ISSUE 28 NOVEMBER 2016

ISSUE 28

NOVEMBER 2016

FROM BOY SOLDIER

TO GUN SOLICITOR
HOW DENG ADUTS EXPERIENCE AS A CHILD
SOLDIER AND REFUGEE SHAPED HIS FUTURE

REFLECTIONS OF A JUDGE
STEPHEN SCARLETT ON WHETHER YOUNG
LAWYERS ARE MEETING EXPECTATIONS

ADVANCING OUR WOMEN LAWYERS

A NEW CHARTER FOR REACHING EQUALITY
FACING THE MUSIC WITH DIGNITY
DEALING WITH MISTAKES AT WORK
THE INTEGRITY OF THERAPEUTIC RECORDS
WHY IT MATTERS IN FAMILY VIOLENCE
THE CHANGING NATURE OF EVIDENCE
DEVICES AND THE INTERNET OF THINGS

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CONTENTS

16

28

38

FEATURES

22

34

52

Two academics discuss

the chances of Philippines
President Rodrigo Duterte
facing the International
Criminal Court for his bloody
war on drugs

Two new strategies a

charter for the advancement
of women and an equitable
briefing policy for barristers
are designed to boost
diversity at all levels of the
legal profession

Meet building and construction

lawyer Lelien Chua, who wears
boardshorts to client meetings
so she can go surfing afterward

38

Paul Phillips discusses how

three techniques can help you
recharge and redirect your life

GLOBAL FOCUS

26

IN FOCUS
Ransomware poses a threat to
the cyber security of law firms.
Kate Allman outlines the best
ways to protect your data

28

COVER STORY
Read an emotional excerpt
from Songs of a War Boy,
the new autobiography of
Sudanese child soldier-turnedSydney solicitor Deng Adut

WOMEN ON THE MOVE

A DAY IN THE LIFE

Julie McCrossin speaks
with retired Judge Stephen
Scarlett about his diverse
28-year judicial career

42

CAREER COACH

EXTRACURRICULAR

54

HEALTHY LIVING

62

YOU WISH
Jane Southward discovers
luxury in the Australian bush at
OReillys Rainforest Retreat in
Queensland

Fiona Craig offers advice on

what to do when you make
a mistake at work

ISSUE 28

p3_4_Contents_November.indd 1

NOVEMBER 2016

LSJ

21/10/2016 11:55 am

52 58
REGULARS

LEGAL UPDATES

8 PRESIDENTS MESSAGE
10 MAILBAG

55 FITNESS

12 NEWS
14 THE LSJ QUIZ
19 CAREER MOVES
Who moved where
this month
Julie McCrossin meets
Judge Stephen Scarlett

44 CAREER 101
Bradley Beasley started his
career as a painter. He now
owns a legal practice and
lectures in law at university

46 DOING BUSINESS
Fashion, etiquette, and
tips on how to land those
unadvertised jobs

LSJ

ISSUE 28

p3_4_Contents_November.indd 2

Five common injuries

and how to avoid them

56 WELLBEING
Why you need a
relationship reboot

58 CITY GUIDE

38 PROFILE

50 LIBRARY ADDITIONS

Ute Junker explores

the emerging tourist
hotspot of Zurich

64 LIFESTYLE
Book reviews, events
and our movie giveaway

66 NON-BILLABLES
Yarns we cant bill for

106 EXPERT WITLESS

Because if we cant
laugh at ourselves ...

69 ADVOCACY: THE LATEST IN LAW REFORM

72 FAMILY: THERAPEUTIC RECORDS & CONFIDENTIALITY
74 RISK: RISK MANAGEMENT & CLAIMS PREVENTION
76 TAX: BILATERAL TAX TREATY INTERPRETATION
78 TAX: NEW GST LAWS & NON-RESIDENT CLIENTS
80 PRACTICE: NEW FEDERAL COURT PRACTICE NOTES
82 HUMAN RIGHTS: ABORTION LAW REFORM IN NSW
84 STRATA: THE LEGALITY OF SHORT-TERM LETTING
86 GUARDIANSHIP: NCAT & POWERS OF ATTORNEY
88 TECHNOLOGY: THE INTERNET OF THINGS
90 COSTS: OFFERS, COSTS & JUDICIAL DISCRETION
93 CASE NOTES: HCA, FCA, FAMILY, CRIMINAL & WILLS

NOVEMBER 2016

21/10/2016 12:32 pm

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30-Sep-16 5:43:13 PM
11/10/2016 1:59 pm

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
Publications Coordinator
Juliana Grego
Advertising Sales Account Manager
Jessica Lupton

When LSJ Associate Editor Jane Southward first met solicitor

Deng Adut in 2014, she returned from the interview with him in
a state of excitement. Profiling Deng for our A Day in the Life
series, she had been suitably struck by his commanding physical
presence. She had also been utterly blown away by his personal
story of life as a child soldier in Sudan, and by his generosity of
spirit which saw him offer to represent pro bono a distressed
unrepresented litigant he met at Burwood Local Court.
Jane wrote a fascinating article about Deng for the LSJ,
and now, in Dengs newly-released book, Songs of a War Boy, we can read his complete,
heartrending and inspiring story. It is a revelation. It is impossible for so many Australians
to fully understand Dengs ordeal. The horrors he endured exist only in the imagination of
most people. But this was Dengs life. For him, it is very real. The story is told with frankness
and stoicism, and the underlying strength of Dengs character, which today shapes his legal
career and determination to make a difference, shines through. We are lucky enough to have
Deng coming to the Law Society on 8 November to speak at a Thought Leadership breakfast
event. So, if youre looking for a little inspiration, join us.
Visit lawsociety.com.au/thoughtleadership for more information.

Editorial enquiries
journal@lawsociety.com.au
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
2016 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:
Jason McCormack
ISSUE 28 NOVEMBER 2016

ISSUE 28

NOVEMBER 2016

Contributors

Sarah Williams

Julie McCrossin

Fiona Craig

Matthew Cridland

is an associate professor
at the University of NSW.
She writes, with PhD
candidate Emma Palmer,
about Philippine President
Rodrigo Dutertes brutal
approach to drug dealers
and the chance of an
International Criminal
Court investigation.
Global focus
p22

trained as a lawyer and

is a writer, broadcaster
and facilitator. Read her
feature about former
Judge Stephen Scarlett
OAM, who recently
retired from the Federal
Circuit Court after a 28year judicial career.
A life in the law
p38

has more than 20 years

experience training and
mentoring lawyers. In this
issue she offers practical
and brave advice on what
to do when you make a
mistake at work. Owning
the error is foremost, she
says. Find out more.
Career
p44

is Head of GST &

Customs (Australia),
at DLA Piper. In his first
article for LSJ, he writes
about reforms to GST
and how they impact
legal services for nonresident clients.
Taxation
p78

FROM BOY SOLDIER

TO GUN SOLICITOR
HOW DENG ADUTS EXPERIENCE AS A CHILD
SOLDIER AND REFUGEE SHAPED HIS FUTURE

REFLECTIONS OF A JUDGE
STEPHEN SCARLETT ON WHETHER YOUNG
LAWYERS ARE MEETING EXPECTATIONS

ADVANCING OUR WOMEN LAWYERS

A NEW CHARTER FOR REACHING EQUALITY
FACING THE MUSIC WITH DIGNITY
DEALING WITH MISTAKES AT WORK
THE INTEGRITY OF THERAPEUTIC RECORDS
WHY IT MATTERS IN FAMILY VIOLENCE
THE CHANGING NATURE OF EVIDENCE
DEVICES AND THE INTERNET OF THINGS

LSJ11_Cover_spine_November_Deng use this.indd 1

20/10/2016 11:12 am

NEXT ISSUE: 1 DECEMBER 2016

LSJ

ISSUE 28

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.

NOVEMBER 2016

p6_Editors Note_November_use this.indd 1

20/10/2016 11:27 am

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ISSUE 28

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NOVEMBER 2016

LSJ

18/10/2016 11:39 am

Presidents message

am pleased to report that following a sustained

and collaborative effort by the legal profession,
the State Government has recently indicated
its intention to undertake further work on
its reform agenda for NSW CTP Green
Slip Insurance. In the meantime, it will
implement the legal professions suggested
approach to legal costs, which was put to
government in March. It is now incumbent
on the legal profession to further persuade
the Government as to the need for a scheme
design that delivers sustained premium costs
savings while preserving benefits for those who
are injured on NSW roads. On this basis, the
coming months will be critical as we continue
to advocate for a more equitable scheme.
We have now moved past the phase of
aspirational statements into the rigour
of specific initiatives in our work on the
advancement of women lawyers. The Law Society recently launched its Charter for the Advancement of Women
in the Legal Profession, which is designed to promote and support strategies to retain women in the profession
over the course of their careers, and encourage and promote their career progression into senior executive and
management positions. I commend those law firms that have already signed up to the Charter, and I strongly
encourage the broader profession to get on board with this important initiative.
I was delighted to attend the Law and Justice Foundation of NSW Annual Justice Awards at NSW Parliament
House last month. Each year, these important awards recognise the work of individuals and organisations that
have improved access to justice for socially and economically disadvantaged people. I congratulate solicitor
Richard Brading from Wesley Community Legal Service, winner of the 2016 Justice Medal for providing legal
assistance over many years to those with gambling-related problems.
Our new history book, Defending the Rights of All, was officially launched at NSW Parliament House in
October. This impressive piece of work charts the history of the Law Society and the NSW legal profession over
almost 175 years. I would particularly like to thank her Honour Justice Julie Ward, from the New South Wales
Court of Appeal, who was kind enough to provide the foreword to the book, as well as Law Society councillors,
staff and members who had a hand in getting this publication off the ground. I also acknowledge the skill and
hard work of the books joint authors, Michael Pelly and Caroline Pierce. Copies can now be purchased via the
Law Society website.
Finally, I would like to thank all those who have attended the Future of Law and Innovation in the Profession
(FLIP) Commission of Inquiry in recent weeks. In October, the FLIP Commission heard evidence on diversity,
new processes, and managing change in the legal profession. The library of video evidence continues to expand
and is available on the Law Society website.

GARY ULMAN

LSJ

ISSUE 28

NOVEMBER 2016

p8_Presidents_message_November.indd 1

21/10/2016 2:13 pm

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NOVEMBER 2016

LSJ

18/10/2016 11:37 am

Mailbag

LETTERS TO THE EDITOR

Plebiscite or
referendum?
ISSUE 27 OCTOBER 2016

ISSUE 27

OCTOBER 2016

HAPPILY KILLING
THE BILLABLE HOUR
WHY MORE LAWYERS AND FIRMS ARE TAKING
THEIR EYES OFF THE CLOCK AND LOVING IT

FINDING MORAL COURAGE

GENERAL DAVID MORRISON ON WHY CULTURAL

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DEFENDING RIGHTS IN THE REGION

LAWASIA MEMBERS UNITE IN COLOMBO
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LSJ10_Cover_spine_October.indd 1

22/09/2016 6:26 pm

WRITE TO US:
We would love to hear your
views. The author of our
favourite letter, email or tweet
each month will
WIN LUNCH FOR FOUR
at the Law Society dining room.
E: letters@lawsociety.com.au
Please note: we may not be able
to publish all letters received.
CONGRATULATIONS!
Terry Dwyer
has won lunch for four.
Please email
journal@lawsociety.com.au
for instructions on how to
claim your prize.

I quite agree with

Professor George
Williams (September LSJ
p38-41) that there should be
no plebiscite on same-sex
marriage. It clearly requires
a referendum. Neither the
Commonwealth Parliament
nor the High Court has the
power to alter the meaning of
the word marriage in section
51(xxi) of Clause 9 of the
Commonwealth of Australia
Constitution Act 1900 (Imp).
Terms in the Constitution Act
and Constitution have the
meaning they had in English
law in 1900.
When the late Queen Empress
put Her Royal Assent to the
Bill for it to be enacted by
the Queens most Excellent
Majesty, by and with the
advice and consent of the
Lords Spiritual and Temporal,
Victoria was granting a power
to make laws with respect
to things as she understood
them in law and common
parlance. She was not giving
her servants power to write
their own instructions.
Anything said to the contrary
should be dismissed as merely
a rush of blood to the head
or an obiter frolic. Its a pity
no one makes students read
Quick and Garran anymore.
Terry Dwyer
Dwyer Lawyers, Canberra

Assisted dying
Trevor Khans article
proposing the Voluntary
Assisted Dying Bill (September
LSJ p24-25) falsely claims
that not everyone has the
option to refuse medical
treatment, such as refusing
kidney dialysis. Every adult has
the option of refusing lifeprolonging treatment. In such
case, the death certificate
would note the cause of

10

LSJ

ISSUE 28

death as kidney failure.

Whereas the new bill allows
for medical practitioners to
assist a patient to administer a
toxic substance to themselves
so the death certificate
would list toxification as
cause of death and with no
one being prosecuted.
Most doctors who studied
medicine before the mid1980s are ignorant of effective
pain relief, and so their
patients died in excruciating
physical pain. There have
been huge advances in
palliative care such that most
physical pain can be removed,
and patients can live dignified
though dependant lives.
If someone is lonely or in
existential angst about their
future, this is not something
the law or doctors can fix by
assisting patients to end their
lives. And who is going to
subsidise all these separate
medical safeguard reports?
They are hardly what is within
the definition of what is
medically necessary for a
Medicare rebate.
Polly Seidler
Darlinghurst

Makework
With increasing regularity I am
asked to forward a copy of a
death certificate to banks and
insurance companies, when I
forward a certified copy of the
Grant of Probate. I have fallen
into the habit of suggesting
that it is a long time since the
Supreme Court of NSW issued
a Grant of Probate for the will
of somebody who had not
actually died.
When I do forward a death
certificate, for a proper
purpose, I am now asked,
again with increasing
frequency, why my
certification has not been
dated. I point out that the
death certificate (sometimes it
is a birth certificate or similar)

is dated by the Registrar

General on the day of issue
and that is all that is required.
My dating my certification
would be of no further utility
than if I dated a photo of the
Rosetta Stone.
As a profession, we are
being asked to do stupid
and unnecessary things with
increasing frequency and on
diminishing profit margins. We
must resist such things.
John Emmet McDermott
McDermott & Associates

Why so serious?
Bah Humbug to the whingers
complaining about the
Dressed to Impress page.
In an age where the dress
code for almost all occasions
is dull, boring and sloppy,
those who take some trouble
to make the most of their
appearance and demonstrate
an individual style, should be
appreciated, not dismissed.
Complimenting someone on
his or her appearance is not
the same as judging a person
by their appearance.
A colleague recently
complimented me, then
immediately apologised. He
thought I might be offended,
that it might be inappropriate
to remark on my appearance.
I quickly set him straight:
compliments are always
appropriate. Keep them
coming!
How sad that everything is
taken so deadly seriously
nowadays. I think envy
is behind the whingers
comments. Perhaps they are
horizontally and aesthetically
challenged themselves,
and simply envious of the
impressive dressers.
I bet their wardrobes are
all black. I suggest they go
shopping and buy a colourful
new spring outfit. They will

NOVEMBER 2016

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19/10/2016 10:55 am

feel (and probably look) so

much better.
Helen MacKenzie, Duncan &
MacKenzie

experienced some solicitors

appearing in court in casual
clothes, such as jeans and
open necked shirts (especially
on so-called casual Fridays).

Judging fashion

Casual dress suggests that

the solicitor is treating the
proceedings as a casual
occasion, and should not
appear dressed as if they are
going to a barbecue. Respect
for the institution of the courts
and for the clients, and the
seriousness of the occasion
demands a better attitude
than this. If younger solicitors
in particular need any
guidance, then the Dressed
to impress piece should be
compulsory reading.

Contrary to the views of some

letter writers, I have enjoyed
the regular inclusion in the LSJ
of the Dressed to Impress
page and totally reject the
criticism of its inclusion. In
my former role as a judge I
noted the deterioration in the
standard of dress of some
solicitors appearing in court.
Court proceedings represent
a serious occasion of great
importance to the clients.
Solicitors should therefore
dress appropriately. I

The Hon David Lloyd QC

Country or city?
It was with some interest
that I noted the location
of practice of some of the
candidates for election who
were nominating themselves
as country members. On
reviewing clause 12 of the
Law Society Articles, I was
surprised to see the Central
Coast, Macarthur, Newcastle
and Wollongong areas are
viewed as country. This
would have been the case
when sheep and cattle fields
commenced just west of
Parramatta and the river
systems to the north and
south of Sydney imposed a
natural boundary.
With the increasing
urbanisation of the last few

decades, most would now

consider Macarthur and
the Central Coast as outer
suburbia, and Newcastle and
Wollongong as city as they
have become major satellite
cities of Sydney. Practising law
in the country (and by this I
mean in a town or city where
the nearest major centre
is 100km or more distant)
raises certain difficulties
that most practitioners on
the fringe of Sydney would
have no experience of. It is
time for country, city and
suburban definitions, for the
purposes of our Articles, to be
revisited.
Simon Munslow,
Jerrabomberra

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ISSUE 28

p10_11_Mailbag_November use this 5.07.04 pm.indd 2

NOVEMBER 2016

LSJ

11

19/10/2016 10:55 am

Briefs

NEWS

Time to do more for the

vulnerable: Gillian Triggs
The judiciary has been no friend to the most vulnerable in society, according
to Professor Gillian Triggs. BY JANE SOUTHWARD.

resident of the Australian Human

Rights Commission Professor
Gillian Triggs used the NSW
Young Lawyers (NSWYL) State of
the Profession address on 22 September
to hit out at the judiciary, governments
and lawyers for not doing enough to
help the vulnerable.
Triggs, who is the 2016 patron of
NSWYL, said she hoped her address
would leave young lawyers breathing
fire and brimstone in fury at the failure
of parliaments, judges and the legal
profession to adequately protect our
fundamental common law freedoms
that are so frequently overridden today.
I have become concerned that lawyers
in Australia, whether as solicitors,
barristers, parliamentarians, judges,
in-house counsel, or working in the
media or with civil society, have failed
to recognise and stand up for the rights
and freedoms that have underpinned our
multicultural democracy, Triggs said.
There seems to be some kind of
fatigue among the profession so that
we are sleep walking into accepting the
unprecedented rise (outside wartime)
of executive powers and ministerial
discretions that are not subject to full
judicial scrutiny.
Triggs pointed to the treatment of
Indigenous juveniles in detention in
the Northern Territory and offshore
detention of asylum seekers as examples
she hoped the legal profession would
do more to resist. She claimed Australia
was historically a good international
citizen, but had become isolated from
international human rights jurisprudence
and practice over the past 15 years. She
noted that the Australian Human Rights
Commission received about 18,00020,000 inquiries and complaints each
year alleging breaches of human rights
and anti-discrimination laws.

12

LSJ

ISSUE 28

Australia is in a region where we have

no convention on human rights or a
regional court to develop an accepted
jurisprudence on fundamental freedoms,
Triggs said. Common law rights and
freedoms are typically overridden by
unambiguous statutes to the contrary.
Triggs highlighted the unpalatable
fact that more than 95 per cent of
juveniles held in the NT system were
Indigenous and that the national figure
for Indigenous incarceration was about
55 per cent of prison inmates.
The more than 300 recommendations
of the Royal Commission into Aboriginal
Deaths in Custody in 1995 have not
been adopted, more than 25 years after
they were made, Triggs said. Today,
the numbers of Indigenous people in
detention has more than doubled from
the time of that Royal Commission.
Triggs also raised the case of a
Bangladeshi asylum seeker who was
intercepted at sea three years ago and
detained on Christmas Island on 19
October 2013 as an unlawful noncitizen for the purposes of the Migration
Act. The woman was transferred back
in December 2014 and although she
commenced proceedings in the High
Court to reverse her return to Nauru, she
has remained there since. Her refugee
status remained undetermined nearly

two and a half years after her arrival.

One of many questions this case
raises is: what kind of lawyer would
suggest to the government that the
illegality of removals offshore of
asylum seekers could be cured by
retrospective legislation to authorise
what was otherwise probably illegal?
Did any lawyer from Prime Minister
and Cabinet or the Attorney-Generals
Department or the Department of
Foreign Affairs and Trade raise the
principles of international law, or even
the ethics of such a retrospective law?
Triggs said.
Triggs called on the legal profession
to be alert and alarmed by the
failure of our legal system to protect
fundamental rights, especially by the
failure of Parliament and the courts to
protect the rights and freedoms that
have evolved over millennia.
The legal profession has historically
seen the protection of fundamental
rights and freedoms as a core
professional responsibility, Triggs
said. I would like to see a refreshed
commitment to protecting our
freedoms so that lawyers are champions
of the vulnerable and disadvantaged
and that we have the courage to speak
out against injustice.

I have become concerned that lawyers in Australia,

whether as solicitors, barristers, parliamentarians,
judges, in-house counsel, or working in the media or
with civil society, have failed to recognise and stand up
for the rights and freedoms that have underpinned our
multicultural democracy.
PRESIDENT OF THE AUSTRALIAN HUMAN RIGHTS COMMISSION, PROFESSOR GILLIAN TRIGGS

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NEWS

NSW Young Lawyers receives Law

Council award for mentoring program
The Criminal Law Committee of NSW
Young Lawyers has won the 2016
Australian Young Lawyer organisation
award for its program, A Day in the
Life of a Criminal Lawyer.
Two Australian Young Lawyer awards
are presented annually by the Law
Council of Australias Young Lawyers
Committee, to recognise excellence
in young lawyers and young lawyer
organisations. This year, the Criminal Law
Committee of NSW Young Lawyers won
the organisation award for its popular
mentoring program that pairs law
students with volunteer criminal lawyers
so the students receive insights into the
daily work of a criminal lawyer.
The program ran between March and
July 2016 and received 351 student

applications. Fifty lawyers volunteered,

some of whom took on more than one
student to offer a total of 68 students
places in areas all over NSW, including
Sydney, Wagga Wagga, Port Macquarie,
Coffs Harbour, Bathurst, Armidale,
Lismore and Dubbo.
For students who do not yet know
which avenue of law to pursue, there
are few avenues to gain criminal law
experience, said Law Council of Australia
President Stuart Clark AM. This program
has addressed this issue and received
terrific feedback from all involved.
Program Coordinator and NSW Young
Lawyer Lauren Mendes said the program
would continue with a new intake of
students and volunteers in March 2017.

NSW Young Lawyer Sam Murray, left, with his

mentor Andrew Tiedt, of Armstrong Legal.

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ISSUE 28

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Briefs

NEWS

Cross-examination
Test your legal knowledge ...
1. Who is the 2016 President of the Law Council
of Australia?
2.
Where is the original Constitution of
Australia kept?
3.

What is the legal

drinking age in the
USA?

4. In what year was the Australian Constitution

amended to recognise Indigenous
Australians as citizens?
5. What is the speed limit for school
zones in NSW?
6. Name the law firm that recently
filed a class action on behalf of
shareholders against Slater & Gordon?
7. Who is the Australian Solicitor-General?
8. Prostitution is legal in NSW true or false?
9. In family law, what is the paramount
consideration for the court to consider when
making a parenting order?
10. What is the name for a judges hammer?

LEGAL CAREER PATH NOT

SO STRAIGHTFORWARD
Students and universities need to stop referring
to alternative career paths but rather should
emphasise the many options available for law
graduates, according to a panel of professionals
in different legal roles who spoke at a NSW Young
Lawyers event last month.
The Clerkship Conundrum seminar addressed an
audience of students and prospective job-seekers
at the University of Technology Sydney on 11
October about the challenges law graduates face in
an increasingly competitive jobs market. The panel
included Robyn Howard, Professional Development
Director at Johnson Winter & Slattery, Dominic
Woolrych, Legal Product Manager at LawPath, Kristin
Barratt from Thomson Reuters, Yin Chiew, Legal
Recruitment Consultant at Robert Walters, James
Skelton, solicitor at Swaab Attorneys, Sarah Warren
a barrister at 9 Windeyer Chambers and Eric Norris,
Graduate Resourcing Advisor at MinterEllison. The
panel hoped to highlight alternatives for students who
missed out on clerkship positions and were unsure
how to start their careers in law.

We dont talk about lawyers so much

any more. We talk about business
professionals trained in law.
WILMA LEWIS, PROFESSIONAL DEVELOPMENT DIRECTOR,
JOHNSON WINTER & SLATTERY

Answers on page 65.

PROFESSIONAL NOTICES
On 26 September 2016 and pursuant to s.327(2)(b)(ii) of the
Legal Profession Uniform Law (NSW), the Law Society Council
appointed Anthony Neary Walker, solicitor, as manager of the
law practice known as LAC Lawyers Pty Ltd for a period of two
(2) years.
On 26 September 2016 and pursuant to s.327(2)(b)(ii) and (iii)
of the Legal Professional Uniform Law (NSW), the Law Society
Council appointed George John Mallos, solicitor, as manager
of the law practice formerly known as Morgan Ardino & Co for
a period of two (2) years.

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ISSUE 28

According to The Australian Financial Review, the

number of law graduates in Australia this year reached
a record high, with 14,600 graduates entering a legal
jobs market comprising 66,000 solicitors. In such
a competitive market, Professional Development
Director at Sydney law firm Johnson Winter & Slattery
Wilma Lewis said graduates needed to think laterally
and consider options other than the traditional
clerkship-to-graduate position career path.
We dont talk about lawyers so much any more. We
talk about business professionals trained in law,
said Lewis.
However, for graduates keen on the traditional path
via top-tier law firms, the panel agreed that businessminded applicants who could demonstrate an interest
in the legal commercial environment were more likely
to succeed in job interviews.

NOVEMBER 2016

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NEWS

SOLICITOR DENG ADUT

THOUGHT LEADERSHIP EVENT
Start the day with a bit of inspiration.
The Law Society of NSW invites you to hear Sudanese child soldier-turnedSydney solicitor Deng Adut share his personal story of triumph over adversity.
Tickets include a copy of Dengs new autobiography, Songs of a War Boy.
Date: Tuesday, 8 November
Time: Registration 7am, seated for breakfast 7.25am (event concludes at 9am)
Where: The Law Society of NSW, 170 Phillip Street, Sydney, Level 2
Register: Members $112 | Non-members $129
Visit https://events.lawsociety.com.au/2016/855/ to book. Seats filling fast.

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Advice on practice management and in-house seminars.

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www.alysonashe.com.au

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Briefs

NEWS

PROBLEM GAMBLING ADVOCATE

WINS 2016 JUSTICE MEDAL

NEW THIS MONTH

Being well
in the law
The Law Society of New South Wales, NSW Young Lawyers and Australian National University present

When it comes to wellbeing, NSW Young Lawyers and the Law

Society of New South Wales are keen to lead. Being Well in the Law is a
toolkit for lawyers. It draws on expert and multidisciplinary knowledge
about the breadth of mental health problems and offers ideas to help
everybody, young and old, deal with depression, anxiety and stress and
learn to better manage the business and pressures of work and life.
We all share a responsibility to continue the conversation about mental
health. In the legal profession this is especially important as lawyers
have a heightened predisposition to depression and mental illness.
This small but important book, with its varied suggestions and personal
stories from people who have been touched by mental illness, is a solid
first step towards a happier and healthier world.

2016 Justice Medallist Richard Brading, right, with Sky News journalist Stan Grant who delivered the
2016 Law and Justice Address.

Sydney lawyer and founder of Wesley Community Legal Service Richard

Brading has won the 2016 Justice Medal for outstanding work providing
community legal services to problem gamblers and driving reform in
response to the impact of problem gambling.
Sir Anthony Mason presented the medal in front of 330 people at the 18th annual
Justice Awards at Parliament House in Sydney on 13 October. Director of the Law
and Justice Foundation of NSW Geoff Mulherin said, A true pioneer, Richard Brading
established the Wesley Community Legal Service, the worlds only free legal service for
problem gamblers and their families, over 20 years ago. He has provided advice and
representation to hundreds of people, in many cases turning their lives around. Richard
has also taken gambling operators to task in an effort to reduce the social harm caused
by problem gambling.
Hazel Collins, Laura Lyons, Patricia MacKenzie, Debra Swan, Jennifer Swan and
Suellyn Tighe, who are Grandmothers Against Removals (GMAR), were presented
with the Aboriginal Justice Award for their efforts to ensure there is appropriate
Aboriginal participation in child protection decision making.
The Law and Justice Volunteer Award was awarded to Janette Perram for her 25 years
volunteering at Burwood Court providing support to victims of domestic violence.
Wollongong Womens Information Service and the law firm Carter Ferguson won the
Pro Bono Partnership Award for their collaboration to provide pro bono legal services
to women experiencing domestic violence in Wollongong and the Illawarra region.
Two other awards were presented to recognise groups that have made an
outstanding contribution to improving access to justice for socially and economically
disadvantaged people in NSW. The Community Legal Centres NSW Award was
presented to Inner City Legal Centre for its project providing legal advice and
representation for transgender young people going through medical procedures and
their families. The Legal Information Access Centre of Excellence Award was awarded
jointly to Richmond-Upper Clarence Regional Library and Tamworth City Library.

16

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ISSUE 28

The Law Society of NSW,

NSW Young Lawyers
and Australian National
University will launch
the first wellbeing selfhelp guide for the legal
profession in November.
Being Well in the Law offers
lawyers practical, holistic and
achievable ways to boost health
and wellbing and improve
mental health.
The book includes personal
stories of several people in the
legal profession who open up
about their experiences with
mental health issues.
Being Well in the Law is free
to members of the Law Society
and NSW Young Lawyers.
Visit the Society shop on
level 1 of 170 Phillip Street,
Sydney, after 3 November
to pick up a copy or email
eshop.lawsociety.com.au

NOVEMBER 2016

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NEWS

six
minutes
with

JONATHON HUNYOR
CEO OF PIAC
Jonathon Hunyor took over from Ed
Santow as Chief Executive Officer of the
Public Interest Advocacy Centre (PIAC) in
Sydney in August. Hunyor, 44, began his
legal career as a student volunteer at the
Australian Centre for Disability Law while
he was studying economics and law at
Sydney University. He turned his hand
at corporate law as a summer clerk at
Freehill Hollingdale & Page (now Herbert
Smith Freehills) and quickly realised his
passion was in helping individuals through
community legal work. Since then, his
career has been split between Sydney
and the Northern Territory, working for
the NT Legal Aid Commission in Darwin,
the Central Land Council in Alice Springs,
the Australian Human Rights Commission
in Sydney and, most recently, the North
Australian Aboriginal Justice Agency, where
he was Principal Legal Officer.
He speaks to KATE ALLMAN.
What inspired your passion for legal aid,
human rights and access to justice issues?
My dad came from Hungary to Australia as a
refugee in 1949 when his family was displaced
at the end of World War II. That has given me a
strong sense of gratitude for the opportunities
I had growing up in Australia. As someone who
has had the enormous privilege of getting a law
degree, I feel very passionate about human rights
and access to justice. I also feel an obligation to
make something of those opportunities and to help
people who havent had those opportunities.

The National Association of Community

Legal Centres says it is facing a $34.84 million
cut between 1 July 2017 and 30 June 2020.
How will these cuts affect PIAC?
We are very concerned about the impact of those
funding cuts. Its really disappointing that, even
when the Australian Productivity Commission
has recognised the value to society of a properly
resourced community legal sector, as well as the
cost to society of not having that support available,
the government still wants to cut funding to

community legal centres. The challenge for PIAC

is to make sure people recognise the unique role
that we play by focusing our legal work around
test cases and strategic litigation. Look at the work
we did representing Graeme Innes against Sydney
Trains regarding the failure to make next stop
announcements for vision-impaired people.
We won that case but the impact wasnt for just one
person, it was for the thousands of blind or vision
impaired people in NSW who previously couldnt
ride the trains alone.

What projects or objectives will you focus

on at PIAC?
PIACs strategic plan recognises that homelessness
is a significant issue. We also will continue to focus
on the rights of Aboriginal people, particularly
Aboriginal young people, issues around policing
of young people, bail laws and enforcement of
bail conditions, accessibility for disabled people
to things such as public transport, media and the
internet. Those sorts of grassroots issues are at the
heart of what PIAC does differently and does well.
I cant see any radical changes in the direction and
work that PIAC does.
ISSUE 28

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Briefs

NEWS

mind your

ethics
TIPS AND TRICKS FOR
PLAYING BY THE RULES ...

JUGGLING LAW
AND A SECOND JOB
BY PAUL MONAGHAN, SENIOR ETHICS SOLICITOR
Legal practice is undergoing a quiet revolution when it comes to
occupation and work practices. The traditional model of a solicitor in
an office busy with familiar legal activities of commercial law, probate
and local court work is shifting to new areas of activity, often quite
separate from being a lawyer.
We are often asked at the Law Society Ethics Department: Is it all
right if I am involved in another job or business activity when I am a
solicitor? What are some of the ethical obligations?
Solicitors must comply with all obligations under our regulatory
framework of the Legal Profession Uniform Law, General Rules and
Solicitors Rules. Other forms of work must be of a nature that does
not bring the legal profession into disrepute or compromise the
integrity of the solicitor. This fundamental duty can be found in the
contents of Solicitors Rule 5.

Dishonest and disreputable conduct

5.1 A solicitor must not engage in conduct, in the course of practice or
otherwise, which demonstrates that the solicitor is not a fit and proper
person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the
administration of justice, or
5.1.2 bring the profession into disrepute.
By recognising and upholding these required standards, any other
activity a solicitor undertakes should not be in conflict with the
duties and obligations of legal practice. With new areas of practice
and business opportunities for lawyers to be involved in, its
important to remember our ethical obligations.

TRISTAN JEPSON MEMORIAL

FOUNDATION LECTURE
Australian of the Year General David Morrison urged the legal
profession to change its culture to encourage lawyers to
speak out about mental illness amid high rates of depression
among the states barristers and solicitors.
An edited version of the lecture is available at tjmf.org.au
Watch the lecture
on the LSJ app.

18

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ISSUE 28

For the full round-up of Law Society

advocacy, see page 68.

Local Courts in rural

and regional areas
The Law Society wrote to the Attorney-General
about the ongoing problem of underfunding in
the Local Court of NSW, and the impact this is
having on the courts performance and access
to justice in rural and regional areas.
The submission noted that the reduction in
the number of magistrates and corresponding
increase in the caseload of the court would
inevitably lead to delays in matters being
finalised. In criminal matters, this would
prolong the time spent in custody on remand
by the accused and prolong the process for the
alleged victim.

Counter-Terrorism Legislation
Amendment Bill (No 1) 2016
The Juvenile Justice, Criminal Law and Human
Rights committees provided a joint submission
to the Law Council of Australia on the CounterTerrorism Legislation Amendment Bill (No
1) 2016 (Cth) regarding control orders. The
committees reiterated their concerns about
those aspects of the 2015 Bill identified in its
earlier letter to the Law Council that have not
been addressed by the recommendations
of the Parliamentary Joint Committee on
Intelligence and Security or the 2016 Bill. They
also provided additional comments on the
recommendations and the 2016 Bill.

Koori Courts in NSW

The Indigenous Issues, Criminal Law and
Juvenile Justice committees wrote a joint
letter to the Attorney-General regarding
the expansion of the existing Youth Koori
Court pilot. The committees noted the
Law Societys strong support of options
for diversion for young offenders and, in
particular, measures to reduce the increasing
rates of Indigenous youth incarceration and
contact with the criminal justice system. The
committees supported the expansion of the
Youth Koori Court model to other locations
and, in particular, in areas with high rates of
Indigenous youth incarceration.

NOVEMBER 2016

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CAREER MOVES

Know someone with a new position?

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

MEMBERS ON THE

JESSICA
ELLIS

TIMOTHY
NICHOLLS

GLENN
HUGHES

SARAH
BULLOCK

ELIZABETH
MCDONALD

Promoted to
Property Solicitor
Elliot Tuthill Solicitors

Joined as a Solicitor,
Family Law
Tiyce & Lawyers

Joined as
Partner
Russells

Joined as
Senior Associate
Russells

Promoted to Principal
McCabes Lawyers,
Newcastle

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ISSUE 28

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NOVEMBER
JUNE
2016
2014I LSJ
I LSJ191

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Briefs

OUT AND ABOUT

YOUNG PROFESSIONALS BALL

About 500 young professionals gathered at Four Points by Sheraton Sydney for
the 10th annual Young Professionals Charity Ball on Saturday 25 September. CEO
of the Alannah & Madeline Foundation, Lesley Podesta, pictured in blue below,
gave the keynote address and all proceeds raised were donated to the charity.

View more
photos on
the LSJ app.

PHOTOGRAPHY: JASON MCCORMACK

20

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OUT AND ABOUT

LAW SOCIETY BOOK LAUNCH

Justice Julie Ward was the keynote speaker at the launch of the Law Societys
landmark publication Defending the Rights of All: A History of the Law Society of
NSW at Parliament House in October. The books co-authors Michael Pelly and
Caroline Pierce also spoke, delivering anecdotes from their work on the book.
PHOTOGRAPHY: CHRIS GLEISNER

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Briefs

GLOBAL FOCUS

Will President
Duterte face court
for his bloody war
on drugs?
Although the death toll in Philippine President Rodrigo Dutertes
war on drugs has risen to 3,426 since 1 July, a possible trial of
President Duterte before the International Criminal Court is unlikely,
and would be years away. However, a criminal investigation could
provide an impetus to document crimes and the resulting political
debate might prompt some restraint from the Government, write
SARAH WILLIAMS and EMMA PALMER.

hilippine President Rodrigo

Duterte announced a
crackdown on drugs when
he entered office in June.
Figures that were reportedly released by
the Philippines National Police (PNP)
on 4 September showed that 1,011
alleged drug users and dealers had been
killed in police operations, with another
1,391 apparent vigilante killings under
investigation. Media, lawyers and the
Philippines Commission for Human
Rights have raised the possibility of an
International Criminal Court (ICC)
investigation. Although possible, an
ICC trial is an unlikely outcome.
The ICC is an international court
located in The Hague, established by an
international treaty, the Rome Statute.
The ICC may exercise jurisdiction over
war crimes, crimes against humanity
and genocide. The Philippines ratified
the Rome Statute in August 2011.
Situations come before the ICC in
three ways. First, a party to the Rome
Statute may refer a situation to the

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p22-23_Global Focus-November.indd 1

ICC Prosecutor. It is doubtful that the

Philippines would refer this situation,
at least while Duterte remains in power.
It is possible that another state party
could refer the situation to the ICC,
but this has not happened in the 14
years of the ICCs operation. Second,
the United Nations Security Council
could refer the situation to the ICC.
However, the Philippines is not on the
Councils agenda and it is doubtful that
the situation would amount to a threat
to international peace and security
(although internal human rights
violations have attracted the Councils
attention in other contexts).
Third, the ICC Prosecutor, Fatou
Bensouda of Gambia, could initiate
an investigation on her own initiative.
Article 15 of the Rome Statute allows
States, international organisations and
civil society actors to send information
(known as communications) to the
Prosecutor concerning the commission
of crimes within the courts jurisdiction.
Some local and international actors are

attempting to collate evidence to form

the basis of a communication to the
Prosecutor. The Prosecutor may also
gather information independently.
Before opening a formal investigation,
the Prosecutor would conduct a
preliminary examination. First, she would
review the reliability, nature and content
of the information provided in the
communications. Many communications
are rejected at this initial stage, as the
crimes alleged are manifestly outside the
jurisdiction of the ICC.
Next, the Prosecutor would consider
whether crimes within the jurisdiction
of the ICC had been committed.
The alleged crimes in the Philippines
occurred after the country ratified the
Rome Statue in 2011, were committed
on Philippines territory and presumably
were perpetrated by Philippine nationals.
There would therefore be a clear
jurisdictional basis to proceed. The more
challenging aspect would be whether the
conduct could be characterised as crimes
within the ICCs jurisdiction.
The acts do not constitute genocide,
as the victims were not targeted due
to their membership of a national,
religious, ethnic or racial group. The
war on drugs also does not appear to
form part of any internal armed conflicts
in the Philippines (although drug-related
crime may fund the spread of arms), so
would not constitute a war crime.
Crimes against humanity must occur
within a widespread or systematic attack
directed at a civilian population. These
contextual elements probably would
be satisfied for the situation in the
Philippines: the deaths are widespread
and/or their extent and consistency
suggest systematic killings. Drug users
and criminals are civilians and arguably
constitute a civilian population that is
being targeted. So the relevant crimes
of murder, enforced disappearances,
unlawful imprisonment and other
inhumane acts would be crimes against
humanity.

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GLOBAL FOCUS

For the ICC to exercise jurisdiction, the

relevant attack on the civilian population
must involve multiple criminal acts pursuant
to a State or organisational policy. There
certainly have been multiple unlawful killings
and arbitrary detentions. Some of President
Dutertes statements suggest that these were
committed pursuant to a State policy.
While a shoot to kill order recently has
been denied, many of the police killings seem
to have been carried out as part of specific
operations, including Oplan Double Barrel,
implemented via Oplan HVT (high value
targets) and Oplan Tokhang (house-to-house
visitation). It will be more difficult to link
official policies to vigilante killings by
unknown assailants. The Prosecutor previously
has declined to open an investigation into
organised crime and drugs (in Honduras) as she
could not identify this organisational element.
If the Prosecutor is satisfied that crimes against
humanity have been committed, she must
also consider whether the case is admissible,
including the principle of complementarity and
the gravity of the alleged crimes. The ICC is
not meant to prosecute all international crimes.
The principle of complementarity mandates
that a situation will be admissible before the
ICC only when the relevant state is not already
investigating or prosecuting such crimes, or is
unable or unwilling to do so genuinely. The
Philippines has an established judiciary and
legislation that would enable it to prosecute
crimes against humanity namely, the
Philippine Act on Crimes Against International
Humanitarian Law, Genocide, and Other Crimes
Against Humanity, Republic Act 9851.
However, domestic prosecutions are likely
to be challenging. The alleged crimes were
committed by (or with the encouragement of )
national police. Securing sufficient evidence
will be difficult given historic challenges with
ensuring witness protection in human rights
violation cases. NGOs are yet to coordinate
large-scale documentation and evidencegathering systems, largely because responses
to Duterte are fragmented and political,
victims are often poor and without support,
organisations lack resources, and intimidation.
The democratically elected government has

While a
shoot to kill
order recently
has been
denied, many
of the police
killings seem
to have been
carried out as
part of specific
operations.

Sarah Williams is an associate

professor at the University of
NSW. She is involved in two
discovery projects funded
by the Australian Research
Council, one exploring the
amicus curiae in international
criminal justice and the other
examining transformative
reparations for sexual and
gender-based violence.

Emma Palmer is a PhD

candidate at UNSW studying
international criminal law
in south-east Asia and is a
research assistant on two
Australian Research Council
projects. She is admitted as
a solicitor and barrister in
NSW and is a Director at the
Womens Legal Services NSW.

supported anti-drug initiatives and holds a very

high approval rating. The Republic Act 9851 also
suggests that the President may have immunity
from prosecution, at least during office. While
Philippines officials may prefer to facilitate
domestic prosecutions if this would block ICC
intervention, it would require the same person
(or class of person) to be investigated for the
same conduct as in the ICC investigation. Trials
for lower-level officials, rather than the President
and senior officials, would not suffice.
The ICC must focus on the crimes of greatest
concern to the international community.
There is no set formula for gravity, but the
nature, number and scope of the crimes, the
identity and number of victims, the means of
commission of the crimes and the identity of the
perpetrators are relevant factors.
There appear to have been at least several
hundred killings in the Philippines. However,
victims in other situations have numbered in the
thousands and the Prosecutor has increasingly
limited resources. She might conclude that the
Philippines situation is not sufficiently grave.
If she decides to proceed, the Prosecutor
must still receive authorisation from a pre-trial
Chamber before opening a formal investigation.
The Philippines Government would be able to
challenge jurisdiction and admissibility. The ICC
cannot conduct trials in absentia, so proceedings
would depend on gaining custody of senior
officials such as Duterte. Securing necessary
evidence for an ICC trial would also depend
on cooperation from the national authorities in
the Philippines and legislation to facilitate ICC
cooperation remains pending.
Civil society actors can play a role in collecting
evidence, but would face the same challenges as
for domestic proceedings. Obtaining custody
of incumbent officials and securing government
cooperation can be highly problematic, as shown
by the ICC cases against Sudanese President
Al-Bashir and Kenyas President Kenyatta. A
trial of Duterte before the ICC is unlikely, and
would be years away. However, the Court offers
civil society actors at least one tool for pressuring
the Government and may provide an impetus to
document crimes.
ISSUE 28

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Briefs

HOT TOPIC

Will the
real drug driver
please stand up?
If you were to run a survey in NSW today, most people of legal
driving age would not be able to tell you why the law imposes
a 0.05 blood alcohol concentration as the limit for legal driving
capacity. It hasnt always been that way, writes SEPPY POUR.

hen drink
driving offences
wereintroduced in
NSW back in 1915,
they contained the phrase under
the influence of intoxicating liquor.
Given the lack of detection technology
available back then, it is understandable
that no empirical cut off was put in
place. The development of reliable
breathalyser-type devices did not
occur until the 1930s. Today, the Road
Transport Act 2013 imposes a per se
threshold (an empirical cut off at which
a driver is presumed to be impaired)
that has been reached following
significant scientific advancement.
Thanks to the sound and logical
scientific basis on which this threshold
was founded, the imposition of a
per se threshold was adopted swiftly
and with little backlash from the
community.Random breath testing was
introduced in NSW in 1982.

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The approach had an immediate

impact: the number of crash-related
fatalities fell by 22 per cent and alcoholrelated crashes by 35 per cent between
1982 and 1987.
Despite the success with which drink
driving offences have been enforced in
NSW, the same approach has not been
used for drug driving legislation. A major
issue that has come to the public fore
recently is the rationale of drug driving
offences that state that a person must
not, while there is present in the persons
oral fluid, blood or urine any prescribed
illicit drug, drive a motor vehicle. In
its current form, drug driving offences
maintain a zero-tolerance approach,
making it an offence to have even minute
traces of a prescribed drug in ones blood.
A per se threshold, it is argued, would
represent a fairer system, whereby
the law would target those who are
actively impaired and therefore pose
a tangible risk to themselves and

other drivers. Unlike drink driving

laws, where there has been extensive
research into the relationship between
alcohol consumption and impairment
of driving ability, there has been
insufficient research into the effects of
drugs on driving ability. The absence
of a direct and necessary link with road
safety has led many to form the view
that drug driving charges are more
about revenue raising and expanding
the war on drugs than about
improving road safety.
The issuerecently was brought to
the forefront of NSW politics when a
man charged with driving under the
influence of a prescribed illicit substance
was acquitted on grounds that he had a
genuine belief that no illicit substances
were still present in his body.
Police v Joseph Ross Carrall
Joseph Ross Carrall had been
apprehended for the offence of driving
with an illicit drug present in his blood
under Road Transport Act s 111 on two
separate occasions. Carrall pleaded
guilty to the first offence andpleaded
not guilty to the subsequent offence on
the basis of an honest and reasonable
mistake of fact.
Carrall met the evidential burden of
the defence by contending that when
he was apprehended for the first time
for driving under the influence, the
arresting officer had said to him, [I]f
you had waited a week you would have
been fine to drive. He had relied on this
information and had last had a smoke of
cannabis on the Sunday, almost a week
and a half before being apprehended the
second time.
Given the length of time, and the
police officers advice, the defendant
stated he was convinced that he was
right to drive and would not have
tetrahydrocannabinol (THC) in his

NOVEMBER 2016

17/10/2016 3:43 pm

HOT TOPIC

system. Magistrate Heilpern said the

lack of available information about the
tests made it reasonable for Carrall to
have relied on the officers advice.
Problems with a zerotolerance approach
Naturally, a zero-tolerance approach to
drug driving offences raises a number
of difficulties. In February, Federal
Parliament passed the Narcotic Drugs
Amendment Act 2016 which seeks to
deliver access to medicinal cannabis
products for the management of painful
and chronic conditions. Similarly,
NSWis conducting trials into a
cannabis-based drug, Epidolex.
What happens in the case where a
driver, hypothetically impaired by the
use of such products, is caught drug
driving? Surely the driver cannot be
given immunity from all drug driving
offences on the basis that the use of the
drug was not unlawful. This problem
would also arise in the case of a traveller
having recently returned from Colorado
or Portugal where various drugs are
now legalised.
Likewise, drivers who obtain a second
hand high from the unlawful use
of drugs by those in their immediate
proximity, or those who are the victim
of drink spiking. In all of the above
examples, it is unlikely that any true
proponent of road safety would suggest
that the driver should avoid liability
based purely on the fact that the initial
consumption of the drug was not
unlawful. The law should still impose a
statutory duty to avoid driving if there
is potential for impairment. As put by
Magistrate Heilpern, these examples
[illustrate] that the focus needs to be
on the legality of the act which is said to
constitute the offence (driving) not any
other offence [such as drug use].

Failure to test for other substances

Zero-tolerance is not the only problem
with the law. It is an offence under
the Road Transport Act to drive under
the influence of cannabis, MDMA,
methylamphetamine, morphine
and cocaine. Despite this, NSW
Mobile Drug Testing (MDT) only
tests for cannabis, MDMA and
methylamphetamine. As a result,
driving under the influence of
morphine and cocaine in effect go
undeterred. Furthermore, other
drugs such as prescription and nonprescription medications, for which
there is no relevant statutory provision,
go undetected.
Given the known impairing effects
of various other substances, both legal
and illegal, it stands to reason that
MDT should test for all detectable
drugs. NSW Police Standard Operating
Procedures claims that the rationale
behind screening only for THC,
MDMA and methylamphetamine is
that they are uniquely identifiable
under forensic examination at the
NSW Forensic & Analytical Science
Service. However, the website of
the manufacturer of the Drger
DrugTest 5000, the testing kit used by
NSW Police, claims drugs including
cocaine, opiates, benzodiazepines and
methadone can be detected from an oral
fluid sample.
The approach seems very much
to be an extension of the war on
drugs, with particular focus placed
on those in the poorer demographics.
The move is very much along the party
lines of a State government which
refuses to allow pill testing at festivals
and prefers to repeatedly preach that
if you dont use drugs, you have
nothing to worry about.

Despite calls to amend the

MDT scheme, the government has
announced its intention to expand the
scheme, tripling MDT to 97,000 tests
each year by 2017. This expansion is
on top of anincrease in testing that
occurred in 2015 which resulted in
5877 charges being brought, more
than in 2007 2014 combined.
In what looks to be an attempt to
garner support through fear, Deputy
Premier Troy Grant cites that one in
10 MDTs have come back positive,
compared with about one in 300
positive random breath tests for
alcohol. This comparison, however,
still fails to account for those who are
actually impaired.
Regardless of the governments
true motives, it is clear that a
zero-tolerance approach poses
numerous other problems, in effect
making its enforcement unjust and
unreasonable. For this reason, the use
of a zero-tolerance approach should
be condemned and discontinued.
Accordingly, a per se threshold
framework should be adopted using
credible, appropriate scientific findings
which, like in the case of alcohol,
speak to the relationship between drug
use and crash risk.

SEPPY POUR is a 2016 LLB (Hons)/

Arts graduate from the University of
Wollongong and an aspiring criminal
solicitor now based in Sydney. He regularly
writes on issues concerning criminal
law, criminal justice, civil liberties, and
public policy. The central focus of his LLB
Honours thesis was the efficacy of NSW
Drug Driving offences and the potential
impact they have had on the community.

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Briefs

IN FOCUS

How to beat
hackers without
paying a ransom
Prevention is key to protecting your
law firm, reports KATE ALLMAN.

he recent Panama Papers

scandal showed lawyers
around the world just
how damaging a digital
leak can be for any law firm. In that
situation, according to the International
Consortium of Investigative Journalists,
11.5 million highly confidential
documents were leaked from the
database of large, Panama-based law firm
Mossack Fonseca. While this large-scale
attack was widely publicised, every year
thousands of similar attacks on smaller
firms go unreported in the media.
Of the 7,600 complaints made to the
Australian Competition and Consumer
Commission (ACCC) by small businesses
in 2016, a new strand of computer
viruses known as ransomware topped the
list as the biggest problem. According
to the ACCCs Small Business in Focus
report, small businesses suffered at least
$1.6 million in losses from ransomware
scams in the past six months.
When you read the word ransom

26

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you might think of a violent kidnapping

similar to the first scenes of the film
Taken. While ransom attacks in todays
digital age are generally less obvious
or heavy handed, they can be just as
scary for your law firm, says Nicholas
Carr, the Managing Director of legal IT
support company BOAB IT.
What is ransomware?
Ransomware is the latest trend in
computer hacking that enables hackers
to infiltrate an organisations IT systems
to effectively kidnap important
files and hold them hostage until the
organisation pays a ransom to release
them. The virus enters a computer by
tricking the victim into clicking an
email attachment or link to a website.
You know those emails from your
previously unheard-of royal family in
Uzbekistan, promising you thousands of
dollars in inheritance? Thats probably a
ransomware scam.
If you click on the link, it could
install software that encrypts files

on your computer. Although your

computer will still start up and function
(apparently) as normal, if you try to
open those files a message will pop up
with instructions demanding payment
to recover them. You will usually be
directed to an online payment system
such as PayPal, to pay the criminal with
Bitcoin. This is an online currency that
is virtually untraceable.
The problem with ransomware
viruses is that it is very hard for law
enforcement to get to the root cause,
says Carr. The hackers will hack one
system, then use that compromised
system as a proxy, and they often go
through many proxies in this way.
Also, encrypting a file is not
necessarily a malicious action people
do it all the time to prevent their files
being accessed by other people. Thats
why ransomware is not often picked up
by antivirus software.
How common is it?
The NSW Police Cybercrime Unit
says it receives about seven reports of
ransomware scams in NSW each week.
Cybercrime Unit Coordinator Detective
Inspector Gordon Arbinja estimates
actual figures are likely to be closer to 20
per week as many scams go unreported.
Cryptolocker-type offences [where
files are encrypted and held for
ransom] are under reported due to
the inconvenience of having the files
encrypted and victims simply paying
the ransom, says Arbinja. The average
ransom for cryptolocker offences is
$500 but can be as high as $5,000. The
majority of demands are made in virtual
currency, bitcoin. Many victims do pay
the ransom as it is known that some
ransomware actors honour the ransom
and unlock the files.
Arbinja agrees that the criminals
responsible for ransomware scams are
often difficult to trace, however, if
caught they will be liable for fraud and

NOVEMBER 2016

18/10/2016 11:18 am

IN FOCUS

extortion offences and/or computerrelated offences under the NSW Crimes

Act punishable by up to 10 years
imprisonment.
People can always be traced, says
Arbinja. It relies on the evidence that the
victim is able to provide as little evidence
will be present on the device of the victim
after the offence has been committed.
Whats the risk for law firms?
Carr says ransomware poses a
particular threat to law firms due
to the large amount of confidential
client information that their computer
systems hold.
Law firms are managing a lot of
sensitive information for their clients,
says Carr. If you work in intellectual
property, for example, there could be
information about a pending patent that
you dont want anyone to get hold of.
Carr says many law firms will
simply pay the ransom to save the
embarrassment and bad publicity
from clients finding out that their
information is not secure. He says most
victims, particularly small firms, dont
ask for IT security advice until theyve
already been attacked. By that stage its
too late to do anything other than pay
the ransom or surrender the files.
John Gallagher, Senior Associate at
Clyde & Co, deals with both purchasers
and vendors of cyber security insurance.
This relatively new type of insurance has
become essential for businesses in recent
years as new cyber security threats such
as ransomware appear.
These days most cyber insurance
policies cover ransomware attacks, says
Gallagher. So if your firm is attacked
and you need to pay to unlock the files,
you dont have to foot the bill.
Gallagher recommends law firms
purchase a cyber insurance policy that
covers ransomware scams and says
they are available from a number of
companies including Chubb Security,

Allianz, Berkshire Hathaway, AIG and

Tokio Marine Nichido.
However, even if the business is
insured I dont think you would ever
advise someone to pay the ransom
straight away because you might
become a vulnerable target for future
attacks, says Gallagher.
How can you protect your firm?
While experts agree that theres no
silver bullet to fight off ransomware,
awareness and prevention will greatly
reduce your firms risk. You should also
follow the below prevention measures to
keep your files as safe as possible:
Regularly back-up files to external
hard drives. Be meticulous in rotating
different hard drives every few days
so you have updated versions to
restore to your computer if you fall
prey to a ransomware attack.
Train your staff and raise awareness
of what scam emails look like. If the
email address is from an unknown
website, dont open it.
Run firewalls and keep your antivirus
software updated.
If you are a target, NSW Police
encourages businesses to try to
decrypt files using nomoreransom.
org a free service endorsed by
international law enforcement and
anti-malware software security
groups.
Report ransomware scams to the
Australian Cybercrime Online
Reporting Network (ACORN) via
acorn.gov.au
Consider investing in ongoing
IT support. While it may seem
expensive, preventing ransomware
attacks will save your firm money in
the long run.
For more information visit scamwatch.
gov.au/types-of-scams/threatsextortion/malware-ransomware

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27 offices | 5 continents | 1 firm

ISSUE 28

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Features

28

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COVER STORY

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COVER STORY

FROM BULLETS TO BLACKTOWN:

THE RISE OF AN
AFRICAN WAR BOY
The LSJ introduced Sydney solicitor Deng Adut to readers in September
2014 in one of our first Day in the Life columns. Journalist Jane
Southward spent the day with Adut, then 31, in Burwood Local Court and
was impressed by his caring approach to clients, including to one man
who Adut followed out of a courtroom to offer to represent for free in a
traffic matter so the father-of-four could make it to work as a nurse. In
his autobiography to be released this month, Adut says finishing his law
degree has been the greatest achievement in his life.

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Features

COVER STORY

When Deng Adut was just six years old, war came to his village in South Sudan. Taken from his mother, he
was conscripted into the Sudan Peoples Liberation Army (SPLA), taught to use an AK-47, and sent into battle.
Eventually, Adut escaped an army training camp by hiding in a sack on the back of a truck for five hours. He
made it to a refugee camp in Kenya. Here, he met an Australian aid worker who arranged for Adut and his brother
to move to western Sydney. Adut could speak no English, was suffering emotional trauma, and had whooping
cough, measles, cholera and chicken pox. Five of his eight siblings had died. He found it difficult to fit into Sydney
life, dropped out of school, and eventually enrolled in English language classes and an accountancy course in
TAFE. He was then accepted to study law at Western Sydney University on the proviso he didnt fail any of the
core first-year courses. He doubled his studies in English and put his head down. In these extracts from Songs
of a War Boy, published by Hachette Australia, Adut describes being recruited by the Sudan People's Liberation
Army and an ethical dilemma he faced when he started studying law.

ne day I fell off the

edge of the world of
children and landed
in another world. I
did not land in the
world of men though
the world I yearned to be a part of
but another world. In this world there
was no family, and no gods, no Nile
eagles and no Nhialic, the big god who
was made out of the sky. In this world
there was only one thing: the machine
that is war.
I was destined to be a useful part of
that machine, or I was destined to be
dead. I was no longer Little Swallow,
or the God Eater, and not even Deng
Adut. I was SPLA. I would be that or I
would be nothing.
On that day I was seven years old.
There had been fierce fighting the few
days before I was taken. The northern
men had driven past the track next to
the Nile in the morning, and when
they returned in the afternoon, they
had been attacked.
After the battle, the Sudan People
Liberations Army (SPLA) came to the
village as they often did to get food,
goats and rest, but they were also coming
to the chief with an edict from their
leader, Kuol Manyang Juuk, to gather at
least one boy-child from each family.
The chief had no choice but to
acquiesce our village was in SPLA
territory now, and SPLA territory was
under gun rule.

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ISSUE 28

The word went down to the clans,

and then to the mothers. Athieu Akau
Deng was told that she must give me
up to the army. I dont know what the
feeling may have been in her heart when
she heard, but I know inside she would
have been collapsing. It is a pragmatic
life, however, Sudanese village life, so
knowing that there was no refusing the
order, my mother of mothers started to
prepare food for my trip.
My brother Adut, the stammerer, was
sent out to tell me to prepare for a long
journey. I dont remember how I learned
that Adut was coming for me with bad
news, but I knew because I ran from
him and hid in a tall tree with a great
many leaves. I did not want to go on a
journey, especially a long journey.
Adut and some of the other men
searched through the afternoon and
the night, but they couldnt find me. I
came down from that tree at dawn as
I thought the danger had passed. Adut
must have found some other boy to be
sent off into the world.
He hadnt though and he caught up
with me in the morning, while I was
playing with my little make-believe
cattle camp. He approached me as one
might a dog with pinned-back ears
walking slowly, leading with a gift of
cloth in his hand. It was the gift that
kept me from running away.
Adut told me that I had been selected
to be educated. He told me I must go
away from my mother for a while. He

told me I would come back. He told me

I had to be strong and that I would be
going to Ethiopia. I didnt know what
Ethiopia was, but I knew my mother
wouldnt be there and I didnt want to
leave her.
The gift in Aduts hand was an armyissue khaki shirt. I cried as he placed it
around my shoulders.
T-t-t-take this sh-sh-sh-shirt, and
may you wear it p-p-p-proudly on the
journey, Adut said.
Do you kn-kn-kn-know proudly?
I did.
I had never worn any clothes before,
let alone a fine, khaki shirt like that. I
left the shirt on my shoulders because
I knew that I would be going to this
Ethiopia, no matter what my wishes
were. There was no point in refusing
the gift. I knew it was a great gift. I was
curious about being educated. I knew it
was a great thing to be educated, but I
hoped it didnt take very long.
As we prepared to leave the village,
I found that I was not the only boy
from my luak (a grass-made cattle shed)
who had been selected to go away.
My cousins Anyang Aluel, Adut Agor
and Kueric Thuch also tiny, crying
and shivering with fear would be
travelling to Ethiopia, too.
As the men waited, my mother held
me one last time. She held me too long
though, and her fear started to seep
into me. I began to cry so she broke the
embrace. The last touch I felt was her

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COVER STORY

hand on mine as she gave me a parcel of

sorghum, grain and nuts.
You will have to be strong now,
Little Swallow. You can no longer
afford to be soft.
There were 30 boys selected from
my village some a little older than
me, some younger and we were all
marched, in one column, into the bush
by some village elders. After a couple
of hours of marching, I was as far from
my birthplace as Id ever been.
It was roughly 20 kilometres to
Kolnyang, the first town we stopped
in. I thought the journey was hard. I
thought that my feet hurt, my stomach
was empty, and my mouth was dry. I
had no idea.
When we got to Kolnyang I saw two
things my young eyes had never seen
before. The first was a structure with a
large tin roof, which made me wonder
if Kolnyang was one of those things
called a city that some of the Anyanya
(fighters) had spoken of. The second
was the great expanse of people.
These people were spread far further
than the limits of the town and my
eyes. Most of the people were boys
their eyes full of suspicion and fear,
and tears, sitting or lying on the baked
dirt but there were also soldiers, who
smoked, and looked bored and tired
and annoyed, as only soldiers can.
In Kolnyang, most of the boys and
men were Dinka although not all
were Dinka-Bor but some were from
different tribes. I could tell that by
their faces, and their bodies, and the
language they used. Due to this mix of
tribes, I was more fearful of this town
than the bush and its hungry animals.
In my village, I rarely met anyone from
another tribe.
We stayed overnight in Kolnyang,
bivouacking with everyone else, but
at the setting of the sun, no childrens
songs were sung. The only sound in the
camp was a muted whimpering. I did
not sleep, and I dont think anyone else

did either, except of course the soldiers.

The crying got quieter as the moon
rose, but the sound of the boys never
totally went away. When I sat up in the
middle of the night I saw that almost
every pair of eyes around me was open.
I knew what all the eyes were looking
at. They were looking at the stars. The
mothers would not be sleeping that
night, either.
The stars were perhaps the last thing
that could be shared by both the
mothers and the boys.
I knew that my mother would be
looking at those stars that night.
I ENJOYED LAW A LOT.
During my first year of study, it
occurred to me that I had actually
started life in a highly structured
environment and was now returning
to one.
While the Dinka do not have a
written legal canon, there were very
rigid and adhered-to laws regarding
everything from murder and theft to
property disputes and defamation. Even
when looked at from afar, Dinka law
is a beautiful thing, composed for the
benefit of the land, the river, the cattle
and the people. Then there was the war.
There was only one law in the war, and
that law was that the war is bigger than
you. The war served almost no people,
scorched the earth, scattered and killed
the cattle, and poisoned the river.
I was drunk on the law of the war
when I came to Australia, but I sobered
up as I learned more of the rules and
language of the country that had
welcomed me.
As I started to learn the Australian
laws, I found that they were like Dinka
law, but instead of being in the service
of people and land, it was in the service
of people and of precedent.
In that first year of law the reading
was extensive, the language often
confusing and arcane, and there were
few nights where my eyes didnt ache at

From top: Deng Adut on his graduation day

with his brother, John, the man he said pushed
him to make the most of his life; with Christine,
Harrison, the Australian aid worker who brought
him to Sydney; and reunited with his mother,
Athieu, in South Sudan earlier this year.

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the end of all the reading, but Australian law

made sense to me from intent to application.
I passed all my core classes in the first year of
my studies, allowing me to continue with my
degree, but I did fail a law foundation class.
The failure stemmed from my refusal to back
away from an ethical stance I took in class.
A brilliant academic named Dr Michael
Head, who was well known in Australian
socialist circles, and contributed readily and
intelligently to socialist journals, conducted the
class and posed this theoretical problem to us:
A bomb has been placed in a passenger
jet with 200 people on board. Its primed to
explode shortly. A suspect has been found, but
hes not cooperating with the police. How far
outside of the bounds of Australian law can
you morally operate with this suspect?
The opinion of the room was the opinion
that was obviously sought by Dr Head: there
is no wiggle room. The law is the law. I had
another, dissenting view.
I would torture him, I told Dr Head.
How can you be sure you have the right
man? And even then, how would you know that
the information was right? my tutor asked.
I know that people lie when under extreme
duress. I have tortured and I have been
tortured, but it would be worth the chance
that you may get some information that could
save the people on that flight.
That answer is categorically wrong, Deng,
Im sorry.
Dr Head explained his reasoning. The law
has to be allowed to be imperfect in singular
situations. It moves, and bends over time, but
it does not break.
Do you understand? Dr Head asked.
I do, but I would still torture this man.
And I would also torture his family, if it
was needed.
I was starting to believe in human rights,
but I believed in a utilitarian version of human
rights. I believed in the golden mean the
greatest good for the greatest number. I would
not be budged.
The argument continued throughout the
course. Both Dr Head and I thought we were
arguing to the benefit of the greatest good for
the greatest number, and I made impassioned

32

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ISSUE 28

I never
thought
gaining a law
degree could
be possible,
even as I was
picking up
my gown and
mortarboard
... I had still
seen myself as
the grubbyfaced child
Id been, with
an AK-47 in
his hands and
death in his
core, even as
I progressed
through year
after year
of law."

but brutal arguments. I was only a handful of

years removed from my time in the military,
and not just a military, but one of the most
ruthless militaries in the world. Arguments of
bombs and death were not abstract for me.
I passed the rest of my first-year courses,
however, and I was off to my second year
of studies. Then things became even more
difficult, as the course work became more
voluminous and complex. I fell behind, and
started filing assignments late.
I may have dropped out except that the
dean and deputy dean of the law school
Professor Michael Adams and Dr Stephen
Janes took a personal interest in me, and
helped me immensely.
They recognised that I was working hard,
but that the cards were stacked against me
somewhat, with my English still a work
in progress and the academic rigour of a
law degree a relatively new concept to me.
They gave me no special treatment, but they
monitored my progress, giving me a gentle
push when it looked like I was going to fall
too far behind. With those great men taking
a personal interest in me, I thought it would
have been a great dishonour to fail in my
studies, so I redoubled my efforts.
I knew that the semesters were only going to
become increasingly difficult and that things
would have to change if I was to graduate. I
decided I was going to return to the attitude I
had as a boy soldier. When I was in the SPLA
I would set a detailed plan for what I was
going to do that day as soon as I woke. That
was the only way to survive. I started doing
the same thing at university.
In the army there was never any food during
the day, so I decided to stop eating at the
campus. We slept very little when we were in
the army, too, so I started to go to bed very
late and woke very early. That last measure
actually helped me become more rested
because when I was extremely fatigued I found
I had far fewer nightmares.
The only activity I routinely kept up while at
WSU was football, which was also something
Id done in the army. I played football and
studied and attended lectures, and had time
with Elizabeth and the kids, and that was the

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COVER STORY

whole sum of my life. Then, one day, I

finished my degree. As the graduation
came closer and closer, I actually
believed less and less that I would
be handed a degree. I never thought
gaining a law degree could be possible,
even as I was picking up my gown
and mortarboard.
John had thought it possible, but I
never really believed him. I had still
seen myself as the grubby-faced child Id
been, with an AK-47 in his hands and
death in his core, even as I progressed
through year after year of law.
I spoke to John every week while
studying, and at times of particular
stress, I would call him every day. He
was a calming presence on the phone.
He hadnt been when I was living with
him, but things were different after
he moved permanently back to South

Sudan. I could never respect his decision

to permanently move away from his
children, but he was certainly more at
peace in Africa, and more himself.
John flew back to Australia for my
graduation and was incandescently
happy when I was handed my degree.
There were so many gates to that
moment that I wouldnt have been able
to get through without Johns help.
None of it would have been possible
without him. I told him that night that,
even though he had mostly been in
Africa while I was studying, I wouldnt
have been able to get the degree
without him.
He was so proud.
There were all kinds of friends
and family at the graduation. After
the ceremony we went to a church
in Blacktown for a party of Dinka

music and Sudanese food. People

gave speeches too, and there was
even one from James Mading Mabil,
my sometimes harsh, sometimes
angelic squad leader from the war.
He now lived in Sydney too, and I
was very happy that I could share my
triumphant moment with him.

This is an edited
extract from Songs
of a War Boy by
Deng Adut with
Ben Mckelvey,
published by
Hachette Australia.

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Features

ADVANCEMENT OF WOMEN

NEW CHARTER

FOR THE ADVANCEMENT

OF WOMEN

The Law Society has launched a new charter for the advancement of women and all solicitors
are encouraged to sign it. The charter is designed to promote and support strategies to keep
women in the profession over the course of their careers and encourage and promote their career
progression into senior executive and management positions. JANE SOUTHWARD reports.

hen former
Justice Jane
Mathews
entered the
law 53 years
ago, she felt
like an outsider immersed in what was a
mans world. There were only a handful
of women in her law class at Sydney
University and there was not one female
partner in an Australian law firm.
Thirty years ago, when the number
of women studying and working in
the law swelled, Justice Mathews, who
in 1980 became the first woman to be
appointed a judge of the NSW District
Court, and in 1987 the first woman
to be appointed a judge of the NSW
Supreme Court, had high hopes women

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PHOTOGRAPHY: JASON McCORMACK

would reach the top of the profession.

However, at the launch of the Law
Societys Charter for the Advancement
of Women on 10 October, she said she
had been naive and wrong about what
she saw as opportunities for equality of
the sexes in the legal profession.
When I first became involved in issues
that relate to women and the law in the
1980s, I really didnt think that gender
would still be an issue now, she said.
Back then, female law graduates had
already started to equal and then exceed
the number of male graduates, and I
always assumed that this thrust from
the bottom would result in a surge all
the way to the top of the profession.
It is still the case that the higher
you go in the profession, the more the

surge (of women) becomes a trickle. We

have ended up with that all too familiar
pyramid structure with the number of
women dwindling as we get closer to
the top.
There are, of course, a few
exceptions. It is wonderful that three
of our seven High Court judges are
women. But it is a very small court
where only one or two people can make
a massive difference to the proportions.
Justice Mathews commended the
Law Society for creating the Charter
for the Advancement of Women,
which she said has the real capacity to
enhance the legal profession, making
it the fair and diverse profession that
truly represents the community which
it serves.

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ADVANCEMENT OF WOMEN

Signatories to the charter agree to

implement a range of diversity and
inclusion principles, strategies to remove
gender bias and discrimination within
two years of signing, and to implement
equal pay for graduates within one year
of signing.
Justice Mathews pointed out that
fewer than 13 per cent of women were
principal solicitors compared with just
under 36 per cent of men, and that the
income disparity between male and
female solicitors was still in the order
of 20 per cent.
It is precisely these kinds of
differences that this very important
charter is designed to address, she said.
One of the major reasons for this
disparity clearly relates to the fact
that women are still expected to be,
and often also want to be, the child
rearers as well as the child bearers. I
feel very strongly that this should never
have been allowed to act as the major
impediment to the advancement of
women in the profession as it has been
over the years in so many cases.
It is here that flexible work practices
come in, one of the principal areas
addressed by this charter.
Juliana Warner, chair of the Law
Societys Diversity and Inclusion
Committee and managing partner at
Herbert Smith Freehills, told the launch
it was concerning that women and men
were entering the legal profession in
equal numbers yet women were not
progressing through the ranks like men
are and they arent being retained like
men are.
We wont realise bona fide equality
for women until we see equality for
women at every single level within
the workplace, starting from graduate
level, Warner said.
It is at the senior executive and
management level where the equality
falls down and where that flow of

We have ended up
with that all too familiar
pyramid structure with
the number of women
dwindling as we get
closer to the top.
THE HON. JUSTICE JANE MATHEWS AO

GENDER AND THE LAW*

Close to an even proportion of male
(50.8%) and female solicitors (49.2%)
Since 1995, the number of female
solicitors has increased by 300.4% (from
3,554 to 14,230) while the number of
male solicitors has increased by 59.1%
(from 9,243 to 14,705)
59% of solicitors entering the
profession for the first time were
women in 2015
Women were more strongly
represented than men in government
(63.5%) and corporate (57.6%) sectors.
Men were more strongly represented
than women in the private sector
(55.3%)
Just under a quarter of female
practitioners work part-time (22.1%)
The estimated mean income of female
practitioners ($118,012) was 10% lower
compared to the profession as a whole
($129,886)

achievement slows to a trickle.

Women leave our profession
temporarily to start a family only to
find upon their return that they are not
being progressed through the ranks
as they should. Even where there is no
career break, they may find that their
progression is slightly slower than their
male counterparts and year on year that
adds up.
The truth is that for women to truly
advance in legal practice, the talent
that female lawyers represent must
be attracted, retained and supported
throughout the lifecycle of their
professions in the law, because we need
to remember that discrimination is not
just about being discriminated against
on the basis of your gender: its also
about being discriminated against on
the basis of your personal and other
responsibilities and by not having
access to the opportunity to thrive
and develop.
Warner said the key to change was
finding new ways of working and
meaningful cultural change.
And what is it that generates
cultural change? she asked. First,
an understanding that diversity and
inclusion results in better business
outcomes.
We know from research that this
results in better decision making and
attracting, retaining and promoting
talented women is a part of that. We
also know from research that happiness
and balance of our professional lives
and lives outside the workplace result
in higher productivity. These are
win wins, so we are seeking ways of
empowering firms and individuals by
giving them the right tools to achieve
those outcomes.
For more information on the charter,
visit lawsociety.com.au/ForSolictors/
Advancementof Women/Charter/
index.htm

* Source: The 2015 Profile of the Profession

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Features

ADVANCEMENT OF WOMEN

NEW GENDER EQUITABLE

BRIEFING POLICY
The Law Society is also a
signatory to the new Gender
Equitable Briefing Policy, writes
LARISSA ANDELMAN, barrister
at 15 Wardell Chambers.

he Law Council of Australia adopted

the Equitable Briefing Policy in
June. Law firms, government,
companies, individual barristers and
floors of barristers can formally adopt the
policy. The policy provides a straightforward
and easy way in which to consciously
consider briefing or selecting women
barristers.

Clockwise from top left: Juliana Warner (left) and former Justice Jane Mathews and attendees
at the launch of the Societys Advancement of Women Charter on 10 October.

The policy aims to drive cultural change

in the legal profession, support the
progression and retention of women
barristers and address the significant pay
gap and under-representation of women

Annual Commercial and

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Date:

Tuesday 15 November 2016

Time:

1:15pm 5:40pm

Venue:

Banco Court, Supreme Court of New South Wales,

Level 13, Queens Square, Sydney NSW 2000

Register: lawsociety.com.au/SCLC2016

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ADVANCEMENT OF WOMEN

in the superior courts. Improving briefing

practices will not only maximise choices
for clients and legal practitioners but it
will also lead to improved retention and
progression of women barristers.
The policy sets out targets for briefing
female counsel. The targets are not
mandatory. They can be adapted to the
local conditions.
For example, a law firm that practises
predominantly in family and criminal
law will find it much easier to meet and
exceed the targets compared with a law
firm that practises in other areas where
historically women have been briefed in
much lower numbers, such as taxation
and corporate law.
However, a quick look at the NSW Bar
Association web site shows that there
are many highly experienced women
practising in such areas.
The Law Council and the NSW Law
Society can help law firms by providing
information, recommendations, templates

for reporting and regular information and

education seminars and workshops.

For law firms

Adopting the Equitable Briefing Policy
demonstrates a commitment to
promoting equality and the pursuit of
excellence in the law as well as the need
to reflect the diversity of clients and the
Australian community.
Law firms are required to:
1. Make all reasonable endeavours to
brief women barristers with relevant
seniority and expertise, experience and
interest in the relevant practice area.
2. By 1 July 2018:
a. Brief senior women barristers in at
least 20 per cent of briefs and/or
20 per cent of the value of all brief
fees paid to senior barristers;
b. Brief junior women barristers in at
least 30 per cent of briefs and/or
30 per cent of the value of all brief
fees paid to senior barristers.

3. Provide a confidential report to the

Law Society or directly to the Law
Council by 30 September each year
with respect to measures taken.

In-house counsel and governments

that do not brief directly
The NSW and Federal governments had
previously adopted an Equitable Briefing
Policy and are familiar with the concept
of equitable briefing. The policy requires
in-house counsel to:
1. Require that the firms they engage to
confirm their adoption of the policy.
2. Request regular reporting from firms
as to their performance against the
targets, both overall and on matters for
that client; and if women barristers are
not recommended or targets not met,
asking why not?
Visit lawsociety.com.au/ForSolictors/
AdvancementofWomen/
EquitableBriefing/index.htm for more.

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PROFILE

PHOTOGRAPHY: JASON McCORMACK

Features

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PROFILE

A life in the law

Judge Stephen Scarlett, lover of the arts, vintage Porsches and courtesy in court, recently
retired from the Federal Circuit Court after a 28-year judicial career. He was appointed to
the Local Court in 1988. He became the Senior Childrens Magistrate in 1995. He was
appointed to the new Federal Magistrates Court in 2000. His life in the law illustrates the
remarkable diversity of professional opportunities a law degree can offer. It also raises
questions about how each generation learns and transmits the traditions, technical skills
and values of the profession. Is the current crop of young lawyers meeting the expectations
of their seasoned colleagues? Judge Scarlett takes time to reflect with JULIE MCCROSSIN.

y first impression,
when I meet Judge
Scarlett in his
chambers in the
Family Court in
Sydney, is how
refreshing it is to meet a judge who
speaks eagerly about his time as a
country solicitor. He went to Parkes in
central western NSW planning to stay
for five years. He liked it so much he
stayed for 15. Country experience, he
says, offers three things a young lawyer
really needs: diversity of practice,
responsibility for cases, and a close
relationship with a senior colleague.
As Judge Scarlett pulls up a chair
beside me in front of his desk, he smiles
with pleasure at the memory of his first
day as a solicitor in a country town.
I went to work for a chap called
Tony Matthews, a wonderful man, he
recalls. He was a lot older than me.
Hed been a Spitfire pilot in World War
II. On the very first day he said, Come
across the road. The District Court is

sitting here on circuit for a week, so

come on over.
We walked diagonally across the
road to the courthouse. On the way
over he said, You better get used to
this walk, because Im not doing it
any more. You are. And I thought to
myself, Im doing litigation from now
on. And so it was.
Despite this sudden acquisition of
responsibility, or possibly because of
it, Judge Scarlett extended his time in
Parkes far longer than anticipated.
It was most rewarding, he explains.
I still have a great regard for country
solicitors. Country solicitors can play
an important part in the whole fabric of
the community, like doctors do.
People look to you to do all sorts
of legal work. In many cases, they are
people who cant afford to fly a barrister
up from Sydney. They expect you, as
their lawyer, to do it. You have a great
deal of client loyalty. It really makes
you concentrate on all aspects of the
law and youve got to keep up to date.

Law and medicine share many

characteristics as professions. Both
require students to complete arduous
university courses and exams, followed
by systematic group training by senior
members of the profession.
Yet both medicine and law also
expect graduates to learn a great deal by
directly observing senior people at work
and then asking questions. This is how
newcomers acquire practical skills and
develop professional judgment.
It is also common in both professions
for a relatively new graduate to have
responsibility for a clients fate. It is a
crucial survival strategy to develop a
network of experienced mentors. This
peer learning and support extends
throughout your career, but it is
essential in the beginning.
When I ask Judge Scarlett to reflect
on the lessons he can share from his
career, he talks respectfully about the
mentors who guided him. He has seen
hundreds and hundreds of lawyers
appear in court.

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Features

PROFILE

Retired Judge Stephen Scarlett with his prized Porsche.

hat are the errors young

practitioners should
avoid? He answers
concisely and without
hesitation.
Lack of preparation,
for a start, in litigation. A failure to
understand the rules of the particular court
that you are in. And not treating other
people with respect: not treating your clients
with respect, not treating the court with
respect and not treating your opponents with
respect, he says with particular emphasis on
the last point.
There are some remarkably rude and
arrogant young lawyers out there. I think it
is a dopey idea. Usually you can get on a lot
better with your colleagues if you are polite
to them. And theyll usually be polite back.
Some wont. Most will.
Judge Scarlett believes there has been a
deterioration in standards of litigation in
recent years. He says this is a view shared
by several senior barristers who have spoken
to him.
They have complained about the lack of
professionalism, the lack of courtesy and the
lack of basic skills of a lot of solicitors,
he explains.
I wonder whether some practitioners have
been given a proper basic training because the
principles of litigation are the same, whether
its criminal law, family law or bankruptcy or
whatever. I think the College of Law and the
various practical training courses are good.
But I wonder if some of the people who go
there actually keep their eyes and ears open

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Judge Scarlett
believes there
has been a
deterioration
in standards of
litigation in recent
years. He points
to complaints
about the lack of
professionalism,
the lack of
courtesy and the
lack of basic skills
of a lot of solicitors.

or whether they go through in a trance and

dont learn.
For Judge Scarlett, the solution is clear.
You find that practical experience as a
lawyer, whether it is in court or whether its
in conveyancing and learning from older
colleagues is absolutely invaluable, he says
with conviction.
He recalls his own experience, in his
early days, when he would simply sit in
court and listen.
As a solicitor getting into family law, Id
have a few cases in Parramatta, he says. Id
go down and meet my clients there. I would
sit in, right from the beginning. There were
two reasons for that. One, I would be there
when court opened so I wouldnt get a rap
on the knuckles for being late. But, secondly,
I could listen to the other people do their
business. If you heard 10, there would be
about six that would make you think, thats
not too hard, I can do that. And for a couple,
youd think, these people are really good. I
will follow that.
Judge Scarlett remembers learning a great
deal from watching a barrister, John Shaw,
who is still in practice.
This was 30 or 35 years ago, he recalls.
Id think, hes good.
When I ask what made him so good, his
answer is swift and to the point. Relevance.
Knowledge of the subject. And he would state
what he was there for politely and succinctly,
so the judge knew what he was talking about
and was able to listen.
The skill of an effective litigator is to help
the judge make a decision. You need to stand
in the shoes of the judge and see it from the
point of view of the person on the bench.
You provide the judge with the relevant
information to enable the judge to make a
decision which, hopefully, is in favour of your
client, he explains.
You dont obscure the picture with a whole
lot of irrelevant stuff. You look at the law and
you say, This is the law I am relying on and
these are the facts I am relying on. And, of
course, you need to give the judge a peg to
hang his or her hat on. Some reason why the
judge can make a decision in your clients

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PROFILE

favour, the Judge concludes.

Judge Scarlett clearly values a keenness
to learn and the humility to be willing
to learn. He believes these characteristics
are essential for young lawyers. It is how
he learnt himself.
I learnt a lot from some barristers
whom we briefed, he says. A lot of
barristers we briefed went on to become
judges. We flew at least business class
when briefing barristers. I used to brief
my great friend, the late Ken Taylor.
He became a District Court judge. He
would make sure that I would prepare
the cases for him properly and he would
have a number of sayings which I can
remember to this day.
One of them was: Remember in civil
litigation, you either win or you settle.
No-one goes to court to lose. It taught
me to evaluate the case. If you didnt
think you were going to win, you settle
it. You didnt want to go to a disaster.
Another mentor he briefed was Ray
McLoughlin SC who now sits on the
District Court.
He was a very good mentor, as a
barrister, for a solicitor briefing him.
He taught me about preparation and
about how you behaved in court. He
said that your behaviour in court was
important because you had to have the
confidence of the tribunal. If the judge
thinks you know what you are doing,
you will have an easier road. If the judge
thinks you are an idiot, you are going
to be pushing against it the whole time.
Again, this was very good advice for a
young lawyer.
When Judge Scarlett was appointed
to the Local Court in 1988, he again
received invaluable guidance from
senior colleagues. The first was Judge
Mahoney SC of the District Court.
I met him first of all when he was a
barrister and I had just finished school
and I had a day of work experience,
he remembers.
I just sat in court and watched him
all day at the Burwood Court of Petty

Former Judge Scarlett is relishing retirement and extra time with four generations of his family.

Sessions. Years later, I appeared before

him. It was in Forbes, Id come over
from Parkes, and, at a social function,
I told him I had just been appointed to
the Local Court.
He sat me down and gave me some
of his experiences of what the first
months on the bench were like. He
said, Youll get very tired because you
listen to everybody. You are constantly
concentrating. And he said, The
difference between being on the bench
and being in practice, is that you miss
the highs and lows of being in practice.
You are more or less on an even keel.
The workload is the same but you dont
have the highs and lows. It is a very
different process and not all lawyers
adapt to it when they appointed.
During his first week as a magistrate
in 1988, Judge Scarlett met another
mentor, Deputy Chief Magistrate
Charles Gilmore.
I spent a week with him at Central
Local Court where you get people in
custody. Serious crime. I just looked
at the way he handled these matters.
He was firm but he was fair. He was
reasonable. He left no-one in doubt
as to who was running the court.
But he listened to each side and then
would make a decision. He was a very
good magistrate, he says with deep
conviction.
Judge Scarletts commitment to lifelong learning continued on the bench.
He was active in legal education and

he studied. He completed a diploma in

criminology and a Masters of Law. He
was active in the Army Reserve, retiring
at the rank of Colonel. His service
included time in East Timor and in
Malaysia as Counsel Assisting a Board
of Inquiry. He received an OAM in 2015
for his service to the judiciary, the law
and to professional organisations.
Since he retired in July, Judge Scarlett
has already completed a course in
Melbourne at the Resolution Institute in
mediation. He will attend another course
in alternative dispute resolution at Bond
University later in the year. In addition
to his plan to work in mediation, he is
eagerly anticipating taking some of his
tribe of eight grandchildren to the
art gallery.
Judge Scarlett is well known for his love
of the arts and music. My grandmother,
with her own grandchildren, used
to teach us about art, music, poetry,
literature and astronomy. It was a gift
she could give to her grandchildren and I
think that is something I can do for my
grandchildren.
As Judge Scarlett says farewell and I
make my way back outside, through the
tight security of the Family Court, I feel
envious of the judges grandchildren. Not
only will they be going to art galleries
and the Opera House, but there is a
good chance they will be driving in their
grandfathers car. He has a Porsche 996.
I am not sure what that means. But it
sounds good to me.
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Professional development

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Take responsibility for

your part in the error.
Apologise. You will
be more respected
for your ability to take
ownership of your
actions. Then get
some perspective. I
advise my clients to
ask themselves: Will
this matter in 24 hours
from now, one week
from now, one year
from now, 10 years
from now?

What to do when you

make a mistake at work
Ill never forget it. The tight knot in my chest. The sick feeling in
my stomach. The dryness of my mouth. The sense of impending
doom and a feeling of horror that I might just have ended my
legal career before it even really got started.

had just finished my two-year

training period at a major Scottish
commercial firm. Id been offered a
position as a qualified lawyer in the
corporate/mergers and acquisitions
team, working for two partners, one
quite senior, one less so.

The partner I was mainly working for

was a great giver of responsibility even
to his junior lawyers like me. From day
one, I was liaising with clients, going
to meetings and drafting complex
agreements. It was the deep end and I
had jumped in ready to swim.

I was on top of the world, unstoppable.

I was so excited about my burgeoning
career, putting in extra hours to grow
and learn as quickly as I could.

We were working on an initial public

offering (IPO) together. My partner was
extremely well organised (which I will
always be thankful for) and we were in
good shape. The documentation was
progressing nicely and the timeline
for announcements and all major
components of the deal were set.

Of course, as a junior lawyer I knew very

little real stuff. Everything was new and
a steep learning curve. But I was ready
for the challenge and relished it.

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Costs Guidance
This was back in the days when all
major announcements had to be
advertised in the local newspaper.
I had it all arranged and on the
day it was due to be advertised, I
remember buying the newspaper
eager to see my work coming to
fruition, in print.
Flicking through to the business
pages I saw our firm logo and the
announcement. And within a split
second of reading it, I saw my legal
career flash in front of my eyes. I
had put the wrong date for the IPO
on the advertisement. It was, quite
simply, a complete stuff-up.
Fast forward 20 years and I can
still feel the dread at having to
confess my mistake. But I also still
remember my bosss response, and
its a mantra that I have lived by in
my career since that date.
Heres what he said: In work there
are very few mistakes that cant be
fixed Fiona. Lets focus on that part
the fixing.
We are all human. We all make
mistakes. Its unrealistic to think
that you will go through your whole
career without making at least
one monumental error. With my
ex-bosss words in mind, here are
my top tips on what to do when
you find yourself looking down the
barrel of a loaded gun of a stuff-up.

1. Get perspective
In law its rarely a life and death
mistake that youre likely to make.
The quickest way to still your rapidly
beating heart when you make a
mistake is to put it in context, and
give it some perspective.
I advise my clients to ask
themselves: Will this matter in
24 hours from now, one week
from now, one year from now,
10 years from now?
The answer in most cases is most
probably no, certainly for the one
year and 10 years from now.
Giving it perspective reduces
the panic factor, allowing you to
look more rationally at what has
happened and how it can be fixed.

2. Get honest
The worst thing you can do is try to
cover up your error. While coming
clean may feel like the worst possible
option you can take at the time, the
damage can be limited by letting
those who need to know, know.
However, before you do that, see
points 3, 4 and 5.

3. Get the facts

This is the time when you need your
rational logical mind to step up to the
fore. Taking the emotion out of the
situation will help you work through
the potential solutions faster and
more easily. Step outside the situation
and aim to be the observer. Focus on
the facts of what has happened and
how it happened (the why can come
later when you need to make sure the
same thing doesnt happen again).
Gather the facts and be ready to
discuss them calmly and rationally.
Take responsibility for your part in
the error. Apologise. Dont lay blame
at someone elses door. You will be
more respected for your ability to
take ownership of your actions and
mis-actions.

4. Get the solution

You know this already. Dont just
show up with the problem and expect
someone else to fix it. Do your best to
find a workable solution, or a range of
solutions. Then discuss them with the
people who need to have input.
This is when your ego needs to take a
back-seat, too. If someone else has a
better solution, thank them and work
with them on it.

5. Get into action

Dont sit on the problem. Do all of the
above and then take the necessary
action to fix it.

Contact us for free, independent

guidance on all costs issues.

(02) 9926 0116

costs@lawsociety.com.au

Once youve had time to fix the

issue, then you can reflect on why
it happened and how to ensure the
same thing never happens again.
Real leaders dont walk away from
mistakes and problems. They look
them in the face and tackle them,
head on. Always aim to be that type of
leader. Your colleagues, bosses, team
and career will thank you for it.
ISSUE 28

p42_43_Career Coach-November copy.indd 2

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Professional development

CAREER 101

Bradley
Beasley
Principal at Beasley
Legal, Lecturer at
Western Sydney
University (WSU), and
Adjunct Lecturer at
the College of Law
Bradley Beasley first
stepped into the Supreme
Court of NSW in 1977 as
an apprentice painter and
decorator to restore the
court for the Department
of Public Works.
When he finished his
apprenticeship, Beasley
took a management
position in the NSW
Branch of the Operative
Painters and Decorators
Union and was elected
to a number of building industry
committees that represented the
union movement domestically and
internationally. He went on to study
law while working for the University
of Sydney as the Senior Industrial
Relations Officer and, once admitted
as a solicitor, he worked at a number
of firms advising associations in
industrial disputes. In 2009, he
took out his unrestricted practising
certificate to establish his own firm,
Beasley Legal, on the Central Coast.
He runs a mediation business called
Mediation Remedies with his business
partner, Tony Dyer. Between clients,
he lectures at Western Sydney
University and the College of Law
in Sydney.

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p44_Career101-November.indd 1

Where did you grow up?

I grew up in Canada Bay in Sydneys inner-west.

What did you learn from your first job?

At 14 or 15, my first job was working for a
catering company in Drummoyne. We would
go from the shop to the venue, we would set
up the kitchen and then we would dress up in
our black and whites to serve the guests. At the
end of the night we would clean up and take
everything back to the shop. What did I learn?
To be timely, efficient and courteous.

Why did you decide to steer your career

in a completely new direction from
painter/decorator to lawyer?
As a painter, I experienced how poorly we were
treated and how often our lives were put at risk.
Power cords were left on the ground, running
through water and not at the correct height. We
would work with materials that were hazardous
such as lead paint and asbestos. Most managers,
site foremen and even workers would ridicule
you if you raised concerns about working with
asbestos. At a micro and macro level, I could
see how industrial relations had an impact on
workplace safety and socio-economics. My
inspiration to become a lawyer was sparked
when I appeared before the NSW Industrial
Relations Commission as a witness in an unfair
dismissal case. Justice Barrie French said to me,
What are you doing wasting your time here?
You should be at the Bar.

What has been a highlight of your career?

Bringing together my life experiences, my
formal learning and my practice in law to
become an academic in higher education and a
lecturer at the College of Law.

Most important lesson learned?

Always give the other party some space so they
may leave the negotiations without losing face,
maintaining their respect and dignity.

When you are 70, where will you be?

Spending more time with my children and
grandchildren, visiting vineyards, antique shops,
decorating at home and drinking fine wine
while travelling through Europe.

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Professional development

DOING BUSINESS

Michelle
Dunne
PARTNER AT CLYDE & CO, SYDNEY

Describe your style in

three words?
Chic, tailored, feminine.

What is your number one

corporate styling rule?
Always keep the cut of an outfit
in mind. Poor-fitting clothes,
whether too tight or too loose,
are not only uncomfortable
but give an uncomfortable
impression to those you meet.

Who is your fashion

inspiration?
Sophia Loren. I find strong
women with a strong
sense of style are timeless.
Ms Loren has dressed beautifully
over many decades.

Most heinous fashion crime

youve seen at work?
I am lucky enough not to have seen anything
particularly heinous, however, some fashion
misdemeanours include crumpled mens suits,
skirts that are perhaps too short for court, and
exposed muffin tops on casual Friday.

Name a current trend that really irks you?

Cut-off denim shorts. The uniform of
backpackers and music festival people that just
never seems to go away ever. Oh, and men
who wear skinny jeans. I have never seen a man
look good in skinny jeans.

Can you recall a situation where you

made a poor outfit choice and wished
youd worn something else?
I paid the price for wearing white to a rather fancy
Asian restaurant for a client dinner, and then
proceeded to eat duck pancakes. The inevitable
occurred and I lived with a not-so-fancy duck
pancake sauce stain for the entire evening. I really
wished I had worn something dark.

GOT A SNAPPY DRESSER

IN YOUR OFFICE?
Dob them in:
journal@lawsociety.com.au

46

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ISSUE 28

p46_Doing business-November.indd 1

to plan a winning office

Christmas party
BY CASSIE BELL

JULIEN HUNT
Marketing & Events
Executive
Gilbert + Tobin
Get into calendars early to secure the
ideal datefirst Friday in December.
Give known whiners and nit-pickers
some buy-in to the process and
involve them in some of the important
theme and menu decisions. Dont
scrimp on the bubbles, dont run out of
anything, ensure safe and secure access
to transport home afterwards, and try to
keep clients from sneaking in!

SARA FLAKSBARD
General Manager,
Laissez-faire
Laissez.com.au
Consider the not-so-obvious menu
planning items to ensure a memorable
meal at your Christmas party.
Choosing the right menu involves
an understanding of who will be
attending (and any dietary restrictions),
what produce is in season, the event
schedule, and how both the food and
the menu will be presented.

DANIEL TUSIA
Creative Director,
Applause Entertainment
Applause.com.au
The party begins with the invitation;
it sets the tone for the whole party.
Identify the purpose of your party, note
your guest lists demographics and craft
everythingthe decorations, catering
and entertainmentto complement
it. Remember, its a partykeep it light,
accessible and, above all else, fun!

NOVEMBER 2016

17/10/2016 1:51 pm

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18/10/2016
11/10/2016 11:33
11:32 am

Professional development

A DAY IN THE LIFE

A day in the life of ...

Michelle Kelly
LISMORE SOLICITOR
Michelle Kelly, 58, started studying
law at the Southern Cross University
when she was part of the Gunnedah
Environment Group that was
lobbying for restrictions on aerial
pesticide spraying. I had a baby
daughter and was almost finished a
Bachelor of Arts in geography and
planning by distance education at
the University of New England,
Kelly says. The more I went into the
planning and regulation side of it, the
more I realised I needed to know the
law. It was very empowering. Kellys
marriage to a cattle farmer ended in
1995 and she moved to Lismore to
work at the Family Support Network
as a contact supervisor of children
in care. Once she graduated with
her law degree, she worked for
Family and Community Services
representing the department in care
and protection cases. Many of the
cases were heartbreaking, she says.
I used to think with every case that
I did, if its not okay for my kid, its
not okay for this kid. Earlier this
year, Kelly started a small private firm
in Lismore, called Everyday Legal,
with Amanda Mead. She shares her
passion for practising law in regional
NSW with JANE SOUTHWARD.
PHOTOGRAPHS BY SARAH RICKARD

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A DAY IN THE LIFE

In 1990 I was living on a farm at

Gunnedah and married to a farmer.
I had started to notice changes in the
environment. One thing led to another
and I ended up forming the Gunnedah
Environment Group. We started to ask
questions about the recent move of the cotton
industry into our area.
My daughter had just been born. The real
turning point, when I became very angry, was
cotton was growing all around us and there
were no regulations for aerial spraying. We
used to get drift of the chemicals and we lived
on rainwater. One day you could smell it
really strongly in the house and my daughter,
Bianca, was outside. She came running in with
a bleeding nose. I was convinced the pesticides
made it happen.
We were running beef cattle. The Gunnedah
Environment Group started to grow and
we started to get more and more anecdotal
evidence from farmers and towns people.
We started agitating and got the Total
Environment Centre involved. When you are
up against the cotton industry and the water
industry, they have unlimited funds. We
were three farmers wives representing a town.
There might have been 200 people at the
meetings, which, in a town of about 10,000,
showed how much people were concerned.
Pam Allen, the then Minister for the
Environment, agreed to do Australias first
epidemiological study of a whole town to
look at the side effects of the aerial spraying.
They had hundreds of participants who
kept diaries and from that they were able to
correlate symptoms. That went for a whole
year. Gunnedah Shire Council became the
first council to come up with aerial spraying
guidelines.
After that I was hooked on the law and
completed my degree. I took a job at Family
and Community Services and worked there
for six years representing the department in
child protection cases. Thats a tough job and
the added burden for me, and for any lawyer
in that role, is that you cant have a bad day at
the office because if you get it wrong, a child

pays. So it didnt matter how I felt, how tired I

was, what I wanted to do on a weekend I had
to be on the game because I knew it would be
somebody else who got the consequences of
my performance. I used to think with every
case that if its not okay for my kid, its not
okay for this kid.
Some of the cases were heartbreaking. FACS
has a bad reputation because the very worst
cases make headlines and the other good work
doesnt get noticed. Are they doing enough?
Its hard to say. Are they doing as much as they
can with the resources? Yes, they are. I have
the greatest admiration for the case workers
and the legal teams. They work hard. You just
cant get around to everything. Sometimes
the most benign report can end up being
something very bad a week later. How can you
predict it, especially with ice now?
At FACS, on the north region litigation
team, we dealt with children who had
been removed from parents and placed in
departmental care (what used to be called
foster care). It was the legal process that
follows removal. My position was to represent
the department in those cases.
There were all sorts of matters. There
are several grounds for removal under
the legislation. The biggest ones are child
neglect, child abuse which can be physical,
psychological, educational needs not being
met or exposure to domestic violence. These
are the main three grounds.
For me, I had a use-by date and I hit it. I
couldnt keep looking at broken babies, I
just couldnt do it. I left FACS and worked
in advocacy with students at Southern Cross
University. Early this year, Amanda Mead, a
solicitor who had done some training with
me, asked if I wanted to set up a private social
justice practice in Lismore. This appealed to
me because I was missing court work and
I wasnt quite ready to go back to care and
protection. Everyday Legal was born.
Theres a massive gap between people who
are eligible for Legal Aid and those who can
afford the usual billable hour rate of the
standard law firm. Especially for me, that
ISSUE 28

p48_51_A day in the life_michelle kelly.indd 2

Theres a
massive gap
between
people who
are eligible for
Legal Aid and
those who
can afford
the usual
billable rate of
the standard
law firm.

NOVEMBER 2016

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Professional development

A DAY IN THE LIFE

was particularly the case for many

Indigenous people. In Lismore, we
have quite a large low-socio-economic
demographic. Our unemployment rate
is high. It was those sorts of people who
I believed strongly needed some sort of
representation or some sort of access
to the knowledge to get the best they
could for themselves.
We have set fees where we can, but
we have a very low hourly rate as well.
We started out charging $150 an hour.
It has gone up to $200 an hour and
we really should raise it to $250. I am
learning about running a small practice.
Our firm is small. We have two
partners, an office manager who is a
solicitor, and a conveyancing clerk who
is studying law. About a quarter of
our business is conveyancing and our
primary work is in care and protection

Bamford,
Principles of civil litigation.
2nd edition. Thomson Reuters. 2014.
Cremean,
Freedom of information:
What you need to know.
LexisNexis Butterworths. 2015.
Hudsons Building and
engineering contracts.
13th edition. Sweet & Maxwell. 2015.

and family law, followed by criminal law.

In some ways, private practice is
more satisfying. Thats the thing with
the chance to do pro bono. Its good
to go home at the end of the day and
think, I did something good today
and I didnt necessarily do it because
I was paid to do it. I did it because I
felt some kind of moral obligation or
imperative to do it. I like to go home
and think I have done something
worthwhile.
Amanda had the idea that we set up a
free legal clinic at the Lismore markets.
To be honest, at first I struggled with
that because I had that old thought
in my head: Lawyers dont do that
sort of thing. We dont go to markets
and peddle law. I reluctantly went
along with it and it has been such a
wonderful thing. We set up the first

DIGITAL RESOURCES

Reynolds,
Leading cases in Australian
law: A guide to the 200 most
frequently cited judgments.
The Federation Press. 2016.
Ritter,
William & Mary Windeyer:
Law, politics and society in
colonial New South Wales.
Australian Scholarly Publishing. 2016.

Thorpe,
Mortensen,
Sports law. 2nd edition.
Private international law in Australia.
3rd edition. LexisNexis Butterworths. 2015. Oxford University Press. 2013.
Rawlinsons Construction cost guide
2016: For housing, small commercial
and industrial buildings.
24th edition.
Rawlinsons Publishing. 2016.

Sunday of each month. We have a popup shop that we set up and we have
an A-frame and it just says Free Legal
Advice. We are kept busy all day and
it can be matters to do with family law
(how do I get a divorce?). We dont take
instructions, its just a superficial piece
of advice on what you can do. It can be
about what to do about the neighbours
barking dog, or how do I get an AVO?
It generates business and has this dual
benefit.
My life experience has boosted my
skills as a solicitor. There is nothing
that shocks me. I understand I have
had an imperfect life so I have no
judgments on anyone that walks in
the door. Also, I think people relate
to me because I am ordinary. I think
thats a good thing that lawyers can be
ordinary people.

Wappett,
Essential personal property
securities law in Australia.
3rd edition.
LexisNexis Butterworths. 2015.

Library users now have access

to 20 digital titles of CCH and
LexisNexis eBooks via the CCH
ePlatform.
This complements the
15 eLooseleaf services already
on offer via the LexisNexis Red
ePlatform.
For further details on how
to request, minimum system
requirements and a full list of titles
currently available, please visit our
Digital Resources page at:
lawsociety.com.au/resources/
library/Digitalresources

Contact us for the complete catalogue and information concerning library services:
Phone: +61 2 9926 0324

50

LSJ

ISSUE 28

Email: library@lawsociety.com.au

www.lawsociety.com.au/library

NOVEMBER 2016

p48_51_A day in the life_michelle kelly.indd 3

19/10/2016 5:13 pm

A DAY IN THE LIFE

I went to 10 different schools as

a child. I was born in Hornsby. My
father was Indigenous and died of a
bee sting when he was only 18 and I
was only six months old. My mum was
17 and pregnant with my sister. They
were really poor, as many Kooris were.
My mum remarried and my step father
adopted me once she married him. I
finished school at Booragul High
School in Newcastle.
Mum told my sister and I that dad
was Indigenous when I was 14 and
that my brothers were half-brothers. I
had a bit of an identity crisis because
everything I thought I was, I wasnt. I
ran a bit off the rails and I played up.
After school, my mother took me to
Sydney and I started studying nuclear
medical technology at Royal Prince
Alfred Hospital. I had never lived in

Sydney. I was 17 and I didnt like

the city. I didnt know how to catch
a bus. I went back to Newcastle
and I was working in a private art
gallery. A friend of mine who lived
in Gunnedah asked me to come up
for the weekend. She said, I will
introduce you to the most eligible
bachelor in town. I met the wild
cowboy and I ended up marrying
him. We lived together from when I
was 22 and we got married when
I was about 28.
I dont know if its the Koori in me,
but I have always felt very connected
to the land where I live. I guess thats
one reason I really love living and
working in northern NSW.

Jaxon no longer has his

Dad to lean on.

Solicitor Michelle Kelly at Lismore Courthouse.

Steve was 42 when he collapsed and died in

front of Jaxon, his 3-year-old son. Steve was
considered fit and healthy. Nobody guessed
he was at risk.
Every 26 minutes, heart disease claims the life
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Call: 1300 55 02 82
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heartfoundation.org.au/giftsinwills

ISSUE 28

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Professional development

LIFE OUTSIDE LAW

ALL THAT GLITTERS

IS NOT GOLD
PHOTOGRAPHY: JASON McCORMACK

Lelien Chua tells KATE ALLMAN how her

love for the ocean keeps the stress of a
legal career in perspective.

ow many litigation lawyers

do you know who show
up to client meetings in
board shorts? Building and
construction lawyer Lelien Chua may be
the only one.
Chua, 40, is a senior associate at
Grace Lawyers and works in building
and construction litigation, solving
strata disputes and representing owners
corporations against local councils.
She says dressing casually suits her line
of work because many of her client
meetings dont happen in boardrooms.
I see clients who have a leak in their
apartment and theres water up to their
knees in the bedroom, says Chua.
They couldnt care less if I rocked up in
a Kombi van.
Chua says her casual approach
encourages the everyday people she
represents to trust and relate to her more
easily. Wearing board shorts to meetings
also makes for an easier transition
between work and where Chua feels

52

LSJ

ISSUE 28

most at home in the ocean. Once I

turned up in my boardies and rashie to a
meeting, says Chua.
It was on a Saturday and the clients
were down in Shellharbour so I said Id
go down, talk to the clients and go for
a surf afterwards. When I introduced
myself, the clients just looked at me and
cracked up laughing. I wasnt like any
lawyer theyd ever seen. Because of that,
they totally opened up to me.
Chua has also been running an allwomens, dog-friendly surf school called
Surfpuppies on weekends for four years.
She takes adult women for one-on-one
lessons at Kurnell in south Sydney while
her aptly-named Chihuahua, B-free,
sits on the beach and keeps the students
pets company.
Chua charges $30 for a two-hour
lesson, barely enough to cover the
national park entry fee and petrol.
Surfpuppies is not-for-profit and every
couple of months Chua and her students
organise a surf camping trip to fundraise

for a specific cause. Past trips have raised

thousands of dollars for Wildlife Rescue,
WIRES, Save the Koalas and the NSW
Bushfires Wildlife Appeal in 2013.
Chua also holds a clean-up parade at
each beach she visits and says her goal is
to ensure people appreciate the natural
environment so they will look after it.
While this sounds idyllic, Chuas
lifestyle hasnt always been so laid back.
When she graduated from the University
of Western Sydney and started work
in a small building and construction
law firm, she often worked 15-hour
days including on Saturdays. Chua
grew up in Singapore and moved to
Sydneys western suburbs when she was
a teenager. She started surfing when she
was 28 to escape when the workload and
pressure of billable-hour targets pushed
her almost to breaking point.
Even in the small firm I was working
at, there was so much pressure, Chua
recalls. At the time, my grandfather
had just passed away and I started to

NOVEMBER 2016

p52_53_Extracurricular_November.indd 1

17/10/2016 1:44 pm

become really depressed. I saw so many

lawyers break down. I read about the high
alcoholism rates and mental illness in
the legal profession and thought, Theres
something wrong here.
I remember seeing these surfers who
were always laughing, always stoked. I
thought I must be missing something.
Chua took a surf lesson at Cronulla and
was hooked after riding her second wave
all the way in to the beach. It wasnt long
before she bought her own board and
wanted to spend more time in the water.
I quit law to join Sydney Buses and
drove around Waverley for three years so I
could check the surf while I was working,
Chua says. We used to have split shifts
but they stopped giving me the split ones,
because Id go to the beach and never
come back.
Chua spent a year unemployed in Byron
Bay, lapping up the swells. When she ran
out of money, she sold her surfboard to
buy a suit for a job interview and moved
back to Sydney to restart her legal career.

If things go
wrong on a file,
its not the end
of the world.
Your life is not in
danger, theres
no six-foot
wave coming
down on top
of you about to
swallow you up.
You learn to not
worry about the
little things.
LELIEN CHUA

While its been a bumpy ride, Chua has

found a happy medium between surfing
and working four days a week at Grace
Lawyers.
Surfing really helps to put everything
at work into perspective, Chua says. If
things go wrong on a file, its not the end
of the world. Your life is not in danger,
theres no six-foot wave coming down on
top of you about to swallow you up. You
learn to not worry about the little things.
Chua laments that a focus on material
gain often can dominate in the legal
profession. However, surfing regularly
reminds her that happiness depends on
more important things.
One day I was surfing early in the
morning in winter and the sun was rising,
she says. When that happens the sun hits
the water and it turns gold. I remember
this guy paddled up next to me and said,
Look at all this gold! This is as rich as Im
going to be. And I thought, Yep. This is
as rich as I ever need to be. Theres more
gold here than Ill ever have.
ISSUE 28

p52_53_Extracurricular_November.indd 2

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Health & wellbeing

PSYCHE

Take control before

holiday season
Three techniques neural nourishment from the senses, being present
with loved ones, and understanding yourself can help you recharge and
redirect your life, writes psychologist PAUL PHILLIPS.

s summer rolls in, the

warmth begins, the days
grow longer, and our
thoughts turn to Christmas
and next year. What have I done this
year? Could I be better next year?
Many Australians take a break from the
drudgery of work over summer to spend
time with loved ones and recharge the
batteries. But how do you maximise
your recharge over summer?
One of the biggest myths is that
having a holiday is in itself rejuvenating.
This is not exactly true.
During their working week,
most people do not get the type of
stimulation their body needs. Yet, when
they go on holiday, they do things they
dont do during the work week. They
surf, swim or ride a jet ski. Unless you
are in an ultra-progressive law firm, its
unlikely you are riding a jet ski while
meeting clients.
On holidays, you are giving your
body what it needs to function. You are
nourishing your neural pathways by the
activities and sensations you are feeding
them, rather than starving them by sitting
at a desk staring at a computer screen.
The catch is that when on holiday,
this activity is incidental, not
instrumental. To shift from incidental
neural nourishment to instrumentally
improving your brain, you need to
identify what sensations you need.

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Nourish the senses

There are seven types of sensations that
nourish your brain. These are the seven
major sensory pathways. Yes, seven
not five like we were taught in school.
There are the five senses that we were all
taught: sight, sound, touch, taste and
smell. Plus, two more: proprioception
and vestibular.
Proprioception is how you know
where your body is when your eyes are
closed. In the office, high proprioceptive
people like their stress balls to squeeze
or go to the gym to lift weights.
Vestibular comes from your inner ear
and tells you when you are moving,
such as in a lift, on a trampoline or in
a car accelerating. In the office, people
with high vestibular needs are the ones
rocking on their chairs. Figure out
which sensations you need more of to
feel good and plan activities on holiday
that give you more of that sensation.
Be present
The next step is to be present, to
actually be there.
How many times does your mind
wander to something or someone at the
office instead of the family member in
front of you? How often do you come
back to reality after someone you care
about has said, Are you listening
to me?

The first step to improving this is

admitting you cant be perfectly present
the sad secret is that no one else can
be either. Its okay; we are imperfect
beings. Accepting that imperfection
of attention and acknowledging it
to someone you care about rather
than flying into a defensive rant is an
improvement. Saying you are always
present is a bit like saying you run
the 100-metre sprint in one second
move over Usain Bolt. Accept you are
imperfect and start by acknowledging
that vulnerability to people who care
about you.
Write it down to find out why
To expand on that vulnerability and
begin a reflexive journal. This is not
some Dear Diary, today I had icecream type of thing. Nor is it a list of
dreams and hopes. A reflexive journal
helps you link with the behaviours that
seem to drive you, but arent exactly
rational. They dont allow themselves
to be analysed by the readily available
laws of logic that lawyers are trained
to administer as tests of soundness.
The reason? They often appear as non
sequiturs. The links are hidden from
consciousness. This is why a different
technique is needed to dredge them up
from the abyss of the unconscious.
There are several techniques to use in

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PSYCHE

SCENARIO ONE

SCENARIO TWO

I WATCHED LORD OF THE RINGS

TOOK FAMILY OUT TO LUNCH

Why?

What do I get from that?

I like the struggle of a hero

Got to eat what I want, not whats in the house

Why?

What do I get from that?

Because I like to see how the hero develops

Proof I am in control not just what is provided for me

Why?

What do I get from that?

Because I think I am a hero

Proof I am an adult and in control

Why?

What do I get from that?

Because my parents were not heroes to me

Comfort that I am not a dependent child

a reflexive journal. The first is to ask why?.

You start with a behavioural observation, for
example, I watched Lord of the Rings this week.
In a normal diary you might add the friends
who were there, the food you ate or how comfy
the seat was. None of that matters in a reflexive
journal. Instead, why did you choose Lord of
the Rings when there are so many other movies
you could have chosen? Is it because you like
magic, or the struggle of a hero, or its an escape
from the pain of reality?
A second way of becoming reflexive is to ask,
What do I get from that? The behaviour may
be taking the family out to lunch. What did I
get from that? I got to spend money on them,
or I got to impress them by how much I can
afford for lunch, or I got to eat what I want
rather than whats in the house.
You will notice that sometimes the answer to
why you do something or what you get from
something isnt exactly nice. Often its not socially
acceptable. Thats part of the reason its not so
readily accessible to your consciousness with its
focus on social conformity and desirability.
The important thing in this step is to be
brutally honest with yourself. Do not filter
for social niceness or politeness. This is about
being honest, not about being nice. Usually
you will need to ask why, or what you get, four
times to really drill down to the driving reason.
In the table above are two scenarios to show
what I mean.
Once you have established why or what you
get from something, try to find other behaviour

One of the
biggest myths
is that having
a holiday
is in itself
rejuvenating.
This is not
exactly true.

this drives. So if you choose to watch Lord of

the Rings because your parents were not heroes
to you, is that why you take on unwinnable
cases? Is it why you defend the little guy as it
fits being a hero? Are you trying to be a hero to
other people to overcome this pain?
The deeper you go, the more behaviours you
will find are linked to the deep reason. For
example, fewer behaviours will be associated
with liking the struggle of a hero or seeing how
a hero develops or you thinking you are a hero
or your belief that your parents are not being
heroes to you.
Once you know why or what you get, you
can actually look at better ways to achieve those
outcomes. Often the behaviour you engage in
without consciously knowing why or what is
misguided, compensatory or destructive.
These three techniques neural nourishment
from the senses, being present with loved ones,
and understanding yourself are useful for
recharging and redirecting your life. Together
they allow your brain to get what it needs,
your consciousness to be focused, and you to
be more aware of who you really are. Taken
together, this allows you to be more in control
of what happens next in your life.

Paul Phillips, PhD, is a registered

occupational therapist, psychologist
and academic who leads mindfulness
classes at the Law Society of NSW.

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Health & wellbeing

PSYCHE

Why you need

a relationship
reboot
If you have put your relationship on hold, or are neglecting it entirely,
its time to change for your healths sake, writes NICOLA GATES.

have heard many people retort that

once careers or child rearing is out
of the way, their relationship will be
given time and priority. However,
research suggests that delaying a
relationship rescue, or accepting that it
is in a rut, may reduce the likelihood
it will be rekindled. I recently worked
with a man planning his late retirement
when his wife said, Its too late and
left after 40 years of marriage. If the
spark has gone, you have grown apart,
or the relationship has become more
transactional rather than relational, it
might be time for a reboot.
Relationships change over time
and it is necessary to put its age and
stage into perspective. Interestingly, as
relationships mature, different parts of
the brain are involved.
Although different researchers
report variability in the number of
stages, broadly speaking there is the
initial intense spark of desire that is
unsustainable and becomes replaced
by emotional intimacy as we grow
to know our partners deeply.
This internalisation of the other (a
psychological term) describes how we
incorporate our partner into our own
identity, understanding how they may
think, feel, behave, and so on.
Between the initial frisson and the
later rich intimate relationship are
other stages and, importantly, as people

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change, so do their relationships and

what they need from them.
Back to basics
A relationship involves inter-relating,
an ongoing process of connecting
and reconnecting. Respectful
communication builds emotional
intimacy, deep knowledge,
understanding and empathy, and
significantly contributes to physical or
sexual intimacy.
Developing healthy communication
also allows you to manage threats
to the relationship, such as the daily
stresses that can accumulate. Learn
how to communicate assertively, clearly
identifying your own thoughts and
feelings and your needs and desires.
It is easy to think that our partner is
a mind reader, especially if you have
been together for a long time, but it is
important to own your own needs and
communicate them clearly. Reciprocate
listening, truly hearing your partner
without judgment. Understanding and
resolution are the goals, not control
and power. Do you communicate as
adversaries or in a competition to have
winners and losers, or do you work as a
team to build understanding?
Rediscovery
Studies suggest that with increasing
age, the need for companionship grows
and this is particularly important when

joint projects such as supporting careers,

building financial security, raising
children, or building a home have been
completed. Building companionship and
shared interests, having fun and positive
emotional experiences together are
crucial and serve to prevent relationships
from feeling stale. Arrange date nights,
revisit old haunts from when you first
dated, or go on an adventure together
and discover something new a shared
hobby, a trip, a new restaurant etc.
Appreciation
The expression familiarity breeds
contempt unfortunately may be applied
to neglected relationships. Therefore,
as part of a relationship clean sweep,
reframe your partner by seeing their
positive qualities. Those characteristics,
habits or quirks that were attractive
and initially drew you together can
easily get buried under annoyances and
flaws. Look at your partners strengths
with fresh eyes and celebrate the good.
Thank your partner, demonstrate your
appreciation by speaking the languages
of love that your partner understands.
Embrace your choice to be together and
make it work positively.
Nicola Gates is a clinical
neuropsychologist, author
and speaker and can be
contacted at nicola@
brainmindpsychology.com.

NOVEMBER 2016

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FITNESS

5 common
injuries
and how to
avoid them

Warm up properly and dont

go too hard too soon, writes
KATE ALLMAN.

hen it comes to exercise,

the no pain, no gain
mantra doesnt always
ring true. Although its
common to have sore muscles for a day
or two after a tough workout, lingering
aches or sharp pains can indicate more
debilitating injuries.
If a muscle is simply sore from a
workout it usually responds well to
stretching, which will relieve the
soreness, says Tom Caristo, a sports
physiotherapist from Elevate corporate
health centre in Sydney. However, if
stretching worsens the soreness or
causes stabbing pain, it can indicate a
muscle strain or tear.
Caristo says injuries often occur
to sedentary people who are not
conditioned for intense exercise, and
who try to go from zero to hero
in one workout. Its a common story
for office workers who do little to no
physical activity during the work week
and then try to run a half-marathon or
lift the heaviest weights in the gym on
weekends. These weekend warriors
put themselves at greater risk of injuries,
including joint inflammation, muscle
tears and ligament sprains.
National Development Manager at
Fitness First Adrian Holdsworth has seen
countless injuries during his nine years
as a personal trainer. He put together
this list of the five most common injuries
and how to avoid them.

Muscle strain
Muscle strains can range from the barely
noticeable to extremely painful and
Holdsworth notes problem areas as
hamstrings, quadriceps and adductors.
He warns that strains often occur when
people fail to warm up properly before
exercising. Going for a jog before a
bench press doesnt adequately prepare
the body to bench press, he says.
You are better off performing a bench
press with light loads and progressively
increasing the load to reduce the risk
of strains.

Ligament sprain
Unlike muscles, ligaments are not very
elastic and once stretched they typically
stay stretched. Loose ligaments then
compromise joint stability and can leave
your knees, ankles and shoulders prone
to injury. To counter this, Holdsworth
recommends proprioceptive exercises
such as balance training with a BOSU
ball or wobble board. Strengthening
the muscles around your joints will help
your body to place you in stronger,
more stable positions and avoid injury,
he says.

Back injury

how we move in everyday life. Adding

rotation and core strength exercises
into your routine can help your core to
take some of the load off your back and
avoid this type of injury.

Inflammatory conditions
Plantar fasciitis and achilles tendonitis
cause pain in the ankles and heels and
are common inflammatory conditions
caused by running. While often only
moderately painful, Holdsworth says
you should resist the urge to train
through these conditions because it will
simply prolong and aggravate them. He
recommends rest, ice and elevation to
assist in reducing symptoms.

Bruised ego
While not exactly physical, this injury is
possibly the most common in the gym
and Holdsworth believes it prevents
more people training than any other.
Whether it is going left when you
should be going right in a Body Attack
class or lifting the lightest dumbbells
next to someone who is much stronger,
the best remedy is to try your best not
to be self-conscious. The only way to
improve is to keep going.

Inflammation, slipped disks or stress

fractures can occur to even the
strongest lifters in the gym, says
Holdsworth. You will have heard of
people who do strenuous activity with
no issues and then go to pick up the
shopping bags and experience extreme
pain, he says. This is because many
traditional gym activities operate
forwards and backwards but dont
take the body into rotation which is

Adrian Holdsworth is a
personal trainer, Group Fitness
Instructor and the National
Development Manager at
Fitness First Australia.
Tom Caristo is an APA-qualified
sports physiotherapist at Elevate
corporate health clinic in Sydney.
He has five years experience
working with athletes in sport.

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Travel & lifestyle

CITY GUIDE

Zrich
Once derided as safe but dull, Zurich has
well and truly emerged from its chrysalis.
The city, already blessed with a beautiful
lakeside setting and picturesque old town,
has recently seen its cool factor soar thanks
to an outbreak of creative repurposing in
its old industrial district. With an enticing
blend of tradition and innovation, Zurich is
suddenly seriously hip, writes UTE JUNKER.

EAT
Its been almost 120 years since
the worlds first vegetarian
restaurant opened in Zurich, and
its wonderful to see that Hiltl,
which now spreads over three
floors, is going stronger than
ever. With a cool fit-out and an
extraordinarily diverse menu the
buffet alone features more than
100 dishes Hiltl is a must for even
the carnivorously inclined.
They keep it old school at
Kronenhalle, with formally dressed
waiters and soup served from a
tureen, but thats not what keeps
this venerable favourite in vogue.
This restaurant draws diners not
just with its food, but also with its
art collection. Where else can you
gaze at original works by Picasso,
Matisse, Mir, Kandinsky, Klee and
Chagall as you dine?
At Coco Grill & Bar, the emphasis
is definitely on the grill. Theres
no such thing as a menu here;
who needs it, when you have an
open fire and choice cuts of meat
and fish? Choose the piece that
appeals to you, and watch as it is
grilled to perfection.
hiltl.ch
kronenhalle.com

Cafe Hiltl-worlds first vegetarian restaurant

Restaurant Kronenhalle

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DRINK

SHOP

Theres nothing wrong with dropping

in at the Caf Odeon during the
day, sitting beneath the glittering
chandeliers and transporting yourself
back to the days when the likes of
James Joyce, Albert Einstein and
even a young Russian revolutionary
known as Vladimir Lenin would
ruminate over a coffee. However,
the Odeons bohemian flair is best
enjoyed at night, when it transforms
itself into a buzzing bar.

The Bahnhofstrasse may be known

as one of Europes most expensive
shopping streets, but Zurich also
offers more accessible retail therapy
in the former industrial district of
Zurich West. The areas pioneer was
Swiss company Freitag, known for its
striking messenger bags made out of
inner tubes and seat belts.

Zurich is at its prettiest when seen

from the Jules Verne Panoramabar,
where the view stretches all the way
across the old town and the lake to
the scenic mountains. To enjoy the
best views in town, enter Brasserie
Lipp and look for the small elevator
that will take you high above it all.
Sometimes you need an espresso.
Sometimes you need something
stronger. Wherever youre at,
Hotel Rivington & Sons has what
you need. This chic caf-bar in
the basement of the citys newest
skyscraper, the Prime Tower, does a
nice job of channelling 1930s New
York, which helps explain why it is
busy every night of the week.

One of the nicest things about

Zurich West is the creative
repurposing of industrial
architecture, and few places do it
better than Viadukt, where cuttingedge shops, bars and restaurants
have been built into the arches of an
old railway viaduct. Worth perusing
are design haven Westflgel,
Timetunnel Livings vintage wares
and the inviting Markthalle,
showcasing artisan provedores.
It started as a little beer garden
surrounded by old factories, but Frau
Gerolds Garten has grown into a
community hub that includes shops
and restaurants as well as a rotating
calendar of events. A number of
local fashion designers have opened
pop-up shops here, and there is also
a Saturday flea market.

odeon.ch/en

freitag.ch

jules-verne.ch

im-viadukt.ch/en

Caf Odeon

Frau Gerolds Garten

View from Jules Verne Panoramabar

Viadukt

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Travel & lifestyle

CITY GUIDE

MUSEUMS

GREAT OUTDOORS

Admirers of Swiss sculptor Giacometti

will be delighted by Kunsthaus
Zurichs outstanding collection of his
works. There are also plenty of other
treats at this impressive modern art
museum, including works by Van
Gogh, Monet and Chagall.

Lake Zurich is the citys

crowning jewel, and there are
plenty of ways to explore it.
Stroll along the shore, go for
a cruise, hop on a ferry to the
pretty town of Rapperswil at the
far end of the lake famous for
its more than 15,000 rose bushes
or, if the weather is fine, take a
dip at the lovely lakeside beach,
Strandbad Mythenquai.

Some people love the clean lines of

modernist architect Le Corbusier;
others find them a bit severe. Few
people, however, can resist the
architects last construction a
pretty glass pavilion on the shore of
Lake Zurich. Known as Pavillon Le
Corbusier, it now houses a museum
dedicated to the master architect.
Zurich Zoo is not overly large, but is
considered one of the best in Europe,
and it is home to more than 360
species. Highlights include a walk
through the Masoala-Halle, a dome
filled with animals from Madagascar;
and the Asian elephant park,
complete with a Thai food stall.
kunsthaus.ch/en
zoo.ch/en

SLEEP
Nestled in the heart of the old town,
the Widder Hotel is a glorious mashup of contemporary aesthetics and
medieval architecture, with Eames
chairs balanced on uneven stone floors
and sleek sofas contrasting with heavy
beamed ceilings. Other highlights
include a glass-walled breakfast room
and a sexy jazz bar.
Theres something for everyone at
the historic Dolder Grand, located
on a hilltop overlooking the lake. The
original building defines old-school
elegance, while the new wings,
designed by Norman Foster, offer a
more contemporary experience. The
property also rejoices in a Michelinstarred restaurant, a golf course, a
4000-square-metre spa and even an
ice rink not to mention the museumquality artworks scattered around.

Locals refer to it as a mountain,

but a more accurate description
of the Uetliberg would be
a series of rolling ridges.
Nonetheless, its forest trails
offer plenty of inviting hiking
opportunities. We recommend
the two-hour walk to Felsenegg;
from there, take the gondola
down to Adliswil, where you can
get the train back to town.
One of Zurichs loveliest
traditions is the river baths
(Flussbad) that pop up along
the Limmat during the warm
summer months.
There are plenty to choose
from, but locals like to keep
the Flussbad Au-Hngg to
themselves.
We dont blame them; tucked
away on a pretty little island, its
a tranquil hideaway right in the
centre of town.

Rapperswill

widderhotel.com/en/home
thedoldergrand.com/en

Pavillon Le Corbusier

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Aerial view of the Flussbad Au-Hngg

NOVEMBER 2016

6/10/2016 10:34 am

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Travel & lifestyle

YOU WISH

LUXURY ON THE WILD SIDE

It may be 90 years old, but OReillys Rainforest Retreat and its
World Heritagelisted rainforest are still turning it on for visitors
of all ages, writes JANE SOUTHWARD.

he road to OReillys
makes you work hard for
your holiday. The retreat
is a 35-minute drive up
Green Mountain from
Canungra on a road
peppered with hairpin turns, one-way
sections and sheer drop-offs to the valley
below. Just as you are almost impossibly
nauseous from the bends, a rainforest
canopy closes in above you, requiring
you to turn on your headlights and
pray the strangers approaching in the
opposite direction are driving as slowly
as you are. By the time you reach the
peak, its likely to be 10 degrees colder
than in the valley below.
The retreat is about 90 minutes west
of the Gold Coast, but you forget the
ordeal of getting there once you arrive.
All it takes is the sight of dozens of birds
of every colour outside reception, a walk
on one of the many short bush tracks
that surround the main building, or the
efficient and friendly service of one of
the retreats 135 staff members.

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OReillys is a household name in

Queensland, established 90 years ago
by five Irish brothers who had the mad
idea that setting up a dairy farm on a
mountain in Queensland would be
better than a life in the Blue Mountains
of NSW. Irish luck followed them
though, and in 1915, the bush near their
farm was declared a national park and
named after the former Queensland
governor, Lord Lamington. The move
protected the trees from logging and
created a tourism market for the
OReillys, as travellers arrived in need of
a warm meal and a place to sleep.
In 1926, the family made its
hospitality business official and opened
a guesthouse. Some of the original
buildings still stand, but the pick of
the accommodation is one of the 48
villas, which have brilliant views west to
Mount Lindesay.
In 1937, 11 years after the guesthouse
opened, Bernard OReilly happened
upon the biggest marketing opportunity
you could hope for. A Stinson plane

had crashed en route from Brisbane

to Sydney. OReilly hacked his way
through the bush and discovered the
wreckage and two men still alive nine
days after the crash. The failed dairy
farmer became a hero. He walked many
hours through the bush to get help,
and 30 farmers from the valley worked
together to create a 12-kilometre path
for horses to bring the surviving duo to
medical aid.
Theres a replica of the Stinson at
the retreat, where the country spirit is
alive and well. Included in the room
fee are morning and afternoon tea, as
well as a managers welcome session, in
which the history of the region and the
activities available are explained over a
complimentary cuppa in the homestead.
The food and service at OReillys are
sophisticated, with quality meals on
offer for about $35 for mains. The menu
ranges from eye fillet to traditional lamb
korma to prawns. The wine selection is
comprehensive, with many options by
the glass.

NOVEMBER 2016

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Many of the best activities on

offer while staying at OReillys are
free and available in the national park.
However, the retreat team also offers
a range of solid activities for all ages
including a 185-metre zip-line that
provides great views of Moran Creek;
Segway rides on a 6 kilometre track
popular with bushwalkers; a daily Birds
of Prey Flight Show; and a sunset tour
to glow-worm caves on Tamborine
Mountain, which not surprisingly
given the dazzling display is a popular
activity at the retreat (at $30 per
person). However, its the walking that
attracts most visitors. Options range
from 1 kilometre to full-day walks.
Another highlight is sunset drinks at
Moonlight Crag, looking out to Mount
Lindesay. This involves a 10-minute
transfer by four-wheel drive, and
includes bubbles or wine, and cheese.
However, the incredible views are the
best part.
The most luxurious offerings come
at the Lost World Spa, which provides

massages, facials, body scrubs, vino

baths (in a tub filled with water and
wine, with incredible views across
the valley) and a relaxation room
with fireplace. The spa uses Sodashi
skincare products.
You can stay in motel-style rooms near
the bar and restaurant, or book one of
the 48 villas, which are privately owned
and rented via OReillys. The twobedroom villas include a fireplace, large
deck with outdoor spa, luxury fittings,
barbecue and kitchen. Watch out for
pademelons (a marsupial resembling a
small wallaby) when you enter and leave
your room, no matter where you stay.
Once youve discovered OReillys,
youll want to know more. Reward
yourself with a visit to OReillys
Canungra Valley Vineyards at the
bottom of Green Mountain. It is well
positioned on a creek rumoured to
have platypuses. I didnt spot any, but
the picnic lunch in the sun, complete
with blanket and wicker basket, was a
treasure in itself.

CHECKLIST
OREILLYS RAINFOREST RETREAT
Two bedroom spa villas cost
from $409-$569 a night,
minimum two-night stay.
Visit oreillys.com.au for details.
Photographs clockwise from top left:
luxury in the two-bedroom villas,
all with spa baths with terrific views,
the Birds of Prey show, sunset over
Moonlight Crag, the Lost World Spa,
and zip-lining above the bush.

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Travel & lifestyle

BOOKS

books

WHAT IF THIS IS HEAVEN?

HOW OUR CULTURAL
MYTHS PREVENT US FROM
EXPERIENCING HEAVEN
ON EARTH

FAIR GAME: THE

INCREDIBLE UNTOLD
STORY OF SCIENTOLOGY
IN AUSTRALIA

BY ANITA MOORJANI

REVIEW BY JANE SOUTHWARD

REVIEW BY MAGDALENE DSILVA

Does life sometimes feel like hell?

What If This Is Heaven? by Anita
Moorjani is a powerful answer that
invites readers to self-love and selfknowledge, rather than self-help, and
is for anyone who has suffered loss,
faces terminal illness or is in distress.
This book is a sequel to Moorjanis New York Times bestselling
autobiography, Dying To Be Me, which describes what some
physicians regard as being one of the most remarkable cancer
recoveries and near-death experiences documented. Born in
Singapore, of Indian-Hindu parents, then educated at a British
school in Hong Kong, Moorjani grew up amidst multiple religions
speaking three languages and experienced racism and culturally
ingrained sexism. Contorting herself for the approval of parents,
culture and employers, Moorjanis fearful life resulted in cancer,
which she had long dreaded.
Moorjani says her own near-death experience revealed that
not only does a blissful life beyond death exist, but our physical
attributes, religion, race and gender and cultural beliefs based
on them are myths. The core message might be summed up as:
we are born knowing innately that we are loved unconditionally
but cultural life experiences condition this knowledge out of us.
Like separate fingers realising they are united on the same hand,
we are apparently here to embrace (not pathologise and numb)
the whole spectrum of human physical and emotional experience.
Written in a personal conversational style, What If This Is
Heaven? responds to scientific scepticism and is not to be read
as medical advice to treat emotional or physical problems. The
insights in this book may also intrigue those who are involved in
human rights, education, corporate diversity, justice and health
care. Moorjani may have another bestseller.

BY STEVE CANNANE
This is a well-researched
and detailed account of the
lies behind L Ron Hubbard's
description of himself and
the frightening approach,
according to numerous
sources and some firsthand interviews with exScientologists, is a fascinating if troubling at times read.
Cannane is now Europe correspondent at the ABC and
admits he was ignorant about the Church of Scientology
until 2010 when he was asked to follow up a Four Corners
report on the so-called religion for Lateline. He details
personal stories of people scarred by their experience
with Scientology and draws on more than 200 interviews
for the book.
"At every opportunity, before, during and after I covered
the stories ... the Church of Scientology tried to make
life difficult for me, my executive producer and the ABC,"
Cannane writes. "It was a common tactic designed to
intimidate journalists, editors and publishers to the stage
where they made a decision that these stores were simply
too hard to cover. My instincts told me it was worth the
trouble." The Church of Scientology would not put forward
anyone to be interviewed for the book, Cannane adds.
Among the most interesting chapters is the one detailing
actors Tom Cruise and Nicole Kidman's involvement in
Scientology. The chapter about Cruise's influence on
businessman James Packer is fascinating. By far the
most eye-opening part of the book is the research into
Hubbard's lies about his military record, including his claims
he received 27 medals including the Purple Heart (Cunnane
debunks this). Well worth reading.

OUT NOW

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LexisNexis and the Australian Human

Rights Commission

Black Inc. Books

FEDERAL DISCRIMINATION LAW

BY JON LEVY

LexisNexis has partnered with the Australian

Human Rights Commission to update this
essential guide, which was launched by the
Commission President Professor Gillian
Triggs in Sydney on 6 October. This edition
is the first update since 2011 and provides a
complete overview of the federal unlawful
discrimination laws.

Nothing good happens after 2am

except the most epic experiences of
your life. The 2AM Principle is your
inspiration and guide to living life to
the fullest, written by brand strategist,
consultant and creator of the EPIC
Model (Establish, Push boundaries,
Increase, Continue) Jon Levy.

THE 2AM PRINCIPLE

NOVEMBER 2016

18/10/2016 3:01 pm

MOVIE GIVEAWAY
I, DANIEL BLAKE

THE WRONG SIDE OF

GOODBYE

IN CINEMAS 17 NOVEMBER

BY MICHAEL CONNELLY
REVIEW BY JUSTIN MOSES

This is the 19th novel in Michael

Connellys popular crime series
featuring detective Harry Bosch.
Bosch is a retired former Los
Angeles Police Department
detective mixing the roles of
private investigator (PI) and parttime, unpaid reserve police officer
for a county on the fringe of the
city. Its a clever construct that
allows Connelly to develop parallel story lines to showcase
the interplay of skills and experience that make Bosch a true
investigative all-rounder.
Boschs PI brief is to ascertain whether a rich industrialist
has an heir a question that remains unanswered for
reasons based in US cultural mores of the 50s and 60s. His
police case involves pursuing a serial sex offender with a long
history of attacks in a county where budget challenges have
meant only a reservist like Bosch can devote time to the case.
One of the many appealing traits that Bosch displays is
his scrupulous intent to preserve the separation of these
personal and official law enforcement roles. For the most
part he is successful but he occasionally succumbs to the
inevitable dictates of efficiency and common sense that
see him cross the line in minor ways. This also makes him
plausible, even likeable, and allows Connelly to explore the
moral tensions so frequently associated with modern law
enforcement like the tension between the right to natural
justice and the desire for retribution for egregious conduct
that is apparent (if not proven) in this case.
Connellys Harry Bosch is not cast in the mould of law
enforcement superhero. Indeed, his most obvious skill is
in forming and nurturing sustainable relationships both
outside and within his law enforcement world that make
him highly effective in simply getting things done. Call him a
renaissance investigator.

We have 10 double passes to

I, Daniel Blake, a powerful film
that won director Ken Loach
the highest prize at the 2016
Cannes Film Festival the Palme
dOr (Golden Palm) award for
Best Director. When carpenter
Daniel, from Newcastle in the
United Kingdom, finds himself in
need of state welfare, he meets
a desperate single mother who
needs the same thing. Together,
the pair discovers the challenges of negotiating through the
red tape of welfare bureaucracy.
To enter, email postal contact details with I, DANIEL BLAKE
in the subject line to filmoffers@lawsociety.com.au
by 10 November.
Visit lawsociety.com.au/lsjgiveawayterms for terms and conditions.

MUST SEE
BALLET UNDER
THE STARS
5 NOVEMBER, SYDNEY
INTERNATIONAL
REGATTA CENTRE,
PENRITH FREE
Bring family and friends,
a rug and a picnic to
enjoy a free outdoor
performance of world-class ballet in Penrith. See The Australian
Ballet perform Act II of Stephen Baynes Swan Lake, as well as
a selection of bite-sized works of about 10 minutes that will
showcase the speed, athleticism, diversity and grace of the
dancers. Register for your free ticket via australianballet.com.au
to ensure guaranteed entry on the day.

Pan Macmillan Australia

Quiz answers (from page 14):

A DISTANT JOURNEY

1. Stuart Clark 2. Clayton Utz 3. 21 4. 1967 5. 40km/h 6. Maurice Blackburn

7. Justin Gleeson 8. True 9. The best interests of the child 10. A gavel

DI MORRISSEY
In 1962, Cindy drops out of college to
impulsively marry an Australian grazier,
moving from the glamour of Palm Springs,
California, to an isolated sheep station on
the plains of the Riverina in NSW. Adjusting
to her life at Kingsley Downs station, Cindy
discovers that her new family comes with
secrets and a mystery that haunts them all.

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Travel & lifestyle

NON-BILLABLE HOURS

PHOTOGRAPHY: JOEL ARMSTRONG

Alexander
Beagley
LAWYER, HANSONS LAWYERS
Alex Beagley played professional
basketball, including two seasons
with the Illawarra Hawks in the
Australian National Basketball
League (NBL). He hung up his singlet
in 2013 when he graduated from
the University of Wollongong with
a Bachelor of Laws and Commerce.
He took a job offer from (then)
Hawks Chairman Peter Bahlmann
to work at his firm Bahlmann Burke
Lawyers. In 2015, Bahlmann was
offered a partnership at Hansons
Lawyers and Beagley followed his
boss and mentor to the new firm.
Beagley still plays basketball regularly
and captains the Hawks in the NSW
Waratahs Basketball League.

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I GREW UP IN WOLLONGONG
and was one of those kids who liked
playing different sports. I played tennis,
AFL, soccer. I guess I enjoyed basketball
the most. It became a bit more serious
late in high school when I started getting
invitations to train with the Illawarra
Hawks. The coach at the time was
Gordon McLeod, who is a bit of a local
legend around Wollongong. He asked if I
wanted to start as a development player
with the team in the 2011/12 season. All
of a sudden, I was rubbing shoulders
with my childhood heroes at training
each day.
Two guys Matt Gamble and Glen
Saville played for the Hawks for
18 seasons. I was in kindergarten
when they came to my school to sign
autographs. Now they were my training
partners and I was visiting schools with
them and signing autographs myself. It
was pretty nuts.
It was a full-time job, playing basketball
professionally. On training days I had to
arrive before 9am, train until 1.30pm and
then go visit schools or attend nutrition
seminars until 3.30pm. Thats when Id
go straight to university. Id sit there until
the library closed at midnight just to get

all my work done. Playing at that level,

every single person in the team was a
leader but they were different types of
leaders. We had a workhorse who was
the first person at training and the last
to leave. There was a person who would
keep a cool head in stressful situations.
Another was a great communicator and
knew what to say to get a teammate
going. Thats what I see in the partners
in my firm. They have different styles of
leadership that have helped them get
to where they are. That diversity is what
makes us stronger as a team.
Someone once told me, in our job as
lawyers you can have a bad day at work
and no one might know. But if you have
a bad day in a game or training, people
will scrutinise you, stats will be recorded
permanently and a journalist might write
something bad about you in the paper.
The one positive you can take from that is
it teaches you to be accountable.
Lawyers, at times, can become reclusive
and live in their own little legal worlds.
But to be a good lawyer, you need to deal
with people in the real world in a nonlegal setting. Playing in a basketball team
helps to keep you grounded like that.

NOVEMBER 2016

6/10/2016 10:29 am

Diploma in Law program

Law Study
& MCLE

The NSW Legal Profession Administration Boards Diploma in Law

program is a pathway to legal practice, and also offers single unit
enrolment in certain subjects which can satisfy MCLE requirements.
It is taught by the University of Sydneys Law Extension Committee and
full access is provided to Sydney Law Librarys resources.
Study is:
Flexible: mid year entry, attend evening lectures and/or weekend schools
on campus.
Affordable: the fee for each subject is currently $785 and one subject
would easily meet the 10 hours per year MCLE requirement.
Apply by 1 September for Summer semester or by 1 March for Winter semester
Subjects include:
Insolvency
Conveyancing
Succession
Intellectual Property

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Competition and Consumer Law

Industrial Law (Labour Law)
Family Law

For more information visit www.lpab.justice.nsw.gov.au or

sydney.edu.au/law-extension-committee or phone (02) 9338 3500

Legal Profession
Admission Board

TAKE ADVANTAGE OF
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Members can now take advantage of the many
benefits and services offered to business renters
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No sign up needed
A great set rate valid all year around
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To book visit www.practiceconnexions.com.au

This program is only valid for Australian car rentals booking via the Practice Connexions booking tool.
Standard age, credit card and driver requirements apply. Rentals are subject to the terms and conditions
of the Avis Rental Agreement at the time of rental. Offer valid until 30 June 2017.2016-A00107

ISSUE 28

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November Ads.indd 10

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POLICY & PRACTICE

LAW SOCIETY ADVOCACY

AND LAW REFORM:
LATEST NEWS AND DEVELOPMENTS

Local Courts in rural and

regional areas
The Law Society wrote to the Attorney
General about the ongoing problem
of underfunding in the Local Court of
NSW, and the impact this is having on
the Courts performance and access to
justice in rural and regional areas.
The submission noted that the
reduction in the number of magistrates
and corresponding increase in the
caseload of the court will inevitably
lead to delays in matters being finalised.
In criminal matters, this will prolong the
time spent in custody on remand by the
accused, and prolong the process for
the alleged victim.
Particular pressures on access to justice
are experienced in country areas as a
result of court closures and reductions
in sitting arrangements. Poor public
transport links often make courts in
neighbouring areas inaccessible to
many users. In many cases, it is not
possible for individuals without access
to private transportation to attend
court hearings without the additional
expense of accommodation costs as a
consequence of not being able to arrive
in time for the hearing, or to return
home at the end of the day.
Practitioners have also reported that
defendants from rural and regional
areas can have no choice but to
hitchhike home after being granted
bail due to the lack of available public
transport in those areas.
The Law Society submitted that long
term funding solutions are needed.

NSW CTP Insurance

Scheme Reform
The Law Society, in conjunction
with the Bar Association and ALA,
provided a further submission to the
CTP Reform Reference Panel formed
by the Government to consult and
advise on particular issues relating to
proposed reforms.

The submission was made in response

to the draft report of the Reference
Panel which contained various
inaccuracies and did not fully reflect
the complex issues discussed by legal
profession representatives at various
meetings with the Panel.
The draft report inadequately
summarised the legal professions
suggested narrative test to provide a
second gateway to modified common
law damages (not extended defined
benefits) for those who do not meet the
proposed common law threshold but
have continuing disabilities resulting in
continuing economic losses. The draft
report also misrepresented the legal
professions proposals with respect to
legal costs.
The submission also highlighted the
problems involved in introducing a
workers compensation type model
of defined benefits, including the
unfairness involved in using work
capacity testing as the basis for
determining eligibility for benefits.
The submission was critical of all
proposals designed to remove some of
the damages currently available under
common law for the seriously injured.

Land and Property Information

NSW (Authorised Transaction)
Bill 2016
The Bill was introduced to Parliament
on 13 September 2016. The Property
Law Committee made a submission to
the Treasurer, affirming its opposition
to the privatisation of the titling and
registration functions of the LPI and
submitting that this should remain in
Government.
The submission made a number of
comments on the Bill, including:
The Bill has been drafted from a
minimalist perspective and leaves too
much of the critical information to
documents unlikely to be scrutinised
by Parliament or the public, such as
the concession agreement.

Clause 15 of the Bill provides that the

operator will have no liability for the
loss or damage referred to in section
120 of the Real Property Act 1900.
Presently, parties are compensated
for such loss or damage by payment
out of the Torrens Assurance Fund
(effectively, the Consolidated Fund).
The concession agreement will
likely contain an indemnity from the
operator in relation to such loss, but
this should be in the Bill.
Clause 18 of the Bill authorises a
further concession for a new term of
35 years, if the original concession
agreement is terminated. The
Committee submitted that the
re-tender concession must be limited
to the remaining term of the original
authorised term, to allow appropriate
Parliamentary oversight.
The Committee also expressed
concern with the breadth of the
exclusion from public access
of information contained in any
document prepared for the purposes
of or in connection with the
transaction, unless disclosure has
been approved by the Treasurer.
The Committee also called for the
private operator to be subject to the
Government Information (Public
Access) Act 2009.
The Bill was passed, and received
assent on 28 September 2016. Treasury
has requested Expressions of Interest
by 31 October 2016.

Law Enforcement Conduct

Commission Bill 2016
The Law Society provided advice
to Alex Greenwich MP on the Law
Enforcement Conduct Commission
Bill 2016.

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Legal updates

POLICY & PRACTICE

In its submission to the 2015 Tink

Review of police oversight, the Law
Society submitted that the investigation
of critical incidents should be
undertaken by a body independent
of the NSW Police Force. The Tink
Review did not support that proposal
and instead recommended that police
continue to investigate critical incidents,
but with the Law Enforcement Conduct
Commission (LECC) undertaking a
real-time monitoring role of critical
incident investigations.
In its response to the Tink Review, the
Government indicated its support for
all of the Reviews recommendations,
noting the LECC is therefore being
given the ability to monitor critical
incident investigations in real time.
The Law Society noted its strong
support for real time monitoring,
and that it considers it essential that
the public have confidence that
an appropriate standard of police
investigation will occur in relation to
critical incident investigations. However,
the legislative model reflected in the
Bill falls short of real-time monitoring,
and does not contain other important
features of the model recommended in
the Tink Review report (and supported
by Government).

Counter-Terrorism Legislation
Amendment Bill (No 1) 2016
The Juvenile Justice, Criminal Law and
Human Rights Committees provided
a joint submission to the Law Council
of Australia on the Counter-Terrorism
Legislation Amendment Bill (No 1)
2016 (Cth) regarding control orders.
The Committees reiterated their
concerns about those aspects of the
2015 Bill identified in its earlier letter
to the Law Council that have not been
addressed by the recommendations
of the Parliamentary Joint Committee
on Intelligence and Security or the
2016 Bill. They also provided additional
comments on the recommendations
and the 2016 Bill.
As a matter of general principle, the
Committees oppose the use of control
orders, including monitoring of control
order subjects, as it is likely to be
inconsistent with international human
rights law. The Committees reiterated
their concern about lowering the age
for the imposition of a control order
from 16 to 14 years; prioritising national
security interests ahead of the best
interests of the child; the use of
curfews as conditions attached to

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a control order; and the excessive

penalties for breach of control order
conditions by children.
The Committees support the
introduction of a system of special
advocates in principle, but considered
that control order subjects and their
legal representatives should not be
excluded from proceedings generally,
particularly given the far reaching
consequences of a control order.

Criminal Code Amendment (High

Risk Terrorist Offenders) Bill 2016
The Juvenile Justice, Criminal Law
and Human Rights Committees
provided a joint submission to the Law
Council of Australia on the Criminal
Code Amendment (High Risk Terrorist
Offenders) Bill 2016 (Cth) regarding
the proposed post-sentence
preventative detention regime for
terrorist offenders.
The Committees do not support
post-sentence preventative detention
in prison or its equivalent, for any
purpose. They are particularly
concerned that the post-sentence
preventative detention regime under
the Bill can apply to a person who
committed an offence when they were
a child. The submission sets out general
principles regarding post-sentence
preventative detention, including
with respect to children. It provides
observations on specific provisions of
the Bill. The Committees submitted that
certain aspects of the proposal may
amount to violations of the prohibitions
on arbitrary detention and retrospective
legislation, and the right to a fair trial
under international human rights law.
The Committees also expressed
concern about the provisions for
relevant experts, the matters to which
a court must have regard in making a
continuing detention order, and the
possibility of indefinite detention.

Human Tissue Amendment

(Trafficking in Human Organs)
Bill 2016
The Medico-Legal Liaison and Human
Rights Committees provided a joint
submission to Mr David Shoebridge
MLC on the Human Tissue Amendment
(Trafficking in Human Organs) Bill 2016.
The Committees support, in principle,
proposed legislation to extend the
scope of the Human Tissue Act 1983
(NSW) to cover the commercial trading
and taking without consent of organs
and other tissue in order to address

potential human rights violations

committed by residents of NSW abroad.
However, the Committees outlined
concerns with the enforceability and
practicality of the provisions in the Bill.
These include the proposals for
mandatory reporting by health
practitioners, mandatory disclosure by
patients, and certain proposed offences.

Koori Courts in NSW

The Indigenous Issues, Criminal Law
and Juvenile Justice Committees
wrote a joint letter to the Attorney
General regarding the expansion of the
existing Youth Koori Court pilot. The
Committees noted the Law Societys
strong support of options for diversion
for young offenders and, in particular,
measures to reduce the increasing
rates of Indigenous youth incarceration
and contact with the criminal justice
system. The Committees supported
the expansion of the Youth Koori
Court model to other locations and,
in particular, in areas with high rates
of Indigenous youth incarceration.
The Committees also noted the Law
Societys support for the introduction
of measures to divert adult Indigenous
offenders away from the criminal
justice system; and acknowledged that
the introduction of an adult Koori Court
pilot would go some way to achieving
these aims.

Letter to the NSW Civil and

Administrative Tribunal (NCAT)
on social housing and other
Indigenous issues
The Indigenous Issues Committee
wrote to the President of NCAT to
follow up on a number of issues that
were discussed at the recent NCAT
consultative forum on tenancy, social
housing and Aboriginal issues. In
particular, the letter sought NCATs
support in collecting additional
information on the Aboriginal status
of social housing tenants with matters
before NCAT, which would contribute
to improving the provision of their
services and to better understand the
specific needs of their clients.
The letter also noted support for the
development of a new Aboriginal
communications strategy for the
Tribunal, and the Law Society has
offered the Indigenous Issues
Committee as a coordination point for
any consultation on the development of
an Aboriginal communications strategy.

NOVEMBER 2016

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POLICY & PRACTICE

New Wind Energy Planning

Framework
The Environmental Planning and
Development Committee provided
a submission commenting on
the Department of Planning and
Environments draft Wind Energy
Assessment Policy. The Assessment
Policy seeks to resolve uncertainties
relating to wind energy project
assessment that have existed since the
draft Planning Guidelines of 2011. The
2011 Guidelines proposed restrictions
on wind energy developments that
were more stringent than for other
energy developments (including open
cut coal mines), and often involved
lengthy delays.
The Committee noted that the
emphasis on the need to engage
local communities early is a positive
factor and the Assessment Policy
places significant weight on ongoing
consultation throughout the assessment
process. While the framework
documents acknowledge the specific
impacts unique to large scale wind
energy, decision makers need to
provide guidance as to the weighting
of factors in the assessment of a wind
energy generating development.

Consumer Law Enforcement and

Administration Issues Paper
The Business Law Committee
commented on the Productivity
Commissions Issues Paper on the
enforcement and administration
arrangements supporting the
Australian Consumer Law (ACL)
and related consumer protection
regulation. The Committees comments
complemented the submission made
by the SME Business Law Committee of
the Law Council of Australia, which the
Committee expressly supported.
The Committee considered that the
current multiple regulator model,
supporting a single national policy
framework, appears to be working well
and does not require structural change.
The Committee suggested that the
various State and Territory based ACL
Regulators could be more proactive,
and adopt a similar approach to the
Australian Competition and Consumer
Commission (ACCC) in terms of
identifying and communicating their
enforcement and priority areas each
year, based on consumer impacts. A
fundamental guiding principle for any
reform should be that each of the ACL
regulators (the ACCC, ASIC and state/

territory fair trading authorities) should

be able to seek the same remedies
and use the same enforcement tools.
The Committee also noted that, as a
result of the increase in consumers
using e-commerce channels to acquire
goods and services, there needs to
be greater coordination between the
ACCC and the Office of the Australian
Information Commissioner to ensure
that consumers are aware of their rights
under the Australian Privacy Principles
and to encourage business to comply
with those obligations.

Review of the Lifetime Care and

Support Guidelines
The Injury Compensation Committee
provided comments with respect to the
draft amended Guidelines provided by
the Lifetime Care & Support Authority.
Most feedback was with respect to
part 8, dealing with Attendant Care
Services. Recommendations included
not limiting the provision of personal
assistance to attending rehabilitation
and medical appointments only
and expanding attendant care for
community based treatment and
rehabilitation to include associated
activities. The submission also made
recommendations to expand benefits
for garden maintenance and travel
expenses related to the motor
accident, for example to attend court
or see a lawyer.
Recommendations were also made
in relation to part 9, dealing with
modifications to a motor vehicle to
clarify whether travel costs are to be
met by the scheme.

Joint event on Aboriginal trauma,

Foetal Alcohol Spectrum Disorder
and the juvenile justice system: a
volatile cocktail
The NSW Bar Association hosted
a seminar on Alcohol Spectrum
Disorder and the juvenile justice
system: a volatile cocktail. This was
a joint initiative of the NSW Judicial
Commission Ngara Yura Committee,
the NSW Bar Association Indigenous
Barristers Trust and the Law Society of
NSW Indigenous Issues Committee.

Fitzroy Crossing WA, to tackle and

eradicate the social, psychological and
community dysfunction arising from
Aboriginal early childhood trauma and
foetal alcohol spectrum disorder.
Judge Yehia SC spoke about the
proposal for a Koori Court in the
NSW District Court, similar to the
current Youth Koori Court pilot at
the Parramatta Childrens Court, as a
way to address the increasing rates of
Indigenous incarceration rates.

Availability of Aboriginal and

Torres Strait Islander Mental
Health Clinicians
The Criminal Law Committee wrote
to the Minister of Health regarding
access to Aboriginal and Torres Strait
Islander mental health clinicians in
NSW correctional centres and Juvenile
Justice centres in NSW, as well as the
Forensic Hospital.
The Committee acknowledged the
importance of providing access to
culturally appropriate mental health
care for Aboriginal and Torres Strait
Islander people. The Committee also
noted the Law Societys strong support
for the employment of dedicated
Aboriginal and Torres Strait Islander
mental health clinicians at the
Forensic Hospital and in NSW
correctional centres and Juvenile
Justice centres.

The Committees do
not support postsentence preventative
detention in prison
or its equivalent, for
any purpose. They are
particularly concerned
that the ... regime ... can
apply to a person who
committed an offence
when they were a child.

The speakers were June Oscar AO,

2016 Desmond Tutu Fellow and
proud Bunuba woman from the
Central Kimberley, and Judge Dina
Yehia SC. June Oscar spoke about
the community health and social
reforms that she championed in

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Legal updates

FAMILY LAW

SENSE AND SENSITIVITY:

THERAPEUTIC RECORDS
IN FAMILY LAW PROCEEDINGS

Carolyn Jones
is a senior solicitor
at Womens Legal
Service NSW.

By Carolyn Jones

ecords of therapeutic
interventions, such as
counselling or psychiatric
assessment, may be useful
evidence in litigation. However,
accessing these records can cause
significant harm, particularly for victims
of family violence and sexual assault. In
the current climate of unprecedented
focus on family violence it is essential
that legal practitioners and the judiciary
consider the unintended consequences
of accessing such records in family
law proceedings.

Statutory protection of
therapeutic records
Certain sensitive records in NSW
have explicit statutory protections.
This includes the sexual assault
communications privilege, which was
introduced into the Evidence Act 1995
(NSW), in section 126H, almost 20
years ago when the potential for harm
arising from the issue of subpoenas for
sexual assault counselling records was
recognised. The NSW Evidence Act also
includes a professional confidential
relationship privilege in section 126B.
There are also protections of
confidentiality and inadmissibility for
certain communications under the
Family Law Act 1975 (Cth) (the Act).
These include communications made
to family counsellors and family dispute
resolution practitioners (FDRP) while
family counselling or family dispute
resolution (FDR) is being conducted.
FDR is a mediation process to assist
people to resolve disputes arising out of
separation or divorce facilitated by an
accredited FDRP. Family counselling is
a process to assist people to deal with
personal and interpersonal issues and/
or issues relating to the care of children
arising from marriage, separation
or divorce and is facilitated by an
accredited family counsellor.
Unfortunately, the existence of these
statutory provisions in the Act does not
guarantee a simple application of the
protections. The family courts have
been challenged to determine when

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at risk of further violence or secondary

victimisation.

A genuine commitment to
improving responsiveness
to victims/survivors of
family violence must
include preserving the
integrity of their therapeutic
relationships.
Undermining therapeutic
relationships that support
a parent who is a victim of
family violence is both real
harm to the victim parent and
also likely harm to the child.
Family law professionals must
commit to adopting victim
centred practices, including
equivalent protections
of therapeutic records
regardless of their source,
obtaining informed consent
and seeking the least intrusive
source of evidence first.
the FDR process begins and ends and
therefore what will and will not be
protected under the Act. This arises
because many agencies providing
FDR employ staff other than FDRPs to
conduct intake. The courts have held
that the protection under the Act does
not extend to communications made
at the intake stage because they were
not made to a FDRP conducting FDR
(Rastall v Ball & Ors [2010] FMCAfam
1290 and Holden & Holden [2015]
FCCA 788 considering the effect of
sections 10H and 10J of the Act). A
similar position is likely to be taken
when determining the scope of family
counselling.

Confidentiality confusion
In all matters, particularly those
involving allegations of family violence
and abuse, clients and service providers
must be able to rely on a clear and
shared understanding of confidentiality.
Without this, victims of violence may be

The Act does not make this easy.

In addition to the difficulties that
can arise in distinguishing intake
processes from the provision of FDR
or family counselling, there are other
considerations to keep in mind. Under
the Act, records of contact with a family
counsellor providing family counselling
will be confidential. However, if a
client discloses the same thing to a
counsellor who is not providing family
counselling, those records can be
subpoenaed and may be admitted into
evidence, unless the client was referred
to that counsellor by a FDRP. In certain
circumstances, a FDRP can disclose
information, such as a threat to kill
the other parent, but this information
is then not admissible pursuant
to section 10J of the Act. Further,
family counselling records will not be
admissible in a court exercising family
law jurisdiction, but can be admitted
into a criminal court (R v Baden-Clay
[2013] QSC 351).
It is unsatisfactory and potentially
dangerous to provide an assurance of
confidentiality for only part of a process
or for certain types of communications
and to expect anyone, let alone fearful
and traumatised clients, to understand
and remember these complicated
distinctions. Practitioners also need
to be clear about their obligations
regarding confidentiality.
Rather than an arbitrary distinction
in the protections offered based on
the source of the sensitive material,
Womens Legal Service NSW (WLS)
suggests there is a need for victim
centred practices, and equivalent
protections should be available for all
therapeutic records. Intake processes
must also be protected and recognised
as an essential element of safety and
risk assessment requiring the victims
trust and which may be ongoing,
conducted by more than one staff
member, and not simply a discrete
initial step.

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FAMILY LAW

The subpoena challenge

It is common in family law parenting
proceedings for subpoenas to be
issued en masse to police, community
services, schools, doctors and others.
Experienced practitioners, including
independent children lawyers, do not
always subpoena counselling records
as a matter of course, but therapeutic
records are routinely sought with
little consideration as to whether the
required evidence may be obtained
from other less intrusive sources.
Therapeutic service providers find the
process of objecting to subpoenas
onerous and daunting. Relatively
short production time frames, lack
of resources and limited time make it
almost impossible for counsellors to
object to each subpoena they receive,
even in circumstances where they are
highly concerned about the harm that
disclosure may cause their client. If
they do object, it can be hard to be
successful, as the test is whether the
material may have apparent relevance
to a fact in issue, which is generally easy
to assert.
Therapeutic relationships have an
inherent power imbalance and an
assurance of confidentiality is critical
to effective intervention. Victims of
family violence may have undertaken
many years of deliberation before
deciding they can risk disclosing
violence and the impact of that violence
to a third party. There can be serious
risks of sensitive records revealing the
location of a victim and their children.
Disclosure can also trigger secondary
victimisation, with victims experiencing
the feelings of powerlessness
associated with the violence or further
trauma via processes that fail to hold
the perpetrator to account and instead
blame the victim. Additionally, a
compromised confidential relationship
may cause further harm to both
the adult victim and their children if
victims subsequently limit disclosures,
abruptly discontinue treatment, or avoid
therapeutic services in the future.
WLS believes current subpoena
practices in the family courts can
undermine victims recovery and
their capacity to parent when
they experience the disclosure of
confidential material, violations of trust,
and unnecessary scrutiny.
There is also a growing understanding
of the tactics that perpetrators use
to intentionally cause harm and

undermine the relationship between

mothers and children. This includes
abuse of court processes to perpetuate
patterns of control and abuse, such
as issuing subpoenas for therapeutic
records in order to be invasive and
unsettling.

Competing public interests

In family law proceedings, the best
interests of the child is the paramount
consideration and, when there are
allegations of family violence, safety is
elevated as the primary consideration.
The courts are under immense pressure
with long delays and need to access
evidence of risk quickly and easily to
ensure the best decision is made in the
safest and most efficient manner.
However, the family law system
must acknowledge that undermining
therapeutic relationships that support
a parent who is a victim of family
violence is both of real harm to the
victim parent and also likely harm
to the child. Consideration must be
given to whether greater harm to a
child arises from the courts not having
access to sensitive records or from the
impact of disclosure of the records on
the parenting capacity of the victim
parent. This issue is examined in the
decision of Justice Cronin in Merrill &
Burt [2015] FamCA 159 who reasoned
that maintaining the confidence of a
therapeutic relationship that improves
the mothers ability to parent may be a
category capable of attracting public
interest immunity (at [37]-[38]):
If the public benefitted by having
children cared for by a parent who
was being assisted by therapy, the
details of which would not otherwise
be protected, the public interest might
be seen to exist. InR v Young[1999]
NSWCCA 166;(1999) 46 NSWLR
681Spigelman CJ observed that the
categories were not closed and went
on to discuss the role of the courts.
His Honour said:
The recognition of a new category
of privilege requires the formulation
of public policy by the courts, within
the confines of the proper role of the
courts. It is only appropriate for the
courts to recognise a category of public
policy which is capable of precise
statement, and which reflects so
widely held an opinion, that the courts
reasoning can be described in terms of
recognition rather than creation.

There will be occasions when, for

reasons of urgency or the absence of
alternative evidence, sensitive records
will need to be made available in family
law proceedings. However, to avoid
the risk of further harm to victims,
family law professionals must commit
to adopting victim centred practices,
including obtaining informed consent
before sharing information and
seeking the least intrusive source of
evidence first.

Proposals for victim centred

practice
A genuine commitment to improving
responsiveness to victims of family
violence must include preserving
the integrity of their therapeutic
relationships. The detrimental impact of
disclosure of confidences must not be
ignored or put in the too hard basket.
The family law system must also
commit to ongoing education about
family violence, including perpetrator
tactics during litigation, and what
constitutes safe and appropriate access
to sensitive information. Consideration
must also be given to understanding
the impact of disclosure of sensitive
material for specific groups, including
Aboriginal and Torres Strait Islander
people, culturally and linguistically
diverse people, people identifying as
LGBTIQ+ and people with disabilities.
Ideally, the future will see prescribed
guidance for the issue of subpoenas
for therapeutic records in family law
proceedings. This could include a
presumption that there is always
potential for a detrimental impact on
the therapeutic relationship when
sensitive records are accessed and
a reverse onus on the party wanting
access to seek leave before issuing a
subpoena for therapeutic records.
Litigants would be required to establish
that there is no less intrusive source
of evidence available with additional
guidelines in relation to obtaining the
consent of the subject of the notes,
including when it is appropriate to
seek the consent of children in relation
to their records. Specific provisions
could also be included to address
circumstances of urgency or serious
risk of harm.
For further information, see the recent WLS
report Sense and Sensitivity: Family Law,
Family Violence and Confidentiality available
at wlsnsw.org.au/law-reform/sense-andsensitivity-2016/.

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Legal updates

RISK

RISK MANAGEMENT
AND CLAIMS PREVENTION

Simone Herbert-Lowe
is a senior claims
solicitor at Lawcover.

By Simone Herbert-Lowe

he Lawcover risk management

column usually identifies
specific risks or claims-related
war stories for lawyers and
guidance about how best to avoid a
negligence claim. This time, however,
with many eligible insured law practices
recently receiving a Policyholder Rebate,
it is timely to take a broader view of
Lawcovers risk management and claims
prevention activities and to recap the
benefits those provide. Without apology,
Lawcover promotes its risk management
and claims prevention education as
working in the best interests of its
insured law practices, their clients and
the legal profession generally.
We have again commissioned actuarial
analysis to examine the benefits of our
risk management education workshops
on participating law practices. The
results provide compelling evidence
that reduced severity and frequency of
claims by up to 15 percent on average
is achieved by those law practices.
Participants in the Lawcover Practice
Advisory Service activities show an
immediate and dramatic decrease
in propensity for claims of alleged
negligence.
It is a given that greater awareness of risk
factors in practice enhances the quality
of the relationship between lawyers
and their clients, which we know is a
key factor in predicting claims. If law
practices continue to engage with our
risk management activities, the evidence
points to continued downward pressure
on the incidence of claims against law
practices and, as a consequence, on the
cost of premiums year on year.

Proven outcomes
Between 1987 and 1992, there had
been a steady increase in the number of
claims against law practices in NSW, with
principals of law practices facing a 40
per cent chance of receiving a claim over
that five-year period. As a consequence,
Lawcover retained external consultants
to conduct an investigation after more
than 1,000 notifications were received
in 1994 alone. The research culminated

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The incidence and cost of

claims against Lawcover
insureds has reduced
markedly.
Policyholder Rebates have
been made to eligible insured
law practices as a result
of better than anticipated
claims trends over recent
years and improved company
performance.
There is evidence that the
better than expected claims
outcomes are the result
of a more risk aware legal
profession.
Lawcovers RMEP activities
have been a key contributor in
achieving these outcomes.
in a comprehensive analysis on the
causes of professional negligence claims
against law practices, and recommended
strategies to combat this increase.
Arising from that investigation, a number
of risk management and claims initiatives
were introduced. Over the years, these
initiatives have been regularly updated,
expanded and increased in number.
Lawcovers website provides full details
of these programs, however a few
examples are:

The Risk Management

Education Program
The Risk Management Education
Program (RMEP) includes a series of
workshops designed for principals to
highlight individual and practice risks
known to cause professional negligence
claims. Since the inception of these
workshops in 1995, attendance has
been associated with significantly
lower frequency and claims size for
participating law practices. The RMEP
workshop content is regularly revised
and updated and the workshops

currently offered are: All about the

Client; All about the Matter; All about
the Communication; All about the
Business; and All about the Dollar. The
RMEP workshops recognise what at first
glance is obvious; that a successful law
practice is one that is most likely to have
positive relationships with its clients and
therefore less likely to be the subject of
a claim.

Practice Advisory Service

Law practices that have had at least
one substantial claim, or that have been
identified as potentially higher risk than
peers, may be invited to participate in
a practice visit and assessment by a
Lawcover risk management consultant.
While acceptance and participation by
the law practice is voluntary, the majority
welcome the opportunity. The service is
at no cost to the law practice.
Our data shows that law practices
participating in a practice advisory
visit invariably experience a dramatic
and almost immediate fall off in the
incidence of claims.

Risk Briefings and Claims

Prevention Seminar/Roadshows
Risk Briefings, which are twohour sessions addressing specific
areas of practice that give rise to a
disproportionately high number of
claims, are popular with busy lawyers
and provide tips and information to assist
in the practice of law in risk prone areas.
The One Day Claims Prevention
Seminar which is held annually in
Sydney, is always over-subscribed and
similar smaller roadshows are offered
throughout the year in suburban and
regional areas.
Lawcover invests in risk management
and claims prevention activities because
we have the evidence that it works.
They also contribute to some additional
benefits for insured law practices:

NOVEMBER 2016

18/10/2016 2:40 pm

RISK

Premium discounts for

participating practices
Lawcover data shows that participation
in its risk management and claims
prevention activities leads to fewer claims
and lower costs associated with claims.
It is appropriate that this is recognised
by a premium discount regime for
participating law practices. The premium
discount regime has recently been
revised to reflect the latest outcomes of
the review. Discounts range from
5 per cent to 12.5 per cent and apply for
one policy year initially, with the option
of maintaining the discount in future
years through the completion of at
least one eligible maintenance activity
per year.

Policyholder Rebate
Lawcover has recently issued a
Policyholder Rebate ($15 million) for 2016
to eligible insured law practices. This
follows an earlier Policyholder Rebate
($23 million) issued in 2014.
The Policyholder Rebates have arisen
from better than anticipated claims

trends over recent years and improved

company performance. Our analysis
provides compelling evidence that those
better than expected claims outcomes
are the result of a more risk aware legal
profession and that the Lawcover RMEP
activities have been a key contributor in
achieving these outcomes.

of the legal profession and consumers of

legal services.
By working with the legal profession
and focusing on good legal practice for
good legal outcomes, we have achieved
success in addressing risk factors in legal
practice and reduced claims frequency
and severity.

Reduced premiums

For further information please see:

renewals.lawcover.com.au/OnlineWeb/
PSS/Course/CourseRegistration

Since 2012/13 the target premium pool

has been reduced by almost 15 percent.
The premium pool for 2016/17 has
been maintained at the same level as
2015/16, in spite of continued growth in
the number of insured law practices and
solicitors. For the vast majority of
insured law practices, premiums on a
like-for-like basis have decreased
markedly since 2013.

The RMEP workshops

recognise what at first
glance is obvious; a
successful law practice is
one that is most likely to
have positive relationships
with its clients and
therefore less likely to be
the subject of a claim.

Lawcovers commitment to the

legal profession
By our corporate structure Lawcover is
a part of the legal profession and our
commitment extends to the objective
that Lawcover operates within a
framework which is in the best interests

Position Available
Legal Practice Consultant
Lawcover seeks to employ a senior lawyer to join its specialist risk management team. The successful candidate will
have at least 25 years' experience as a partner/principal of a small or sole practitioner law practice and experience in
managing a legal practice with an emphasis on administration and business management.
The role will be varied and will focus on providing advice on the efficient management and administration of a law
practice including providing guidance and education on practice management risk. Intrastate travel will be involved.
The responsibilities of this role will include:

visiting law practices to identify

and educate on practice risk

preparing written analysis of risks

and the management of these

presenting at seminars and

conferences on risks and risk
mitigation strategies

advising on risk mitigation with a

view to improving practice
integrity

preparing articles for publication

on practice, risk management and
best practice

Experience/interest in legal
practice risk is desirable

This is a rare opportunity for a senior lawyer seeking a rewarding career whilst also enjoying a good work/life balance.
For a confidential discussion on this unique opportunity, contact Michelle Adler, Human Resources Manager
on (02) 9286 8811 or email madler@lawcover.com.au.

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Legal updates

TAXATION

INTERPRETING
BILATERAL TAX TREATIES

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

By Stephen Tully

ow are the provisions of

a bilateral tax treaty to be
interpreted ? Holistically, giving
primacy to their terms, having
regard to their context (including their
interaction with other provisions) and
in light of the object and purpose. That
was the upshot of a recent judgment
from the Federal Court of Australia in
Tech Mahindra Limited v Commissioner
of Taxation [2016] FCAFC 130, which this
article will review.

Background
In 1991, Australia and India concluded
the Agreement for the Avoidance of
Double Taxation and the Prevention
of Fiscal Evasion with Respect to Taxes
on Income [1991] ATS 49 (entry into
force 1991) (the treaty). The treaty is
incorporated under Australian law by
virtue of s 11Z of the International Tax
Agreements Act 1953 (Cth) and appears
at schedule 35 of that Act.
Article 7 of the treaty specifies a
business profits rule. The profits of an
enterprise from one Contracting State
are taxable only in that State unless the
enterprise carried on business in another
Contracting State through a permanent
establishment. If so, the profits of that
enterprise may be taxed in the other
State but only as are attributable to that
permanent establishment, or those
business activities or sales of goods or
merchandise of the same or a similar
kind conducted through that permanent
establishment (article 7(1)). Where profits
include income which is addressed by
other articles of the treaty, then those
articles are unaffected by article 7
(article 7(7)).
Article 12 provides for royalties. These
are defined as payments or credits
given as consideration for rendering any
services which make available technical
knowledge, experience, skill, knowhow or processes or consist of the
development and transfer of a technical
plan or design (article 12(3)(g)).

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The Federal Court of Australia

has considered the allocation
of taxation rights between
two States with respect to
royalty payments.
The Court interpreted a 1991
tax treaty between India and
Australia, particularly Articles
7 and 12 and their interaction.
A provision in a tax treaty is
to be interpreted according
to its language, context, and
object and purpose.
Royalties arising in one Contracting
State, being royalties to which a
resident of the other Contracting State
is beneficially entitled, can be taxed in
that other State (article 12(1)). Royalties
can also be taxed in the Contracting
State in which they arise, but the tax
so charged must not exceed a certain
percentage of the gross amount of
royalties (article 12(2)).
These provisions, however, do not apply
if the person beneficially entitled to
the royalties (being a resident of one
of the Contracting States) carries on
business in the other Contracting State
(in which the royalties arose) through
a permanent establishment situated
therein, or performs in that other State
independent personal services from
a fixed base situated therein, and the
property, right or services in respect of
which the royalties are paid or credited
are effectively connected with the
permanent establishment or fixed base
(article 12(4)). In those circumstances,
article 7 applies.
Tech Mahindra Limited (the appellant)
is a resident of India which carries
on business in Australia through a
permanent establishment. During the
income year at issue, it performed
services for Australian customers both in
Australia and India.

Article 7(1)(a) of the treaty gave

Australia the right to tax income that
the appellant received for services
performed in Australia. But did Australia
have any taxing rights over income from
services performed in India ?
This raised the question whether
article 12(4) applied, which depended
on whether the Indian services in
respect of which royalties were paid
were effectively connected with the
appellants permanent establishment in
Australia. The appellant argued:
its contractual arrangements with
Australian customers were the
essential foundation for its business
activities carried on in Australia
through a permanent establishment;
and
the Indian services, performed in
concert with the Australian services
through its permanent establishment,
satisfied its contractual obligations to
Australian customers.
The appellant contended that the
payments were not royalties. If they
were, then article 12(4) was engaged
and priority was given to article 7 but the
criteria in article 7(1) had not been met.
The Commissioner of Taxation (the
Commissioner) replied that these
payments were royalties as defined
in article 12(3) and taxable in Australia
under article 12(2). Alternatively, the
net profits derived from the Indian
services were liable to Australian tax
under article 7(1)(b). Article 12(4) was
co-extensive with article 7(1)(a). The
relevant property, right or services in
respect of which the royalties are paid
were effectively connected with the
permanent establishment to which the
profits were attributable. Further, article
12(4) gave way to article 7 if the criteria
in article 7(1)(a) had been met. This
meant that Australia had the right to tax
the royalties as part of the profits of the
permanent establishment, and not at
the rate capped under article 12.

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TAXATION

The primary judge concluded that

certain categories of payments referrable
to Indian services were royalties within
the meaning of article 12(3)(g) (Tech
Mahindra Limited v Commissioner of
Taxation [2015] FCA 1082).
Furthermore, article 12(4) had not been
engaged, so that Australia had the right
to tax those payments under article
12(2). Article 12(4) was manifestly
intended to entitle the source State
where the royalties arose to impose
tax at the potentially more generous
rates permitted under article 7(1), rather
than the capped rate under article
12(2), where there was an effective
connection between the payments
and the permanent establishment
in the source State through which a
non-resident carried on business. The
expression effectively connected with
the permanent establishment sought
to encapsulate the different tests of
connection under article 7(1)(a) whereby
a Contracting State could tax the profits
of an entity notwithstanding that it was
not a resident.
On appeal, the appellant did not
challenge the finding that certain
categories of payments referrable to the
Indian services were royalties. Instead,
it challenged the conclusion that article
12(4) had not been engaged.

Judgment
The appeal was dismissed, with
Robertson, Davies and Wigney JJ
reasoning (at [21]) that the primary
judges construction and application
of article 12(4) had been correct. The
phrase effectively connected with the
permanent establishment encapsulated
the test of connection under article
7(1)(a), which justified the allocation
of taxing rights to a Contracting State
in respect of the business profits of a
non-resident that were attributable to
the permanent establishment in that
State (at [39]). Article 12(4) was engaged
when the royalties could be taxed by
the source State under article 7(1)(a) as
part of the business profits attributable
to a permanent establishment in that
State. The parties had agreed that the
payments referrable to the provision
of those services were not attributable
to the appellants permanent
establishment in Australia.

Some implications
This judgment is an important
contribution to growing case law
on the interpretation of bilateral tax
treaties. Article 10 of the double taxation
agreement between Australia and
Singapore, which is equivalent to article
12 of the Australia-India treaty, was
considered in McDermott Industries
(Aust) Pty Ltd v Commissioner of
Taxation [2005] FCAFC 67. The present
judgment offers guidance on the
proper construction of article 12(4) of
the Australia-India treaty, and more
particularly defines the concept of
effectively connected.
Were the services of the kind in article
12(3)(g) that the appellant rendered
in India for its Australian customers
effectively connected with its
permanent establishment in Australia?
The word effectively qualified the
degree of connection required between
those services and the permanent
establishment in order to trigger that
article (at [43]). In its ordinary meaning,
the word effective meant actual or
existing in fact. Therefore effectively
connected with was understood to
mean having a real or actual connection
with the activities carried on through
the permanent establishment. Whether
such a connection existed could not be
answered simply on the basis that the
property, rights or services effected the
purposes of a permanent establishment.
The Federal Court also noted (at [29])
some circularity in the architecture
of the treaty. The business profits
rule under article 7(1) was subject to
article 7(7), and where business profits
included royalties, then article 7(7)
was subject to article 12(4) such that
article 7, and not article 12, applied.
Article 7 applied to the business
profits of an enterprise not covered
by article 12 that were attributable
to a permanent establishment, and
by virtue of article 12(4), to business
profits that were royalties where the
property, right or services in respect
of which they were paid or credited
were effectively connected with that
permanent establishment. It was
apparent that articles 7 and 12(4) had a
coextensive operation (at [37]). Article
7(7) contemplated that the business
profits of an enterprise might include
income covered by article 12 as a
royalty. Those royalties were payments
made in respect of property, rights or
services effectively connected with
the permanent establishment of an

enterprise located in the source State.

Profits which were attributable to that
permanent establishment were taxable
by the source State.
The Federal Court also confirmed
(at [22]) that the principles to be applied
when interpreting a treaty article were
well-settled. A holistic approach was
to be taken, consistent with the rule
of interpretation stated in article 31 of
the 1969 Vienna Convention on the
Law of Treaties [1974] ATS 2 (entry into
force 27 January 1980). The written text
enjoyed primacy, but a court also had
to consider the context, and object and
purpose of the treaty provisions at issue.
The Court construed the terms of
article 12(4) in context, being that
article 7(7) prioritised article 12 over
article 7 (at [31]). Without article 12(4),
royalties forming part of the business
profits of an enterprise attributable to a
permanent establishment in the source
State are taxable by the source State but
subject to a limit. No evident object or
purpose was apparent for construing
article 12(4) so as to disentitle the
source State from the right to tax a
payment otherwise within the scope
of article 12(2) but outside the ambit
of article 7. The evident purpose of
article 12(4) was to relieve the source
State from the limitation on taxing
rights imposed under article 12 by
taxing royalties under article 7, and not
to disentitle that State from any taxing
rights where otherwise article 7 would
not provide those rights.
The Federal Courts construction was
confirmed by reference to local and
international extrinsic materials
(at [35]-[36]). The Explanatory
Memorandum to the Income Tax
(International Agreements) Amendment
Bill (No 2) 1991 (Cth) indicated that
article 12(4) was intended to remove
the limitation on taxing rights under
article 12, and not to remove the
source countrys right to tax royalties
unless otherwise that country had
the right to tax such royalties under
article 7. In addition, the commentary
accompanying the United Nations
Model Double Taxation Convention
Between Developed and Developing
Countries (1980) stated with respect to
the equivalent article that the State of
the source of the royalties was relieved
from any limitations under that article.
Australia accordingly enjoyed the right
to tax the royalty payments at issue.

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Legal updates

TAXATION

NEW GST LAWS

IMPACT LEGAL SERVICES
FOR NON-RESIDENT CLIENTS

Matthew Cridland
is Head of GST &
Customs (Australia),
at DLA Piper.

By Matthew Cridland

he A New Tax System (Goods

and Services Tax) Act 1999
(GST Act) was recently
amended to better address
cross-border supplies made in a
business-to-business (B2B) context.
One aspect of the reforms, which
commenced on 1 October 2016, will
impact the circumstances in which
legal and other professional services
supplied to non-residents are GST-free
(i.e. not subject to GST).
It should be noted at the outset that
these B2B reforms are separate to
the GST reforms impacting inbound
intangible supplies made to Australian
consumers from 1 July 2017. Those
reforms, often referred to as the
Netflix Tax, will apply in a business-toconsumer (B2C) context.

What has changed?

The circumstances in which intangible
supplies (including legal and other
professional services) may be GST-free
are set out in Item 2 in section
38-190(1) of the GST Act. Those rules
have not changed.
However, the GST-free treatment
allowed under Item 2 is subject to
an override in section 38-190(3) of
the GST Act. Where the override
applies, the supplies are taxable and
subject to GST.
The recent amendments reduce the
circumstances in which the override
in section 38-190(3) applies, thereby
increasing the circumstances in which
legal services may be provided on a
GST-free basis under Item 2.
Note that there are some other
provisions that may potentially apply to
exempt legal services supplied to nonresidents. However, Item 2 is by far the
most relevant provision and discussion
on the other exemptions is beyond the
scope of this article.

GST-free legal services: Item 2

Under Item 2 in section 38-190(1) of
the GST Act, legal services will be GSTfree if:

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p78_79_LEGAL_Tax.indd 1

directly or indirectly, with a

non-resident; and

GST law changed on

1 October 2016.
Legal services may be
GST-free in a broader range
of circumstances.
The reforms potentially benefit
both non-resident clients and
law firms.
the services are supplied to a
non-resident; and
the non-resident is not present in
Australia in relation to the supply of
the services; and
the services are not directly related to
real property located in Australia; or
the non-resident is acquiring the
services in the course of carrying on
an enterprise and is not registered
for GST purposes, or required to be
registered for GST purposes.
Note that in relation to the requirement
for the non-resident to not be present
in Australia, the ATO does accept
that the exemption should not be
lost merely because a non-resident
company, which does not have an
office or carry on business in Australia,
sends some executives or staff to
Australia for a brief period in respect of
a transaction. This is notwithstanding
the executives or staff may receive
legal advice while in Australia. For
more detail on this issue, refer public
ruling GSTR 2004/7 (Example 36 at
paragraphs 494 and 495).

the services are provided, or the

agreement requires the services
to be provided, to another entity
in Australia.
Significantly, from 1 October 2016, the
above override in section 38-190(3)
will not apply if (refer new section
38-190(3)(c)(i)):
the other entity would be an
Australian-based business recipient of
the supply, if the supply had been made
to it.
As a part of the amendments, a new
definition of Australian-based business
recipient was also inserted into the
GST Act (refer new section 9-26(2))
which provides:
An entity is an Australian-based
business recipient of a supply to the
entity if:
(a) the entity is registered; and
(b) an enterprise of the entity is
carried on in the indirect tax zone
[Australia]; and
(c) the entitys acquisition of the thing
supplied is not solely of a private or
domestic nature.

Example one: advice to a

non-resident
Parent Inc is a Delaware (US) based
company that has no office or business
in Australia. Parent Inc is considering
acquiring a business in Australia from
Target Co.

The override provisions:

section 38-190(3)

Parent Inc engaged an Australian law

firm to provide advice on the proposed
acquisition. Some executives of Parent
Inc travelled to Sydney for two weeks
to assess the business and met with the
Australian law firm during that period.

Broadly, under section 38-190(3), legal

services that are otherwise covered by
Item 2 will cease to be GST-free (and
hence will be taxable and subject to
GST) if:

Based on the legal and other advice

received, Parent Inc has decided that
it will proceed with the acquisition
and will do so via a new wholly owned
Australian subsidiary company, Aus Sub.

the services are supplied under

an agreement entered into, whether

In the authors view, the initial legal

advice provided to Parent Inc should

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TAXATION

be GST-free under Item 2. This is

notwithstanding the advice relates to a
transaction in Australia, some meetings
with executives occurred in Australia
and the transaction will involve an
Australian subsidiary entity. The
override provision in section 38-190(3)
should not apply, as the legal services
were not provided to any other entity
in Australia.

breached warranties in the business

sale agreement.

Example two: legal services

supplied to a local subsidiary

In the authors view, the services

provided to Parent Inc in this example
should be GST-free under Item 2.
The override provisions in section
38-190(3) should not apply,
notwithstanding the litigation may be
conducted in the name of Aus Sub, on
the basis that Aus Sub is an
Australian-based business recipient.

Parent Inc proceeded to establish

Aus Sub. Parent Inc then directed the
Australian law firm to provide services
to Aus Sub for the business acquisition,
including: assisting with corporate and
tax registrations, finalising the contract
terms and attending to stamping of
documents post completion.
Prior to 1 October 2016, the override
provisions in section 38-190(3)
would have applied to the services
provided to Aus Sub in Australia. This is
notwithstanding the Australian law firm
may be engaged and paid by Parent
Inc only. Consequently, prior to the
reforms, the services would have been
taxable and subject to GST.
In this scenario, most law firms would
open an engagement with Aus Sub.
GST would be applicable to the
services supplied domestically to Aus
Sub. However, Aus Sub (unlike Parent
Inc) is likely to be GST registered and
potentially entitled to input tax credits
(GST credits) for any GST included in
the legal fees.
In the authors view, post 1 October
2016, the services provided to Aus Sub
(pursuant to the engagement with
Parent Inc) should be GST-free, subject
to Aus Sub being GST registered. The
override in section 38-190(3) should
not apply. This is on the basis that Aus
Sub is an Australian-based business
recipient, because:
Aus Sub is GST registered;
Aus Sub carries on an enterprise in
Australia (being the business that it
acquired from Target Co); and
Aus Subs acquisition of the services
is not solely of a private or domestic
nature.

Example three: litigation services

supplied to local subsidiary
Post-acquisition, Aus Sub realised
the business was not as valuable as
thought. Target Co potentially

Parent Inc engages the same Australian

law firm to commence commercial
litigation. While the litigation may be
conducted in the name of Aus Sub,
and with Aus Subs assistance, Parent
Inc is the controlling mind and the
party providing instructions and making
decisions about the dispute.

Why was the GST law changed?

The reforms outlined in this article
are one part of a broader range of
amendments to the GST Act, all
commencing on 1 October 2016,
relating to cross-border intangible
supplies made in a B2B context.
The principle driver for the reforms
is to keep more non-resident entities
outside the Australian GST net. If more
services supplied to non-residents by
Australian businesses are GST-free, it
reduces the need for non-residents to
register for GST in Australia in order to
claim input tax credits (GST credits).
It should be noted that most (but
not all) B2B transactions are revenue
neutral in a GST context. That is, most
(but not all) GST registered businesses
are entitled to claim full input tax
credits (GST credits) for any GST that
may be invoiced by suppliers, including
legal and professional advisers.
If legal services, on instructions from a
non-resident client, are provided to an
entity (such as a subsidiary) in Australia
which is not entitled to full input tax
credits for some reason, the recipient
entity in Australia may be required to
reverse charge GST to itself in relation
to the services acquired (refer Division
84 of the GST Act). However, from the
perspective of most law firms, that
should be a matter for the non-resident
client and the Australian recipient entity
to consider and address.

How will clients benefit from

the changes?
The benefit of the reforms for nonresident clients include:

If more services are GST-free,

non-resident clients will not need to
register to claim input tax credits.
As non-resident clients will not need
to pay GST as a part of their legal fees,
they will not need to wait some weeks
to receive the benefit of an input tax
credit. This is a cash flow benefit.
There should be reduced need for
legal advisers to establish separate
files for services provided to local
subsidiaries or other entities in
Australia on instructions from a nonresident client. This assists where a
client wants to centralise all costs.

How will law firms benefit from

the changes?
Law firms may also benefit from the
reforms in the following ways:
There should be reduced need to
make difficult decisions on whether
the GST-free exemption for a
non-resident client is lost because
a local subsidiary or other entity is
involved on a matter.
There may be less need to establish
separate files for services provided
to local entities in Australia, reducing
administration and the need for
separate bills.
Law firms may also have reduced
GST related cash flow costs. This is
because a law firm (if accounting for
GST on an accruals basis) is liable for
GST in the tax period in which
an invoice is issued to a client.
However some clients may take a
while to pay, meaning the law firm
is required to pay GST to the ATO
before payment is received from the
client. If more matters are GST-free,
this cash flow cost is reduced.

What should law firms do now?

Law firms should have policies or
procedures in place to determine
whether engagements with
non-resident clients are GST-free.
Those policies and procedures should
be reviewed and updated in light of the
recent reforms. If necessary, advice
should be taken to ensure compliance,
whilst at the same time ensuring that
services are supplied to non-resident
clients on a GST-free basis whenever
possible.

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Legal updates

PRACTICE AND PROCEDURE

SWEEPING REFORMS TO
FEDERAL COURT PRACTICE:
AN OVERVIEW FROM THE COURT

he Federal Court of Australia is

in the process of implementing
its National Court Framework
(NCF) reforms. A key
component of the reforms is a review
of the Courts practice documents
to ensure nationally consistent and
simplified practice.
Under the NCF, the Courts practice
documents have been consolidated and
refined from 60 practice documents to
25 new national practice notes.
The new national practice notes took
effect from 25 October 2016, and to the
extent practicable, apply to proceedings
whether filed before, or after, the date of
issuing. Although these practice notes
have become effective immediately, the
Court is aware that, depending on the
nature of each case and what stage it
may be at, a period of adjustment will
be necessary. To that end, the Court
will take a flexible and common sense
approach to any difficulties that may
arise with any new procedures being
applied in any existing cases.
At the time of issuing the new practice
notes, all previous practice documents
were revoked. There will no longer be
any administrative State-based notices.
The new practice notes fall into three
categories:
(i) Central Practice Note:
The Central Practice Note is the
core practice note for Court users
and addresses the guiding NCF case
management principles applicable to
all National Practice Areas (NPAs).
One of its main aims is to ensure that
case management is not processdriven or prescriptive, but flexible
- with parties and practitioners being
encouraged and expected to take
a common-sense and cooperative
approach to litigation to reduce its
time and cost.

(ii) National Practice Area Practice

Notes:
Interlocking with the Central Practice
Note are the new practice notes in
each NPA. Amongst other things,
the NPA Practice Notes raise NPA-

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ISSUE 28

Under the National Court

Framework, the Federal
Courts practice documents
have been consolidated and
refined from 60 practice
documents to 25 new national
practice notes.

A number of GPNs set out new or

more comprehensive arrangements
in a variety of key areas, including the
following:
an updated and refined class actions
practice note which allows for Case
Management Judges and Trial Judges
in certain proceedings and, where
appropriate, the allocation of a Class
Actions Registrar;

The new practice notes took

effect on 25 October and, to
the extent practicable, apply
to proceedings whether filed
before or after that date.

further guidance on expert evidence,

including concurrent evidence
procedures;

The aim of the reforms is to

ensure consistent but flexible
practices across all registries.

a new costs practice note with an

emphasis on the use of lump-sum
costs orders soon after final hearings
and the utilisation of a consolidated
costs order (rather than multiple
competing costs orders). Guides are
provided on these procedures and a
clearer and more effective Form 127
Bill of Costs has also been designed;

Through the reforms, there is

an emphasis by the Court on
eliminating process-driven
litigation and tailoring case
management to the needs of
the case and the parties.
specific case management principles
and can allow for expedited or
truncated hearing processes and
tailored or concise pleading and
other processes. Where appropriate,
parties may also adopt the processes
set out in one NPA practice note
for use in a different NPA. For
example, the flexible and streamlined
procedures for the commencement
of proceedings, use of concise
statements and tailored discovery
and evidence procedures set out in
the Commercial and Corporations
NPA Practice Note may be used in
other NPAs.
(iii) General Practice Notes:
Also interlocking with the Central
Practice Note and NPA Practice
Notes are 17 new or amended
General Practice Notes (GPNs).
These practice notes are intended
to apply to all or many cases
across NPAs, or otherwise address
important administrative matters.

guidance in respect of the preparation

and use of survey evidence;

a new subpoena-related practice

note ensuring a nationally consistent
mechanism for the issuing of
subpoenas; and
a practice note to assist with, and
make nationally consistent, the
Courts approach to requests for
access to Court documents.

General Practice Notes:

consultation process
The GPNs were issued at the same
time as the Central Practice Note and
NPA Practice Notes, but each of them
(excluding the Class Actions Practice
Note, which has undergone extensive
external consultation) has been issued
on a 12-month review basis to allow
for a comprehensive period of external
consultation.
The practice notes are open for
consultation from 25 October 2016
until October 2017 and any appropriate
amendments will be made during or
following the review period.
The Court is seeking your feedback
on the content of the general practice

NOVEMBER 2016

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PRACTICE AND PROCEDURE

notes. Please provide your feedback

addressed to the Deputy National
Operations Registrar of the Federal
Court, David Pringle via email to practice.
notes@fedcourt.gov.au including a short
summary of key issues you wish to bring
to the Courts attention and relevant
contact details. The Court will consider
all feedback and acknowledge receipt of
all feedback provided.

these new forms and documents to be

lodged,using their correct titles, via
eLodgment. The changes to eLodgment
are expected to be implemented in late
November 2016. In the interim, the new
forms and documents can be lodged
by using the generic non-prescribed
lodgment types. Detailed information
on the new forms are available on the
Courts website.

The Courts website

Update on National Practice Areas

To support the implementation of the

NCF and the introduction of the new
practice notes, the Courts website is
being updated and enhanced to provide
dedicated homepages for each NPA
and other key areas of law, such as class
actions and appeals. The NPA and other
webpages are a critical resource tool for
practitioners and other Court users.
All NPA-related webpages contain
not only a summary of the NPA and
sub-areas, but key NPA-specific
resources such as relevant forms and
rules, legislation, practice notes, latest
judgments and speeches. Each NPA
webpage has been tailored to the
requirements of that practice area,
by including additional or different
information as required.

A new NPA titled Other Federal

Jurisdiction has been created in order
for the true breadth of the Courts
jurisdiction to be captured. The eight
subject-matter NPAs do not exhaust
the jurisdiction of the Court. They are
the main bodies of work of the Court,
however, many other matters may be
brought in the Court that do not fit into
these NPAs. This additional or ninth,
NPA is designed to encompass a range
of cases over which the Court has
jurisdiction but which do not readily fit
into any of the other existing NPAs, such
as cases involving negligence claims,
defamation claims, or cases involving
the Court acting as a Court of disputed
returns.

In addition, the Court has developed

guides and information to assist
practitioners and Court users with the
practice note changes, including a
reference table that cross-references
the old practice notes and where
related content can be found in the new
practice notes.

The name and scope of the Criminal

Cartel Trials NPA has been reviewed and
adjusted to reflect the breadth of federal
criminal law jurisdiction vested in the
Court. The NPA will now encapsulate any
criminal-related proceeding, not merely
cartel-related proceedings (eg criminal
copyright appeals etc). Accordingly, the
name of the NPA has been adjusted from
Criminal Cartel-Trials to Federal Crime
and Related Proceedings.

Further reforms
Appeals
The area of appeals has undergone
considerable reform and the Court is in
the process of developing new practice
notes for appeals covering Full Courts,
original jurisdiction matters, migration
and general practice and procedure.
In the interim, an outline of the new
appeals-related procedures and further
information to assist practitioners and
Court users, is available on the Courts
website. In addition, previous practice
note APP 1 has been revoked and APP
2 has been partially amended and
reissued.
Forms and eLodgment
A number of new forms have been
created and some current forms
amended as part of the development
of the new national practice notes.
The Courts eLodgment system is in
the process of being updated to allow

Parties are able to select these NPAs in

eLodgment when commencing a matter
in the Federal Court.

Further information and queries

The Court has prepared an update that
provides an outline of these reforms
together with a reference table for the
new practice notes. The Court would
appreciate it if firms could circulate the
NCF update to their staff.

Ethics

FACING AN

ETHICAL

DILEMMA?

Contact the Law Society

for practical, confidential
guidance on ethical questions
and complaints.

(02) 9926 0114

ethics@lawsociety.com.au

If you have any queries regarding the

NCF or practice notes please contact
your local registry or email your query to:
practice.notes@fedcourt.gov.au.
NOTE: Future LSJ articles will look more closely
at a number of key individual practice notes
such as those on costs, subpoenas, commercial
practice and the Central Practice Note.

ISSUE 28

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Legal updates

HUMAN RIGHTS AND CRIMINAL LAW

ABORTION LAW REFORM:

WHY ITS TIME WE CAUGHT UP

Anastasia Krivenkova
is a Principal Policy
Lawyer, Policy and
Practice at the Law
Society of NSW.

By Anastasia Krivenkova*

very day around the world,

approximately 830 women die
from preventable causes related
to pregnancy and childbirth. The
World Health Organization recognises
that access to safe, legal abortion
is a fundamental right of women,
irrespective of where they live (see:
www.who.int/). Yet safe and affordable
access to abortion services is not as
readily available across Australia as
might reasonably be expected. In
fact, access to and information about
abortion services varies greatly across
Australian jurisdictions, which can
significantly impede women seeking
services to assist in managing their
reproductive and sexual health. More
concerning is that where abortion and
reproductive services are available,
women and staff are often subjected
to intimidating and abusive behaviour
of anti-abortion protestors outside
abortion clinics.

Current legislation
NSW and Queensland remain the only
two Australian jurisdictions that have not
decriminalised abortion in some form.
In NSW, unlawful abortion is an offence
contained in sections 82, 83 and 84 of
the Crimes Act 1900 (NSW) (Crimes
Act), with penalties of up to 10 years
imprisonment for women, doctors and
anyone who unlawfully performs or
assists in the procedure.

A push for change

Two Bills dealing with access to
reproductive services are due to be
considered by the NSW Parliament,
reigniting the debate about whether
access to abortion should be treated as
a moral issue or a public health issue.
The Summary Offences Amendment
(Safe Access to Reproductive Health
Clinics) Bill 2016, foreshadowed by
Labor MLC, the Hon. Penny Sharpe,
will seek to introduce safe access
zones of 150 metres around abortion
clinics, to protect women and staff
from harassment and abuse when
they enter clinics; and

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Safe and affordable access

to abortion services is not
as readily available across
Australia as might reasonably
be expected.
New South Wales and
Queensland remain the only
two Australian jurisdictions
that have not decriminalised
abortion in some form.
Two Bills dealing with access
to reproductive services are
due to be considered by the
NSW Parliament, reigniting
the debate about whether
access to abortion should be
treated as a moral issue or a
public health issue.
The Abortion Law Reform
(Miscellaneous Acts Amendment)
Bill 2016, introduced by Greens MLC,
Dr Mehreen Faruqi, seeks to remove
the abortion offences from the
Crimes Act; establish a requirement
for a medical practitioner who has
a conscientious objection to refer
patients to a health practitioner
without such an objection; and
introduce safe access zones of 150
metres around abortion clinics.

What is unlawful when it

comes to abortion?
While it is an offence under Division
12 of the Crimes Act to unlawfully
attempt to procure an abortion, the
term unlawful is not actually defined
anywhere in the Act. This has created
considerable uncertainty and so we
must turn to the case law in an attempt
to resolve the question.

Case law
In R v Wald 3 NSWDCR 25 (1971) Judge
Levine clarified, in what is now known as
the Levine ruling, that an abortion should
be considered to be lawful if the doctor

honestly believed on reasonable grounds

that the operation was necessary to
preserve the woman from serious danger
to her life or physical or mental health,
which the continuance of the pregnancy
would entail. The doctor may also take
into account the effects of economic or
social stress on the woman.
A 1995 medical negligence case, Ces
v Superclinics [1995] NSWSC 103,
proposed a further extension to the
Levine ruling. Justice Michael Kirby
(then of the NSW Court of Appeal),
suggested that when determining
whether a particular request for an
abortion satisfies the legal requirements,
consideration should also be given to
whether a serious danger would follow
not only to the womans health during
the pregnancy but also to her health
after the childs birth.
In a recent submission on the Greens
Bill, the Law Society acknowledged
that while the Levine ruling provides an
important exception to the Crimes Act,
its ambit is nevertheless uncertain.
While prosecutions under these
criminal provisions are rare, relying on
case law alone remains an uncertain
and problematic basis on which to
operate. This uncertainty has also meant
that many medical practitioners are
reluctant to work in the area, which
can have a significant impact not only
on the range and expertise of doctors
willing to practise in this area, but more
importantly, on the accessibility of such
services for women.

A medical decision or a
moral issue?
While it remains to be seen how NSW
Members of Parliament will vote on
each of the Bills before them, recent
surveys indicate the public is broadly
supportive of decriminalisation of
abortion (see: www.mja.com.au/
journal/2010/193/1/australian-attitudesearly-and-late-abortion). However, if
previous experience is anything to go
by, we can expect that the matters will
be subject to a conscience vote, rather
than a vote on party lines.

NOVEMBER 2016

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HUMAN RIGHTS AND CRIMINAL LAW

Decriminalisation would mean that

abortion is treated as a medical decision
for a woman and her doctor rather than
a moral issue and, as such, should not
be a matter of conscience. In fact, two
United Nations Committees have found
that the criminalisation and/or restriction
of medical procedures needed only by
women, to be a form of discrimination.
Essentially, it undermines a womans
autonomy and right to equality and nondiscrimination in the full enjoyment of
her sexual and reproductive rights
(see: www.who.int/).
The Australian Medical Associations
position statement on Womens
Health states that women should
have access to legal and safe
abortion; reliable safe and affordable
contraception; information and services
to support adoption or maintaining a
pregnancy; and appropriate sexual and
reproductive health and information
(see:ama.com.au/position-statement/
womens-health-2014).

Safe access zones

The introduction of safe access zones,
arguably, should not be subject to a
conscience vote. Their introduction
would go some way to protecting

women from harassment when

accessing essential health services.
As acknowledged in the Law Society
submission, the introduction of safe
access zones around abortion clinics
does not unreasonably limit the right
to freedom of expression. Rather, the
introduction of a limited safe access
zone is necessary to protect a womans
right to privacy and access to health
services and, as such, is consistent with
human rights.
Experience in other jurisdictions shows
that decriminalising abortion will not
increase the numbers of abortions
performed.

Conclusion
As one of the last remaining jurisdictions
to decriminalise abortion, its time
NSW removed these offences from the
Crimes Act and left the regulation of
this basic health service to the relevant
health legislation, with appropriate
safeguards. Access to reproductive
health services should remain a decision
between a woman and her doctor not
her lawyer and regulating this just like
any other health service will preserve a
womans right to privacy, autonomy and
freedom from discrimination.

Experience in other
jurisdictions shows that
decriminalising abortion
will not increase the
numbers of abortions
performed. As one of the
last remaining jurisdictions
to decriminalise abortion,
its time NSW removed
these offences from the
Crimes Act and left the
regulation of this basic
health service to the
relevant health legislation,
with appropriate
safeguards.
*This article represents the authors
personal views. It does not reflect the
position of the Law Society of NSW.
For the Law Societys submission on
the Greens Bill currently before NSW
Parliament, see: www.lawsociety.com.au

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Legal updates

PROPERTY

RESIDENTIAL SHORT-TERM
LETTING: IS IT ABOVE BOARD?

Kye Tran-Tsai is a
senior associate and
David Sachs is the
Principal of Sachs
Gerace Broome.

By Kye Tran-Tsai and David Sachs

he evolution of digital sharing

has transformed the global
economy and its proliferation
has grown with enormous speed.
With the ultimate demise of timeshare,
short-term letting is the new fashion.
However, short-term letting is
problematic in residential strata schemes,
as online platforms can be used by
letting operators to advertise short-term
accommodation available for booking
by the public at large. Short-term lets
can cause interference with full-time
residents enjoyment of their lot due to
noise, security concerns, excess wear and
tear on common property, and excess
use of common property infrastructure,
such as lifts and plumbing. Fire safety is a
particular concern. Strata buildings whose
lots are often frequented by holidaying
guests pose risks as the fire safety
requirements of a residential building are
not the same as those imposed on hotels
and the like. There are also other risks of
short-term letting when listings are run by
unscrupulous operators and guests who
use the premises for unlawful or unsafe
purposes.

Does an Owners Corporation

have the power to make by-laws
regulating use?
Each resident of a strata scheme has
the right to occupy their lot and to use
and enjoy the common property, so far
as the law allows. Common property,
by definition, comprises all those parts
of a parcel that do not form part of a
lot. Common property usually includes
the buildings lifts, stairs, hallways, roof,
foyers and garden. In New South Wales,
each residents right of occupation, use
and enjoyment of common property
is regulated by the Strata Schemes
Management Act 1996 (NSW) (the
Act) and the strata schemes registered
by-laws. One of the limitations of the
legislation governing strata schemes
is that it fails to deal expressly with
the conflicting interests and uses of
different lot owners. The power to
restrict land use was instead placed
within the Environmental Planning and

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p84_85_LEGAL_Property.indd 1

Owners Corporation PS 501391P v

Balcombe [2016] VSC 384
Short-term letting is booming
across NSW thanks to the
likes of Airbnb, but not
everyone is happy. A recent
parliamentary inquiry has
broadly condoned the
practice but recommends
better regulation when it
comes to strata schemes in
particular.
In the meantime, the state
of play is still not entirely
settled in NSW. The power to
regulate land use is contained
in the relevant planning
instrument and a by-law
purporting to contradict a
planning instrument is invalid.
Short-term letting can be
construed as a bare licence,
falling outside the prohibitive
effect of s 49(1) of the Strata
Schemes Management Act
1996.
Assessment Act 1979 (NSW) (EPA Act).
Councils are empowered by the EPA
Act to prepare local environment plans
that determine the zoning of land and
separation of uses within the particular
local government area, with the Minister
of Planning having the ultimate authority.
Where a local environmental plan
states that the permissible use of land
includes use as a dwelling, then shortterm accommodation has been held
to be inconsistent with that use (see
Dobrohotoff v Bennic [2013] NSWLEC 61).
Therefore, the lawfulness of shortterm letting in a strata scheme will be
determined by the planning instrument
relevant to the land and, often, tourist
and visitor accommodation will require
consent. A by-law has no force or effect
to the extent that it is inconsistent with
any Act or law (s 43(4) of the Act).

On 22 July 2016, the Supreme Court of

Victoria held that a rule that governed
a strata scheme that sought to prohibit
short-term letting was invalid. The Court
found that the power to regulate use in a
residential strata scheme is always vested
in the planning legislation. The Court
found that because there was no express
power in the Owners Corporations Act
2006 (Vic) to govern use, the Owners
Corporation of the building was not
entitled to claim such a power. Riordan
J cited Lord Goff in A-G (UK) v Guardian
Newspapers Ltd [No. 2] [1990] 1 AC 109
at 282 and restated the common law
position that everybody is free to do
anything, subject only to the provisions
of the law (at [192]). In other words,
a by-law restricting a lot owners use
was a substantial interference with the
lot owners property rights and the rule
prohibiting short-term letting was held to
be invalid and of no effect.

Lease or licence? The spanner

in the works for s 49(1) of the Act
Many strata schemes in New South Wales
have adopted a by-law prohibiting or
restricting short-term letting by reducing
it to commercial use of a residential
strata lot.
However, section 49(1) of the Act
complicates this somewhat, as it states
that [no] by-law is capable of operating
to prohibit or restrict the devolution of a
lot or a transfer, lease, mortgage, or other
dealing relating to a lot (emphasis added).
It could be argued that this provision
prevents an Owners Corporation from
adopting a by-law to restrict the practice
of short-term letting, as the nature of
the short-term let can be construed as a
lease. In such case, the prohibitive effect
of section 49(1) may apply. However,
there are arguably circumstances where a
short-term let will not constitute a lease,
but rather a bare licence for a permissive
occupancy.
A lease is distinguishable from a bare
licence because the licensor retains an

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PROPERTY

immediate right to eject the licensee and

no legal or equitable interest vests by
nature of the licence. There have been
many decisions dealing with the issue
of whether short-term occupancies
could be constituted as licences rather
than leases. In the English decision of
Marchant v Charters [1977] 3 All ER
918, Lord Denning MR said the test
depends on the nature and quality of
the occupancy. Was it intended that the
occupier should have a stake in the room
or did he have only permission for himself
personally to occupy the room, whether
under a contract or not, in which case he
is a licensee?
In light of Lord Dennings test, it is difficult
to suggest that the host of the short-term
let intends to grant a legal or equitable
interest to the guest in a short term let.
Equally, it would be difficult to reconcile
a suggestion that a guest intends to
obtain something more than a personal
interest in the premises during or after
the booking period. It is also interesting
to note that a scan of AirBnBs terms of
service describe the booking as merely a
licence and specifically reserve the hosts
ability to eject a guest who overstays and
to cancel a confirmed booking. In this
light, it is arguable that a short-term let

does not come within the realms of a

lease or other dealing relating to a lot as
used in section 49(1) of the Act.
Other commentary suggests the intent
of section 49(1) is actually to prohibit the
creation of a by-law restricting alienation
of land and the right of assignment. Such
principles remain inherent characteristics
of freehold land ownership and this
position has been consistently upheld
by the courts since feudal times, and
more recently in comments by White J in
White v Betalli [2006] NSWSC 537 and the
majority on appeal. Of course, a
by-law that is consistent with the planning
instrument does not circumvent the
overarching power of the Council to
regulate land use. This reasoning does,
however, suggest the issue remains
complicated and has not yet been
adequately addressed in NSW. While the
Strata Schemes Management Act 2015
is soon to bring a number of reforms,
section 49(1) has not been amended and
will be carried forward into section 139(2)
of the new Act.

Inquiry into short-term

holiday letting
A report on the Adequacy of Regulation
of Short-Term Holiday Letting in New

South Wales was tabled in Parliament

on 19 October following an 18-month
inquiry. The report concedes that
current arrangements are fragmented
and confusing and says there is a need
for a consistent definition of short-term
letting within planning legislation. It
broadly recommends that short-term
accommodation sharing be allowed
across New South Wales, but recognises
that short-term rental in strata
properties is a special case. Prohibition,
however, is a last resort. Rather, the
report recommends that incremental
steps should be taken to increase the
powers of strata residents and owners
corporations to influence the use within
their buildings, including the right to
recover costs from short-term rental
landlords. It will be interesting to see
the Goverments response in the
coming months. In the authors opinion,
a convenient way to deal with the issues
of short-term letting is to specifically
empower each strata scheme to have
the ability to adopt a by-law to restrict
short-term letting in their building,
provided it is with the overwhelming
support of lot owners.

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GUARDIANSHIP

NCAT GUARDIANSHIP DIVISIONS

REVIEWS OF ENDURING POWERS OF
ATTORNEY

Richard McCullagh
is a legal director at
Patrick McHugh & Co
Pty Ltd and adjunct
lecturer in elder law at
the College of Law.

By Richard McCullagh

he incidence of errant
attorneys abusing the powers
conferred on them by their
trusting principals is increasing.
Bank accounts are raided, homes
mortgaged or sold, and the proceeds
difficult to trace if the attorney is
uncooperative or absent. Sometimes,
alarm bells are raised earlier by a family
member who gets wind of an imminent
improvident transaction.

What can you do?

If your legal advice is sought, you
should:
carefully identify your client,
especially if you drafted the power of
attorney. Is he or she the principal or
attorney or a concerned relative?
recall Solicitors Rule No.1 above all
else, act in your clients best interests
as you see them;
assess the risk if major assets are
about to be transferred, a quick
telephone call or stern letter to the
attorney may suffice;
if the assets have already been
transferred, then assist your client in
applying to NCAT or represent them
on appeal;
consider applying to NCAT yourself if
there is absolutely no-one else willing
and able.

The Guardianship Division of the

NSW Civil and Administrative Tribunal
(Tribunal) took over from the former
Guardianship Tribunal from 1 January
2014 under the Civil and Administrative
Tribunal Act 2013 (NCAT Act). It is the
most common forum for the review of
Enduring Powers of Attorney (EPOA)
created under the Powers of Attorney
Act 2003 (NSW) (POA Act).
The Protective Division of the Supreme
Court of NSW (Supreme Court) is also
available but the cost, formality and
time involved make that too daunting
for many families.
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Improvident and selfbenefiting transactions by

attorneys acting under an
Enduring Power of Attorney
are seemingly on the rise.
The Guardianship Division
of NCAT provides a fast,
cheap and effective means
to quickly disempower an
attorney if necessary.
Retrieval of property
improperly disposed of
currently requires application
to the Equity Division of the
Supreme Court.
More likely to be engaged is the Equity
Division to pursue the recovery of
compensation from an errant attorney if
substantial sums are involved.
The report of the 2016 NSW
Parliamentary Inquiry into Elder Abuse
has recommended that NSW adopt
similar compensation provisions to
those recently introduced under the
Powers of Attorney Act 2014 (Vic),
allowing VCAT to order compensation.
NSW is the only jurisdiction yet to
introduce such measures.

What can be done?

Where to go?

86

orders requiring an attorney to furnish

audited accounts of their actions.

Commonly sought orders under

section 36 of the POA Act include:
a declaration that a principal did or
did not have capacity to make, or
revoke an EPOA, or a declaration that
an EPOA is invalid in whole or in part
because the principal either lacked
the requisite capacity to grant the
EPOA, or was induced to make it by
dishonesty or undue influence;
an order removing a person as
attorney, and appointing a substitute
if needed and available;
an order varying a term or revoking a
particular power; or

Section 36(4) of the POA Act provides

that the Tribunal will only make an order
if satisfied that it would be in the best
interests of the principal to do so or that
it would better reflect the wishes of the
principal. Accordingly, the Tribunal may
decide:
whether or not to carry out a review;
and, if so
whether or not to make any order
and, if so to make orders subject to
such terms and conditions as it thinks
fit; and
under s 37, to treat the application
as one for the appointment of a
financial manager under s 25G of
the Guardianship Act 1987 (NSW),
which may immediately suspend the
operation of the EPOA.

Capacity
Section 7 of the POA Act expressly
preserves the application of the general
law relating to powers of attorney. This
is just as well because neither of the
terms capacity nor fiduciary duty
get a mention, despite being central
concepts.
The presumption at law is that adults
have capacity unless the contrary is
proved on the balance of probabilities. A
finding of capacity may be more readily
found where the principal has a small
pool of assets such as a house, contents
and bank account, than someone with
substantial and complex assets and
business interests which require a higher
level of capacity to manage (Szozda v
Szozda [2010] NSWSC 804 at 28). An
order declaring that the principal lacked
capacity to have made a power of
attorney has the drastic effect of voiding
all transactions purportedly entered
into under the power (Gibbons v Wright
[1954) HCA 17).
Seeking an order under s 36(4) of the
POA Act can be supplemented by an
ancillary order that the attorney, for

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GUARDIANSHIP

example, deliver up the principals

title deed and transfer if in his or her
possession or control.
In spite of broad power that may be
conferred by the appointing document,
the attorney is still bound to comply
with the principals directions for as
long as the principal has capacity whether the instructions are given
verbally or in writing (Dynayski v Grant
[2004] NSWSC 1187).

interested in family blame games and

the procedure is inquisitorial rather than
adversarial. The Tribunal (NCAT) has
some benefits over the Supreme Court,
for example:
there is less financial risk in making
the application to NCAT. No
lodgment fees are payable and each
party pays their own costs regardless
of the outcome, except in special
circumstances;

If supervening incapacity occurs, then

the EPOA becomes irrevocable except
by order of the Tribunal.

legal representation at first instance

is only by leave and is not the norm,
though it is the norm in appeals;

Fiduciary duties

the Tribunal is to use as little formality

as practicable;

An Enduring Power of Attorney (EPOA)

is a classic example of a fiduciary. The
central obligations of the attorney are:
to be alert to potential conflicts of
interest with the principal and to
avoid such conflicts; and
not to personally profit from being
an attorney without the clear and
informed consent of the principal.
The pre-2003 prescribed EPOA
form provided a very wide latitude
for an attorney to self-benefit, but
the standard wording in subsequent
prescribed forms is more sensibly
circumscribed. If and when supervening
incapacity occurs, consent is not
possible unless authorized in the EPOA
document or by the Tribunal.
Within the current confines of the
Tribunals powers, a breach of
fiduciary duties may form the basis
for an order that revokes an EPOA
and appoints a substitute attorney or,
failing that, a financial manager. Apart
from then requiring the attorney to
provide records of his or her use of
the principals assets, this is currently
about as far as the Tribunal can go.
An application to the Court will be
necessary to set aside the impugned
transaction and retrieve assets
improperly transferred.

Why NCAT?
Both NCAT and the Supreme Court are
bound by s 56 of the Civil Procedure Act
2005 (NSW) to facilitate the just, quick
and cheap resolution of the real issues
in dispute between the parties. This
needs to be tempered by the overriding
object of the inherent protective
jurisdiction. The fundamental concern
is the best interests of the principal or,
in the case of a financial management
order, the protected person. Solicitors
should advise clients that NCAT is not

the Tribunal may inform itself of

relevant matters as it thinks fit, and is
not bound by the rules of evidence.
For example, at a hearing a member
may telephone a family member who
is not present to ascertain their views
on how best to address the welfare of
the principal; and
NCAT has a triage procedure where
matters needing very urgent attention
will be prioritised if possible.
These features make the task of dealing
with an errant attorney less daunting
than applying to the Supreme Court.
On the other hand, like the Court, the
Tribunal must still:
afford the parties a reasonable
opportunity to put their case and
respond to the case put by the other
side;
give written reasons for its decisions,
which are subject to rights of appeal;
and
otherwise observe the principles of
procedural fairness.

Who can apply to NCAT?

Under s 35 of the POA Act, the principal
or an attorney can apply for a review of
an EPOA but so can any other person
who, in the opinion of the review
tribunal, has a proper interest in the
proceedings or a genuine concern
for the welfare of the principal. There
are cases of social workers or nurse
unit managers in residential aged care
facilities applying where suspicious
financial conduct on the part of an
attorney has become evident.
An application for accounts can be
made after the death of the principal
if the attorneys conduct has been
inexcusably inconsistent with the

wishes of the deceased principal as

expressed, in a will for example (UQH
[2014] NSWCATGD 37 at 17 & 55).
Your client can make an application online
by going to the NCAT homepage and
clicking on the Making an application
tab. See www.ncat.nsw.gov.au.
In Thorn v Boyd [2014] NSWSC 1159 an
attorney prevailed upon the principal,
his recently widowed aunt, to give him
$260,000. The Aunts solicitor then
applied to NCAT for the revocation of
an EPOA with the apparent approbation
of the Court in subsequent proceedings
for recovery of those funds. She also
alerted her clients bank by fax.
When approached by the attorney,
the solicitor advised him against taking
the gift and at the very least to get a
medical opinion as to his aunts now
doubtful capacity.
It is more often the case that
solicitors only need to advise a client
of the informal nature of NCAT and
assist them in preparing evidence.
Occasionally, solicitors attend the
hearing as a MacKenzie friend, assisting
the client by, for example, passing
prompting notes, but not addressing
the Tribunal. Otherwise, leave must
be sought to appear under s 45 of the
NCAT Act and s 32 of the NCAT Rules.
Leave to appear is granted to the
particular solicitor as opposed to
the party being granted a right to
representation.

How can your client appeal?

Within 28 days of receiving written
reasons for the decision by NCAT your
client can either lodge an internal
appeal with the Appeals Panel of NCAT
or apply to the Supreme Court.
An appeal on a question of law is
available as of right while any other
ground is only by leave. Representation
by solicitors or counsel is routine.
The original decision may be confirmed,
varied, quashed, set aside or remitted to
the Tribunal at first instance.

Conclusion
NCAT is an accessible and affordable
means by which to quickly avert or limit
improvident transactions in breach of
fiduciary duties by a person appointed
under an enduring power of attorney.
Solicitors can assist clients in preparing
for a hearing and occasionally, with
leave, appear for them.

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Legal updates

TECHNOLOGY

HOW THE INTERNET OF

THINGS WILL AFFECT
THE FUTURE OF LITIGATION

Michael Legg is
Associate Professor,
UNSW Law.
Claire Goulding is an
associate at Jones Day.

By Michael Legg and Claire Goulding

he Internet of Things (IoT)

is the latest phase in the
evolution of the internet,
bringing unprecedented
access and insights into peoples lives.
The expression refers to a network of
physical objects, devices, machines
and buildings all embedded with
electronics, software, sensors, and
network connectivity that enables those
objects to collect and communicate
data. Essentially, the IoT attaches
technology to existing everyday devices
and then brings those devices online.
In the process, ever increasing levels
of personal data and information are
now recorded and stored. This has an
impact not just on our personal privacy,
but on the information or evidence now
potentially available to resolve disputes.

IoT applications
Examples of IoT applications include:
Wearables: devices that people
wear that can continuously collect
information e.g. fitness trackers or
smart watches that collect data such
as heart rate, distance travelled and
calories burnt.
Building and home automation: heating
and lighting systems, gas, smoke and
heat detectors as well as security and
surveillance systems. One example is
the Nest thermostat, which records the
presence of a person in specific rooms
in a house and sets the temperature
based on past preferences.
Smart manufacturing: this adapts
domestic uses of IoT to commercial
purposes and additional activities such
as asset tracking, inventory monitoring
and factory automation and control.
Production line managers can receive
IoT data from internet-connected
machines on the factory floor and
thereby have access to real-time
information regarding the status of
each machine.
Health care: applies smart
manufacturing concepts to hospitals,
such as drug tracking. It can also
use a form of wearable to detect
changes in the human body that might

88

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ISSUE 28

The Internet of Things

(IoT) is the latest phase
in the evolution of the
internet, bringing with it
unprecedented access and
insights into peoples lives.
Ever increasing levels of
personal data and information
are being recorded and used
by the smart devices and
programs we now use in
modern life.
This personal data is having
an impact on individuals
privacy and the information
or evidence now available to
resolve disputes.
indicate a possible disease or physical
problem such as a heart attack, or
whether medication has been taken or
needs to be taken, such as in treating
diabetes. In August 2015, Google and
Dexcom (a company that produces
continuous glucose monitoring systems)
announced plans to produce a dimesized, cloud-based disposable monitor
that communicates the glucose values
of diabetes patients in real-time, directly
to parents and medical providers.
Another example is the GlowCap, a
smart pill-bottle cap that contains a
wireless chip which sends a patient a
reminder if they have forgotten to take
their medication and can send a refill
request to a persons local pharmacy.
Smart cities: utilise lighting, security
and surveillance systems as well as
traffic control.
Automotive: monitoring of the
operation of the vehicles components
(such as engine and tyre pressure), as
well as interacting with the external
environment to determine the quickest
or most economical route, availability
of parking, or sensors which allow for a
self-driving car.

Central to the IoT is that these

devices not only sense and record
data, they communicate it to people
or other devices so action may be
taken: increasing or decreasing
temperature or medication remotely,
ordering preventative maintenance
or communicating with emergency
services. IoT takes current technology,
which employs the internet further
through monitoring and recording data
from the natural environment, which is
then communicated without a person
needing to input the data. Indeed,
in many situations a person may not
know what data is being recorded or
communicated.

IoT and discovery

IoT can create new forms of data that
did not previously exist, or it can provide
for the collection of existing data but
more frequently or of a finer grain. The
former may be illustrated by the smart
pill-bottle cap that texts or phones
a patient if they forget to take the
medication in the bottle. An example
of the latter is a wearable device that
continuously records the wearers
heart rate. In the past, heart rate and
other measures of wellbeing may only
have been recorded upon a doctors
visit. Either way, more and more data
will be generated to the point that, by
2020, it has been predicted that the IoT
will account for about 10 per cent of
the data on earth. A host of data that
could be relevant to disputes will exist,
which in turn makes the data potentially
discoverable.
How might IoT data be used in
litigation so that it might be subject to
discovery or a subpoena?
Data from cars and homes could
be used to determine the location
of a person. Most modern cars are
equipped with GPS and, as mentioned
above, there are devices that record
the presence of a person in specific
rooms in their home; thus a record
of occupancy is created. Vehicle data
could also be used to determine if
an accident was due to a mechanical

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TECHNOLOGY

fault, driver error or fatigue. Data from

residential and commercial buildings
may be used to detect whether windows
and doors were locked or opened
at a particular time so as to assist in
insurance claims.
More specifically, IoT could allow for
a home monitoring system for elderly
care which combines monitoring
of medication and the patients vital
signs with an ability to communicate
so medication can be ordered when
needed, and doctors or family members
alerted to a health problem. If that
medication is subsequently found to
have side-effects, depending on dosage,
the IoT data could provide proof of not
only consumption of the medication but
also the dose. While old prescriptions or
over-the-counter purchase receipts are
discarded, the data proving consumption
would still exist.
IoT can also be used by utilities. The
smart grid for electricity involves each
device on the network being given
sensors to gather data (power meters,
voltage sensors, fault detectors etc) and
being equipped with two-way digital
communication between the device
in the field and the utilitys network
operations centre. In the Kilmore East
Bushfire class action in the Supreme
Court of Victoria, one of the main
allegations surrounded the cause of a
powerline failing (Matthews v AusNet
Electricity Services Pty Ltd [2014] VSC
663 at [75]). IoT data may record events
causing fatigue and the actions taken
by the utility, which could assist in
determining causation or help avoid the
failure in the first place.
Similarly, a water network can use
devices to ensure the quality of the
drinking water. Between 1 July and
30 September 1998, increased levels
of Cryptosporidium and Giardia were
detected in Sydneys water supply. As
a result, Sydney Water Corporation
issued a series of boil water alerts.
The so-called Sydney Water Crisis of
1998 led to a government inquiry and
two class actions. IoT data, in addition
to generating real-time measures of
water quality to allow for corrective
action, would be available to prove the
existence of contaminants.
Lastly, the data from wearables such
as Fitbit could provide important
information about a persons wellbeing
or movement or a personal injury or
assault. In a criminal context, Fitbit

data has been used against a person

as a basis for establishing perjury. The
person claimed that they had been
sleeping when they were sexually
assaulted. However, the Fitbit data
showed that the person had been
awake and walking around the entire
night, not sleeping as she had claimed
(Commonwealth v Risley, Criminal
Docket: CP-36-CR-0002937-2015
(Lancaster Cty., Pa., printed Nov. 16,
2015). However the availability of new
data is only useful if it is accurate. A
case in point is the 2016 US class action
against Fitbit, Inc. over complaints that
heart rate monitors sold by the company
were inaccurate.

Accessing IoT data

Obtaining IoT data for litigation raises a
threshold issue: who is the appropriate
person or entity to request the data
generated by a device; indeed who owns
the data and who can access the data?
In the United States, the question
has been posed in terms of who has
possession, custody, or control of data
in the IoT age.
In Australia a similar question would
arise. The obligation to provide
discovery in NSW applies to documents
in the possession of a party, but this is
defined to include custody or power.
Is the appropriate person/entity the
user, manufacturer or retailer/provider
of the device, the entity that operates
the network, the entity that collects
and manages the data produced by the
device, or some combination of these?
The entities that hold the data, if they
become parties to litigation, may be
required to provide discovery. Even if
not a party, they may be amenable
to a subpoena.
For discovery or a subpoena to be
effective however, the data must be
maintained and accessible. As a result,
a number of further crucial questions
arise: what IoT data is tracked or stored?
For how long is the data retained? In
what format is the data maintained and
can it be extracted and exported?
Answers to these questions are needed
to ensure that data is not lost once
obligations to provide the data arise.
In some cases, due to the volume of
data generated, much of it may not
be stored for very long. In others, the
data may exist but its identification and
extraction may be complicated by issues
of cost, burden and contractual issues.

Privacy and discovery

Many users of social media who found
themselves in litigation were surprised
to find that their social media posts
or tweets that were relevant to the
litigation had to be disclosed and were
not able to remain private. Similarly, IoT
data can be required to be disclosed
regardless of privacy. Access to private
records for litigation recognises the
particular position of courts as an arm of
the state charged with resolving disputes
by reference to evidence to arrive at
correct results. For example in Lowery
v Insurance Australia Ltd [2015] NSWCA
303, Basten JA stated that the ultimate
justification for compulsory production
and disclosure of information which
might otherwise remain confidential,
is the legitimate furtherance of judicial
proceedings.
However, the courts do have powers
and procedures for limiting the
disclosure of private information.
Where documents or information are
required to be disclosed as part of court
proceedings, the party obtaining the
material cannot, without leave of the
court, use it for any purpose other than
the litigation, at least until the material is
admitted into evidence (Hearne v Street
(2008) 235 CLR 125 at 154-162; [2008]
HCA 36). Courts are also able to assess
the need for privacy or confidentiality
by weighing it against open justice, and
if the former prevails, making orders to
prevent the publication or disclosure
of information (see, for example, Court
Suppression and Non-publication
Orders Act 2010 (NSW)).

Conclusion
The IoT presents myriad opportunities
for new applications, products and
even businesses. The court system
and the resolution of disputes will be
impacted as it was by email and social
media. Greater amounts of potentially
dispute-relevant data will exist. This
may have the benefit of allowing for
the determination of disputes based on
objectively recorded data, rather than
recollections or expert opinions.
It could, however, create another
round of costly and time-consuming
discovery; it may also expose the
private affairs of individuals, such as
their whereabouts, habits and medical
conditions like never before.

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COSTS

NAVIGATING THE FOREST

OF OFFERS AND COSTS:
KEY PRINCIPLES

Peter Kozera is a
solicitor, Office of
General Counsel,
NSW Police Force.

By Peter Kozera

othing excites the zeal,

ardour and the passion of
the members of the legal
profession more than an
argument about costs (Neilsen DCJ,
Manfate Pty Ltd v Krahe [2016] NSWDC
71 at [1]).
The forest of offers of settlement and
costs may well be an exciting place,
but it is not for the uninformed or
ill-prepared. Successful offers do not
necessarily result in indemnity costs
keep in mind a court may otherwise
order on costs.

Successful offers do not

always result in indemnity
costs.
Costs are peculiarly within the
courts discretion.
Whether Calderbank offers
or offers of compromise,
familiarity with key principles
is essential.

Costs remain in the courts discretion. A

successful offer provides an opportunity
to invoke that discretion to obtain a
more favourable costs order.

the court orders otherwise or the rules

otherwise provide, costs are assessed on
the ordinary basis (UCPR 42.2).

Calderbank offers and judicial

discretion to fashion costs orders

To otherwise order enlivens the courts

discretion. That discretion is broad but
exercised judicially in accordance with
established principle and factors directly
connected with the litigation (Oshlack
v Richmond River Council 193 CLR 72;
[1998] HCA 11 at [65]; Botany Bay City
Council v Minister for Local Government
(No 2) [2016] NSWCA 127 at [4]-[5]).

Some 40 years on from Calderbank

v Calderbank [1975] 3 All ER 333, the
ubiquitous Calderbank offer remains
a fixture in litigation. The judgment
recognised that an offer of settlement
could be raised on a costs argument,
if expressed without prejudice, save
as to costs.
The case reflected a discretion to fashion
a flexible costs order. That principle
of discretion remains important when
assessing offers. The Court of Appeal
recently observed that [t]he making of
a valid offer of compromise does not,
however, guarantee a special costs
order. This is a matter for the Courts
discretion (Toyota Finance Australia
Limited v Gardiner (No 2) [2016] NSWCA
181 at [14]). Section 98(1) of the Civil
Procedure Act 2005 (CPA) states that
discretion on costs is recognised and
a court has full power to decide if, to
whom and how any costs are awarded.
Costs follow the event
The general rule is expressed that costs
follow the event unless it appears to
the court that some other order should
be made as to the whole or any part
of the costs (Uniform Civil Procedure
Rules 2005 (UCPR) r 42.1) and unless

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Exercising discretion to otherwise order

Thus a court may exercise its discretion

against the default position under
UCPR 42.14 (Barakat v Bazdarova [2012]
NSWCA 140 at [46]-[48]).

Indemnity costs legal principles

Calderbank offers
To obtain indemnity costs, the party who
made the offer should show that: (a) the
offer represents a genuine compromise;
and (b) it was unreasonable not to
accept it.
Offers of compromise
The UCPR specifically deal with offers
of compromise. For instance, rule 42.12
deals with circumstances where an
offer of compromise is not accepted
and a plaintiff obtains a judgment which
is no less favourable than the offer of
compromise. See UCPR 51.46-48 for the
rules relevant to offers of compromise in
the Court of Appeal.
A successful offer of compromise

creates a prima facie entitlement to

indemnity costs (Caine v Lumley General
Insurance Ltd (No 2) [2008] NSWCA
109 (Caine (No.2)) at [32]-[33]). A
Calderbank offer does not create
any entitlement.
To displace a favourable offer of
compromise requires compelling
circumstances for the court to
otherwise order. There is perhaps some
overlap with the aspects required to
support a Calderbank offer.
Onus upon the losing party to show
that indemnity costs ought not follow
The losing party should show why an
order denying indemnity costs is justified
(South Eastern Sydney Area Health
Service v King [2006] NSWCA 2, per Hunt
AJA at [83]).
In Caine (No. 2) McColl JA found
that there had been no attempt to
explain why the offer was rejected in
circumstances where the offer cried out
for serious consideration (at [36]).
In Nominal Defendant v Hawkins [2011]
NSWCA 93, Hodgson JA noted that
under UCPR 42.14(2): [I]t is not enough
to justify ordering otherwise for a person
who refused an offer of compromise
to show that he/she acted reasonably
in doing so. Generally, exceptional
circumstances are required (at [56]).
Exceptional circumstances or relevant
circumstances?
It seems the more recent judicial trend is
to review all the relevant circumstances
to determine if any departure from
(or exception to) the Rules is justified.
Does the matrix of circumstances allow
cogent reasons to compel an exception
to the Rules?
In Leach v The Nominal Defendant (QBE
Insurance (Australia) Ltd) (No 2) [2014]
NSWCA 391 (Leach (No.2)), McColl
JA observed at [47]:An exceptional
circumstances test could be seen
as a gloss on the language of the
relevant rules their text does not admit
... such language merely convey[s]
that the prima facie position should
only be departed from for proper

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COSTS

reasons which, in general, only arise

in an exceptional case. In my view his
Honours observation [Hely J] sufficiently
encapsulates the approach to be
adopted in the present case.
Regency Media Pty Ltd v AAV Australia
Pty Ltd [2009] NSWCA 368 (Regency
Media) considered (as the Rules were
then), that the discretion is one that has
to be exercised having regard to all the
circumstances of the case (at [15]).
Sackar J in Sydney Attractions Group Pty
Ltd v Frederick Schulman (No 3) [2013]
NSWSC 1544, expressed his view that
the words exceptional circumstances
do not suggest that the case must
be extraordinary, nor do they suggest a
particular degree of difficulty in persuading
a court to order otherwise (at [31]).
In Jojeni Investments v Mosman
Municipal Council (No 2) [2015] NSWCA
208 (Jojeni (No.2)) however, the
Court stated (at [18]) that there was no
need to resolve the apparent debate
if the discretion is exercised only in
exceptional circumstances or upon
review of all the circumstances.
A fatal circumstance could be service
of expert evidence after an offer of
compromise was served, depriving
the other party of the opportunity to
properly assess the strength of the
offer (Garling J, Abu-Mahmoud v
Consolidated Lawyers Pty Limited
[2015] NSWSC 547).
Reasonableness
Reasonableness is a nebulous concept. It
could operate for Calderbank offers and
offers of compromise. Hall J remarked in
Simmons v Rockdale City Council (No 2)
[2014] NSWSC 1275 at [54]):Accordingly,
the reasonableness of a party (offeree)
refusing an offer remains an important
feature in determining whether an order
for indemnity costs should be made.
The reasonableness must be assessed as
at the date of the offer and without the
benefit of hindsight: Barakat v Bazdarova
[2012] NSWCA 140 at [51].
Thus, it may be reasonable not to accept
an offer of compromise, or Calderbank
offer, when:
an offer is realistically not a genuine
attempt at compromise such as a
walk-away inviting capitulation or
offering nothing of substance;
significant evidence relevant to
assessing the offer is not provided until
after the lapsing of an offer;
the case being put against a party has
no realistic prospects of success; or

the form of the offer is deficient and

clearly not compliant with the Rules
under which it was made (or fails to be
a Calderbank offer).

Explaining reasons for or against

an offer
A party does not have to justify reasons
for making or rejecting an offer.
In Sweigers v CSIRO (No 3) [2016]
NSWDC 146 at [56]-[57], Price DCJ
acknowledged that reasons for making
an offer are not required, though
referred to the cogent reasons provided
by the defendant in an employment
dispute when it made a walk-away offer
of compromise. If compelling, objective
reasons exist in support or against an
offer, it may assist to state this, usually
by way of a covering letter serving or
embodying the offer, or in response to
an offer (maybe with a counter offer).

Further principles
Other principles on costs include:
no order as to costs means that each
party bears their own costs (Vertzayias
v King [2011] NSWCA 215 at [111]-[114]);
time for acceptance of offer, if stated
in a covering letter but not an offer,
does not render the offer ineffective
(Leach (No 2) at [39]);
if an offer has a term that each party
bears its own costs, compared to
being silent on costs, there is no
difference; such an offer does not
contravene UCPR 20.26(2)(c)
(Jojeni (No.2));
genuine compromise should reflect
a real element of compromise and is
determined objectively according to
the circumstances at the time the offer
was made (Hancock v Arnold; Dodd v
Arnold (No 2) [2009] NSWCA 19 at [17];
Miwa Pty Limited v Siantan Properties
Pty Ltd (No 2) [2011] NSWCA 344 at [11]);
subjective intentions of the offeror
are not relevant in considering if a
compromise was real or genuine
(Hancock v Arnold; Dodd v Arnold
(No. 2) [2009] NSWCA 19 at [23]; Fabre
v Lui (No 2) [2015] NSWCA 312 (Fabre
(No.2)) at [6]).

Walk away offers can trigger the

Rules, but the claim or defence
would have to approach something
of the character of being frivolous
or vexatious for that to be the case
(Regency Media at [31]);
To invite capitulation by a walk away
offer, with no significant compromise,
and to engage the Rules early with
such a walk away offer may not serve
the public policy of encouraging
settlement (Taheri (No 2) at [9][10]);
An offer to walk away and forego
costs, at a time where no significant
costs have likely been incurred, would
not offer any element of compromise
as nothing of substance is being
foregone (Fabre (No 2) at [7]);
Foregoing a costs order to which
a party was entitled or had a right
to obtain can constitute a real
concession and compromise (Clark v
Commissioner of Taxation [2010] FCA
415 at [90]-[92]; Leach (No 2) at [43]);
Foregoing the costs of a trial is
sufficient to show the necessary
element of compromise (Baulderstone
Hornibrook Engineering Pty Ltd v
Gordian Runoff Ltd (No 2) [2009]
NSWCA 12 at [19]).
Conduct / behaviour as grounds for
indemnity costs
Delinquent or unreasonable conduct,
or behaviour which causes the other
side to incur unnecessary expense and/
or a failure to adhere to appropriate
procedure (Sackar J, Paradisis v
Kekatos (as executor of late John
Paradisis) [2016] NSWSC 662); and
A lawyers unreasonable or delinquent
conduct may attract a personal costs
order under CPA s 99 (pursuing an
obviously erroneous or misconceived
view of basic elements of law or
jurisdiction (Re Felicity; FM v Secretary
Department of Family and Community
Services (No 4) [2015] NSWCA 19).

Just, quick, cheap principle

Walk away offers

The overarching principle of the just, quick

and cheap resolution of issues
and litigation (CPA s 56) should not
be overlooked. Parties and lawyers
are obliged to explore means to promote
and achieve that objective during litigation.

UCPR 20.26(3)(a)(i) (former UCPR

20.26(2)) enables a walk away offer
(Schepis v Commonwealth of Australia
[2013] NSWCA 354 at [33]; Taheri
v Vitek (No 2) [2014] NSWCA 344
(Taheri (No.2)) at [8]);

Courts exercising a discretion on costs

may well have a keen eye on the section
56 touchstone. Does an offer promote that
objective? The principle could be worth
pondering when contemplating whether to
make an offer, or reject one.

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What would become of society if it were not for

the due administration of justice?
How can justice possibly be separated from the law?
Or from the professional man to whom
the administration of the law is entrusted?
So argued the Chief Justice James Dowling in 1842,
in the face of a move to establish courts without lawyers
in the young colony of New South Wales.
The debate galvanised a small group of legal gentlemen to create
a Society which would support the professions honour, independence and
respectability and promote fair and liberal practice therein.
Almost 175 years on, that small group of men has grown to close
to 30,000 men and women practising as solicitors in New South Wales. The
Society which represents them, though, works to the same ideals upholding
the honour of the profession, ensuring the administration
of justice and defending the rights of all.

THE RIGHTS OF ALL

a publication of

A History of tthe Law Society of New South Wales

Image bottom: Sydney Cove 1855

Courtesy Mitchell Library,
State Library of New South Wales

MICHAEL PELLY & CAROLINE PIERCE

Cover design: Alys Martin

ABOUT THE BOOK

Almost 175 years since a small group of men created a Society
to support the legal professions honour, this book with more
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November Ads.indd 11

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HIGH AND FEDERAL COURT

THE LATEST FROM THE

HIGH COURT
By Andrew Yuile, barrister at Owen Dixon Chambers West in Melbourne

OCCUPATIONAL HEALTH
AND SAFETY
Tort and statutory duties
Statutory construction
In Deal v Father Pius Kodakkathanath
[2016] HCA 31 (24 August 2016) the High
Court considered the requirements of
the Occupational Health and Safety
Regulations 2007 (Vic).
The appellant, a teacher, injured her
knee while climbing backwards down a
stepladder after having removed several
posters from a pinboard. A question
at trial was whether it was reasonably
practicable for the respondent to
identify that task as one involving
hazardous manual handling and to
control the risks of musculoskeletal
disorders associated with that task.
The trial judge found that the evidence
could not support a finding that the
appellant was engaged in a hazardous
manual handling task and took the issue
from the jury. It was not in dispute that
the task constituted manual handling
in the workplace, and that the injury
was a musculoskeletal disorder. The
High Court held that it was therefore
also a hazardous manual handling task
because the load was unbalanced or
unstable; the force involved could be
only minimal.
Associated, in this context, meant that
the injury needed to arise from, and be
caused by, something intrinsic to the
hazardous manual handling task. The
Court held that it would have been open
to a jury to find that it was reasonably
practicable for the respondent to
identify the risk of an injury associated
with the task as one involving
hazardous manual handling, and for the
respondent to take steps to eliminate or
substantially reduce that risk. French CJ,
Kiefel, Bell, and Nettle JJ jointly; Gageler
J concurring separately. Appeal from the
Court of Appeal (Vic) allowed.

CRIMINAL LAW
Inconsistent verdicts jury
directions hearsay evidence
circumstances of reliable
representations
In Sio v The Queen [2016] HCA 32 (24
August 2016) Mr Sio acted as a driver
assisting with a robbery. During the
robbery, the principal offender, Mr
Filihia, stabbed to death an employee.
Mr Sio was charged on the basis of joint
criminal enterprise. He was acquitted of
murder but convicted of armed robbery
with wounding. At trial, Mr Filihia refused
to answer questions and the Crown
tendered two earlier statements, which
included statements about who had
the knife and who had encouraged
the robbery. Although hearsay, the
Crown argued that the statements were
admissible: their maker was unavailable,
and the representations were against
the interests of the maker and made in
circumstances making it likely that they
were reliable. The trial judge allowed
the evidence. The trial judge also gave
jury directions to the effect that the
elements for the offences were the
same, except that the armed robbery
charge did not require foresight of
wounding but murder did. In the High
Court, the Crown accepted that the jury
directions were inadequate, meaning
that the conviction had to be quashed.
As to the hearsay evidence, the Court
held that for each relevant fact sought
to be proved, the representation must
be identified and the circumstances
of the representation considered to
determine the issue of reliability. The
focus was the objective circumstances,
as opposed to the apparent truthfulness
of the person. In this case, there was
nothing in the objective circumstances
that shifted the balance in favour of
a finding of reliability. The evidence
should have been excluded. It was
not certain that the jury would have
convicted for armed robbery and so

it was not open to the High Court to

substitute a conviction for that offence.
A new trial for armed robbery was
ordered. French CJ, Bell, Gageler, Keane
and Gordon JJ jointly. Appeal from the
Court of Criminal Appeal (NSW) allowed.

CRIMINAL LAW
Extended joint criminal
enterprise liability review of
sufficiency of evidence
In Miller v The Queen; Smith v The
Queen; Presley v Director of Public
Prosecutions (SA) [2016] HCA 30 (24
August 2016) the High Court considered
the doctrine of common law extended
common purpose or extended joint
criminal enterprise, as set down in
McAuliffe v The Queen (1995) 183
CLR 108. A joint criminal enterprise
arises where two or more people
agree to commit a crime. Agreement
need not be express. All parties to the
agreement will be guilty of the crime
that is the object of the joint enterprise,
and will also be guilty of other crimes
(incidental crimes) committed by a
member of the group that is within the
scope of the agreement. A crime is
within scope if the parties contemplate
its commission as a possible incident
of the agreement. Further, if a party
foresees the commission of an
incidental crime and, even if they did
not agree to its commission, continues
to participate in the agreement with that
awareness, the party will be liable for
the incidental crime. Referring to the
recent UK Supreme Court decision in
R v Jogee [2016] 2 WLR 681, the High
Court held that it was not appropriate
to alter the common law to require
proof of intention, nor to substitute a
requirement of foresight of probability
of commission of the incidental crime.
McAuliffe was reaffirmed. However,
the Court of Criminal Appeal had not
sufficiently reviewed the evidence in
considering whether the verdicts could

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Case notes

HIGH AND FEDERAL COURT

HIGH COURT
CONTINUED
be sustained and the matter had to
be remitted for it to do so. French CJ,
Kiefel, Bell, Nettle and Gordon JJ jointly;
Keane J concurring separately; Gageler
J dissenting. Appeal from the Court of
Criminal Appeal (SA) allowed.

of Appeals scenario was set aside, there

was no other hypothesis consistent with
manslaughter but not murder. French
CJ, Kiefel, Bell, Keane and Gordon
JJ jointly. Appeal from the Court of
Criminal Appeal (Qld) allowed.

CRIMINAL LAW
Criminal liability circumstantial
case unreasonable verdicts

MIGRATION LAW
Validity of delegated legislation

In The Queen v Baden-Clay [2016] HCA

35 (31 August 2016) the High Court held
that it was not open to the Court below
to reduce a conviction from murder to
manslaughter on the evidence before
it. The respondent was convicted
of the murder of his wife, who had
disappeared from their home and was
found in the bush 10 days later. There
was circumstantial evidence to support
the respondents guilt.
At trial, his case was that he had not
been involved in her death in any way.
His counsel rejected an offer from
the trial judge to give a direction for
manslaughter; ie that the respondent
had been involved but had not intended
to kill his wife. The jury convicted for
murder. On appeal, it was accepted
that the jury was entitled to reject the
applicants explanations and to find
that he was involved. The Court of
Appeal held, however, that the guilty
verdict was unreasonable because
there was another hypothesis open
that was inconsistent with murder:
that there had been an altercation
and the victim had been killed by the
respondent, without him intending to
do so. The High Court confirmed that
where a case is based on circumstantial
evidence, it must be shown that guilt is
the only rational inference that can be
drawn. In this case, the respondent had
given evidence that was inconsistent
with the Court of Appeal hypothesis.
While it was open to the jury to reject
his explanation, his evidence could
not be disregarded. The Court of
Appeals conclusion was speculation or
conjecture, not an acknowledgement of
a hypothesis available on the evidence.
Further, the scenario posited had never
been put to the jury; in fact, it was
specifically disavowed. Once the Court

94

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ISSUE 28

In Maritime Union of Australia v Minister

for Immigration and Border Protection
[2016] HCA 34 (31 August 2016), the
High Court held that Determination
IMMI15/140 (the Determination) was
invalid because it exceeded the limits
of the power conferred on the Minister.
Following amendments made in 2013,
the Migration Act 1958 (Cth) required
that any non-citizen participating in
or supporting the offshore resources
industry hold a permanent or prescribed
visa. The amendments also provided
for a power in the Minister to except
operations and activities from the new
visa regime. By the Determination,
the Minister effectively purported to
except from the visa requirement all
operations and activities to the extent
that they use any vessel or structure
that was not an Australian resources
installation. The High Court held the
Determination to be invalid because the
power did not extend to excepting all
activities or operations, it would negate
the operation of the general rule, and
it was opposed to the purpose of the
Act. French CJ, Bell, Gageler, Keane and
Nettle JJ jointly. Answers to special case
given.

CRIMINAL LAW
Appeals inherent powers of
courts in criminal matters
correctness of jury verdict
In NH; Jakaj; Zefi; Stakaj v Director
of Public Prosecutions [2016] HCA
33 (31 August 2016) the High Court
considered the inherent powers of a
Court to set aside convictions because
of potentially incorrect verdicts. The
appellants were accused of murder.
When delivering the verdicts, the jury
foreman gave answers to the effect
that: (i) there was not a unanimous
verdict of murder; (ii) a majority had

found the accused not guilty of murder;

and (iii) the jury had found the accused
guilty of manslaughter. Answer (ii) was
a requirement of s 57 of the Juries Act
1927 (SA) before the alternative finding
of manslaughter was open. Upon
reflection, the foreman thought that
answer (ii) was wrong, because the jury
had not specifically considered whether
the accused was not guilty. The Court
of Appeal found that the verdicts should
be set aside in the use of its inherent
powers, on the basis that the foremans
incorrect answers constituted an abuse
of process. The High Court noted that
the verdicts were delivered in open
court, in the sight and hearing of the
jury, without any action or dissent from
them. They were presumed correctly
communicated. The jury had dispersed.
The Court had made perfected orders.
Absent statutory appeals, the matter was
complete. The power to alter perfected
orders is very narrow and the concept
of abuse of process used by the Court
of Appeal could not extend to cover this
case. The appeals had to be allowed and
the original orders reinstated. In addition,
appeals against the manslaughter
verdict, based on lack of evidence
and unsoundness, were remitted for
consideration. French CJ, Kiefel and Bell
JJ jointly; Nettle and Gordon JJ jointly
concurring. Appeal from the Court of
Appeal (SA) allowed.

CONSTITUTIONAL LAW
Legislative power Election rolls
In Murphy v Electoral Commissioner
[2016] HCA 36 (5 September 2016),
the High Court upheld provisions in
the Commonwealth Electoral Act
1918 (Cth) that provide for the close
of the electoral roll and the preclusion
of additions or changes to the roll
after seven days following the issue
of writs for a federal election. It was
accepted that a law that has the
practical effect of disqualifying people
from the general franchise will only
be valid if the disqualification is for
substantial reasons. A law will be for
a substantial reason if it is reasonably
appropriate and adapted to an end
which is consistent or compatible

NOVEMBER 2016

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HIGH AND FEDERAL COURT

with the constitutionally mandated

system of representative government.
Undertaking that review, the Court
drew on the staged proportionality test
used in McCloy v New South Wales
(2015) 89 ALJR 857. The focus of the
Court was whether the impugned law
had a rational connection with the
purpose of the provision and whether it

was necessary, in the sense that there

might be alternatives available, the

was not an obvious and compelling

Commonwealth scheme was not

alternative, reasonably practicable

such as to constitute a burden on

means of achieving the same purpose

the realisation of the constitutional

with a less restrictive effect.

mandate. French CJ and Bell J jointly,

The Court held that the impugned

Kiefel J, Gageler J, Keane J, Nettle J and

provisions had the necessary rational

Gordon J each separately concurring.

connection and, although there

Answers to Special Case given.

THE LATEST FROM THE

FEDERAL COURT
By Dan Star, barrister at Owen Dixon Chambers West in Melbourne

EVIDENCE
Whether evidence of forensic
accountant admissible opinion
rule exception in s 79(1) of the
Evidence Act 1995
In Hart v Commissioner of Taxation
(No 2) [2016] FCA 897 (5 August 2016)
the Court (Bromwich J) dismissed an
application by the applicant (Mr Hart) to
exclude evidence from his trial before
it commenced. The trial concerned an
appeal by Mr Hart from the dismissal
of objections by the Commissioner of
Taxation (the Commissioner) in relation
to an amended income tax assessment
for the 1997 financial year.
The Commissioner sought to rely on
the evidence of Mr David Van Homrigh,
a forensic accountant. The evidence,
in the form of a report and subsequent
letter, was relied upon to demonstrate
the flow of money to, or to the benefit
of, Mr Hart.
It was common ground that Mr Van
Homrigh had the necessary specialised
knowledge based on his training, study
or experience to give expert evidence
as a forensic accountant, satisfying the
first limb of the exception to the opinion
rule contained in Evidence Act, s 79(1).
The dispute concerned the second limb
of that exception, namely whether the
views expressed by Mr Van Homrigh

in his reports constitute evidence of

an opinion by him that is wholly or
substantially based on that accepted
specialised knowledge (at [10]).
The Court discussed (at [17]) the two
seminal cases of the High Court on
expert evidence: HG v R (1999) 197 CLR
414; [1999] HCA 2 and Dasreef Pty Ltd
v Hawchar (2011) 243 CLR 588; [2011]
HCA 21:
HG and Dasreef (along with many
intermediate appeal court decisions)
reveal that when there is present:
(a) a real question as to whether a
claimed or required specialised
knowledge is possessed by a witness
sought to be relied upon to express
an opinion by way of exemption to
the opinion rule; or
(b) a real question as to whether such an
accepted expertise has been applied
to produce such an opinion sought to
be relied upon,
strict adherence to the formal
requirements of s 79(1) may be required
so as to enable an opposing party and
the Court to examine and test whether
such a fatal defect exists.
The Court held (at [18]) that no such real
issue existed in this case. Bromwich J
(at [23]) distinguished HG v R, where the
expert psychological evidence provided
a complex narrative, a complete and

alternative explanation to the version of

events . . . rather than a mere opinion as
to whether or not a particular event had
occurred. In this case, Mr Van Homrighs
accounting evidence is less subjective
and less susceptible to inference and
speculation. Further, the opinions in
HG were never in admissible form, in
contrast to Mr Van Homrighs evidence.
For all these reasons, strict adherence
to the formal requirements of s 79 is of
lesser importance in this particular case
(at [25]).
Dasreef Pty Ltd v Hawchar was also
distinguished because tracing and
explaining flows of money is part and
parcel of the expertise of a forensic
accountant, meaning Mr Van Homrigh
clearly did not step outside his field of
expertise (at [32]). The issue of whether
evidence falls within s 79(1), which
depends on whether his task is carried
out by the genuine application of
accepted specialised knowledge that
adds the required level of value to the
evidentiary and judicial process, was
considered (at [35]). The Court held that
Mr Van Homrighs evidence met this
threshold to be admitted into evidence
at the trial (at [42]). The weight, value,
reliability of the evidence will need to be
determined at trial.

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Case notes

HIGH AND FEDERAL COURT

FEDERAL COURT
CONTINUED
MIGRATION
Multiple protection visa
applications limited role of the
delegate (and AAT on review)
when determining the second
application
In Minister for Immigration and Border
Protection v SZVCH [2016] FCAFC 127
(14 September 2016) a five member Full
Court (Dowsett, Kenny, Siopis, Besanko
and Mortimer JJ) was convened in
an appeal raising issues of statutory
construction under the Migration
Act 1958 (Cth) (the Act) in relation to
multiple protection visa applications by
a person.
In 2010, SZVCH made his first
application for a protection visa. At
that time his application was assessed
against s 36(2)(a) of the Act, being the
criterion dealing with claims made
under the Convention Relating to
the Status of Refugees (Refugees
Convention). The Ministers delegate
rejected the application, which was
affirmed by the Administrative Appeal
Tribunal (AAT). SZVCH was unsuccessful
in judicial review proceedings to the
Federal Court at first instance and on
appeal.
In 2014, SZVCH made a second
application for a protection visa
expressly in reliance only of s 36(2)(aa)
of the Act, being the criterion dealing
with complementary protection.
Section 36(2)(aa) had not been enacted
at the time of his first application and
therefore could not be applied to that
earlier protection visa application. The
Ministers delegate refused the second
application under both s 36(2)(a) (Art
1A of the Refugees Convention) and s
36(2)(aa) (complementary protection)
of the Act. The AAT, on review, assessed
SZVCHs application against only the
complementary protection criterion on
the basis that it only had jurisdiction to
do this. However, the Federal Circuit
Court held that the AAT was required to
consider his claims for protection based
on the criteria in both s 36(1)(a) and s
36(2)(aa).

96

LSJ

ISSUE 28

The Ministers successfully appealed to

the Federal Court.
The various grounds and argument in
the appeal raised matters concerning
the proper understanding of the
decision of the Full Court in SZGIZ v
Minister for Immigration and Citizenship
(2013) 212 FCR 235 (Allsop CJ,
Buchanan and Griffiths JJ). However,
the correctness of this earlier Full Court
decision was ultimately not challenged
(at [2], [15] and [95]) or necessary to be
decided by the five member Full Court
in SZVCH (at [46] and [106]).
The primary question in the appeal
was whether it was permissible (or
necessary) for the Ministers delegate to
consider the SZVCHs claims not only by
reference to s 36(2)(aa), which was the
basis for his second valid application,
but also by reference to s 36(2)(a),
which could not have supported a valid
application (at [33]).
In a joint judgment, Kenny, Siopis and
Besanko JJ held that the answer to
this question must be no (at [33]). In
summary, they held:
The second protection visa application
based on s 36(1)(a) would have
been invalid and the Minister would
not have been able to consider it
having regard to s 47(3) of the Act.
Accordingly the delegate in the
second application ought not have
addressed s 36(2)(a) at all (at [37]).
It is not the case that the AAT is
required to review the merits of that
part of the primary decision that the
primary decision-maker had no power
to decide. The AAT is obliged to
decide the correct statutory question,
which in this case was whether
SZVCH met the complementary
protection criterion (at [39]).
The Federal Circuit Court erred in
holding it was open to the Ministers
delegate to consider SZVCHs second
application for a protection visa by
reference to s 36(1)(a) as well as s
36(2)(aa) (at [44]).

Mortimer J concurred with the joint

judgment in holding that, where an
applicant lodges a second protection
visa application in the circumstances
contemplated by the Full Court in
SZGIZ, the scope of the task to be
performed first by the delegate (under
s 65 of the Act) and second by the AAT
(on review under s 414 of the Act) is
limited to consideration of the criterion
in s 36(2)(aa) (at [95]-[96]). A further
protection visa application which relies
on the same criterion as that relied on
in an earlier application is not a valid
application (at [108]). Various provisions,
as construed by the Full Court in
SZGIZ, prevent the statutory task under
s 65 being performed in relation to
the protection criterion in s 36(2)(a),
which has already been considered
and determined (at [109]). Thus, for
the delegate to consider the SZVCHs
second application for a protection
visa against s 36(2)(a) exceeded his
jurisdiction and went beyond his
statutory task (at [113]). The AAT was
correct in limiting its jurisdiction to a
consideration of s 36(2)(aa), because its
task was circumscribed by the limited
validity of the second visa application.
Dowsett J agreed with the other
members of the Full Court but added
some comments regarding the Full
Court decision in SZGIZ.

It is not the case that the

AAT is required to review
the merits of that part of
the primary decision that
the primary decisionmaker had no power
to decide. [It] is obliged
to decide the correct
statutory question, [i.e.]
whether SZVCH met
the complementary
protection criterion...

NOVEMBER 2016

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21/10/2016 11:27 am

GENERAL PRACTICE

FAMILY LAW

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

Children artificial conception

egg donor held to be a parent
In Clarence & Crisp [2016] FamCAFC
157 (18 August 2016) the Full Court
(Thackray, Ainslie-Wallace & Aldridge JJ)
dismissed with costs the birth mothers
appeal against a parenting order
made in respect of her daughter. The
daughter was conceived with an egg
supplied by the respondent by a medical
procedure performed on 11 July 2011,
the Court saying (at [3]):
If the parties were in a de facto
relationship on that day [of conception]
then they were both the childs parents
for the purposes of [s 60H of] the Family
Law Act 1975.
At first instance, Berman J found that
while the parties were living separately
at the date of conception they were
in a de facto relationship, so that
the respondent was a parent. It was
common ground that the parties had
commenced a de facto relationship in
2004 but the appellant argued that they
separated on 21 March 2011 when the
respondent left the home, whereas the
respondent argued that she continued
to spend four or five nights a week at the
birth mothers home until August 2011.
The Full Court said ([12]-[13]): His
Honour found that although the
respondent had not stayed overnight as
often as alleged, she was nevertheless a
frequent visitor to the parties former
home. The Full Court continued (at
[18]-[19]): His Honour found that in the
period from 6 May 2011 to 26 July
2011 there had been 850 text messages
between the parties on topics which
ranged from the mundane to the highly
personal
The Full Court concluded (at [27]-[28]):
Although we conclude there is no basis
for complaint by the appellant, we
nevertheless consider that his Honour
misdirected himself when he posed
the question of whether the parties had

separated. While that is a question

which must be asked in the case of a
married couple seeking a divorce, it is a
potentially misleading question in cases
such as the present, where the issue is
whether a de facto relationship existed
at a particular point in time. However,
his Honour ultimately answered the real
question he was required to consider
when he found that the de facto
relationship endured and continued
beyond the date of conception.
Accordingly, we accept the submission
of senior counsel for the respondent
that nothing turns on the trial judges
discussion of whether the parties had
separated

Property injunctions made

restraining guardians of family
trust from changing the terms of
its deed of settlement
In Josselyn and Ors [2016] FamCA
557 (8 July 2016) Watts J granted Ms
J injunctions in respect of her former
de facto partners control of a family
trust. After separation Mr J changed the
appointment power from his business
partner to his brother, then added
two children of his first relationship
as directors of the corporate trustee
(he having previously been its sole
director). Mr J had also begun arguing
that the trusts assets were no longer
relationship property. Ms Js case was
that Mr Js post-separation dealings
evidenced risk of an intention to defeat
her property claim.
After referring to the relevant statutory
provisions, Watts J (at [13]) cited Mullen
& De Bry [2006] FamCA 1380 in which
the Full Court said that [i]n some
cases, the possibility (based on some
evidence) of an intention or scheme
may, with other factors, be sufficient to
establish the probability of an objective
risk of disposal with the intent to defeat
an order (original emphasis). Watts J
continued (at [46]-[47]):

Even if a benign view was taken of all

the changes the husband has made
since separation to the roles he has in
various entities, the expressed view by
the husbands lawyers in the letter of
5 May 2016 is some evidence of the
possibility of an intention to put assets
outside the reach of the de facto wife
by the restructuring he has undertaken.
That apparent risk may ultimately turn
out to be without any foundation.
However, there is no downside in
making the orders sought by the wife
pending further order to guard against
that risk.
Watts J concluded (at [51]): Senior
counsel for the husband said that in
respect of the order seeking restraint
of distribution of income that the
operation of those orders would
create the difficulty of retained profits in
the trust and the taxation consequences
flowing from it. I make no order
preventing the trustees from distributing
income. It is unlikely that income earnt
on the investments of the trust in one
year, if dissipated, is something that
could not be properly adjusted at the
final hearing in circumstances where
the wife seeks one half of the overall
assets held by the parties. However,
the injunctive order, as it applies to the
corpus of the trust, is a different matter.

Subpoena issued by mother for

production of fathers criminal
record compliance costs of
$1,970
In Shand & Sharrock & Anor [2016]
FCCA 2234 (5 September 2016) the
mother applied for directions in a
parenting case as to whether $1,970,
claimed by the South Australian Police
(SAPOL) as the cost of compliance
with a subpoena issued on the mothers
behalf for production of extensive
police incident reports and details of
pending proceedings against the father
(potentially 39 items), was reasonable.

ISSUE 28

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97

21/10/2016 11:27 am

Case notes

GENERAL PRACTICE

FAMILY LAW
CONTINUED
Before compliance SAPOL sent the
mothers solicitor an estimate of $2,746,
inviting her to withdraw or vary her
subpoena. The mother revised her
request (for which SAPOL estimated
$1,970) but then requested all of the
documents she initially sought, SAPOL
ultimately accepting the lesser figure.
The documents were produced via
DVD. The mothers solicitor argued
that SAPOLs charge was excessive and
that by reference to the Federal Circuit
Court Rules, which allow a scanning
fee of $0.71 per page, and the time
he believe[d] it would take a clerk to
identify the files and burn them on to a
DVD, a more reasonable fee would be
around $210 ($500 being conceded as
reasonable) (at [42]).

98

LSJ

ISSUE 28

Judge Brown referred, however, to

SAPOLs evidence that it is only since
1 July 2010 that [it] has imposed a fee
for the production of police incident
reports to recover what SAPOL
management viewed as the labour
intensive process of reviewing and
providing those reports (at [46]) and
that the process requires liaison
with the police personnel involved and
close scrutiny to prevent breaches of
confidence and provide anonymity for
any third parties named or affected by
any particular category of documents
(at [52]). In holding $1,970 to be
reasonable and payable by the mother,
the Court said (from [84] - [99]):
different considerations must apply
to large government instrumentalities,
such as police, hospitals and emergency
services, which are routinely tasked
to supply large numbers of records

generated in the course of discharging

their statutory obligations... In
discharging these various and important
responsibilities, SAPOL necessarily
creates significant records relating to
many individuals in many and various
situations [I]t would be a nonsense
if the court was to determine that
a person who has subpoenaed a
multiplicity of such documents should
be granted a discount because of the
quantity of documents sought resulting
in an exponential increase in cost...
Rather, the court should encourage
those who would issue subpoenas to
consider closely the range and subject
matter of the documents sought and
tailor their subpoenas appropriately and
carefully. Such an approach is also
calculated to serve the interests of the
administration of justice.

NOVEMBER 2016

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21/10/2016 11:32 am

GENERAL PRACTICE

CRIMINAL LAW
By Thomas Spohr, Senior Federal Prosecutor, Commonwealth DPP,
member of the Law Society of NSW Ethics and Criminal Law Committees

Indictable procedure in the

Local Court late election by the
prosecution to deal with matters
on indictment
Osman v DPP (No 2)
[2016] NSWSC 1222
What happens when the time has
expired for the prosecution to elect for
a matter to be dealt with on indictment,
and so applies for an extension of
time? In this decision by Campbell J
(sitting alone), it was reinforced that
the primary focus should be on the
prosecutions explanation for the delay.
The plaintiff faced five offences, of
which only one was a Table 1 offence
that could be dealt with on indictment
(the rest were offences that could
only be dealt with summarily). The
prosecution were seeking to deal
with that one Table 1 charge on
indictment. Section 263(1) of the
Criminal Procedure Act 1986 provides
that an election must be made within
a time fixed by the Local Court. The
current time standards (to be found in
Practice Note LC Crim 1) require the
election decision to be made by no
later than the first return date after a
brief is ordered in practical terms, that
normally means the second mention of
the matter in the Local Court.
In this case the prosecution announced
its decision to elect about two weeks
late, and the accused objected to that
course. Section 263(2) provides that a
late election can be made, with leave, if
special circumstances exist.
The advocate for the prosecution
explained from the bar table that
the reason for the lateness was
administrative error on the part of the
Office of the DPP. The advocate for
the accused, in reply, insisted on strict
proof in relation to that explanation
(ie formal evidence). The Deputy Chief
Magistrate determined to grant leave
(without formal evidence) ostensibly

for all charges, although only one of

them was actually able to be dealt with
on indictment.
On appeal, the plaintiff argued that it
was a jurisdictional error to grant leave
in all the matters, and challenged the
Deputy Chief Magistrates decision
about the finding that special
circumstances justified the extension
of time, particularly in circumstances
where there was no formal evidence
on the topic, and the evidence only
disclosed (so it was argued) a summary
offence of possession.
Campbell J found that, by oversight
or inadvertence, the Deputy Chief
Magistrate had granted leave for all
charges, when there was only power
to do so in relation to one charge (at
[32]) but this jurisdictional error was
overcome by simply severing the orders
for the four charges that could not have
been the subject of an election (at [36]).
On the central point (whether leave
should have been granted on the
one charge where it was available),
Campbell J found that the Deputy
Chief Magistrate erred because he did
not make the explanation for the delay
the primary focus of the exercise of
discretion (at [40]). Moreover, it was an
error to rely on the informal explanation
by the DPP solicitor appearing, albeit
that it was an error of a variety that
could not amount to jurisdictional
(ie appealable) error (at [49]).
Campbell J appeared to endorse the
position that it would be sufficient
(as far as evidence goes) if the senior
lawyer with carriage for the DPP makes
an unsworn statement about the
reasons but in this case the solicitor
appearing was not that solicitor (at [48]).
Nevertheless, in all the circumstances,
there was ample evidence to support
the grant of leave, including that the
matters were very new, and the election
only two weeks late (at [51)-[52]).

It was found that the alleged futility

of the charge was irrelevant to this
particular exercise: the evaluation of
the evidence, and the decision to frame
and prosecute the charge are almost
invariably unreviewable decisions which
are completely within the discretion
of the prosecution (at [53]-[56]). For
all those reasons, although the appeal
was upheld in a technical sense (for the
four charges inadvertently granted), it
was substantially dismissed, and costs
awarded against the plaintiff.

Sentencing previous criminal

and traffic history for unrelated
matters dangerous driving
momentary inattention
Kerr v R [2016] NSWCCA 218
An offender who has a criminal history
even for very different matters
may find that history coming back to
haunt them in later convictions. In
this decision of the Court of Criminal
Appeal (CCA), the Court reiterated that
a prior criminal and traffic history can
be taken into account to determine
where, within the bounds set by the
objective seriousness of the offence,
the penalty should fall. The Court also
considered the correct application of
the guideline judgment for dangerous
driving matters, and the relevance of
momentary inattention.
The appellant was driving at 70km/h
in an 80km/h zone on Southern Cross
Drive. He collided with the back of a
group of seven cyclists, who had been
riding at about 32km/h on a straight
stretch of road. The appellant did not
apparently slow down or take any
action to avoid the cyclists. All seven
riders were injured, four of them to the
level of grievous bodily harm.
At the time of the offence, the offender
was subject to an Intensive Correction
Order for an aggravated robbery
offence. His traffic history included at
least one disqualification period of two

ISSUE 28

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NOVEMBER 2016

LSJ

99

21/10/2016 11:28 am

Case notes

GENERAL PRACTICE

CRIMINAL LAW
CONTINUED
years, and a conviction for mid-range
prescribed concentration of alcohol.
In the District Court the sentencing
judge determined that the offence
was more than mere momentary
inattention, but found for a variety of
reasons that the offence fell closer to
the lower end of the range of objective
seriousness than the higher end.
The offender was sentenced to an
aggregate sentence of 27 months, with
a non-parole period of 18 months.
He appealed to the CCA on the ground
that the sentence was manifestly
excessive, at least in part because it
was alleged that the sentencing judge
had erred by taking into account the
offenders prior criminal record for the
purposes of sentencing.
The CCA (Bathurst CJ, Hoeben CJ at

CL and Price J agreeing) dismissed the

appeal. An offenders prior criminal
and traffic record may be taken into
account in determining where, within
the framework set by the objective
seriousness, the appropriate sentence
falls. The determination of whether
a criminal record is a matter of
aggravation is largely a matter for
the sentencing judge to determine
(at [70]-[71]). That the offence was
committed whilst the offender was
on conditional liberty (an ICO) was an
aggravating feature, notwithstanding
that the offence for sentence was the
result of inadvertence, not intention.
The offence for which the offender was
on conditional liberty does not have
to be similar to the offence before the
court although it will generally be
more aggravating where the conduct is

similar to that for which the offender is

being sentenced (at [72]-[73]).
The CCA then turned to questions
specific to dangerous driving offences,
and the application of the guideline
judgment (R v Whyte (2002) 55 NSWLR
252). Amongst other observations,
the Court found that for an offence of
dangerous driving, the offenders speed
may be taken into account as being
aggravating where it is excessive in light
of the surrounding circumstances
even where it is not above the speed
limit (at [96]-[97]).
In circumstances where it was open
to the sentencing judge to find that
the offence was not the result of mere
momentary inattention, the sentence
was, in all the circumstances, not found
to be manifestly excessive, and the
appeal was dismissed.

WILLS AND ESTATES

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

Costs of financial management

With the incursion of private for
profit managers seeking financial
management orders, Justice Lindsay
has issued reports in 2014, 2015 and
2016 as to the remuneration of such
managers in protected estates. The most
recent report is Re Managed Estates
Remuneration Report [2016] NSWSC
1416. The current report restates the
applicable principles in these instances
and is an accounting to the Court of
instances where remuneration to a
private manager has been allowed in
what is otherwise a gratuitous exercise.
The current Report is published for
the information of the public, together
with an invitation to all persons
interested in the due management of
protected estates to endeavour to work

100

LSJ

ISSUE 28

NOVEMBER 2016

constructively with the office of the NSW

Trustee (at [11]).

Family Provision applications and

DNA testing
Kohari v NSW Trustee & Guardian [2016]
NSWSC 1372 is a recent instance where
Hallen J ordered DNA testing relying
on ss 26, 27 and 29 of the Status of
Children Act 1996 where paternity of a
child was disputed. The short 12 page
judgment is recommended reading as to
the circumstances where the order was
made and the procedural requirements
of the DNA testing. The application
by the defendant was heard as an
interlocutory matter prior to any hearing
of the substantive matter. The plaintiff
was an alleged son of the deceased.
The judgment acts as a reminder to
practitioners that DNA testing is still
effective to establish paternity in the

absence of the deceased father (s 21).

In this instance what was to be tested
was saliva from the cheek cells of the
plaintiff, his mother, the deceaseds
sister and an acknowledged biological
child. Those persons had all been served
with the Notice of Motion and had
knowledge of the proceedings.
The application was opposed. It was
an odd application. The child was born
during the marriage of his parents. They
separated when the plaintiff was aged
about one. The deceased was named as
the father of the plaintiff both on his birth
certificate and on the deceaseds death
certificate. Nevertheless the deceased
had often alleged during his lifetime that
the plaintiff was not his child
The practical consequence if the
plaintiff is not the biological child of
the deceased is that he must establish
factors warranting provision for him.

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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.
ISSUE 28

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CLASSIFIEDS
BINGHAM-HALL & ASSOCIATES

PAUL CLEMENT FLANAGAN

CARMEL MARY LISO

Experienced solicitor with current practising 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, bhcosts@pesaropublishing.com.

Would any person or firm holding or

knowing the whereabouts of a will or
other document purporting to embody
the testamentary intentions of Paul Clement Flanagan late of 6/23 Phillip Street,
Roselands who died on 13 August 2016,
please contact Redmond Hale Simpson Solicitors of 26 Montgomery Street,
Kogarah NSW 2217 (PO Box 397 Kogarah
1485) or DX 11104 Kogarah - Dan Simpson Telephone 9587 3866, Facsimile
9588 6008, dan@redhale.com.au.

Would any firm knowing the whereabouts of a will of the late Carmel Mary
Liso late of 2/77 Bells Line of Road,
North Richmond, who died on 30/7/2016
please contact Roderick Storie Solicitors
of 290 Windsor Street, Richmond NSW
2753, Tel. 02 4578 8544, Fax: 02 4578
8533, Email: donna@rodstorie.com.au.

MISSING WILLS
PETER HOWARD BLAKELEY

Would any person or firm holding or knowing the whereabouts of a

will or other document purporting to
embody the testamentary intention of
the late Peter Howard Blakeley, born
02/11/1953 of Unit 5, 602-608 Princess
Highway Kirrawee NSW 2232, who died
on or around 13 September 2016, please
contact Godden Lawyers, F127, 24-32
Lexington Drive, Bella Vista NSW 2153,
Phone: 02 8883 1918, email: reception@
goddenlawyers.com.au.
PETER CAMERON BRYSON

Would any person or firm holding or

knowing the whereabouts of a will or
other document purporting to embody
the testamentary intentions of Peter
Cameron Bryson late of Unit 23, The
Lakes, Cherrybrook NSW (formerly of
Unit 1, 31 High Street Newcastle NSW)
who died on 21 September 2016 please
contact Fox & Staniland, Solicitors of
Level 1, 4 - 10, Bridge Street, Pymble
NSW 2073. Phone: (02) 9440 1202 or
davidg@foxstaniland.com.au.
BEATRICE BURR

Would any person knowing the whereabouts of the will of the late Beatrice Burr,
late of Carlingford, who died on 1 September 2016 please contact Carol Flanagan of The Rocks Practice, Suite 803
Quay West, 98 Gloucester Street Sydney
NSW 2000, Phone 02 9240 6112, Email
carol@therockspractice.com.
TALISA JEANETTE DEPPELER

Would any person or firm holding or

knowing the whereabouts of a will or
other document purporting to embody
the testamentary intentions of Talisa
Jeanette Deppeler, late of 15 Alice Street,
Karuah NSW 2324, who died on 11
March 2014, please contact Scott Ayerst
of Braye Cragg Solicitors, PO Box 493,
Newcastle 2300, DX 7818, Newcastle,
Tel: 02 4926 6000 Fax: 02 4926 6022.

102

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ISSUE 28

p101_105_Classies_November.indd 2

WENDY ANN HARRIS

Would any person or firm knowing the

whereabouts of a will or other document
purporting to embody the testamentary
intentions of Wendy Ann Harris, late of
3/2 Tweed Street, Brunswick Heads,
New South Wales, 2483, and who died
between 22 August 2016 and 25 August
2016, please contact Greg OReilly of
OReilly & Sochacki Lawyers, PO Box 84,
Murwillumbah, New South Wales, 2484,
Ph: (02) 6672 2878, Fax: (02) 6672 4990,
Email: greg@oslawyers.com.au.
BETTY JUNE JOHNSTON

Would any person holding or knowing the whereabouts of a will of the late
Betty June Johnston late of Fernbank
Apartment 207/2-8 Kitchener Street,
St Ives who died on 26 August, 2016,
please contact David Morgan of Alfred J
Morgan & Son at Level 9/84 Pitt Street
Sydney or by email legal@ajmorgan.
com.au within 14 days of this notice.
MARIA KOCSIS

Would any firm knowing the whereabouts or holding a will or other

document purporting to embody the
testamentary intentions of Maria Kocsis, late of Ruse and recently Thirlmere, who died on 2 March 2016 please
contact Peters Lawyers of Suite 2a, 12
OSullivan Road, Leumeah NSW 2560
Telephone No (02) 4626 5552 Fax No
(02) 4626 6412 Email address email@
peterslawyers.com.au.
VLADO KURTOVIC

Would any firm knowing the whereabouts of a will of the late Vlado Kurtovic
late of Kurnell who died on 28 February 2016 please contact Solon Lawyers
of Suite 601, Level 6, 74-76 Burwood
Road, Burwood NSW 2134 Telephone
No. 9745 0747 Fax No 9744 7616 Email
address michael@solonlawyers.com.au.

HOO YEE LUK

Would any person or firm knowing

the whereabouts of a will or any other
document purporting to embody the
testamentary intentions of Hoo Yee Luk
late of Kogarah NSW, who died on 28
May, 2016 please contact Slattery Jurd
& Co. Solicitors, PO Box 29 Bexley NSW
2207, Phone: 9597 1511, Email: slatjurd@
bigpond.com.
KATLIN MATE

Would any person or firm holding or

knowing the whereabouts of a will for
the late Katlin Mate late of 8 Chalmers
St Belmore NSW 2192 who died on 29
December 2004 please contact Julia
Cleary of Clearys Commercial Lawyers
Pty Ltd 3 Spring St Sydney NSW 2000
T: 02 8249 4555 F: 02 8080 8148 E:
juliacleary@clearys.com.au.
MOKHTAR MOHAMMED METWALLY

Would anyone holding a will for Mokhtar

Mohammed Metwally born 7 February 1939 and late of 10 Beaumaris Drive
Menai NSW 2234 please contact Penhall
& Co Lawyers of PO Box 404 Burwood
NSW 1805 or telephone 02 9747 1179 or
email g.penhall@hotmail.com.
JOSEPH MOKDASSY

Would any firm knowing the whereabouts of a will of the late Joseph Mokdassy of Granville who died on 20
September 2016 please contact Forward
Legal of Level 4, 2-4 Meredith Street,
Bankstown NSW 2200. Telephone: 02
8790 1155 Fax: 02 8790 1122 Email:
jason@forwardlegal.com.au.
KENNETH BRIAN MUGGLETON

Would anyone holding a will for Kenneth

Brian Muggleton born 3 October 1950
and late of 23 Warner Ave Tuggerawong
NSW 2259 please contact Penhall & Co
Lawyers of PO Box 404 Burwood NSW
1805 or telephone 02 9747 1179 or email
g.penhall@hotmail.com.

NOVEMBER 2016

19/10/2016 2:55 pm

CLASSIFIEDS
SALVATORE PUGLIA

Would any person or firm knowing the

whereabouts of a will or other document purporting to embody the testamentary intentions of Salvatore Puglia
late of Bexley / Earlwood who died on
15 August 2016 please contact Angie
Rennie Lawyer, PO Box 1230 Rockdale
NSW 2216, T: 02 8541 8749, E: angie@
arlawyer.com.au.
FARID MAROUN RAHME

Would any firm knowing the whereabouts of a will of the late Farid Maroun
Rahme, who died on 4/07/2016 please
contact Mark Rahme (Solicitor) of Mark
Rahme & Associates of 9 Selborne
Street, Burwood NSW 2134 Telephone
No (02) 9744 6300, Fax No (02) 9744
9010 Mobile 0421 353 778 Email address
mark@rahmelaw.com.au.
STEPHEN PHILLIP ROBARDS

Would any person or firm holding or

knowing the whereabouts of a will or
other document purporting to embody
the testamentary intentions of Stephen
Phillip Robards late of East Maitland who
died on 26 August 2016 please contact NPR Legal, PO Box 2066 Greenhills 2323, Ph (02) 4933 1900 or email
office@nprlegal.com.au.

and Virtual Solutions from only $104 per

month. www.cposydney.com.au. Call
Jennifer on 9199 4588 to arrange a tour.

PRACTICES & PARTNERSHIPS

CENTRAL COAST FIRM - SOLE PRACTICE
FOR SALE

Established 2003 downsized for health,

can be regrown, excellent location. P.O.
Box 3445, Erina NSW 2250.
SUBURBAN PRACTICE FOR SALE

Sole practitioner firm in Hurstville. Bulk of

work is in areas of family law, probate and
conveyancing. Substantial safe custody
register. Vendor prepared to stay on as
consultant for short term if required. Gross
takings $360,000 plus. Please forward
your expression of interest to Confidential
Box No. 1, November Law Society Journal,
170 Phillip Street, Sydney NSW 2000.
SEEKING PERSONAL INJURY PRACTICE

Seeking to acquire a Personal Injury

practice and/or existing files. Would suit
a retiring solicitor or those not wishing
to continue carriage of such matters.
Please forward your expression of interest to Confidential Box No. 2, November
Law Society Journal, 170 Phillip Street,
Sydney NSW 2000.

PETER CARL THOMPSON

MID-NORTH COAST PRACTICE FOR SALE

Would any firm knowing the whereabouts or holding a will or other document purporting to embody the
testamentary intentions of Peter Carl
Thompson, late of Leumeah, who died
on 14 June 2016 please contact Peters
Lawyers of Suite 2a, 12 OSullivan Road,
Leumeah NSW 2560 Telephone No (02)
4626 5552 Fax No (02) 4626 6412 Email
address email@peterslawyers.com.au.

Busy sole practice, sale due to retirement. Mainly Family Law, Conveyancing,
Wills & Estates. Established 23 years with
significant deeds register. Would suit
one or two practitioners. Secure tenancy offered. Please forward your expression of interest to Confidential Box No.
3, November Law Society Journal, 170
Phillip Street, Sydney NSW 2000.

CHRISTOPHER GORDON WHITELEY

Would any firm knowing the whereabouts of a will of the late Christopher
Gordon Whiteley who died between
8/08/2016 and 07/09/2016 please contact Higgins Lawyers of 46 Main Street,
Lithgow NSW 2790 Telephone No 02
6352 1266 Fax No 02 6352 3279 Email
address reception@higginslawyers.com.

OFFICE SPACE
CHAMBERS PRACTICE - SYDNEY CBD

Spacious and modern Elizabeth Street

offices shared with a floor of accountants and lawyers, (02) 9232 7822.
CLARENCE SOLICITORS CHAMBERS

Choose from 2 locations; 65 York Street

or 133 Castlereagh and join a network of
140 Solicitors and 10 Barristers. Office
suites from 1 to 15 people are available

TO BUY:
View online listing at:
lawsociety.com.au/pracsale

TO SELL:
Advertise in the LSJ
Includes optional confidential
box numbers and a free listing
on the Law Society website.

NORTH QUEENSLAND FAMILY LAW

PRACTICE FOR SALE

Sole family law practitioner considering

retirement. Seeking to sell Mackay practice. Practice suits another ICL/SEP rep.
Contact Greg on phone 07 4944 1866.

PROPERTY VALUATIONS
VALUATIONS

Stamp duty, Family law & Probate valuations etc Ken Wolf JP MRE(unsw)FAPI.
Lic Real Estate Agent. 0418675611.

TO ADVERTISE:
Market your practice for sale to
over 26,000 lawyers in NSW.
Book your advertisement at
lawsociety.com.au/advertise

PUBLICATIONS
WANTED TO BUY PROBATE AND
WILL TEXTS

Mason and Handler, Geddes Rowland and

Studdert, Hutley, etc. Please forward your
expression of interest to Confidential Box
No. 4, November Law Society Journal,
170 Phillip Street, Sydney NSW 2000.

ISSUE 28

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NOVEMBER 2016

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19/10/2016 2:55 pm

CLASSIFIEDS

104

LSJ

ISSUE 28

p101_105_Classies_November.indd 4

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19/10/2016 2:55 pm

Albury & District Law Society

Allison Bruce Harwood Andrews
abruce@harwoodandrews.com.au
Bankstown & District Law Society
Jacqueline Rogers Burgess Legal
jrogers.bls@gmail.com
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
Tricia Arden Arden Law
arden@ardenlaw.com.au
City of Sydney Law Society
Con Ktenas City of Sydney Law Society
Con.Ktenas@wiro.nsw.gov.au
Clarence River & Coffs Harbour Law Society
Cassandra Banks Susan Green Legal Practice
cassandra@susangreen.com.au
Eastern Suburbs Law Society
Richard Green Richard Green Construction Lawyers
richard@rgcl.com.au
Far North Coast Law Society
Greig Lamond Mitchell Playford & Radburn
mprcas@bigpond.net.au
Far South Coast & Monaro Law Society
Dixie Fitzclarence Clarke Law
dixie@clarkelaw.com.au
Far West Law Society
Jalal Ahmad Razi - Aboriginal Legal Service (NSW/ACT) Ltd
jalal.ahmad.razi@alsnswact.org.au
Hunter Valley Law Society
Warwick Hill Warwick Hill Pty Ltd
wjh@warwickhill.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 Marsdens Law Group
bmcgrath@marsdens.net.au
Mid North Coast Law Society
Jodie Thurgood Stacks Law Firm - Port Macquarie
jthurgood@stacklaw.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
Natalie Scanlon Countrywide Legal & Business Services
nscanlon@countrywidelegal.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
Gary Cluff - Cluff & Associates, Solicitors
pam@cluffs.com.au
Riverina Law Society
John Eades Noyce, Salmon & DAquino
johneades@nsdlegal.com.au
Shoalhaven & District Law Society
Lauren Howes
sdlspresident@fastmail.com
South West Slopes Law Society
Maggie Orman Maggie Orman Pty Ltd
maggieorman@maggieorman.com
Southern Tablelands Law Society
David Cummins Wilkinson Throsby & Edwards
davidc@wte.com.au
St George-Sutherland District Law Society
Kim Rowley Rowley & Associates
k.rowley@mirandalaw.com.au
Wollongong & District Law Society
Martin Culleton RMB Lawyers
martinc@rmblawyers.com.au

PRESIDENT
Gary Ulman The Law Society of New South Wales
DX 362 Sydney; 9926 0216
SENIOR VICE PRESIDENT
Pauline Wright P J Donnellan & Co Pty Limited
DX 7206 Gosford; 4324 3988
JUNIOR VICE PRESIDENT
Doug Humphreys Veterans Review Board
L2, 280 Elizabeth Street, Sydney; 9213 8603
TREASURER
CoralieKenny C/o Suncorp
Level 2, 18 Jamison Street, Sydney; 0408 919 082
IMMEDIATE PAST PRESIDENT
John Eades Noyce, Salmon & DAquino
DX 5902 Griffith; 6969 0000

Cassandra Banks Susan Green Legal Practice

PO Box 2373, Coffs Harbour 2450; 6651 7099
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 Chambers
DX 5567 Deniliquin; 03 5881 3766
Richard Harvey Richard Harvey & Associates
PO Box 166, Spit Junction 2088; 9968 3471
Zora Kekeff Kekeff & Associates Solicitors
DX 7805 Newcastle; 4927 1994
Annmarie Lumsden Legal Aid NSW
323 Castlereagh Street, Sydney
DX 5 Sydney; 9219 6324
Blanka Moss Schindler Lifts Australia Pty Ltd
36-38 Lord Street, Botany 2015
PO Box 7153, Alexandria 2015; 9931 9900
David Porter Redfern Legal Centre
71-73 Pitt Street, Redfern 2016; 9698 7277
Terry Stern Terence Stern
DX 12012 Bondi Junction; 9387 2399
Pam Suttor L. Rundle & Co
L4, 50 York Street, Sydney; 9299 1828
Jodie Thurgood Stacks the Law Firm
Suite 7, 10-12 Short Street, Port Macquarie 2444
DX 7417 Port Macquarie; 6583 8366
Juliana Warner Herbert Smith Freehills
DX 361 Sydney; 9225 5000
Mark Warton Level 6, 185 Elizabeth Street, Sydney
9267 9432
Elias Yamine Bartier Perry Pty Limited
DX 109 Sydney; 8281 7800

CHIEF EXECUTIVE OFFICER

Michael Tidball
SECRETARY
Charles Cawley
CHIEF OPERATIONS OFFICER
Kenneth Tickle
DIRECTOR, POLICY AND PRACTICE
Gaby Carney

ISSUE 28

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Legal funnies

witless

EXPERT

BECAUSE IF WE CANT LAUGH AT OURSELVES

DIY medical
balls-up

Sydney
lawyer
awarded
$1,200 for
failed pizza
delivery

A man has pleaded guilty in Port

Macquarie Local Court to removing
another mans left testicle in an
unauthorised medical procedure, The
Sydney Morning Herald has reported.
Backyard surgeon Allan George Matthews, 56,
removed the testicle in a cheap mid-North
Coast motel room when the victim asked
for help because he couldnt afford a proper
medical procedure. Police said the 52-yearold victim posted an ad online that requested
assistance with a medical issue he had been
suffering for years after he was kicked in the
family jewels by a horse.
When the wound became infected after the
surgery, the victim sought medical treatment
in hospital and police were called to track
down the alleged testicle-taker. Court
documents show Matthews did not enter a
plea to the more serious charge of reckless
bodily harm and remains on conditional bail
in relation to that charge.

Sydney lawyer Tim Driscoll has served Dominos a slice of

humble pie by successfully suing the chain for failing to deliver
his pizza, The Daily Telegraph has reported.
Driscoll ordered three pizzas, two garlic breads and two bottles of
Coca-Cola that failed to arrive to his Corrimal home on Anzac Day
last year. Dominos later promised Driscoll a full refund but, although
Driscoll chased the refund for 12 months, the money also failed to
arrive. Driscoll finally took the case to Downing Centre Local Court
in October.
Some may call it principle, he told 3AW.
Although Driscoll claimed $9,000 in damages, the court ordered
Dominos to pay a lesser sum of $1,203.27, which would cover the
original $37.50 order as well as legal fees to lodge the claim. Driscoll
maintained it was not a waste of the courts time.

Judge uses emoji in

official court ruling
A UK High Court judge has gone to extraordinary lengths to make clear a
family court judgment by replacing daunting legal terminology with everyday
phrases and even a smiley face emoji.
According to The Telegraph, Justice Peter Jackson handed down a (relatively) brief
17-page ruling that carefully navigated difficult family law issues to explain to two
children, aged 10 and 12 why they could have only limited contact with their father.
The judge included smiley face emoji symbols because, he said, he hoped the
children would read it for themselves.
The judgment sentenced the father, a British Muslim convert who reportedly tried
to take four children to Syria but was stopped in Turkey, to an 18-year prison term
for firearms offences. It is thought to be the first in English legal history that has
included an emoji, or web symbol, to explain a point of evidence.
The full judgment can be read online via bailii.org/ew/cases/EWFC/HCJ/2016/9.html

106

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NOVEMBER 2016

18/10/2016 11:10 am

November Ads.indd 2

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