
in the comprehensive 2013 Hawke
review of the FOI Act and the OAIC.

Current status of the FOI


Amendment Bill
At the time of writing, the FOI
Amendment Bill has been passed by the
House of Representatives but has stalled
in the Senate, with opposition from the
crossbench preventing its enactment.
In unusual and highly undesirable
circumstances, the measures in the Bill
have in effect been implemented already
through budgeting decisions made by

the Government, despite the absence


of a legislative mandate. Funding for the
OAIC ceased in December 2014, but
was then reinstated for a further year in
the 2015-16 Budget. This has enabled
the OAIC to temporarily return to its
function of reviewing FOI refusals. While
the budget allocation is a temporary
victory for open government, it is likely
to be a short reprieve, as the latest
Budget Papers appear to set out the
Governments intention to proceed
with its plans to shut down the OAIC.
The current funding grant has been
identified as transitional, and no budget
provision has been allocated to the body
beyond the 2015-16 financial year.
The current Information Commissioner,
Professor John McMillan AO, was
appointed as the NSW Ombudsman in
June and commenced his new role in
July 2015. There is no news regarding his
replacement for the office of Information
Commissioner. In the meantime,
confusion and uncertainty reign.

Looking ahead
The success of the new AATs
performance as a mega-tribunal is
certainly one to watch. It is hoped that it
will provide the simple, straightforward
approach that best serves both
applicants and respondents to legal
disputes. It is a reform that has the
potential to appropriately balance
the dual necessities of efficiency and
improved access to justice.
On the other hand, the FOI Amendment
Bill poses a grave threat to transparency
and accountability in government.
Hopefully the addition of a specialist
FOI stream in the new AAT will go some
way to mitigate the damage to the FOI
regime that will occur should the FOI
Amendment Bill be eventually pushed
through Parliament.

A well-functioning FOI
regime is a central plank
of open government,
ensuring transparency
and accountability for
decisions made by those
who have been elected
to govern.
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LEGAL UPDATES TREATY MAKING

TRANSPARENCY IN TREATY MAKING


JOINT PARLIAMENTARY COMMITTEE
URGES REFORM

Stephen Tully
is a barrister at
6 St James Hall
Chambers in
Sydney.

By Stephen Tully

ustralias treaty-making process


needs reform. This was the
key message of a June report
from the Senate Foreign
Affairs, Defence and Trade References
Committee entitled Blind agreement:
reforming Australias treaty-making
process (the Report).
The Committee received 94 submissions
and made 10 recommendations on the
themes of transparency, consultation
and independence. This article identifies
the background to the Report, reviews
the Committees recommendations and
offers an assessment.

Background
The Commonwealth treaty-making
process was last reformed in 1996 under
the Howard government. Among other
reforms, a Joint Standing Committee
on Treaties (JSCOT) was established
to provide oversight, scrutiny and
foster a greater level of parliamentary
involvement. Nearly 20 years later, the
recent inquiry has examined whether
further refinements are required and
whether there are opportunities for
more openness, transparency and
accountability in the way Australia
negotiates treaties (para 1.8).
The terms of reference were very broad
and included the Commonwealths
treaty-making process (including
Parliaments role in negotiating,
approving and reviewing treaties),
appropriate institutional roles (for
parliamentary committees and other
consultative bodies), developing treatyrelated materials, opportunities for
independent assessment, the extent of
stakeholder consultation, State practice
in other jurisdictions and related matters.
One impetus for the inquiry was the
recent conclusion of high-profile free
trade agreements with Korea, Japan
and China as well as the Trans-Pacific
Partnership. The Committee reported it
heard compelling evidence that these
treaties reach into domestic policy arenas
which are ordinarily subject to public
debate or domestic legislation, and affect
a States regulatory ability (para 2.27).

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A recent Commonwealth
Parliamentary Committee
inquiry found that free trade
agreements intrude into many
domestic policy spheres without
democratic oversight and curtail
Australias regulatory abilities.
The Committees report
Blind agreement: Reforming
Australias treaty-making
process asserts that
Parliaments role in the
Commonwealths treaty-making
process needs strengthening.
Practical proposals include
confidential access to draft
treaty text during negotiations,
publishing preparatory material,
communications mechanisms
which enhance stakeholder
contributions, a negotiation
template, improved analysis and
strategic approaches.

Report recommended JSCOT engage


in treaty-making action sufficiently early
in the process for its comments to be
taken into consideration (para 3.85).
Third, the Report recommends the
Parliamentary Joint Committee on
Human Rights (PJCHR) should consider
and report to Parliament the human
rights implications of all proposed treaties
prior to ratification. The PJCHR presently
analyses the human rights implications
of all bills under the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth).
Using a mechanism already in place was
considered a sensible reform (para 3.89).
Fourth, Australia should obtain
agreement from negotiating States
for the final draft text to be tabled in
Parliament prior to signature. Indeed the
Senate required this for three draft trade
agreements between 2013 and 2015.
Such an outcome may not be within
Australias control as the confidentiality
of negotiations must be maintained. In
that instance, the Report recommends
government should outline why
negotiations are in Australias interest.

First, the Report recommends that


parliamentarians should be able to
request confidential access to draft text
during treaty negotiations. Currently,
treaties are presented to Parliament
for implementing legislation only after
signature, providing parliamentarians
with an all-or-nothing choice.

Fifth, DFAT should publish more


information about a proposed treaty,
including explanatory documents and
draft text, subject to the agreement of
negotiating States. The Report argues
this would facilitate greater transparency
in negotiations and improve engagement
with stakeholders (representing a range
of views from industry, civil society,
unions, consumer groups, academia and
non-government organisations).

Second, the JSCOT should oversee


trade agreement negotiations through
confidential briefings, corresponding
with the Minister, stakeholder
consultation and activity summaries.
JSCOT currently makes non-binding
recommendations on whether treaties
should be ratified, however, the inquiry
found its contribution comes too
late in the treaty-making process JSCOT rubber-stamps agreements
already signed by government, and is
inadequately resourced to scrutinize
large and complex agreements (para
3.66). To provide meaningful review, the

Sixth, the Report recommends that


these stakeholders also be able to
confidentially access draft treaty text. A
perceived lack of transparency was found
to lie at the heart of [the] inquiry (para
4.1) however the Committee agreed
with DFAT that complete openness may
be impractical (para 4.62) owing to the
fact that trade agreement negotiations
are typically confidential between State
parties prior to signature. Disclosing
Australias position could adversely affect
the governments ability to pursue the
national interest. However the inquiry
also found that perceived secrecy led to
a lack of public trust and that stakeholder

Ten recommendations of the Report

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LEGAL UPDATES TREATY MAKING

contributions are of poor quality given a


lack of access to information. Access to
DFAT was not considered the problem
though (para 6.12). Briefings by DFAT are
reportedly plentiful but ineffective and
lead to frustration. Without expert input,
DFAT is precluded from obtaining the best
attainable outcomes. A communications
strategy is recommended (para 4.65).

An assessment

Seventh, the Report recommends that


government should table in Parliament
an explanatory statement outlining
the priorities, objectives and reasons
for entering into trade agreement
negotiations. This statement should
assess the anticipated economic,
regional, social, cultural, regulatory and
environmental impacts. In the opinion of
the Productivity Commission, although
some information about the progress
of trade agreements was available, an
overall strategic perspective was lacking
(Productivity Commission Research
Report, Bilateral and Regional Trade
Agreements, 2010, 302). The Report
contends that the proposed reform
would meet that concern (para 5.27).

The deficiencies identified for the


negotiation of trade agreements are
observable in the development of
treaties addressing other topics. This
particular Inquiry responded to pressure
to make the treaty-making process more
open because trade agreements are
addressing topics which are ordinarily
subject to rigorous democratic processes
at the domestic level. Parliamentary
scrutiny is however largely avoided in
these agreements.

Eighth, an independent body such as the


Productivity Commission should table
in Parliament a cost-benefit analysis of
trade agreements before negotiations or
as soon as practicable afterwards. The
Committee was perplexed that analysis
occurred only after treaty negotiations
had finished (para 5.29). Furthermore,
treaties in force are not monitored or
assessed as being no longer of use.
Ninth, the Report recommends
government develop a model trade
agreement for use as a negotiating
template to address controversial
topics including investor-State dispute
settlement, intellectual property,
copyright, and labour and environmental
standards. Negotiations presently start
with a blank sheet of paper (para 5.33)
and trade agreements are moreover
inconsistent when negotiated by
different teams within DFAT.
Finally, national interest assessments
(NIAs) should be prepared by an
independent body such as the
Productivity Commission and presented
to government before an agreement is
authorised for signature. The Committee
heard not one positive word about these
assessments during its inquiry (para 6.25).
It found that DFAT painted an overly
positive picture of completed agreements
and NIAs were insufficiently detailed to be
useful to stakeholders (paras 5.54, 5.55).
Rather, NIAs need to comprehensively
address the foreseeable environmental,
health and human rights effects.

The Committee was alarmed by the free


trade agreements Australia is increasingly
concluding which engage a range
of regulatory issues. The size, reach
and complexity of these agreements
are creating policy and administrative
challenges which DFAT did not fully
appreciate (para 6.13).

The Committee sought to balance


Australias obligation to other States to
maintain the confidentiality of treaty
negotiations, with persistent stakeholder
demands for enhanced transparency.
The Report acknowledged insufficient
publicly-available information is ultimately
to everyones detriment . This follows
the recent publication by WikiLeaks of
documents from negotiations around the
Trades in Services Agreement suggesting
an extreme deregulatory agenda for
all service sectors, declining labour
requirements and overseas data transfer
(WikiLeaks reveals new trade secrets,
Sydney Morning Herald, 4 June 2015).
The Committee had no doubt there
was a groundswell for change backed
by compelling evidence and practical
suggestions for improvement (para 6.1),
but it preferred incremental change and
recommendations which could be quickly
introduced without legislation. It noted
the government had nothing to fear in
supporting [the] measures (page x).
In contrast, the Coalition members of
the Committee disagreed with all of the
findings and recommendations (para
1.1). Criticism of DFATs consultation
process was considered overblown and
borderline insulting (para 1.7). Overall,
they thought Australias treaty-making
system worked well (para 1.2).
The Australian Greens issued a
dissenting report which supported the
recommendations but considered them
to be unnecessarily qualified and not
going far enough (para 1.2). Anything
less than complete transparency left
treaty-making open to abuse by the
government of the day (para 1.7).
Essentially, the Greens felt the major
political parties would ultimately not

relinquish executive power to negotiate


trade deals (para 1.8).

Parliamentary participation
The Report helpfully advances
consideration of parliamentary
participation in treaty-making.
Many submissions expressed public
discomfort with the present position
(para 3.41). Previous attempts to legislate
for parliamentary approval of treaties
include the Parliamentary Approval of
Treaties Bill 1994/1995 and the Treaties
Ratification Bill 2012. But the Committee
was unconvinced by this distracting
issue which lacked political traction
(para 6.18). A dramatic recasting of
roles was not presently desirable or
necessary, and there was no evidence
of a compelling case for change of
this nature (para 3.48). In its view, the
executives role vis-a-vis Parliament or
the external affairs power were no longer
debated. The issues had been addressed
by the Legal and Constitutional Affairs
References Committee in Trick or Treaty?
Commonwealth Power to Make and
Implement Treaties (1995). The Senate
Foreign Affairs, Defence and Trade
References Committee merely noted
there may be no constitutional barriers
to Parliament playing a greater role in
treaty-making (para 6.3). This reluctance
not to evaluate fundamental reform will
inevitably limit what is achievable.

Matching emerging international


practices in transparency
Particularly welcome are the
Committees efforts to match emerging
international practice (para 6.10). In
particular, the Trade Promotion Authority
Bill 2015 (US) enables Congressional
members to access draft treaty text,
requires the executive branch to consult
with committees, establishes a Chief
Transparency Officer to liaise with
Congress, the public and the US Trade
Representative, clarifies negotiating
objectives and national interests before
negotiations, makes publicly available
impact assessments completed by the
US International Trade Commission
and discloses draft treaty text prior to
signature.This latter initiative, if adopted,
would make redundant the need for
disclosure by Australia.

Conclusion
Finally, consultation between the
Commonwealth and the States/Territories
needs improvement. Only the ACT
government contributed to this Inquiry
and the Committee lacked sufficient
evidence to make recommendations
(para 4.82). Clearly, there is more work to
be done.

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LEGAL UPDATES FAMILY LAW

NO PRESUMPTIONS, NO ASSUMPTIONS:
JUST AND EQUITABLE PRINCIPLES
IN FAMILY PROPERTY DISPUTES

Ian Coleman SC is a
barrister at Culwulla
Chambers and a former
judge of the Family
Court of Australia.

By Ian Coleman SC

n Mallet v Mallet (1984) 156 CLR 695,


the High Court held that there were no
presumptions in property settlement
proceedings pursuant to the Family
Law Act 1975 Cth (the FLA). In Stanford v
Stanford (2012) 247 CLR 107 (Stanford),
the High Court held that there were no
assumptions in such proceedings. Before
any order may be made, the court must
be satisfied that it is just and equitable
to make a property settlement order.
That issue is determined by reference
to a range of potentially competing
considerations, which are not confined to,
and may even be independent of, matters
finding expression in relevant provisions of
the FLA.
As the legislative provisions of the FLA
governing property disputes between
parties to a de facto relationship are
identical to those governing disputes
between married parties, Stanford
applies to such proceedings.
Proceedings continued after the death
of a party to a marriage or a de facto
relationship are also impacted by Stanford
(Watson v Ling (2013) FLC 93-527).

Stanford a pivotal case in family


law jurisprudence
The decision in Stanford elevates
equitable principles to a significance
not previously recognised in the
jurisprudence of family law. The
application of equitable principles may
result in refusal of relief that previously
would have been granted, and the
granting of relief, or forms of relief, that
previously would have been refused.
The High Court made clear in Stanford
that the just and equitable requirement
of the FLA was not satisfied solely by
reference to the provisions of s 79(4) of
the FLA, leaving open the status of those
provisions in that context.
In Bevan v Bevan (2013) FLC 93-545, the
Full Court of the Family Court concluded
that when determining whether it was
just and equitable to make an order for
property settlement, regard could be had
to findings of fact that would inform the
evaluation of contributions pursuant to s
79(4) of the FLA.

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Since the High Courts seminal


decision in Stanford nearly
three years ago, family law
jurisprudence has seen just
and equitable principles
applied in various ways.
Although it cannot at this stage
be suggested that establishing
an entitlement or interest in
accordance with equitable
principles will result in an
order reflecting that interest
or entitlement pursuant to
s 79 of the Family Law Act,
doing so will be influential
in the determination of the
proceedings.

In Chapman v Chapman [2014]


FamCAFC 91, Strickland and Murphy
JJ concluded that regard to matters
referred to in s 79(4) was impermissible,
inferentially confining the issue to
equitable principles. In Chapman, Bryant
CJ reiterated the view expressed by her
in Bevan, essentially on the basis that
there would usually be a substantial
factual substratum that was common to
both determinations.
In re-exercising the impugned discretion
of the trial judge in Bevan, the Full Court
declined to make any order for property
settlement, holding that the applicant
had not established that it was just and
equitable to make any order. The Full
Court held that there was no onus
on the respondent to establish some
form of equitable defence, the onus
remaining on the applicant to establish
that it was just and equitable to make
an order.
The respondent could not, and did
not need to, establish an equitable
defence. Influential in the Courts finding
that the applicant had not discharged
his onus were: the applicants delay
in commencing proceedings until
they were almost statute barred, the

applicants representations, and the


respondent arranging her affairs in the
expectation that the applicant would
honour his repeated promises, thereby
acting to her detriment.
It is submitted that, prior to Stanford,
the applicant would have received a
significant award. The experienced
trial judge had awarded the applicant
approximately $360,000.
The decision of Thackray CJ of the WA
Family Court in Fielding v Nichol (2014)
FCWA 77 involved the dismissal of a
property settlement claim which, prior
to Stanford, would have been likely
to succeed. In determining that the
applicant had not established that it was
just and equitable to make an order for
property settlement, his Honour relied
significantly upon the parties having
kept their finances entirely separate,
holding their property separately, not
having changed position in reliance
upon assumptions arising from the
relationship, and declining to make
testamentary provision for each other.
In Bevan and Fielding, the matters that
loomed large in determining the just and
equitable issue did not find immediate
or ready expression in the FLA, but
permeate equitable principles.
The decision of the Full Court in Eufrosin
v Eufrosin [2014] FamCAFC 191 involved
a post-separation windfall a lottery
win. The Court declined to find that it
was just and equitable to make any
order with respect to post-separation
lottery winnings, relying upon the
acquisition having resulted from the
application of funds for purposes wholly
unconnected with the former marital
relationship, and occurring at a time
when the parties were living separate
financial lives. As the Court found it just
and equitable to make an order with
respect to other property of the parties,
the lottery winnings were relevant as a
substantial financial resource pursuant to
s 75(2) of the FLA.

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As cases such as Farmer v Bramley


(2000) FLC 93-060 confirm, the party
that won the lottery would have been
deprived of more than resulted in
Eufrosin had the case been determined
prior to Stanford.
In Stanford, the High Court reiterated
that Australian law does not embrace
community of property, and
emphasised the importance of former
and continuing assumptions made by
parties with respect to their property.
Although it cannot presently be
successfully suggested that establishing
an entitlement or interest in accordance
with equitable principles will result
in an order reflecting that interest or
entitlement pursuant to s 79 of the
FLA, doing so will be influential in the
determination of such proceedings.
In Selen v Selen [2013] FamCAFC 39, the
Full Court applied the principle emerging
from Milroy v Lord (1862) 45 ER 1185,
and followed by the High Court in Corin
v Patton (1990) 169 CLR 540, that equity
will not assist a volunteer to complete
an imperfect gift in refusing to enforce a
deed of family arrangement.

Establishing an equitable interest


through estoppel
An obvious way in which a party to
proceedings may establish an equitable
interest or entitlement is in reliance upon
estoppel. In Waltons Stores (Interstate)
Ltd v Maher (1988) 164 CLR 387, Brennan
J identified the six matters that a plaintiff
needed to establish in support of a cause
of action.
In Sidhu v Van Dyk (2014) HCA 19, the
High Court considered the principles of
estoppel in the context of a domestic
relationship. The Court reiterated that the
plaintiffs reliance upon the defendants
promises or assumptions was not
imputed, but to be established by the
plaintiff, who bore the onus of proof
of estoppel. To establish estoppel by
encouragement, the conduct of the other
party needs to be a significant, but not
the sole, inducement leading the plaintiff
to do or refrain from doing something.
The detriment from which equity gives
protection is that which would flow
to the plaintiff if the defendant were
permitted to depart from representations
or assumptions induced in the plaintiff.
As Gageler J explained (at [92]), there
can be no real detriment if the party
asserting the estoppel would have been
in the same position in any event.
In Jonah v White [2012] FamCAFC
200, the Court upheld the trial judges

decision that the applicant had not


established a de facto relationship.
There was substantial reliance upon the
fact that the respondent had repeatedly
made statements to the applicant that
precluded her forming any expectations
or assumptions as to the status of the
parties relationship, or his intentions
towards her in the future. But for those
statements, the case may well have been
decided differently.

Potential application of waiver,


laches and acquiescence
Although probably eclipsed by estoppel,
equitable principles of waiver, laches
and acquiescence have potential
application to the just and equitable
issue. Although it is more likely that
such claims will be raised in opposition
to an application, there is no reason,
in principle, why they could not be
the basis of a claim that it is just and
equitable to make an order. Pivotal to
such claims are reliance, and injustice
if the reliance were defeated (see
discussion in Lamshed v Lamshed (1963)
109 CLR 440.
Equitable principles governing the
acquisition of the title to property in
the name of one partner in order to
improperly obtain a financial advantage
(Nelson v Nelson (1995) 184 CLR 538),
or benefit (Tinsley v Milligan (1994) 1
AC 340) or to defeat the interests of
creditors (Martin v Martin (1959) 110
CLR 297) have potential application
to determining whether it is just and
equitable to make an order for property
settlement. Although not fully embraced
by the High Court, the principle that
equity will not enforce proprietary
interests at the suit of a party to an
illegality (Curtis v Perry (1802) 31 ER
1285) remains relevant to the just and
equitable issue, particularly where
the acquisition of title enlivens the
presumption of advancement.

Prior financial agreements between


the parties
Stanford raises the prospect of financial
agreements between parties, which,
despite not being capable of constituting
binding financial agreements pursuant to
the FLA, may nevertheless be able to be
successfully pleaded in opposition to an
application for property settlement and
thus effectively enforced.
In Ashton v Pratt (2015) NSWCA 12,
following Ermogenous v Greek Orthodox
Community of SA (Inc) (2002) 209 CLR
95, the NSW Court of Appeal reiterated
that no presumption arises with respect

The High Courts


reminder in Stanford
of the importance of
equitable principles
in family law has been
heeded by the Family
Court. The extent to
which family law
continues to reflect the
principles of equity which
underpin the general law
remains challenging
and uncertain.
to the contractual intentions of the
parties to an agreement that constitutes
a family arrangement, which are to be
determined by reference to the whole of
the surrounding circumstances.
The court also reaffirmed the application
to such arrangements of the
requirement of certainty of contract,
and the elements of accord and
satisfaction. The judgment in Ashton
has potential application as both a
defence to, and basis for claims that,
it is just and equitable to make an order
for property settlement.
In Saintclaire v Saintclaire (2013) FamCA
491, a formally valid binding financial
agreement was set aside in reliance
upon equitable principles. The Court
applied the equitable doctrine of
undue influence arising from one party
assuming a position of ascendancy over
the other at the time the agreement was
made (following Winefield v Clark (2008)
NSWSC 882), and the principles of
unconscionable conduct emerging from
The Commonwealth Bank of Australia v
Amadio (1983) 151 CLR 447 and Louth v
Diprose (1992) 175 CLR 621.

Conclusion
This article identifies aspects of family
law in which, less than three years
after it was decided, the High Courts
reminder in Stanford of the importance
of equitable principles in family law has
been heeded by the Family Court.
The extent to which family law continues
to reflect the principles of equity that
underpin the general law remains
challenging and uncertain.

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85

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LEGAL UPDATES COSTS

PROPORTIONALITY
IN COSTS ASSESSMENT:
A NEW DAWN?

Peter Rosier is principal


solicitor of Rosier
Partners Lawyers.
He is also a cost
assessor, review
panellist, and member
of the Costs Assessors
Rule Committee.

By Peter Rosier

rom 1 July 2015, any costs falling


to be assessed under the Legal
Profession Uniform Law (NSW)
2014 (the LPUL) (which are to be
known as Uniform Law Costs those
costs where the lawyer was retained
after 1 July 2015) or under the Legal
Profession Uniform Law Application Act
2014 (which are to be known as ordered
costs those costs ordered to be paid
in proceedings commenced after 1 July
2015) will be assessed in accordance
with the principles set out in s 172 (1) of
the LPUL.

A new test?
The test in s 172 is:
(1) A law practice must, in charging
legal costs, charge costs that are no
more than fair and reasonable in all the
circumstances and that in particular are:
(a) proportionately and reasonably
incurred; and
(b) proportionate and reasonable in
amount.
For the moment, we do not need
to consider the other matters to
be considered in determining the
reasonableness of costs in s 172 (2).
It is immediately obvious that the test
to be applied is expressed in different
language from the test in ss 363 and 364
of the Legal Profession Act 2004 (the
Act). The general principles of statutory
interpretation would suggest that this
requires a different interpretation.

Proportionality in the law


In general use, the word proportionate
suggests a relationship between one
thing and another. Proportionate has
been defined as correct or suitable in
size, amount or degree when compared
to something else and keeping the
same relationship of size or amount
to something else. It has been used
to reduce the liability of a tortfeasor
by reference to the comparative
responsibility of others who also caused
the loss or damage which is the subject
of the claim (Tony Horan, Proportionate
liability: Towards National Consistency,
September 2007).

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Section 172 of the Legal


Profession Uniform Law
(NSW) imposes a new test
for determining the fair and
reasonable costs that a legal
practitioner may charge a client.
The test is whether the costs are
proportionate in amount and
proportionately and reasonably
incurred.
Practitioners must familiarise
themselves with the new test
if they wish to both adequately
carry out their obligation of
costs disclosure in s 174 and
understand how costs will be
determined.
Even costs that are not
proportionate to the result
obtained may still be fair and
reasonable.
It has also been used in connection with
the defence of self-defence in murder
cases (Viro v The Queen [1978] HCA 9,
Zecevic v DPP (Vic) [1987] HCA 26). It is
therefore not a new concept to the law.

How is proportionality measured?


The problem is that there are a number
of ways of measuring proportionality in
costs.
Bill sues Joe to recover damage to his
motor vehicle after an accident. The
damage costs $1,500 to repair. Bills
costs, after a day in the Local Court,
are $5,000. In a costs assessment
application made by Joe, it transpires
that the costs of preparation of the
evidence of five experts represented
half of the costs claimed. Now lets
assume that there was only one report,
but the bill shows that Joes role in the
proceedings was intentionally disruptive,
with three interlocutory motions,
frequent correspondence, an amended
defence, several subpoenas, and lengthy
objections to evidence.

Overall, Bills costs do not bear any


proportion to the amount claimed
$5,000 to collect $1,500 does not seem
justifiable. The position is made worse if
one considers the collection of evidence
in order to get the best result. But, if we
make the second assumption, the costs
no longer seem disproportionate to the
way in which the matter was defended.
The response of Bills solicitors to the
constant impediments to the just, quick
and cheap resolution of the real issues in
the proceedings required by s 56 of the
Civil Procedure Act 2004 (NSW) (CPA)
was to respond at Bills cost. By looking
at the conduct of the proceedings,
rather than their substance, we see that
the costs are proportionate to the way in
which Joe conducted the proceedings.
Moreover, could a different view be
taken if the damage had cost $10,000
(remember Part G of Practice Note Civ 1
of the Local Court)?

Skalkos authority for what?


Probably the most frequently-quoted
case in support of a principle that costs
should bear a direct proportion to the
result is Skalkos v TS Recoveries Pty
Limited [2004] NSWCA 281, in which Ipp
JA (with whom Sheller and Grove JJA
agreed) said (at [8]):
In my opinion, in determining whether
costs have been reasonably and properly
incurred, it is relevant to consider
whether those costs bear a reasonable
relationship to the value and importance
of the subject matter in issue.
Despite the frequency with which the
case is quoted, it does not closely
examine the concept of proportionality
with any rigour at all. It was an
application for leave to appeal out
of time. The verdicts obtained (in
defamation proceedings) totalled
$180,000; the costs $941,000.
In refusing leave, the Court noted the
time the trial had taken, the time over
which the proceedings had proceeded,
and other matters that had led to the
significant costs determination. In other
words, the case is as much authority
for the principle that costs may be

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LEGAL UPDATES COSTS

reasonable but disproportionate as it is


for the proposition that they must always
be proportionate.
Many other cases review the vexed
question of proportionality, confirming
its place as a matter to consider when
assessing costs, but none appear to go
so far as to say it is an absolute rule that
costs must bear some relationship to the
result achieved (or is it the amount in
dispute?) such that the court can easily
make a cost-capping order or fix the
costs itself pursuant to s 98 of the CPA
(see for example Roberts v Rodier [2006]
NSWSC 1084 at [35]).

Can costs be reasonable and


disproportionate at the same time?
There are, it seems, at least four ways of
looking at proportionality.
First, there is what I might call result
proportionate costs the result is in
proportion to what is at stake. Then there
is what might be described as conduct
proportionate costs, which is a reference
to the costs for work engendered by
the conduct of the paying party, which
leads to result disproportionate costs.
Then there might be something called
matter proportionate costs the case
is so complex that its resolution requires
considerably increased costs. Lastly,
in practitioner/client matters, some
cases might be termed instruction
proportionate costs here the clients
behavior is what causes a considerable
blow-out in the costs.
Thus, in a case where the costs are result
disproportionate, without a reason, the
costs should be questioned. An assessor
would look (as Ipp JA did in Skalkos)
for reasons such as the conduct of the
other party, the complexity of the case
(even cases involving small amounts
can be complex factually and legally), or
elaborate or indulgent instructions from
the client.
Then there is the case where there is
no (or very little) monetary value that
can be ascribed directly to the result
obtained. These include matters in which
no specific sum is defined as in dispute,
where no monetary valuation is possible,
or public interest litigation.
Thus, costs that are disproportionate
to the result obtained may still be fair
and reasonable (as in Skalkos). Even
analysed in this way, there is still no
certain manner for deciding when costs
are proportionate or proportionately
incurred.

Where can we look to for help?


Crying (Lord) Woolf
The concepts in s 172 of proportionate
and proportionately have come to us
from England. They originated from Lord
Woolfs review of civil procedure in 1996
(Access to Justice Final Report).
The relevant rule (Part 44.4 (4)) in the
English Civil Procedure Rules (CPR)
was: Where the amount of costs is to
be assessed on the standard basis the
court will:
(a) only allow costs which are
proportionate to the matters in issue;
and
(b) resolve any doubt which it may
have as to whether costs were
unreasonably incurred or reasonable
and proportionate in amount in
favour of the paying party.
There followed in rule 44.5 a reference
to proportionality in the same terms as
s 172 of the LPUL.
A clear statement of the principles
as they were applied is quoted with
approval by Lord Woolf in Jefferson
v National Freight Carriers plc [2001]
EWCA Civ 2082 and again in Lownds
v Home Office [2002] EWCA Civ 365
from a judgment of Judge Alton of the
Birmingham Circuit Court:
In modern litigation, with its emphasis
on proportionality, it is necessary for the
parties to make an assessment at the
outset of the likely value of the claim and
its importance and complexity and then
to plan in advance the necessary work
(in bringing the action) and the likely
overall cost ....
In Lownds v Home Office (above), Lord
Woolf CJ said (on behalf of the court):
In other words what is required is a twostage approach. There has to be a global
approach and an item by item approach
....
On this test, if an item of costs was
for work which was reasonable and
necessary, it is to be allowed even if the
global result is disproportionate.
However, the further review of costs
of litigation conducted by Lord
Justice Jackson, resulting in the 2013
amendments to the CPR, led to that part
of CPR 44.2 (1) which provides that:
[c]osts which are disproportionate in
amount may be disallowed or reduced
even if they were reasonably or
necessarily incurred.
While the use of the word may invites
debate, this appears to have removed
from costs claimable in the English

courts many of the costs of the sort


that I have called conduct proportionate
and matter proportionate costs.
This nuance does do not appear in
the LPUL.

Proportionality and disclosure


Even so, it seems likely that the new
test, combined with the disclosure
requirements in s 174 of the LPUL, will
place legal practitioners (including
barristers) under what Lord Woolf
described as a heavy duty to conduct
litigation in as economic a manner as
possible especially when, but certainly
not limited to, dealing with modest claims.
On analysis, s 174 seems to require the
practitioner to appropriately advise the
client early and frequently as costs
increase so that a reasonable and
informed client can decide on the best
course of action: to proceed, to settle,
to withdraw. Even defendants have
reasonably free choice as to whether to
settle or withdraw.
As time passes and disgruntled parties
bearing the burden of a costs order
litigate the meaning of the term, we will
come to learn what the judges of New
South Wales make of proportionality and
the way it feeds into the obligations of
costs disclosure.
We might also benefit from more novel
approaches, such as the formulaic
approach suggested by Paul Taylor in the
Law Society Gazette [UK] (12 March 2014)
where he proposed the development
of some sort of mathematical formula
by which the issue as to whether costs
in any given case are proportionate
in amount and reasonably and
proportionately incurred may be decided.
A very interesting idea indeed.

[I]t seems likely that


the new test, combined
with the disclosure
requirements in s 174 of
the LPUL, will place legal
practitioners (including
barristers) under ... a
heavy duty to conduct
litigation in as economic
a manner as possible.
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LEGAL UPDATES ABORIGINAL CULTURAL HERITAGE

ABORIGINAL CULTURAL
HERITAGE LAW:
A LONG ROAD TO REFORM
By Norman Laing and Kellyanne Stanford*

boriginal culture is an intrinsic


part of the shared Australian
heritage and identity. For
Aboriginal people in particular,
cultural heritage is a fundamental
component of an individuals and
communitys collective cultural identity
and wellbeing. A strong culture that
is well protected and respected is
inherently important to Aboriginal people
it is a source of pride and provides a
sense of belonging, and it embodies a
physical and spiritual connection to land
and water, or what Aboriginal people
often refer to as Country.
In NSW, Aboriginal cultural heritage
is primarily managed and protected
by the National Parks and Wildlife Act
1974 (NSW) (NPW Act). The current
legislation does not define Aboriginal
cultural heritage, rather it refers to the
need to conserve Aboriginal objects,
places, and features of significance
to Aboriginal people and to foster
appreciation, understanding and
enjoyment of this heritage (s 2A).
Aboriginal objects are defined as any
material relating to the Aboriginal
habitation of NSW, including Aboriginal
ancestral remains. The legislation also
provides that all Aboriginal objects are
the property of the Crown (with limited
exceptions). The NSW government
can dispose of Aboriginal objects that
are Crown property by transferring to
Aboriginal owners or Aboriginal people
(s 85A) with such transference effectively
ending all protection provided by the
NPW Act.

Background to NSW Aboriginal


cultural heritage legislation
The settlement of Australia has impacted
upon Aboriginal heritage and, in some
circumstances, Aboriginal peoples
ability to maintain a physical connection
to Country. As the first settled colony,
NSW is a vastly developed State, and the
impacts have been significant.
It was not until 1939 that the NSW
government first considered legislation
for protection of Aboriginal heritage; but
it was 1969 before legislative protection

88

LSJ

Norman Laing is an
Acting Commissioner
of the NSW Land &
Environment Court.
Kellyanne Stanford is
a law student. Both are
partners of Waratah
Partners Aboriginal
Corporation.

have resulted in provisions regarding


Aboriginal heritage.

NSW has the oldest legislation


that manages Aboriginal
cultural heritage.
Despite multiple reviews and
decades of calls for change,
Aboriginal cultural heritage
remains in the States flora and
fauna legislation.
NSW stands alone as the last
jurisdiction in Australia not
to have enacted separate
Aboriginal cultural heritage
legislation.
of Aboriginal heritage began with
amendments to the then National Parks
and Wildlife Act 1967 (NSW). In fact,
NSW was the second state in Australia to
legislate for this type of protection when
the NPW Act commenced in 1970, thus
providing for protection of Aboriginal
relics and sites.
The 1969 amendments also resulted
in the creation of an Advisory
Committee to the Minister for the
Environment, which consisted primarily
of anthropologists, museums, mining
companies and government staff. The
Committee did not have Aboriginal
representation until 1980. In 1973, the
Advisory Committee received funding
to conduct a five-year survey to record
Aboriginal heritage in NSW, resulting
in the creation of a sites register that
contained information about the state
of Aboriginal heritage in NSW the first
and only comprehensive survey of this
kind in NSW.
In 1974, a number of amendments to
the NPW Act 1967 were consolidated
into the NPW Act 1974 (the Act currently
in force). One of these amendments
provided for Ministerial declaration
of Aboriginal places (s 84), primarily
in order to protect places of special
significance where relics may not
exist. Other significant amendments
to the NPW Act throughout the years

The most recent 2010 amendments


strengthened provisions for the
protection of Aboriginal objects and
Aboriginal places by introducing new
offences, providing limited defences
against prosecution, increasing penalties
and creating clear and flexible permits
(Aboriginal Heritage Impact Permits or
AHIPs) for those proposing to disturb
Aboriginal objects and places.
The NPW Act also provides for the
reservation and management of lands
of particular cultural significance
(s 30E), state conservation areas (s 30G)
or Aboriginal Areas (s 30K). Conservation
agreements can also be made to protect
natural and cultural values between
landowners and the Minister for the
Environment (ss 69AKA) with the
subject area being registered on the title
of the land.

Other relevant laws


Over time, new laws were created and
amended in NSW that interacted in
quite significant ways with the NPW Act
regarding Aboriginal heritage, including:
Heritage Act NSW 1977 Provides
protection to places of Aboriginal
heritage significance that are of
State heritage significance by listing
them on the State Heritage Register.
Consultation is undertaken with
Aboriginal groups for places listed
specifically for Aboriginal significance.
Environmental Planning and
Assessment Act 1979 As the key
piece of legislation for land use
planning and development in NSW,
the Act requires new development
projects to consider impacts to the
environment. Heritage is considered to
be a part of the environment. Formal
consideration of Aboriginal heritage
must occur as part of the development
approval process.
Aboriginal Land Rights Act 1983
Established a system of Local
Aboriginal Land Councils (LALCs)
across NSW that can acquire and deal

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LEGAL UPDATES ABORIGINAL CULTURAL HERITAGE

in land whilst also providing for LALCs


to protect and promote awareness of
Aboriginal culture and heritage;
Crown Lands Act 1989 Outlines
processes and principles for using and
managing Crown land including the
use of covenants over Crown land to
protect environmental and heritage
values before the land is sold or
transferred; and
Native Title Act 1994 Enables the
exclusive possession of land, as well as
cultural rights and interests, through
native title as well as the provision for
negotiated agreements (Indigenous
Land Use Agreements).
Whilst the above statutes include
Aboriginal heritage considerations,
for over 40 years the identification,
protection, regulation and management
of Aboriginal heritage in NSW has
occurred primarily through the NPW
Act a piece of legislation that is, for all
intents and purposes, primarily for the
protection, promotion and regulation of
our States flora and fauna.

Calls for Aboriginal cultural heritage


legislative reform
Since the 1980s, a number of significant
NSW government reviews of Aboriginal
heritage laws have recommended that
the system governing Aboriginal heritage
be reformed.
Multiple reviews of the Aboriginal
heritage system have resulted in a
number of consistent themes including:
removing the management of
Aboriginal heritage from the NPW Act;
establishing a separate Aboriginal
heritage law for NSW;
redefining objects to a culturally
appropriate definition of heritage;
shifting from consultation to the
control, and governance of, Aboriginal
heritage through some form of
Aboriginal controlled commission
or decision-making body; and
importantly
formally recognising the role
of traditional owners in the
management of their heritage.
The Aboriginal people of NSW have
continually requested a stronger role
in decision making and management
of Aboriginal heritage. The current
legislation provides no decision-making
role for Aboriginal people regarding
impacts to Aboriginal heritage, however it
does provide Aboriginal people with a role
in the community consultation that must
be undertaken before an AHIP is issued.

Practitioners in heritage, property


development and mining, as well
as environmental advocates, have
recommended creation of a stand-alone
legislation that: more appropriately and
effectively deals with consideration and
management of Aboriginal heritage,
streamlines processes and interactions
with other statutes and simplifies the
consultation process with Aboriginal
communities.
Consultation with Aboriginal individuals
and groups is not an easy task, but
is essential for those parties seeking
an AHIP for their proposed activities.
Parties seeking an AHIP are continually
confronted with a level of uncertainty
about who, within the Aboriginal
community, is able to legally and
legitimately speak for Country.
The development of the Aboriginal
Land Rights Act 1983 (ALRA) partly
addressed the request of Aboriginal
people regarding management of their
land and protection of their heritage.
The 2001 amendments to the ALRA
provided a mechanism for LALCs to
submit proposals that lands of cultural
significance be reserved under the NPW
Act (s 52(c)). Further 2006 amendments
provided for the promotion of culture
and heritage awareness (s 52 (4)(b)).
There are no enabling provisions in the
ALRA Act though, to enable this protect
and promote function to occur and
the NSW government has only received
a relatively small number of proposals
for reservation of lands of cultural
significance under the NPW Act.
Separate legislation together with an
Aboriginal heritage commission, or
equivalent, has yet to be established
despite the recommendations of at least
seven formal inquiries and reports to
the NSW government. The protection
and regulation of Aboriginal heritage
continues to be entrenched within the
same legislation that is primarily for the
protection of flora and fauna.

The current Aboriginal cultural


heritage legislative reform process
In 2010, the then Labor government
committed to the development of
stand-alone legislation for Aboriginal
cultural heritage and established the first
Aboriginal Culture and Heritage Reform
Working Party (Working Party).
However, in October 2011 the NSW
Liberal government announced a revised
law reform process. The previous Working
Party was disbanded and a new Working
Party was constituted in May 2012.

In its final report, the Working


Party made 23 recommendations that
sought a fair and equitable balanced
model for all stakeholders involved
in the process. There were six key
recommendations: a new administrative
structure; processes to consider
Aboriginal cultural heritage early in the
planning processes; local decisions by
local people (who speak for Country);
streamlined conservation and regulation
processes; and funding for Aboriginal
cultural heritage conservation outcomes.
Government responded to the
recommendations in 2013 and released
a model for stand-alone legislation
that would deliver a more culturally
appropriate, efficient and effective
process for heritage protection.
The proposed model took into
consideration the stand-alone Aboriginal
heritage legislation of other jurisdictions
as well as recommendations arising
from the NSW governments review
of the ALRA and the reform of the
Environmental Planning Act 1979.

Where to now?
Despite decades of bipartisan consensus
to create stand-alone Aboriginal
cultural heritage legislation, the reform
process continues to develop at a slow
rate. There have been no government
announcements about next steps
since the consultation process for the
proposed model was completed in
March 2014
As at June 2015 some 76 years since
the NSW government commenced
discussions about the Aboriginal
cultural legislation there still remains
a legislative void in the recognition
and practical implementation of
various governments commitments
and, importantly, Aboriginal peoples
aspirations for the self governance of
their heritage.
The National Parks and Wildlife Act is the
oldest legislation in Australia managing
Aboriginal cultural heritage. Although it
has been amended multiple times and
delivers some positive results, it still
does not deliver the outcomes expected
and needed for the people of NSW.
The Aboriginal cultural heritage reform
process in NSW has been a long journey,
especially for the first peoples of what is
Australias first State.
*Norman Laing is a decendent of the Dunghutti
people. Kellyanne Stanford is a descendant of
the Yuin people.

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LEGAL UPDATES ANIMAL LAW

RETHINKING THE BOUNDARIES


OF LEGAL PERSONHOOD
By Rebekah Lam* and Daniel Cung
* The views expressed in this article are the personal views of the
author and are in no way representative of the firm.

hat do humans,
corporations, ships and the
Whanganui River in New
Zealand have in common?
They are all recognised as legal entities
capable of possessing legal rights.
Absent from this privileged list are those
non-human animals with whom we
share many characteristics, such as high
cognitive ability, practical autonomy,
complex social structures, and the
capacity to feel pain.
Despite these common traits, all nonhuman animals are still treated as property.
Unless an animals interests happen to
coincide with that of a humans, he or she
is largely invisible to judges.
For example, although it is an offence to
commit an act of animal cruelty under
the Prevention of Cruelty to Animals
Act 1979 (NSW), the act of cruelty must
have been unnecessary (as subjectively
determined by a human).
Non-human animals do not have an
absolute inalienable right to bodily
integrity.

A number of cases recently brought


by the Nonhuman Rights Project
(NhRP) in the United States have the
potential to transform the scope of
legal personhood.

The Nonhuman Rights Project


On its website, the NhRP is described as
the only organisation working through
the common law to achieve actual legal
rights for members of species other than
our own.
Its mission is to expand the definition
of legal personhood to include some
non-human animals, so that those
animals will possess fundamental rights
such as bodily integrity and bodily
liberty and other legal rights to which
evolving standards of morality, scientific
discovery, and human experience entitle
them (www.nonhumanrightsproject.
org/, 2015).

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Rebekah Lam is an
Associate at Baker
& McKenzie and
Daniel Cung is a
student of Law at
Sydney University.

Arguments for extending legal


personhood
The status of legal personhood
grants rights and privileges to
a number of living and nonliving entities, but currently
excludes non-human animals,
which are treated as property.
Recent actions brought by the
Nonhuman Rights Project, a
non-profit group in the United
States, are compelling judges
to consider the pre-requisites
for legal personhood and the
rationale for denying legal
recognition to certain highly
intelligent and complex nonhuman animals.
To achieve this, the NhRP has mounted
a series of actions in New York (all
involving chimpanzees), compelling
judges to identify exactly what the prerequisites to legal personhood are and
to articulate why it is that certain highly
sophisticated and intelligent animals fall
short. One such action has reached the
New York Supreme Court and involves
Hercules and Leo, two chimpanzees
who have been held captive as research
animals by the State University of New
York at Stony Brook for the last six of
their eight years of life.
The NhRP argues that Leo and Hercules
should be valid subjects of a writ of
habeas corpus (a writ that protects
against unlawful imprisonment), due to
their high cognitive ability and similarity
to humans in displaying practical
autonomy. Should the NhRPs argument
be accepted, the implication is that
chimpanzees would no longer be treated
as property under the law but as legal
persons in their own right.
Professor Steven Wise, President of the
NhRP, came to Australia in May 2015
as part of the annual Voiceless Animal
Law Lecture series to share the thinking
behind the court cases.

Liberty
In his book Drawing the Line: Science
and the Case for Animal Rights (Perseus
Books, 2002), Professor Wise refers to
liberty and equality as the first principles
of Western Law. These fundamental
values are enshrined in the United
States Declaration of Independence,
the Universal Declaration of Human
Rights (Articles 3 and 10), and were at
the core of the catch cry of the French
Revolutionaries who demanded Liberte,
egalite et fraternite.
Professor Wise describes liberty as the
entitlement to be treated a certain way
because of how one is, which turns on
an individuals qualities, irrespective of
how others are treated. Identifying these
qualities is at the heart of the actions
instigated by the NhRP.
In the 18th century, the British jurist,
philosopher and social reformer
Jeremy Bentham said in relation to
whether animals should receive equal
consideration to humans, The question
is not, Can they reason? nor Can they
talk? but, Can they suffer? (Bentham,
Jeremy, Introduction to the Principles of
Morals and Legislation, J.H. Burns and
H.L.A. Hart (eds) 1982). Despite this line
of thinking from almost 200 years ago,
the fact that animals are sentient beings
with the ability to feel, perceive and
experience subjectively is not considered
sufficient to alter their status as chattels.
The NhRP believes that practical
autonomy (which implies sentience) is
the key to legal rights.
Practical autonomy
Professor Wise describes practical
autonomy as (i) the ability to desire; (ii)
the ability to intentionally try to fulfil
ones desires; and (iii) the possession of
a sense of self-sufficiency (Steven Wise,
Drawing the Line, Science and the Case
for Animal Rights, Perseus Books, 2002).

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LEGAL UPDATES ANIMAL LAW

To establish before the New York


Supreme Court that Leo and Hercules
have practical autonomy, the NhRP
presented more than 100 pages of
affidavits from nine chimpanzee
cognition experts, citing more than
400 scientific articles. These all
support the fact that chimpanzees
possess over 42 highly sophisticated
cognitive abilities (see transcript of
The Nonhuman Rights Project, Inc., on
behalf of Hercules & Leo against State
University of New York at Stony Brook
(www.nonhumanrightsproject.org/wpcontent/uploads/2015/06/Transcript-of5.27.15-Hearing-Hercules-and-Leo.pdf)).
The cognition researchers demonstrated
that, far from being guided purely by
instinct, chimpanzees are self-conscious,
have a theory of mind, can understand
what others are thinking, know that
they existed yesterday, that they are
going to exist tomorrow, and plan for
the future. The studies also showed
that chimpanzees have language-like
capabilities, can do basic arithmetic,
and have a complex material, social and
symbolic culture.
Equality
Parallel to the argument that Leo and
Hercules have practical autonomy and
are therefore deserving of basic liberty
rights, the NhRP has submitted that the
principle of equality also supports the
granting of liberty rights.
Professor Wise describes equality as
a comparative right requiring that
individuals with similar characteristics
be treated the same way. In his
aforementioned book, Professor
Wise refers to scientific evidence
demonstrating that certain animals
are similar to children in ways highly
relevant to the possession of basic legal
rights. For example, a particular study of
one chimpanzee called Koko showed
that she was highly intelligent, had a
concept of self and time, had an ability
to imitate and form complex mental
representations, could understand
hundreds of signs, answer basic
questions, score between 70-95 on
standard human child intelligence tests,
intentionally communicate and deceive,
occasionally teach through correction,
and demonstrate elements of a theory
of mind (Steven Wise, Drawing the Line,
Science and the Case for Animal Rights,
Perseus Books, 2002).

As a matter of equality, the NhRP argues


that the non-human animals who share
such sophisticated traits with humans
should be entitled to basic legal rights.
To ignore the evidence would be to
discriminate against or exploit another
animal species on the assumption of
mankinds superiority (i.e. speciesism).
It would also be arbitrary and irrational,
since the legal system recognises the
legal rights of humans who have little
or no autonomy and display the same
or less cognitive ability than the nonhuman animals studied by the NhRP
e.g. infants or people with severe
intellectual disabilities.
There is no suggestion that these groups
of people be denied their legal rights, but
if the legal system is to treat likes alike
(as the principle of equality requires),
legal rights of non-human animals with
comparable cognitive ability should also
be recognised under the law.

Slippery slope argument


In his submissions before the New
York Supreme Court, Professor Wise
addressed the arguments raised by
opposing counsel that giving Leo and
Hercules legal rights would amount to
the opening of the flood gates, with
massive repercussions for not only the
legal system but society as a whole.
Professor Wises response to these
arguments was to draw an analogy to
human slavery and the fact that, until
1772, certain black people were treated
as property and no black person had
ever been the recipient of a writ of
habeas corpus. He also clarified that only
the non-human animals who exhibit
practical autonomy, as a matter of fact,
would qualify for legal rights.
At this stage, practical autonomy is
known to be exhibited only by elephants,
dolphins, whales and all four species
of great apes, so any future action will
likely be limited to these species (NhRP
website, Q&A about the Nonhuman
Rights Project, 2015).
Each state also approaches the writ
of habeas corpus in its own way. A
favourable outcome in Leo and Hercules
case might be treated as a relevant
consideration by courts outside New
York, but would not be binding.

Next steps
Judgment in Leo and Hercules case is
expected very soon, but it is possible
that the university may wind up its
project before judgment is delivered,
rendering the cause of action somewhat
redundant. If, however, the court rules
in favour of the chimpanzees, the
intention is for Leo and Hercules to live
out the remainder of their lives in a large
sanctuary in Florida.
Some have used the intention to release
Leo and Hercules into something less
than full freedom as an argument
against the granting of the writ, which
requires that a person be set free.
Professor Wises response to this is
to again draw the analogy with what
would happen if children or the mentally
incapacitated were recipients of a writ
ie they would also be released into the
custody of a guardian and not be set
completely free, either.
Irrespective of the outcome in the
current cases before the New York
Courts, what the NhRP has done
is to challenge judges to honour
established principles of jurisprudence
and the scientific evidence that
certain non-human animals display
practical autonomy and share many
characteristics with humans.
Voiceless, the animal protection institute
based in Sydney, is working with the
NhRP to set up a working group to
determine whether a test case could be
run in Australia.
Our court systems and standing
requirements are likely to make any
action much more difficult to mount, but
it is clear that, eventually, our common
law must evolve to no longer treat
certain non-human animals as property,
but recognise that they are sophisticated,
highly intelligent beings worthy of
possessing rights of their own.
Note: The NSW Young Lawyers Animal Law
Conference will be held on 29 August 2015 at
the University of New South Wales.
Speakers include: The Hon Michael Kirby AC
CMG, Phillip Wollen OAM, Dr Alex Bruce (ANU),
Dr Mehreen Faruqi (NSW Greens) and legal
advocates from RSPCA Australia and RSPCA
NSW, Animals Australia and Voiceless.

www.lawsociety.com.au/
animallawconference

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LEGAL UPDATES PROPERTY

E-CONVEYANCING
THE VERDICT
A Q&A with Richard Harvey and George Patrinos

Congratulations on being
among the first solicitors in
NSW to embrace the revolution
in conveyancing practice.
Q. What made you take the leap from
paper to electronic conveyancing?
GEORGE PATRINOS (GP): I had longstanding clients who were familiar
with the new electronic conveyancing
system and wanted to try it. I was also
interested to see if the new system was
more efficient than my process and
whether it was going to allow me to give
a better level of service to clients. I am
also interested in technology generally.
RICHARD HARVEY (RH): Well,
technically I nearly got to complete
a transfer but the transaction had to
be settled in paper. The purchasers
incoming mortgagee claimed they were
unable to complete in PEXA because it
was out of scope on PEXA. Because the
purchaser was a company and mortgage
duty may be payable, currently PEXA
does not support this function. I have,
however, completed five caveats for
various purchaser clients.

Richard Harvey is an
Accredited Specialist in
Property Law and Chair of the
Property Law Committee.
George Patrinos is the
Principal lawyer of Lawsome
Property Lawyers.

Those details are not necessarily visible


to the other side, so although a cheque
direction is still issued by a vendor,
the process around that within the
electronic workspace is a bit different.
I found the PEXA staff very helpful and,
overall, I was very satisfied with the
experience in my first transaction.
RH: Like anything new, it was a bit
overwhelming at first but, like a practice
management system, you get used to
it fairly quickly as the processes are all
similar and make sense. PEXA are also
very keen to assist.
Where you have instructions to register
a caveat and are happy to not require
the caveator to sign the declaration, it is
so much quicker than paper, as drawing
the caveat, signing it as solicitor for
caveator and lodging it in the workspace
can be done within 15 minutes rather
than the days it takes to get it done in
the paper world, especially if you are not
next door to the Registry.

Q. How did your clients find the


process? Did you need to provide
significantly different advice from in
the past?

Q. How did you find the process?

RH: From the clients perspective, the


only thing different was performing
verification of Identity (VOI) and
obtaining the simple form of Client
Authority. Even VOI was no drama, given
that to stamp a paper transfer you need
to obtain a drivers licence or other
identification, even if it is your 90-yearold mother who is paying the duty.

GP: Its not a difficult process to learn,


although like any new system theres a
need to be trained on it and learn how
to navigate it. I like the way the transfer
is automatically generated, minimising
errors.

I dont believe there is anything


significantly different you need to advise
the client on in terms of legal advice, but
the provision of settlement funds may
be done in a different way where they
are not all coming from an incoming
mortgagee.

The financial settlement side of the


system was a bit more challenging.
The focus now is on what the balance
purchase monies are and each side
of the transaction only needs to input
what amounts and payees they need.

GP: From the clients perspective, the


process was fairly easy. At our first
meeting, I asked them to sign the Client
Authorisation form (which allowed me
to act on their behalf in the transaction)
and I also used the opportunity to

Q. What kind of properties were they?


GP: The first was a house and my
second was a strata unit.
RH: Residential and farm properties.

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LSJ

verify the clients identities (something


which is also necessary for the Office
of State Revenues EDR stamping
process meaning both PEXA and OSR
requirements were able to be satisfied at
the same meeting).
Obviously, being my first PEXA
transaction, I was only able to advise the
clients about how the system should
work in theory. Not having completed
a PEXA transaction meant the clients
placed a lot of trust in me to ensure
the necessary process was followed
properly.
Closer to settlement, once settlement
figures were determined, I was able
to inform the clients of the PEXAgenerated bank account into which the
clients could place the balance purchase
funds for the settlement. It seemed
quite easy for the clients to arrange
the transfer (I dont run a trust account
so I found this an easy and convenient
enhancement to my offering).
On the day of settlement, it was
fascinating to watch the PEXA
workspace, which had a bar graph
showing the progress of the settlement.
Settlement was scheduled for 3pm,
settlement was completed at 3.07pm,
all funds were disbursed into all relevant
accounts (being for the local council,
Sydney Water, Office of State Revenue,
vendor account, and my bank account
for my fees) by 3.14pm. LPI updated
the Register with my clients names as
registered proprietors at 3.39pm.
It was really amazing to watch the
process and to confirm the same-day
title transfer to my clients.
From my clients perspective, it was
seamless and their only interaction with
me physically was to sign the Client
Authorisation form and to have their
identities verified. I could have had
their identities verified using the other
options PEXA has available, but for me
the meeting worked well in this case.

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LEGAL UPDATES PROPERTY

Q. What would you say are some of


the main advantages or disadvantages
of e-conveyancing when compared
to paper?

I assume the ENOS details are


updated by the rating agencies much
quicker, too.

Q. Do you have any advice for


solicitors considering making the
change?

Disadvantages:

RH: Advantages:

You need some training and


experience in the new system.
Your first transaction will be time
consuming because you will want to
make sure you are doing it correctly.
I found I was double- and triplechecking the most basic entries.

RH: Yes, do it! Get registered so you are


enabled and look for the opportunity
to electronically complete a caveat or
mortgage or discharge of mortgage or,
better still, a transfer. Learn how to do
it. The more lawyers are registered the
better the chances of finding someone
to play with.

Given that 95 per cent of true legal


work in conveyancing is completed
at the stage of exchange of contracts,
e-settlements will massively reduce
the time taken to prepare and
complete the largely non-legal work
of arranging settlement and, most
notably, eliminate the time wasted on
the phone with banks.
Payments including stamp duty, rates
and levies, and legal costs can all be
made as line items in the Financial
Settlement Schedule (FSS) and paid
directly by the Reserve Bank to the
nominated accounts no waiting to
receive and deposit a costs cheque.
Flexibility in payees given that the
amounts to be paid at settlement
being line items in the FSS can change
up to an hour before settlement. With
paper cheques this would likely make
settlement fall over.
Disadvantages:
I have not encountered any real
disadvantages other than PEXA has
only recently finalised the capability
to do linked sequential transactions,
i.e. a sale, purchase and sale, or a
total of two transfers. At this time
PEXA does not support more than
two transfers and they are not
simultaneous settlements as, say, with
interdependent contracts. If the first
sale goes through but that vendors
purchase settlement falls over,
the first sale settlement cannot be
undone and the vendor/purchaser will
be potentially homeless that night.
GP: Advantages:
It brings the financial settlement side
of the process into the 21st century
using electronic transfers of funds
instead of cheques.
Because transfers are now
electronically signed by the
practitioners involved in the
transaction and the transfers are
checked by LPI before the matter
settles, the paper-based problems are
gone. This is a huge advantage.
Efficient title transfer is also a great
advantage. In the traditional system,
titles could take many weeks to be
transferred often because of delays by
mortgagees.

I can imagine the VOI process will


be difficult for some practitioners,
particularly if they have overseas
clients. I suspect this process may be
improved over time.

Q. Solicitors appear not to be adopting


e-conveyancing at the same rate as
conveyancers. Why do you think that is?
RH: I think conveyancing lawyers are
busy, feel under financial constraints
re costs and to take on anything new is
hard and just something for another day,
if they really have to.
In NSW there are 29,000 practising
lawyers and only 1,200 licensed
conveyancers. In other words, only
4 per cent of those able to act in the
conveyancing field are conveyancers
and yet conveyancers make up a
whopping 40 per cent of those
registered on PEXA practising solely in
NSW. There is no doubt e-conveyancing
is the most cost-effective way to
complete transfers of Torrens land.
If lawyers are not ready they are going
to lose out to those who are ready.
GP: As lawyers, we like to adopt
processes that have been tried and
tested by others first. I can imagine the
major take-up of e-conveyancing by
lawyers may come about when lenders
cut back on the traditional settlement
process and make e-conveyancing the
preferred settlement process.
My experience with conveyancers is that
because they only do conveyancing and
want to be able to do it as efficiently as
possible, they are probably more likely
to adopt something that aids them in
providing a better service. Conveyancers
tend to have smaller operations so it
takes fewer layers of management to
make a change in process.

Also, LPIs harmonisation of paper with


electronic conveyancing is coming,
possibly by the end of this year, which
will require practitioners in the paper
space to perform the exact same VOI
as in the electronic space so you
may as well get on with electronic
conveyancing.
GP: Like anything, the growth of
e-conveyancing will depend on the
critical mass of users, the role of lenders
and their encouragement of lawyers
to use the new system. There will also
be increasing client demand, because
as happens at barbeques and dinners
all over Australia, people talk about
property, and as soon as enough people
start talking about the efficiencies of
e-conveyancing, others will demand it
from their lawyers. Its good to get on
board now and become experienced
with the system and be able to offer
it to clients. Its an additional skill
and something that will, right now,
differentiate you from other property
lawyers.

Q. With the introduction of


e-conveyancing, how soon will it be
before traditional paper conveyancing
becomes obsolete?
RH: Hard to say, but given my belief the
banks will push e-conveyancing along
with incentives and/or disincentives
for customers who do or do not use
PEXA-enabled practitioners, perhaps
five years. But noting this is for standard
transfer matters, PEXA cannot yet do
transfers creating easements or other
less common transactions.
GP: I would imagine that by late 2016
most transactions will be conducted
electronically. Its the way of the future.
Its more efficient and critical mass of
demand from clients, lenders and other
participants in the system will make it the
way we settle property transactions.
This interview was edited for the
purposes of clarity and brevity.

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LEGAL UPDATES PLANNING LAW

DEVELOPMENT OF CROWN LAND


RESERVED FOR PUBLIC
RECREATION
By Christopher Conolly and Benjamin Harris

decision of the NSW Land &


Environment Court handed
down on 11 May 2015 has
considered what can be
developed on Crown land reserved for
public recreation.
Friends of King Edward Park Inc v
Newcastle City Council (No 2) [2015]
NSWLEC 76 provides important guidance
on the following:
the use of Crown land reserved for
public recreation;
the mandatory matters under the
Crown Lands Act 1989 (NSW) (Crown
Lands Act) to be considered by the
NSW Minister responsible for Crown
lands (Minister), for the purposes
of adopting a plan of management
authorising an additional purpose;
the power to add an additional
purpose to an existing reserve by a
plan of management under the Crown
Lands Act; and
whether the use of land as a function
centre could be considered to be
use of the land for the additional
purposes of conference centres and
commercial facilities that provide for
public recreation.

The facts
The case concerned a development
application and subsequent development
consent for the development and use
of a Crown land reserve in Newcastle
as a function centre. The King Edward
Headland Reserve (the Reserve in
question) is situated within King Edward
Park and was reserved from sale for the
purposes of public recreation under the
Crown Lands Act in 2005.
The Reserve was, at the relevant time,
zoned 6(a) Open Space and Recreation
under the Newcastle Local Environment
Plan 2003 (LEP) (which was replaced
in 2012). Under this zoning, function
centres were a prohibited purpose as
they were not listed as permitted with
or without consent. However, the LEP
further provided that any development
allowed by a plan of management under
the Local Government Act 1993 (NSW)
or the Crown Lands Act was permitted
with consent.

94

LSJ

Christopher Conolly is a partner


with TressCox Lawyers and an
accredited specialist in property law.
Benjamin Harris is a senior associate
with TressCox Lawyers.

The NSW Land & Environment


Court has confirmed that land
can be said to be used for
public recreation only if it is
open to the public as of right
and is not a source of private
profit.
When adopting a plan of
management for land reserved
under the Crown Lands Act,
any uses to be permitted
on the Crown reserve must
be permitted under, or in
connection with, the declared
purpose of the Crown reserve.
Where an additional purpose
is proposed to be adopted by
a plan of management, the
requirements of the Crown
Lands Act must be complied
with and all mandatory matters
must be given genuine
consideration in an active
intellectual process.
A plan of management for the Reserve
adopted by the Minister in September
2007 (Plan of Management) expressly
authorised the use of the land for
conference centres and commercial
facilities that provide for public
recreation.
A development application (DA) was
lodged by Annie Street Commercial
Pty Ltd in December 2010, seeking to
develop the old bowling club site on
the reserve and turn it into a function
centre, kiosk, [with] associated parking
and landscaping. This application was
approved by Newcastle City Council in
November 2011.
The statement of environmental effects
lodged with the DA provided that the
function centre would be used for
corporate functions, small business
meetings and private social events (such
as weddings) and not as a restaurant or
bar that would be open to the general
public. The applicant, Friends of King

Edward Park Inc, a local community


association formed to resist the
development application in early 2011
(Applicant), subsequently challenged
the validity of the Development Consent.

Determinations
Was the proposed development within
the reserved purpose, being public
recreation?
After a review of the relevant case
law, Justice Sheahan concluded it
was clearly established that land
can be said to be used for public
recreation only if it is open to the
public as of right and is not a source
of private profit. This was not the case
with the proposed function centre.
Accordingly, the proposed use was
not for the declared purpose of the
Reserve, being public recreation.
Did the Plan of Management add an
additional purpose for the use of the
Reserve?
Additional purposes of conference
centres and commercial facilities that
provide for public recreation needed
to have been validly adopted by the
Minister in the Plan of Management.
The Minister was required to have
regard to the four specific matters set
out in s 114(1C) of the Crown Lands
Act, namely: in determining whether
to adopt a plan of management that
authorises a reserve to be used for an
additional purpose, the Minister must
have regard to the declared purpose
of the reserve, the compatibility of
the proposed additional purpose with
the declared purpose, the principles
of Crown land management and the
public interest.
Justice Sheahan concluded the
Minister did not take into consideration
the section 114(1C) matters and that
the Plan of Management was neither
drafted, nor adopted, with the intention
of adopting an additional purpose.
Could the Plan of Management have
an additional purpose different from
the declared purpose of the Reserve?
Justice Sheahan determined that, on
a proper construction of s 114, the
power to add an additional purpose

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LEGAL UPDATES PLANNING LAW

was not constrained by the purpose


for which land is originally reserved.
His Honour reasoned that, as when
adopting an additional purpose
through the adoption of a plan of
management, the Minister must have
regard to only the compatibility of the
proposed additional purpose with the
declared purpose. This is because the
Act was intended to confer a wide and
unfettered power on the Minister to
adopt an additional purpose through a
plan of management.
Did the proposed development fit
within the additional purpose in the
Plan of Management?
Justice Sheahan determined that the
proposed development was not a
commercial facility that provides for
public recreation because the use
of land for private functions (such as
weddings) is inimical to its use for
public recreation, even if it is at times
open to the public. His Honour further
determined that, for a building to be
a conference centre, its use must be
restricted to conferences and the like.
If the building is used for purposes
outside that use, it becomes a broader
type of building (i.e. a function centre).

Cremean,
Admiralty jurisdiction law
and practice: Australia, New
Zealand, Singapore, Hong
Kong and Malaysia.
4th edition.
The Federation Press. 2015.
George,
Social media and the law.
LexisNexis Butterworths. 2014.
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The Law Council of Australia:
The people, the profession
and the institutions.
Halstead Press. 2013.
Lang,
Horsleys Meetings
procedure, law and practice.
7th edition.
LexisNexis Butterworths. 2015.

Orders
The Court declared the Plan of
Management was invalid and of no
effect. Accordingly, the Development
Consent was invalid and of no effect.
Furthermore, the Court found that even
if the Plan of Management was valid, the
proposed development was not within
the additional purposes in the Plan of
Management.

Practical implications
For Local Councils and Crown land trusts
proposing the adoption of a plan of
management for land reserved under the
Crown Lands Act consideration should
be given to ensure that:
any uses to be permitted on the
Crown reserve are permitted under,
or in connection with, the declared
purpose of the Crown reserve; and
where an additional purpose is
proposed to be adopted by a plan of
management, the requirements of the
Crown Lands Act are complied with
and all mandatory matters are given
genuine consideration in an active
intellectual process.
This will require more than formal
references to the matters listed
in section 114(1C) in the plan of

Legg,
Annotated class actions
legislation.
LexisNexis Butterworths. 2014.
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Legal project management.
LexisNexis Butterworths. 2015.
Seddon on deeds.
The Federation Press. 2015.
Sweeney,
Marketing and the law.
5th edition.
LexisNexis Butterworths. 2015.
Van Caenegem,
Intellectual and industrial
property law.
2nd edition.
LexisNexis Butterworths. 2015

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management and will preferably be


evidence contemporaneous with the
consideration by the Minister for the
adoption of the plan of management.
For consent authorities considering
development proposals on Crown
reserves, consideration should be given
to ensure that:
a clear understanding is held of the
declared purpose of the Crown
reserve including any purpose or
use that is permitted under, or in
connection with it;
where the declared purpose of the
Crown reserve is public recreation,
the development must not be for a
purpose that excludes the public as of
right or a source of private profit;
the development is permitted on
the Crown reserve by the applicable
zoning table or any adopted plan of
management; and
if an additional purpose has been
adopted or authorised for the Crown
reserve and the development seeks
to be permitted to use the reserve
for that purpose, the proposed
development meets the description of
the additional purpose.

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LSJ

95

22/07/2015 11:23 am

CASE NOTES GENERAL PRACTICE

CRIMINAL LAW
By Thomas Spohr, solicitor with the NSW Director of Public Prosecutions,
Law Society Councillor and member of the Law Society Ethics, Human Rights and Criminal Law Committees

Mitreski v R [2015] NSWCCA 137


In a (comparatively rare) unanimous
joint judgment, the Court of Criminal
Appeal (CCA) has confirmed that the
test for special circumstances is: there is
no test for special circumstances.
Mitreski was sentenced for six drug
offences, with four related offences
taken into account on a Form 1. He was
sentenced to 4 years and 4 months
imprisonment with a non-parole period
of 3 years and 3 months. The eagleeyed (and mathematically-minded)
reader will have noticed that this exactly
conforms to the statutory ratio in s 44(2)
of the Crimes (Sentencing Procedure)
Act: the non-parole period is to be 75
per cent of the overall sentence unless
there are special circumstances.
Mitreski appealed on the sole basis that
special circumstances should have been
found in the District Court but were
not. He argued there were features of
his subjective case that could have,
and ought to have, justified a finding of
special circumstances.
The CCA (Ward JA, Johnson J and
Garling J, in a joint judgment) found
that there was no basis for intervening.
They pointed out that the term special
circumstances has attracted overly
frequent judicial scrutiny, but the CCA
has always resisted attempts to restrict
what can or should be taken into account
and the past authorities of this Court
have emphasised the breadth of the
phrase special circumstances, and have
avoided any narrowness of interpretation,
and have not adopted any test which
an offender needs to comply with before
the Court can find special circumstances
(at [62]). The mere presence of
circumstances capable of constituting
special circumstances is not sufficient to
compel such a finding (at [57]).
Apart from its explicit disavowal of
any actual test for what are special
circumstances, Mitreski does not
break new ground. It does however
reemphasise the ongoing need for
practitioners to give attention to all
of the factors which are relevant to a

96

LSJ

finding that an offender needs a longer


than normal period on parole. The
approach of simply pointing to a single
factor (eg first time in custody, or drug
addiction) and expecting the finding to
be made could be thought to be risky,
unpersuasive, and probably contrary
to authority.

Director of Public Prosecutions (NSW)


v Armstrong [2015] NSWSC 873
In Armstrong, the Supreme Court
(Fagan J sitting alone) considered what
happens when an offender gets caught
more than once for driving whilst
disqualified before being dealt with by
a court. The answer is fairly simple, but
the route to get there is predictably
complicated.
Despite being without a licence,
Ms Armstrong was evidently very keen
on driving. She was disqualified from
driving for high range PCA and driving
despite never having held a licence.
Then she drove whilst disqualified
(for the purposes of this summary,
call this the original disqualification).
She continued driving, so that on 15
July 2009 she was caught for another
drive whilst disqualified (the first
fresh offence). Before she went to
court for that first fresh offence, she
committed another offence, on 10
August 2009 (the second fresh offence).
Eventually the magistrate ordered that
each of the disqualification periods
would be cumulative, even though
the law provides for an automatic
commencement date.
In 2014, she returned to court and
invited the magistrate to fix that error
under s 43, because (so it was argued)
the magistrate had no power to
commence the second disqualification
on a later date. The magistrate did so,
and effectively ordered that the two
sentences be made concurrent. Another
year later, the DPP appealed on the basis
that the 2014 order fixing the error
was beyond power. The DPP succeeded
in having the order overturned, but
in some ways it was a pyrrhic victory.
Although the order reopening the

proceedings was without power, the


disqualification periods were not set the
way the DPP said they should have been.
Like almost every other appellate
decision relating to traffic law,
understanding the detail seemingly
requires post-graduate qualifications
and the careful supervision of a qualified
mental health professional. The essential
question for this summary, however,
was this: if an offender commits multiple
offences of drive whilst disqualified
before being brought before court,
when does the disqualification period
start for the further offences (after the
first fresh one)?
The answer, accordingly to Fagan J,
is that all the disqualification periods
must start from the expiry of the
original disqualification period. In other
words, if an offender commits a series
of offences of drive whilst disqualified
before being dealt with by a court, they
all commence on the same day.
Orders purporting to set a
commencement date for the
disqualification period under this
particular offence are simply redundant
and it would be better if the Local
Court stopped making them, since the
legislation sets the commencement
date as being from the expiry of the
existing disqualification (at [13]). The
existing disqualification for the second
offence was the same as the first
offence (at [15]), so the statute required
that the new disqualification period
had to commence from the expiry of
that original order. In order to avoid the
situation where an offender commits
a series of drive whilst disqualified
offences, all of which are required to
start on the same day, it is open to a
magistrate to order an additional period
for one or more of the offences (at [24]).
Readers should be extremely careful to
distinguish between this offence and the
commencement dates of other traffic
offences because the approach is not the
same. The court in Armstrong alluded to
other, different, requirements relating to
some other offences (see [35]ff).

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CASE NOTES GENERAL PRACTICE

R v De Leeuw [2015] NSWCCA 183; R v


Porte [2015] NSWCCA 174
In two unrelated decisions released
within a couple of weeks of one
another, the CCA (led in both cases by
a judgment of Johnson J) has set out
the principles applicable to sentencing
in child pornography matters. At the
risk of this author abdicating his task of
summarising decisions, both decisions
themselves provide a useful summary
of the law which can barely be further
distilled here. They will be essential
reading for practitioners with a child
pornography matter.
Although their prosecutions are
apparently unrelated, both Porte
and De Leeuw were men who had
possessed child pornography. They
had each been convicted of a mixture

of Commonwealth and State offences


relating to the possession of that
material a multi-jurisdictional situation
which the CCA in both decisions
pointed out was quite common. In
each case both Directors of Public
Prosecutions had appealed against
the inadequacy of sentence, and in
both cases the Crown was successful.
Johnson J sat on both benches and
delivered both leading judgments but
the benches were otherwise differently
constituted (Leeming JA and BeechJones J agreeing in Porte, Ward JA and
Garling J agreeing in De Leeuw).
The decision in Porte was delivered
eight days earlier than the decision in
De Leeuw, but if you are only going to
read one, it would be more efficient
to read De Leeuw. That is because, (at
[70]) of De Leeuw, Johnson J succinctly

summarises the most important bits


from Porte. It is not possible to set
out all the principles, but of particular
importance is the procedure that the
CCA considers should be adopted
on sentence. The CETS scale, which
categorises child abuse material, is
useful, but not sufficient basis for
sentence, and the CCA considers that
a sentencing court should consider
sample images (at [72]) of Porte.
Moreover, (at [72]) of De Leeuw, Johnson
J went on to set out the balance of
important sentencing considerations
from other decisions, including the
importance of general deterrence, the
reduced relevance of an offenders
good character, and the fact that the
possession of child pornography is not a
victimless crime.

FAMILY LAW

By Robert Glade-Wright, founder and senior editor of The Family Law Book

Property Deadline for filing de facto


financial causes Meaning of within
the period of 2 years in s 44(5)
In Madin & Palis [2015] FamCAFC 65
(29 April 2015) the Full Court (Finn, May
& Strickland JJ) allowed Mr Madins
appeal against the dismissal of his de
facto property application by Judge
Howard who held that it was not filed
within the period of 2 years after the
end of the de facto relationship as
required by s 44(5) of the Family Law
Act. The parties relationship ended on
9 January 2011, the appellant filing his
application on 9 January 2013.
The Full Court said (at [11]-[12]):
the two year period provided in
s 44(5) commenced on 10 January 2011
by virtue of the operation of s 36(1)
(Item 6) of the Acts Interpretation Act.
That agreed position was undoubtedly
correct. The question on this appeal
therefore became whether 9 January
2013, being the date of filing of the
initiating application, was within the
two year period which, it is agreed,
commenced on 10 January 2011.

The Court went on to state (at [13]):


It is interesting to observe that although
the expression year or years appears
in a number of sections of the Family
Law Act (other than s 44(5)) for the
purpose of prescribing a period of time
during which an action must be taken
or during which a particular situation
must prevail (see: s 39(3)(c), s 44(1B),
s 90SB(a), and s 104(3)(b) and (e)), the
expression is not defined in that Act.
Nor indeed is year defined in the Acts
Interpretation Act, although in that Act
the expression month is defined, and
for present purposes that definition is of
some interest because of its provision
for the end date of a period of a month
to be the day immediately before the
day which corresponds with the day at
the start of the period.
The Full Court further noted:
The only authority to which we
were taken and which we consider
to be of assistance is the decision
of Beaumont J of the Federal Court
of Australia in Susiatin v Minister
for Immigration and Multicultural
Affairs (1998) 83 FCR 574. One of the

questions which his Honour had to


consider in that case was the meaning
of the term within. In endeavouring to
answer that question, his Honour cited
from the decision of the Full Court
of the Supreme Court of Victoria in
Morton v Hampson [1962] VR 364
(at 365):
The modern rule in relation to a period
of time fixed by statute within which an
act is to be done after a specified event
is that the day of the event is to be
excluded; the next day is that first day
of the stipulated period and the time
expires on the last day of the period,
counting from and including the first
day. (at [14]-[15]).
After consideration of the submissions,
the Court found (at [19]-[20]):
We are prepared to conclude at least
by analogy with Beaumont Js decision
in Susiatin that in the present case the
two year limitation period provided
in s 44(5) of the Family Law Act
commenced on 10 January 2011 and
ended at midnight on 9 January 2013.
The appellants initiating application,
having been filed on 9 January 2013,

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CASE NOTES GENERAL PRACTICE

FAMILY LAW
CONTINUED
was therefore filed within time, and the
primary judge was in error in holding
that it was not. That result accords
with the plain meaning of the subsection, and there is no warrant in
that sub-section, in s 36(1) of the Acts
Interpretation Act, or in any relevant
authority for, in this instance, excluding
from the calculation of when the two
year period ends, the last day of that
two year period, ie 9 January 2013.

Financial agreements Wife refused to


sell house at separation pursuant to
s 90C agreement, arguing husband
had repudiated the agreement
justifying rescission by her
In Donald & Forsyth [2015] FamCAFC
72 (5 May 2015) the Full Court (May,
Strickland & Ryan JJ) considered a
s 90C agreement which stated that
upon separation a property was to be
placed on the market and sold in a state
of good repair, with the cost of repairs
to be paid from the sale proceeds.
At trial Judge Demack accepted the
wifes argument that the agreement
should be set aside as it had been
rescinded by the husbands repudiation
(at [50]). Strickland & Ryan JJ (at [56])
referred to a letter sent from the
husband to the wife due to changes to
the wifes circumstances which raised
other ways of achieving an outcome in
line with the agreement.
Her Honour held that conduct did not
amount to a repudiation of the contract,
but held otherwise as to the husbands
seeking of orders that move away from
the financial agreement including an
equal sharing of repair costs.
Citing High Court authority (which it
was noted Demack J failed to address
(at [73])), their Honours (at [67]) said
that the principles to be applied in
determining whether a party to a
contract has repudiated that contract
entitling the other party to terminate it
are that there must be either a breach
or an anticipatory breach of an essential
term of the contract, or a sufficiently

98

LSJ

serious breach of a non-essential term


and the other party must be ready
and willing to complete the contract.
Strickland and Ryan JJ said (at [86]) that
it was incontrovertible that since the
breakdown of the marriage the wife
had not been prepared to sell the
property, adding (at [94]) that what the
husband said in his affidavit evinces
an intention not to be bound by the term
of the agreement to share the cost of
placing the Town A property in good
repair for the purposes of its sale. Their
Honours went on to say they do not
accept that either the relevant term was
an essential term or that the anticipatory
breach was sufficiently serious.
Delivering separate reasons and
agreeing that the appeal should be
allowed, May J said (at [26]) that:
[i]t was open to the wife to effect
repairs herself and then seek that sum
be deducted from the sale proceeds or,
if not agreed, by way of damages.
The wife was not entitled to rescind,
she did not intend to have the house
readied for sale by attending to repairs,
rather she intended to continue living
in the house.

Property Husband avoids


consequences of his contravention of
orders by declaring himself bankrupt
In Doolan [2015] FCCA 634 (20 March
2015) the wife filed applications
alleging the husbands contravention
of Judge Smalls orders that he pay
the wife, pursuant to a s 90D financial
agreement, 12 monthly instalments
of $25,000, outgoings on the wifes
home, and costs. The husband declared
himself bankrupt on 9 September
2014, the day before the contravention
hearing, yet the Court proceeded to
hear the case and find that the husband
had contravened four orders. At the
hearing of the wifes application alleging
contravention of the costs order the
Court said (at [58]-[63]):
I am satisfied that the debts owed
by the husband on 10 September 2014
are provable debts under s 82(1) of
the Bankruptcy Act. Section 58(1)

states that any property owned by a


bankrupt at the date of his bankruptcy
vests immediately in the Trustee in
Bankruptcy In this case a Trustee
was appointed for the husband
on 9 September 2014. Section 58(3)
[provides that] after a debtor has
become a bankrupt, it is not competent
for a creditor to enforce any remedy
against the person or the property of
the bankrupt in respect of a provable
debt; or except with the leave of
the court to commence any legal
proceeding in respect of a provable
debt or take any fresh step in such
a proceeding.
It was obvious on 10 September 2014
that the husband was, on that day, a
bankrupt. Indeed his Trustee was in
court, if only to advise the court that
he did not intend to intervene in the
proceedings. I am also satisfied that
the remedy sought by the wife on 10
September 2014 was a remedy against
the person or the property of the
bankrupt in respect of a provable debt
(Melnik [2005] FCAFC160). Therefore,
and very unfortunately for her, it was
not competent for the wife on that
day to enforce any remedy against
the husband who was on that day a
bankrupt, and it follows that I was in
error in allowing the hearing to proceed
and making findings in relation to the
first Contravention Application.
The orders were discharged and both
applications dismissed with a right of
reinstatement, the Court declining leave
to proceed under s 58(3)(b) in default
of notice to the husband of the wifes
intention to seek leave, the Court saying
(at [74]-[75]):
By declaring himself bankrupt
the husband has managed to avoid
any consequences which might flow
from his non-compliance with court
orders. The consequences for the
wife, however, are very serious, in that
she is confronted with considerable
debt as a result of legal fees [and]
the possibility of losing her house due
to the husbands failure to pay the
mortgage.

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CASE NOTES GENERAL PRACTICE

WILLS AND ESTATES

By Pamela Suttor, partner at L Rundle & Co and Chair of the Law Society Elder Law and Succession Committee

Judicial advice

The self-represented litigant

Some confusion seems to continue


among practitioners as to whether
judicial advice or some other remedy
such as a suit for construction or
rectification of the will is the
appropriate remedy.

Sadiq v NSW Trustee & Guardian [2015]


NSWSC 716 was an unsuccessful family
provision claim heard by Hallen J.

Georgios Vasilios Sotiropoulos as


executor of the estate of the late
Maria Sotiropoulos v Vlasios Vasilios
Sotiropoulos [2015] NSWSC 855 is an
instance where the Court held that
judicial advice under s 63 of the
Trustee Act 1925 (NSW) was not the
appropriate remedy.
In this case, Robb J found the adversarial
character of the proceedings was far
away from the summary character of the
procedure envisaged under section 63
of the Trustee Act and that this was not
something that should be encouraged
(at [13]).
His Honour referred to the significant
guidance given by the High Court on the
proper operation of s 63 in Macedonian
Orthodox Community Church St
Petka Inc v His Eminence Petar the
Diocesan Bishop of Macedonian
Orthodox Diocese of Australia and New
Zealand[2008] HCA 42, and went on to
say (at [15]):
It will not always be easy for a trustee to
make the correct choice as to whether
the more appropriate course is for the
trustee to seek judicial advice under
s 63of theTrustee Act, or whether the
trustee should commence proceedings
to which the interested beneficiaries are
joined, so that the Court is asked directly
to decide the rights of the beneficiaries
on the basis of evidence All that can
be said is that an application by the
trustee for judicial advice is likely to be
less appropriate where the trustee is
an interested beneficiary, where there
is a known dispute or a high likelihood
of dispute between the beneficiaries,
and where the facts are complex or
contentious and not readily subject to
being distilled into the statement of facts
contemplated bys 63(3).

The plaintiff was unrepresented and


had refused pro bono assistance. The
attitude of the Court to the extent of
assistance to be provided to a selfrepresented litigant is very interesting.
Hallen J warned the plaintiff that he was
likely to be disadvantaged because he
lacked the requisite legal knowledge, skill
or objectivity. Nevertheless, the Court
confirmed (at [17]) its duty to ensure
that the trial is fair and determined in
accordance with the law and that the
duty applied whether the plaintiff was
unrepresented by his own choosing
or not.
Hallen J went on to say that It does not
mean, however, that to dismiss ones
lawyers, or to retain none, should be
an advantageous procedural step (at
[17]). The courts duty was not to advise
him of how to conduct his case; nor to
advise him of how his rights should be
exercised; nor to become his advocate
or stand in the shoes of his previous
counsel Any assistance would be
proportionate in the circumstances and
would be given not for the purpose
of affording an advantage to him as a
self-represented litigant:Tomasevic v
Travaglini[2007] VSC 337 (at [18]).
The particular assistance given to the
plaintiff in this case was then set out in
detail at [20][28] of the judgment.

Vulnerable clients
Committee member Ray Ward has
drawn my attention to the Practice Note
issued by the UK Law Society in relation
to acting for vulnerable clients. It can be
found at:
lawsociety.org.uk/support-services/
advice/practice-notes/meeting-theneeds-of-vulnerable-clients-july-2015/

I recommend the practice note to


practitioners for their consideration.

Rights to the ashes


There is well settled law as to the
rights and obligations of an executor in
relation to the burial and disposal of the
deceaseds body.
What is not the subject, as far as I am
aware, of any judgment is the disposition
of the deceaseds ashes following
cremation. This is often the cause of
family disputes.
All that I can recommend is that the
executor tries to negotiate the issue with
dignity and proper regard to the wishes
of family members. It may be worth
suggesting the ashes be placed in a paid
niche at the crematorium.

Probate registry
Long-serving Probate Deputy Registrar
Paul Studdert recently retired and was
suitably farewelled by members of both
branches of the profession.
The depth of his knowledge and
experience in the court and as a
mediator will be sorely missed. I hope
retirement will enable him to complete
the next edition of his renowned,
although now outdated, practice book.

Capacity texts
TheQueensland Handbook for
Practitioners on Legal Capacitywas
launched on 19 May 2015.
The handbook is the product of work by
Queensland Advocacy Inc. and Allens,
with input from members of Queensland
Law Society (QLS) Ethics Centre. The
electronic resource has been endorsed
by QLS and you can access it as follows.
qls.com.au/Knowledge_centre/Ethics/
Resources/Client_instructions_and_
capacity/Queensland_Handbook_for_
Practitioners_on_Legal_Capacity

AUGUST 2015

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TAKE THE FIRST STEP


WITH FITNESS FIRST
EXCLUSIVE LAW SOCIETY OFFER
ENJOY 10% OFF * YOUR MEMBERSHIP
Visit LawSociety.com.au/FitnessFirst
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*Offer only available to current members of The Law Society of NSW on our 3 and
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For full terms and conditions visit www.lawsociety.com.au/fitnessfirst

August ADS_FPC.indd 7

23/07/2015 3:34 pm

CONSULTANTS

HOW TO ADVERTISE IN THE LSJ


CLASSIFIED ADVERTISEMENTS
Place your classified advertisement in
the LSJ and reach 25,000 practising
lawyers. For more information, contact
the Publications Adminstration Officer,
Juliana Grego, via email: juliana.
grego@lawsociety.com.au or phone:
02 9926 0374 or visit our website at
www.lawsociety.com.au/advertise

DISPLAY ADVERTISEMENTS
The LSJ appeals to a wide range of
advertisers. Make sure your product or
service is promoted in upcoming issues by
contacting the Advertising Sales Account
Manager, Jessica Lupton via email: jessica.
lupton@lawsociety.com.au or phone: 02
9926 0290. Download the media kit at
www.lawsociety.com.au/advertise

EXPERT WITNESS LIFE INSURANCE

Independent Reports on Life and Income


Insurance. Adviser / Insurer usual practises.
Call me 0404 851 191 or email me peter@
specialistcare.com.au. PETER A. REID.

COSTING
ALYSON ASHE & ASSOCIATES

Offers a highly experienced, personalised


and effective legal costing service at all levels. Contact Alyson Ashe Mobile: 0414 362
477, T: 1300 738 262, E: royleg@bigpond.
com or PO Box 737 Crows Nest 1585. www.
alysonashe.com.au.
BINGHAM-HALL & ASSOCIATES

ACCOUNTANTS
ACCOUNTING, TAXATION AND PRACTICE
ADVISORY FOR LAW FIRMS

To arrange an obligation-free meeting to


discuss the needs of your practice, phone
Graham Baker, Chartered Accountant and
law firm specialist, on 0403282613.

AGENCY/REFERRALS
ACT AGENCY WORK

ACT Agency work and referrals accepted for


personal injury litigation, probate and estate
litigation, conveyancing and all commercial
matters. Call (02) 6262 5355 or Email: mail@
capitallawyers.com.au, Website:
www.capitallawyers.com.au.
AGENCY / REFERRALS - ACT COURTS

Long established local firm Gil-Jones Barker


will accept instructions for agency/referrals
in all ACT matters. Call (02) 6180 5111 or
email reception@gjblaw.com.au.
AGENCY SYDNEY CBD ALL COURTS

All Sydney CBD Court appearances, copying Court files and filing. Urgent instructions
welcome. Contested matters conducted by
experienced litigators. TW Agency. 02 9269
9999, GPO Box 1959 Sydney 2001, DX 211
Sydney, solicitors@twagency.com.au.

DISTRICT COURT, SYDNEY

Sydney Mentions Practice T: (02) 9239 0555


W: www.sydneymentions.com.au.
GOLD COAST AND BRISBANE AGENCY
WORK

ERIC MUIR of Muir Lawyers of Suite 3, The


French Quarter, 3029 The Boulevard, Carrara welcomes agency and referral work
in all areas of practice. Contact Eric Muir T:
(07) 5579 8342, F (07) 5579 8332, PO Box
3358, Nerang DC Qld, E: mail@muirlawyers.
com.au, W: www.muirlawyers.com.au.
IMMIGRATION LAW

Brett Slater Solicitor Accredited Specialist Specialising since 1985, 89 York Street,
Sydney NSW 2000, T: 02 9299 5815, www.
brettslater.com MARN 9251787.
IMMIGRATION LAW

Strategic Migration - Philip Summerbell,


Solicitor, specialising in Employment, Business, Family & Individual Migration. Weve
never lost a Visa application. Pilgrim House,
Level 5, Suite 502, 262 Pitt Street, Sydney. P:
+61 2 9261 8555, MARN 9896806 www.
strategicmigration.com.au.
LOCAL COURT, CIVIL & CRIMINAL,
SYDNEY

BANKRUPTCY

Sydney Mentions Practice T: (02) 9239 0555


W: www.sydneymentions.com.au.

Federal Circuit Court Sydney. Merewether &


Co. Ph: (02) 9660 4655. mereco@bigpond.
net.au.

Merewether & Co. Ph (02) 9660 4655,


mereco@bigpond.net.au.

BANKRUPTCY & WINDING UP

Sydney Mentions Practice T: (02) 9239 0555


W: www.sydneymentions.com.au.
BLACKTOWN LOCAL COURT AGENCY
WORK

LOW DOHERTY & STRATFORD Contact


Patrick Doherty or Kelvin Low T: (02) 9622
4644, F: (02) 9831 2037, E: reception@
lowds.com.au.
BRISBANE ESTATES AGENCY

Mitchells Solicitors, highly experienced


in Wills & Estate matters, contested and
uncontested, are prepared to accept agency and referral work. Contact Bryan Mitchell
Accredited Specialist (Succession Law) Qld (07 33733633 or bmitchell@mitchellsol.
com.au).
DISTRICT COURT SYDNEY

Merewether & Co. Ph (02) 9660 4655.


mereco@bigpond.net.au.

LOCAL COURT SYDNEY

NEWCASTLE & RAYMOND TERRACE


AGENCY

Local, District, Supreme, Family - Court


mentions and appearances by experienced
lawyers. Contact Virginia Taylor Partners on
02 4926 3335 or admin@virginiataylor.com.
au.
QUEENSLAND AGENCY - CROUCH & CO
SOLICITORS

We take agency instructions in Estates,


Contested Estates, Family Law, Commercial matters and Conveyancing. Contact
Tim Crouch Tel: (07) 3263 5111 Email: law@
crouchandco.com.au.
SUPREME COURT OF NEW SOUTH WALES

Merewether & Co. Ph (02) 9660 4655.


mereco@bigpond.net.au.
SUPREME COURT, SYDNEY

Sydney Mentions Practice T: (02) 9239 0555


W: www.sydneymentions.com.au.

Experienced solicitor with current practicing


certificate and extensive costing experience.
Send us your file and we will draw your Bills,
Objections and Responses. Your file will be
returned to you within the week. Phone:
0418 608 957, Email address: bhcosts@
pesaropublishing.com.

DEBT COLLECTION
FAST TRACK DEBT COLLECTION

We collect debt fast, thats why we also


buy debt. We specialise in the collection of
debts for Law Firms and their clients. Our
techniques have been developed and proven by Managing Director, Sam Roberts, an
Accredited Specialist in Commercial Litigation who is familiar with the Costs Assessment process for legal bills. We work on a
no collect no fee basis. To submit a debt
for collection or request a proposal to buy
a debt go to www.fasttrackdebt.com.au or
call 02 4910 0440.

FOR SALE
LIFESTYLE & PRACTICE

Are you a sole practitioner or wish to be so?


Here is a unique opportunity to acquire a law
practice in a commercial centre comprising
commercial office space & a modern 3 bedroom, 3 ensuite townhouse on the Sunshine
Coast in a golf course estate just 5 minutes
to the best beaches in Australia. Enquiries:
07 5448 2186 or cartlaw@outlook.com.

MISSING WILLS
JEANINNE MICHELLE BRADY

Any person holding or having knowledge


of a will of Jeaninne Michelle Brady late of
120 Forest Road, Arncliffe who died on 2
January 2015, please contact Paul Walter of
Walter Madden Jenkins Solicitors DX 11596
Sydney Downtown, Telephone (02) 9264
3711.
ALFONZO CARMINE DE CERBO

Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Alfonzo Carmine De
Cerbo (also known as Alphonsus Di Cerbo)
late of Wahroonga who died on 20 June
2013 please contact Fairfax Lawyers of Suite
305, 10 Century Circuit, Norwest Business
Park, Baulkham Hills, NSW 2153, PO Box
7847, Baulkham Hills, 2153, Tel: 9841 0000,
Fax: 8850 2362.

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GEOFFREY CLEMENT MORVILLE GEE

Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Geoffrey Clement
Morville Gee of 357 Tilbaroo Crossing Road,
Toms Creek 2446 who died on 18 March
2014, please contact James Kay of Falvey
Kay Lawyers, Level 1, 33 Hay Street, Port
Macquarie 2444, DX 7422 Port Macquarie,
Tel: (02) 6583 8199, Fax: (02) 6583 4743,
Email: jkay@falveykaylawyers.com.au.
JENNIFER ANN GREENE

Would any person or firm knowing the


whereabouts of a will of the late Jennifer
Ann Greene late of 2e/6 Macleay Street,
Potts Point who died on 17 April 2015 please
contact Warren Richardson of Richardson
Legal, 247 The Entrance Rd, The Entrance
NSW 2261. Tel 4333 2300 Fax 4333 2301.

PAMELA JOY MARTIN

OFFICE PLUS STUDIO ROSEBERY

Would any person or firm knowing the


whereabouts of a will or other document
purporting to embody the testamentary
intentions of Pamela Joy Martin late of Clover Lea Nursing Home, 14 Claremont Road,
Burwood Heights NSW please contact
Henry Davis York Lawyers, 44 Martin Place,
Sydney NSW 2000. Ph: (02) 9947 6000 Fax:
(02) 9947 6999 Email: robert.sobel@hdy.
com.au.

Stunning new building, new kitchen and


bathroom, 50sqm plus parking. Cherie
0402205683/sydneycitystudios@gmail.
com.

AGATHE PAPADOPOULOS

Would any person or firm holding or knowing the whereabouts of a will or any other
document purporting to embody the testamentary intentions of Agathe Papadopoulos
who died on 15 January 2015 please contact
Zaki Hajjar of Hajjar Legal on 9707 1947.

WILFRED CHAPMAN HILL

WAYNE SCOTT PARKER

FIONA REBECCA HOOPER

Would any firm knowing the whereabouts


of a will of the late Wayne Scott Parker
who died between 21 June and 1 August
2012 please contact McGroders Solicitors &
Conveyancers of 155 Lachlan Street, Forbes
NSW 2871 Telephone No: 02 6852 3366 Fax
No: 02 6852 3377 Email Address: dennis@
mcgroders.com.au.

Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Wilfred Chapman
Hill late of Surf Beach, NSW, who died on 18
June 2015 please contact Cains Law of 38A
Candlagan Drive, Broulee, NSW 2537 Tel.
44717740 Fax 44717752.
Would any firm knowing the whereabouts
of a will of the late Fiona Rebecca Hooper
who died on 19 May 2015 please contact Mr
James Argiris of Gianacas Argiris McDonald
Solicitors 200 Union Street The Junction
Tel: 02 4969 3366 Fax: 02 4962 2202 Email:
office@gamlaw.com.au.
NEIL ANTHONY HOULTON

Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Neil Anthony Houlton
late of Brighton-Le-Sands NSW who died
on 16 April 2015 in New Caledonia please
contact Wade L. Hewett, Solicitor of 26 Telegraph Road Pymble NSW 2073, PO Box
6242 Pymble NSW 2073, Tel: 0417 494260,
Email: thehewetts@glendaron.com.au.
PETER DAVID HUDSON

Would any firm knowing the whereabouts


of a will of the late Peter David Hudson (also
known as David Hudson) of 36 Saywell
Road, Macquarie Fields NSW 2564 who died
on 10 May 2015 please contact Meehans
Solicitors of Gallery Level, 171-179 Queen
Street, Campbelltown NSW 2560 Telephone
No. (02) 4627 3333 Fax No. (02) 4627 3167
Email address: brittany@meehans.com.au.
BENJAMIN LLOYD JONES

Would any firm knowing the whereabouts


of any will or other document purporting
to embody the testamentary intentions of
the deceased: Benjamin Lloyd Jones. Late
of 11 Sir Keith Place, Karuah. Date of death:
5 February 2014. Please contact Lee-Anne
Dimmock of Moray & Agnew Lawyers, Level
2, 45 Watt Street, Newcastle NSW 2300, DX
7808 Newcastle, Phone: 02 4911 5400 Fax:
02 9232 1004 E: ldimmock@moray.com.au.
CHRISTOPHER IAN MANN

Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of the late Christopher
Ian Mann formerly of Billilla via Menindee
NSW but late of 283 Adelaide Road Murray
Bridge SA who died on 11th August 2014
please contact: Leonie Millard, Mellor Olsson Lawyers, Level 5, 80 King William Street,
Adelaide SA 5000 Phone: (08) 8414 3421
Facsimile: (08) 8414 3444 Email: lmillard@
mellorolsson.com.au.

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STANLEY ROY PRESTWIDGE

Would any person or firm knowing the


whereabouts of a will or other document
purporting to embody the testamentary
intentions of Stanley Roy Prestwidge late of
Villawood who died on 25 September 2014
please contact Geoff Allars of GWK Allars
Solicitor, PO Box 206 Five Dock NSW 2046,
Tel: 9713 7657, Fax: 9713 1988, Email: geoff@
gwkallars.com.au.
JANE MARY PULBROOK

Would any person or firm knowing the


whereabouts of a will or any other document purporting to embody the testamentary intentions of the late Jane Mary
Pulbrook of 3B Ino Lane Gerringong NSW
2534 who died on 08/05/2015 please contact Gerringong Legal of Miller Arcade Unit
12, 125 Fern Street, Gerringong NSW 2534
Telephone: 02 4234 3033 Fax: 02 4234
3044 Email: office@gerringonglegal.com.
au.
ELKA SILLAND

Would any person or firm holding or knowing the whereabouts of a will or any other
document purporting to embody the testamentary intentions of Elka Silland who
died 20 July 2013 please contact Cameron
Gillingham Boyd Solicitors, Level 3, 60 Pitt
Street, Sydney, NSW, 2000 Telephone: 9232
1577 Fax number: 9223 1075 Email address:
tonyatkinson@camgil.com.au.FIC

OFFICE SPACE
CULWULLA CHAMBERS

Furnished office for lawyer $300 per week.


Contact Roland T: 02 9231 4888.
MAROUBRA OFFICE SPACE

Office space in quality premises in established multi-disciplinary practice - estate


planning/conveyancing and accounting/
financial planning. Car space & storage available if required. Reception services optional.
Boardroom available. Space for support
staff available. Would suit sole practitioner.
Flexible terms. Call Paul Burton (02) 9314
3076 or admin@maroubralegal.com.au.

OFFICE SUPPORT
TYPING SERVICES

Digital Transcription $60 ph. Please contact


Elissa 0411776988.

PRACTICES & PARTNERSHIPS


CENTRAL COAST PRACTICE FOR SALE

A long established practice for sale. Single


practitioner retiring. Good probate / conveyancing / Wills practice. Scope for expansion in Family law; Civil and Industrial law.
Fees $285K. Please forward your expression
of interest to Confidential Box No. 1, August
Law Society Journal, 170 Phillip Street, Sydney NSW 2000.
BLUE MOUNTAINS PRACTICE FOR SALE

Established over 30 years with net fees


between 500k and 600k. Very profitable.
Owner retiring. Please forward your expression of interest to Confidential Box No. 2,
August Law Society Journal, 170 Phillip
Street, Sydney NSW 2000.
BUSINESS LAW FIRM FOR SALE

Regional practice generating in excess of


$1 million. Owner nets over $200k. Please
forward your expression of interest to
Confidential Box No. 3, August Law Society Journal, 170 Phillip Street, Sydney NSW
2000.
CENTRAL COAST LAW PRACTICE
FOR SALE

Small Crime / Conveyancing / Family / Probate / Civil practice for sale. Please forward
your expression of interest to Confidential
Box No. 4, August Law Society Journal, 170
Phillip Street, Sydney NSW 2000.
LIFESTYLE LEGAL PRACTICE

If there is such a thing we believe we have


created it. Tony and Rosemary Lee offer for
sale their unique Legal Practice at beautiful
Mission Beach in Tropical North Queensland. Please direct enquiries to admin@
leeandco.com.au or phone 07 4068 8100.

PROPERTY VALUATIONS
VALUATIONS

Stamp duty, Family law & Probate valuations


etc Ken Wolf JP MRE(unsw)FAPI. Lic Real
Estate Agent. 0418675611.

SERVICES
PROFESSIONAL WRITER/EDITOR

Website content, newsletters, articles,


publicity, media, CVs.
Email june@junemcgowan.com.
SECURE DOCUMENT STORAGE

Offsite Document Storage for legal files with


brisk retrieval service. Call 1300 135 400 or
visit www.storeabox.com.au.

AUGUST 2015

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22/07/2015 2:28 pm

Locum Service

NEED
A LIFESAVER?
GET A LOCUM.

Whether youre drowning under


your workload or just need a
beachside break, an experienced
Law Society locum can help
your practice stay afloat.

lawsociety.com.au
/locumservice

AUGUST 2015

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Practices for Sale and Purchase

BUYERS

AWARE
IN THE MARKET
FOR A LEGAL
PRACTICE?
Savvy buyers know theres
only one place to look.
Browse NSWs most diverse
and comprehensive range of
law firms available online on
The Law Societys Practices
for Sale listings.
(Sellers, for a free online
listing take out a Practice for
Sale classified ad in the LSJ.)

lawsociety.com.au/pracsale

AUGUST 2015

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LEGAL FUNNIES

witless

EXPERT

BECAUSE IF WE CANT LAUGH AT OURSELVES

Drug-crop selfie smokes


engineer and housemate
Ah, yes. The selfie strikes again this time being the undoing of a British
drug dealer who thought it was a cracking idea to get a photo of himself
throwing blue steel in front of a cannabis factory in his own house.
News.com reports that the not-so-bright grower was promptly arrested after the
happy snap was shared between friends phones.
Having stumbled across the photos, the police turned up at 25-year-old Richard
Edmunds house, which he shared with fellow aerospace engineer Joshua
Langmead (doesnt that mean they should be smart?).
The cops discovered two extra bedrooms converted into mini-cannabis
factories, equipped with growing lights and fans and a whole lotta marijuana.
Police uncovered a crop with a street value of 2,300, landing Edmunds with a
20-month suspended jail sentence and 200 hours of unpaid community work.
Langmead was hit with an eight-month suspended sentence and 160 hours of
community work.

Failed student seeks


review of fail ... and fails
A British law student has failed in his attempt to take the Bar
Standards Board (BSB) to judicial review after flunking his exams.
According to RollOnFriday, 48-year-old Steven Prescott who had
dabbled in many careers before deciding it was his calling to be a
barrister was taking the bar exams when he failed four subjects. While
he re-sat them, he still managed to fail Opinion Writing.
Prescott was told that he would need to re-sit the entire course to earn
a third attempt. So, like every good obnoxious law student, he took
the BSB to judicial review, arguing he had already shown competent
opinion writing skills by nailing his Personal Injury subject, and that
retaking the course was a breach of his right to respect for his private
life under article 8 of the European Convention of Human Rights.
He threw in that the imposition of exams was unreasonable, irrational
and very unfair.
Mr Justice Hinckinbottom, aside from having the best name ever,
pointed out that article 8 does not afford a right to work generally, nor
a right to work in a particular job or profession. In throwing out the
claim, Hinckinbottom said that despite Mr Dixons bold efforts, the
Claimant has fallen very far short of persuading me that the Bar Council
has acted in any way unlawfully. But not all is lost for Prescott he still
has the right to sit (and pay for) the entire course.

106

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Man gives police


fake name of a
wanted man
A man will appear in court after giving a false
name to police that turned out to be the name of
a wanted criminal.
The New Zealand Herald reports the 23-year-old was
pulled over in Northland, New Zealand, and gave a
false name in an attempt to mislead police officers
when questioned. The plan backfired when he found
himself locked up for a breach of bail conditions by
the person he was pretending to be.
Incredibly, the man refused to admit the lie and even
appeared in court under the false name. His true
identity was only revealed when he was recognised
by prison officials who were familiar with him.
Police said that because people are not fingerprinted
when they are found breaching bail conditions, they
had no idea the man was not who he claimed to be.
The man was later charged under his true identity
for driving while disqualified, giving false details and
perverting the course of justice.

AUGUST 2015

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23/07/2015 2:06 pm

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contact MBA Car Assist on 1300 119 493 or visit audi.com.au.

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