Professional Documents
Culture Documents
AUGUST 2015
A WOMAN OF
INFLUENCE
JENNIFER ROBINSON ON WHATS BEEN
KEEPING HER BUSY SINCE ASSANGE
VICARIOUS TRAUMA
HOW LAWYERS ARE HARMED BY
EXPOSURE TO PAIN AND SUFFERING
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Of One Substance:
Painting & Place
Works by Pijaji Peter Skipper
25 - 29 August 2015
LSJ
JUNE 2014
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PRESIDENTS MESSAGE
AUGUST 2015
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Its hard being a lawyer. We all know it. I have no doubt that most lawyers have, at some
stage, found their role extremely challenging, for a variety of reasons.
Whether its the conditions under which we practise the long hours, the relentlessness of
billable units, the high demands of clients, or the intimidating spectre of the court system
or the nature of the work we do, working as a solicitor can be tough.
In this issue, LSJ reporter Kate Allman delves into the topic of vicarious trauma in The
Cost of Caring on page 38. In it she reveals the high cost many lawyers pay for becoming
deeply invested in their cases, for reliving the pain and suffering of their clients, for simply
caring too much. Or, in other words, for doing their job. The feature blows open a problem
that is too often taken as normal in the profession, with many practitioners suffering in
silence because work-related trauma and distress are simply seen as part of the job. Its an
important story for the very fact it shows that this is not something suffered in isolation
it is a common experience in the law and one we should confront head-on.
Classified Ads
www.lawsociety.com.au/advertise
Advertising enquiries
advertising@lawsociety.com.au or 02 9926 0290
Claire Chaffey
LSJ
170 Phillip Street
Sydney NSW 2000 Australia
Phone 02 9926 0333
Fax 02 9221 8541
DX 362 Sydney
Contributors
Senthorun Raj
is a PhD candidate at
Sydney Law School and
a forthcoming visiting
doctoral fellow at NYU
Law School. He writes
about the implications
of the same-sex
legislation in the US
Supreme Court.
Global focus
p22
Julie McCrossin
is a writer and
trainer who studied
law. She travelled to
London to interview
solicitor Jennifer
Robinson, one of the
lawyers representing
Julian Assange.
A woman of
influence
p26
Lee Holmes
holds an Advanced
Certificate in Food
and Nutrition, teaches
yoga and is author
of the Supercharged
Foods series. She
gives the lowdown
on keeping the gut
healthy.
Health matters
p56
Alex Baykitch
is a partner at King &
Wood Mallesons and
President of the Australian
Centre for International
Commercial Arbitration.
He co-writes with Aleks
Sladojevic on ChAFTA &
investor-state dispute
settlement mechanisms
Legal updates
p74
Have an idea? We would like to publish articles from a broad pool of expert members and were
eager to hear your ideas regarding topics of interest to the profession. If you have an idea for an
article, email a brief outline of your topic and angle to journal@lawsociety.com.au. Our team will
consider your idea and pursue it with you further if we would like to publish it in the LSJ. We will
provide editorial guidelines at this time. Please note that we no longer accept unsolicited articles.
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CONTENTS
26 38
FEATURES
24
34
56
26
38
HOT TOPIC
COVER STORY
32
IN FOCUS
Husband and wife Nikki and
Tim Lester speak about their
role as partners launching the
new Australian presence for
global firm Hogan Lovells
AUGUST OFFENSIVES
52
EXTRACURRICULAR
Jane Southward meets
Andrew Chalk, a Sydney lawyer
who is the brains behind an
innovative social program
54
HEALTH MATTERS
58
POSITIVE CULTURE
Rachel Setti explains how strong
core values can be much more
than corporate rhetoric
60
CITY GUIDE
Where to eat, sleep and play in
Oslo Claire Chaffey explores
the delights of Norways
cosmopolitan capital
64
YOU WISH
Canberras incredible
Jamala Wildlife Lodge
LSJ
AUGUST 2015
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52
60
REGULARS
8 MAILBAG
10 BRIEFS
News and events
10 PROFESSIONAL
NOTICES
17 FROM THE ARCHIVES
19 CAREER MOVES
Who moved where
this month
Examining the US
Supreme Court stance
on marriage equality
44 CAREER HUB
How in-house lawyering
compares with private
practice
90
LEGAL UPDATES
45 CAREER 101
48 A DAY IN THE LIFE
A young law student
spends a day as a
criminal lawyer
50 PRACTICE
MANAGEMENT
Creating e-databases for
related litigation matters
52 EXTRACURRICULAR
82 INTERNATIONAL: TREATY-MAKING
66 LIFESTYLE
95 LIBRARY ADDITIONS
New books at the
Law Society Library
AUGUST 2015
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MAILBAG
JULY 2015
ICE, VIOLENCE
AND JUSTICE
Worth a read
E: letters@lawsociety.com.au
7 ETHICS NIGHTMARES
YOU DIDNT EVEN KNOW YOU HAD
BURSTING AT THE SEAMS
THE SHAMEFUL STATE OF NSW PRISONS
CONGRATULATIONS!
Charles Stanford
has won lunch for four.
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WRITE TO US:
24/06/2015 11:50 am
Keith Osborne
Halton via East Gresford
Ed note: The Society library
confirms it has books on
legal history for members
to borrow.
Lawyer wants a
lunch date?
Little wonder that Erin
Eckhoffs letter (LSJ, July 2015)
won lunch as your favourite
letter, since hers was the only
one published! Incidentally,
when therere only three to
four letters printed, why not
offer complimentary lunches
for the writers alone to share
together and, if more than
four, the same to apply for
your favourite four letters? I
look forward to a lunch, on
the house, in the Law Society
dining room in August!
Edward Loong
Milsons Point
LSJ
AUGUST 2015
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MAILBAG
Pricing pain
After paying $350 for the
privilege of spending 40
minutes in my dentists chair,
I reflected on the disparity
with our remuneration for,
and time we spend on, a
conveyance. We are selling
ourselves too cheaply.
Charles Stanford
Stanford Lawyers
- Completes disqualification
period.
NEW FLOOR
OPENING SOON,
CLOSE TO
LAW COURTS
8 REASONS WHY
CLARENCE IS THE
BEST CAREER MOVE
1. S
aveover40%ontraditionalofficecosts
2. MonthlyAgreementsavailable,nolock
incontracts!
3. Uniquecollegialenvironmentand
informalsharingoflegalprecedents
4. OptionalsharingfortheDXfacilityand
LEXISNEXIS
CLARENCEOFFERSSPECIALISEDSOLICITORSCHAMBERS
5. AccesstoCLESeminars
6. Referralopportunities
7. Professionaltelephoneansweringand
legalsecretarialsupport
8. Choosefromaprivatelockableoffice
for1to15peopleoravirtualofficeto
getyoustarted
AUGUST 2015
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The future
of federalism
discussed
Sociologist and cultural
commentator Professor Eva
Cox AO, Dr Doug McTaggart of
the Commonwealth Reform of
the Federation Expert Advisory
Panel, and constitutional experts
Professor Cheryl Saunders AO and
Professor Lynch discussed their
visions for the future of federalism
at the Thought Leadership event
at The Law Society of New South
Wales in July.
10
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BRIEFS NEWS
CM
MY
CY
CMY
JOHN EADES
The program helps offenders address their substance abuse problem, which
is really important in terms of breaking the substance abuse-crime cycle.
Defendants assessed as suitable for MERIT undertake supervised treatment
as part of their bail conditions, and a magistrate is then able to consider the
defendants progress in treatment as part of final sentencing.
Eades said research by the Bureau of Crime Statistics and Research
(BOCSAR) had shown that MERIT was successful in reducing rates of
reoffending.
BOCSAR found that completion of MERIT reduces the proportion of those
reconvicted for any offence by 12 per cent, Eades said.
A petition signed by residents of Moree was tabled in the NSW Parliament
during the last sitting asking for the MERIT program to be introduced to the
Moree Local Court.
The Law Society considers that the demonstrated success of MERIT in
reducing recidivist behaviour, and the associated benefits this creates for the
community, justifies the allocation of substantial resources to the program to
enable it to be available throughout the entire State, Eades said.
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BRIEFS NEWS
PROFESSIONAL
NOTICES
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known
as Ronald M Fluit Solicitor, formerly
conducted by Ronald Marinus Fluit.
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known as
MER Legal Pty Ltd, formerly conducted by
Michael Edward Rogers.
On 18 June 2015, by resolution of the
Council pursuant to Section 616(2)(b)(ii)
of the Legal Profession Act 2004, Richard
Stephen Savage, solicitor, was appointed
as manager of the law practice known as
Tereze V Dzitars, formerly conducted by
Tereze Vilhelmina Dzitars.
The Council of the Law Society of NSW,
at its meeting on 18 June 2015, resolved
to suspend the practising certificate
of Michael Edward Rogers pursuant to
Section 60(1) of the Legal Profession Act
2004 to 30 June 2015.
The pro bono program requires ACU Thomas Moore students to complete a
minimum of 240 hours (equivalent to 30 days) of professional experience over the
course of their degrees. While most universities offer course credit for optional work
experience, the compulsory aspect of the ACU law program is unique.
The pro bono program provides students with an unrivalled opportunity to
experience and reflect upon the operation of the law in a practice setting, said
program coordinator Dominic Cudmore. It allows students to give back to their
communities and make a difference while gaining valuable practical legal experience.
Students have undertaken work in community-based support services such as Legal
Aid NSW, Macarthur Legal Centre and various law firms and government departments.
I got to experience and work with a huge variety of legal issues across fields of civil,
criminal and family law, said one student participant. This first-hand experience allowed
me to appreciate the intensity and fast-paced nature of work as a pro bono lawyer.
Any students or legal organisations interested in becoming involved with the program
should contact Dominic Cudmore at dominic.cudmore@acu.edu.au.
12
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AUGUST 2015
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BRIEFS NEWS
WHAT
DO YOU
MEAN YOU
DONT KNOW
EVERYTHING?
The law can be technical, detailed
and even messy. And sometimes as
lawyers we have to quickly become
experts in areas of the law that we
dont usually specialise in.
Thats why our Legal Information
Officer assists members across
a range of legal issues, including
business law, criminal law, family
law, property law, wills and estates
and more.
Contact Peter Leggo today for help
to find the answers youre looking for.
14
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AUGUST 2015
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BRIEFS NEWS
13 OCTOBER
mindfulleadershipforum.com/2015
elderabuseconference.org.au
WORKING IN COMMERCIAL
TRANSACTIONS?
The LLM (Applied Law) majoring in Commercial Transactions
can give you the edge you need!
CALL US
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VISIT US
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AUGUST 2015
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BRIEFS NEWS
Rewards
Demand
Retention
Work/Life Balance
47%
82%
51%
71%
74%
of legal employers
plan to increase
headcount
over the next
12 months.
of legal employers
will be rewarding
their employees
with a salary rise;
majority will be
rewarding a 1-5%
increase.
of legal employers
state that mid-level
professionals are
most in demand.
of legal employers
will be promoting
a strong company
culture to attract
new talent.
of employers offering
flexible working hours.
62%
26%
of legal employers
state that specialists
are in highest demand.
of employers will
be rewarding their
staff with a bonus.
68%
offering the option
to work from home.
68%
of legal employers
using the same
strategy to retain
top performing staff.
45%
offering increased
maternity/paternity
leave.
These figures are found in the 2015/16 Michael Page Australia Salary and Employment Outlook, launched in July 2015. Credits: Binoculars by Nathan Driskell,
Ribbon by Sofa Moya, Megaphone by Angelique Hering, Magnet by Arthur Shlain and Clock by Nick Green from Noun Project.
ALYSON ASHE
PO Box 737
Crows Nest NSW 1585
phone 1300 738 262
mobile 0414 362 477
royleg@bigpond.com
www.alysonashe.com.au
Janeda Pty Ltd ABN 86 466 143 245 (incorporating Royse Legal Cost Consultants)
16
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review
THE YEAR IN
1963
IN THE NEWS
From 1963 all Indigenous Australians are allowed to enrol
to vote in Federal elections after Prime Minister Robert
Menzies amends the Commonwealth Electoral Act 1918
in 1962. Other states allowed Indigenous Australians to
vote from 1949.
NSW Premier Robert Bob Heffrons Royal Commission
into the legalisation of off-course betting leads to the
establishment of the Totalisator Agency Board (TAB).
AUGUST
JUNE
2015
2014I LSJ
I LSJ171
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MEMBERS ON THE
ANNETTE ENGLISH
MATTHEW GRAHAM
GUY BETAR
DAVID GILHAM
Joined as a partner,
Corporate and Real Estate
McCullough Robertson, Sydney
AMANDA SEGUNA
PETER MCMAHON
PETER BAHLMANN
CLAIR HODGE
Joined as partner
Hansons Lawyers, Wollongong
NATALIE BAINI
MAITHRI PANAGODA
MICHAELA SCHMIDT
ERIC ZIEHLKE
Promoted to partner
JMA Legal Business Lawyers,
Cootamundra
Joined as partner,
IP & Technology
Swaab Attorneys, Sydney
18
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A SEAT
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DIGNIFIED FUTURES:
A QUEER CASE ON
MARRIAGE EQUALITY?
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BRIEFS INTERNATIONAL
248,206 HOURS
www.dgt.com.au
AUGUST 2015
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FAST.
RELIABLE.
COSTEFFECTIVE.
COPY THAT?
JACQUELINE DAWSON is a
solicitor director at Sexton
Family Law in Milsons Point.
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COVER STORY
A woman
of influence
Jennifer Robinson, legal adviser to Julian Assange and the United
Liberation Movement for West Papua, is Director of Legal Advocacy
for the Bertha Foundation where she established the Bertha Justice
Initiative that supports 120 young lawyers in 16 countries to practise
movement lawyering. JULIE MCCROSSIN speaks to her in London
about her work with filmmakers, lawyers and activists and her
journey from Bomaderry High on the south coast of NSW to the
centre of international legal activism.
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COVER STORY
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COVER STORY
Jennifer Robinson with Bill Murray and friend at the Clooney wedding in Venice in 2014.
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IN FOCUS
Global
love
match
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FEATURE
FIGHTING
MAC
harles Melville
Macnaghten was the
son of a distinguished
British Commander of
Scotland Yard, Sir Melville Leslie
Macnaghten. Charles came to Sydney
in 1903 and, after he was articled to
Arthur Hyman (who also served on
Gallipoli and the Western Front), was
admitted to practice as a solicitor in
November 1908. He joined Dodds and
Richardson in 1913 and had a solid
but unspectacular legal career, which
was overshadowed by his military
pursuits. He personified the imperial
warrior tradition: an old Etonian with
all the swagger and style of a British
upper class officer with aristocratic
connections. His powerful voice and
imposing physicality dominated the
parade ground in Sydneys Domain
as he transformed inner-city larrikins
into a well-drilled militia unit. But
there was a fragility to Macnaghten.
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FEATURE
The staff of the 1st Australian Infantry Brigade during training at Kensington before Gallipoli. From left: Major Irvin, Colonel Thompson,
Colonel MacLaurin and Captain MacNaughton.
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FEATURE
The
high cost
of caring
There is an epidemic
in the legal profession,
writes KATE ALLMAN,
and many lawyers are
suffering in silence.
ILLUSTRATION: ANDY RAUBINGER
38
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I think of
vicarious
trauma as a
psychological
infection. We
cant allow what
other people
have experienced
to inhabit us as
well. Treatment
of vicarious
trauma is no
different from
washing your
hands after
you have been
dealing with a
patient.
ROB GORDON, PSYCHOLOGIST
Compassion fatigue
Motjahedi attributes the personal changes he
has experienced to what he calls compassion
fatigue. Apparently, this is a mental health
issue for lawyers who simply care too much.
Unbeknown to him, compassion fatigue is a
colloquial term for a recognised psychological
ailment threatening a great number of legal
professionals.
The cost of caring for clients welfare
takes a largely unacknowledged toll on
lawyers, manifesting in a condition known
as vicarious trauma. This term was first
coined by Pearlman and McCann in their
1990 paper published in the journal Journal
of Traumatic Stress Vicarious traumatization:
A framework for understanding the
psychological effects of working with
victims and refers to the distress experienced
by a person who hears or sees traumatic
material. The person engages empathetically
with the victim and takes on the trauma as if
experiencing it firsthand.
Vicarious trauma means, I am
traumatised by somebody elses
experience, explains psychologist Rob
Gordon. That is to say that somebody
elses experience takes on the life of me
and has a damaging effect on me.
The classic symptoms of vicarious trauma
come in the same three categories as
symptoms for firsthand trauma, explains
Gordon. These are the inability to forget
about the traumatic material, an unwanted
state of heightened arousal or anxiety as if
reliving the event, and feelings of numbness
or detachment from daily realities.
Motjahedi can attest to these warning
signs. You become numb to certain things,
he says. You might hear of something quite
horrific and you may not react to it the way
that you should. I also think you become
more emotional about, for example, the
Kleenex ad.
AUGUST 2015
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FEATURE
lawyer experiencing
vicarious trauma often
will form mental images
of what their client
experienced, Gordon
says. Such images can intrude on reality
in the same way a war veteran with posttraumatic stress disorder (PTSD) might
revisit a harrowing battlefield memory.
This is particularly so if the experience
is described in a very vivid way, or is
scrutinised over and over in detail
tasks that are familiar to any lawyer
preparing a case.
The trauma can also be a little more
detached, says Gordon.
For example, if I hear about a
traumatic experience for a child, I
might look at my child and think,
What if it happened to him or her? or
What right have I got to have happy
children when this child has been so
injured? and so on.
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www.pattisonhardman.com.au
No time for
city court
appearances?
Dont mention it...we will.
Suite 501, Level 5, 265 Castlereagh St, Sydney NSW 2000 DX 1084 Sydney
AUGUST 2015
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FEATURE
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A different
breed of lawyer
An in-house lawyers role and skill set differ fundamentally from those of
their private practice colleagues, writes CORALIE KENNY. So what are the
major differences and what should those moving in-house expect?
44
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What did you learn from your first job (and where was it)?
My first job was working at my parents food wholesale business from the age
of 10. At a very early age I learnt the benefits of camaraderie and business
basics. I did learn a lot in those 10 years, but the most enjoyable lesson was
how to drive a forklift at 13.
First break?
Having the opportunity to work on an exciting planning dispute when
working in strata law. This prompted my interest in planning and development
and led to my current role at Colin Biggers & Paisley. This work reignited a
long-time passion of mine I renovated my first house in my early 20s. At the
time, my funds were limited and I recycled bricks to renovate. Cleaning the
bricks resulted in significant savings and satisfaction. I did suffer many calluses
and cuts but it was thoroughly worth it!
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legal
Dominate your market
love what I do, but Im also human, which
means there are days when I take longer
to get out of bed and start my day than
others. Im guessing you might feel the
same way. Thats why its important for
me to be part of a group that gives me a
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Recently, my group delivered exactly what I
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Do you want to learn more about the work I do with individual lawyers and teams helping them build influence, income and impact?
Email me at fiona@fionacraig.com.au to set up a time to talk. Meantime, make sure you connect with me on LinkedIn at linkedin.com/in/fionacraig
46
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kitchen
Level 2, 170 Phillip Street, Sydney 2000 | Open for lunch weekdays 12 to 3.00pm
Menu: lawsociety.com.au/dining | Reservations: 9926 0224
AUGUST 2015
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Partners in
crime
ANDREW TIEDT and SAM MURRAY
make an unconventional pair.
At 1.8 metres tall, with an
immaculately shaved head, Tiedt
towers over Murrays 1.5 metres and
his messy student mop-top. They
photograph like a couple of slapstick
cartoon characters, yet have found
themselves perfectly matched in
a new mentoring initiative run by
the NSW Young Criminal Lawyers
Committee. BY KATE ALLMAN
48
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PROFESSIONAL DEVELOPMENT
The day
On the day of the program, Murray
met Tiedt in his office at 8am. Tiedt
had three short matters scheduled at the
Downing Centre two licence appeals
and an application matter.
It was convenient that Sam was
there on that day because [that kind of
work is] bread and butter for a young
criminal lawyer, says Tiedt. Its the
kind of stuff where, worst case scenario,
someone loses their drivers licence. No
one is going to jail; no ones going to be
doing 100 hours of community service.
If youre doing criminal law, this is kind
of your every Monday.
According to Tiedt, a typical work
day for a junior criminal lawyer involves
some combination of a stock set of
court matters. These are licence appeals,
applications to quash habitual offender
declarations, sentences for drinkdriving, sentences for shoplifting, or
sentences for possessed prohibited drugs.
In order to nail these types of matters
in the short time available, Tiedt says
young criminal lawyers need to acquire
an emotional intelligence that cant be
taught in law school.
A huge part of criminal law is the
law you cant do without it but thats
only the first step, he says. Young
lawyers need to learn what a magistrate
wants to hear or what is persuasive.
Thats half experience and half thinking
to yourself, Its a human being standing
there, with all the same interests and
predilections as I have. What can I say
to convince that person?
Expectation versus reality
While Murray was astonished by
the speed with which the magistrate
churned through cases, Tiedt seems to
have long ceased batting an eyelid.
Its a sausage factory, really, Tiedt
says. Her Honour would have dealt
with 50 to 100 matters that day. Easily.
That is court 4.3 Downing Centre,
AUGUST 2015
p48_49_Mentoring _August.indd 2
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24/07/2015 10:16 am
PRACTICE MANAGEMENT
EFFECTIVE MANAGEMENT OF
RELATED
LITIGATION
By KYLIE PETERSEN
50
LSJ
The objectives
The challenge in related-matter
management is to ensure common
evidence is managed in a way that
maintains evidentiary integrity with
reduced scope for error while providing
unfettered ability to manage the unique
evidentiary items in each of the specific
actions.
Using a paper-based strategy, the task
invariably requires treatment of the
matters independently, copying the
common evidence as many times as there
are related matters. This has cost and
resource consequences and, if any of the
related matters is large, or the evidence
contains natively electronic materials, a
paper-based strategy is inappropriate.
Is there a simple solution offered by
litigation support technology?
AUGUST 2015
p50_Practice Management.indd 1
22/07/2015 3:07 pm
LS1172_SPP_LSJ_Ad.indd 1
21/07/2015 3:28 pm
A PROJECT FROM
THE HEART
A Sydney lawyer is applying his experience helping build houses in the Philippines
to an innovative social program in Dubbo. JANE SOUTHWARD reports.
52
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21/07/2015 11:14 am
gkaustralia.com
AUGUST 2015
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53
21/07/2015 11:14 am
HEALTH WELLBEING
54
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AUGUST 2015
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21/07/2015 11:04 am
JOANNA MCMILLAN is a
nutritionist, dietitian and
author. Visit drjoanna.com.au
for more health advice.
AUGUST 2015
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21/07/2015 11:05 am
WELLBEING NUTRITION
health
MAT TERS
LEE HOLMES holds an Advanced Certificate in Food and Nutrition, teaches yoga and is author of the Supercharged Foods series.
See superchargedfood.com for information. Her new book Heal Your Gut will be released by Murdoch Books in September.
56
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AUGUST 2015
p56_Health Matters_August.indd 1
22/07/2015 4:25 pm
August ADS_FPC.indd 4
23/07/2015 4:05 pm
WELLBEING PSYCHE
DEVELOPING A POSITIVE
CORPORATE CULTURE
BY RACHEL SETTI
58
LSJ
AUGUST 2015
p58_Psyche_August.indd 1
22/07/2015 4:30 pm
LEGAL
KNOWLEDGE
CPD UNIT
CALDERBANK OFFERS
REVISITED: PERSPECTIVES
FROM THE BENCH
10
LEGAL
KNOWLEDGE
CPD UNITS
LEGAL
KNOWLEDGE
CPD UNIT
THE ROLE OF
THE EXPERT &
EXPERT EVIDENCE
SPECIALIST
ACCREDITATION
CONFERENCE 2015
LEGAL
KNOWLEDGE
CPD UNIT
LEGAL
KNOWLEDGE
CPD UNIT
INTERGENERATIONAL
ISSUES IN FAMILY
LAW MATTERS
BUSINESS,
PROPERTY
AND PERSONAL
INJURY LAW
WEBCAST AVAILABLE
5.30pm 6.30pm
Member:
$92.00
Non-Member: $120.00
Member:
$990.00
Non-Member: $1287.00
1.00pm 2.00pm
Member:
$92.00
Non-Member: $120.00
LEGAL
KNOWLEDGE
PRACTICE MANAGEMENT
AND PROCEDURE
PRACTICE MANAGEMENT
AND PROCEDURE
1.5
CPD UNITS
5.30pm 7.00pm
Member:
$75.00
Non-Member:
$97.50
PRACTICE MANAGEMENT
AND PROCEDURE
CPD UNITS
PER DAY
CONVEYANCING
FUNDAMENTALS
FOR SOLICITORS
9.30am 4.30pm
Member:
$820.00
Non-Member: $1,020.00
Member:
Non-Member:
PRACTICE MANAGEMENT
AND PROCEDURE
August ADS_FPC.indd 9
CPD UNIT
1.00pm 2.00pm
Member:
$40.00
Non-Member:
$52.00
Register: eshop.lawsociety.com.au
$340.00
$438.00
Member:
Non-Member:
CPD UNITS
$563.00
$732.00
5.30pm 6.30pm
Member:
$92.00
Non-Member: $120.00
PRACTICE MANAGEMENT
AND PROCEDURE
PRACTICE MANAGEMENT
AND PROCEDURE
CONVEYANCING
PROCEDURES
FOR SUPPORT STAFF
COMMUNICATION OF
ADVICE AND COSTS UNDER
THE NEW UNIFORM LEGAL
PROFESSION REGIME
9.00am 5.00pm
Member:
$340.00
Non-Member: $438.00
1.5
PRACTICE MANAGEMENT
AND PROCEDURE
PROFESSIONAL
SKILLS
FAMILY LAW
PROCEDURES
FOR SUPPORT STAFF
9.30am 4.30pm
Member:
$340.00
Non-Member: $438.00
5.30pm 6.30pm
Member:
$75.00
Non-Member:
$97.50
CPD UNITS
8.00am 9.30am
Member:
$118.00
Non-Member: $153.00
Email: education@lawsociety.com.au
CPD UNITS
3.00pm 5.00pm
Member:
$40.00
Non-Member:
$52.00
MANDATORY
CPD
CPD UNITS
RULE 6.1
HALF DAY SEMINAR
FOR BUSINESS LAWYERS
9.00am 12.30pm
Member:
$153.00
Non-Member: $199.00
JUNE 2014
LSJ
21/07/2015 3:35 pm
OSLO
Norway is perhaps best known for its stunning fjords,
mountains and lakes, but the Nordic countrys modest yet
progressive and liberal capital city, Oslo, is well worth a visit.
With a cosmopolitan feel and a latent sophistication, its an
increasingly popular destination but just make sure you save
your pennies before you go, writes CLAIRE CHAFFEY.
VISIT
One of the delights of the laidback
Norwegian capital is the hugely
popular Vigeland Sculpture Park.
Set within tree-lined gardens
that are open all year round, the
park is home to more than 200
imposing, life-like sculptures forged
by Gustav Vigeland from bronze,
granite and wrought iron. Many of
the sculptures feature naked men,
women and children in bizarre
positions, and its sometimes hard
to work out just what the scenes
depict but it is well worth a
visit, even in winter. Vigeland was
also in charge of the design and
architectural layout of the park,
which was constructed during WWII
and makes for a lovely stroll.
vigeland.museum.no/en/
vigeland-park
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thethief.com
STAY
AUGUST 2015
p60_62_Travel_Oslo.indd 1
21/07/2015 3:14 pm
DAY TRIP
DISCOVER
nobelpeacecenter.org
visitoslo.com/en
DINE
hosthea.no/en
AUGUST 2015
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21/07/2015 3:16 pm
DARE
A winter visit to Oslo wouldnt be
complete without an attempt at
cross-country skiing and with
more than 2,600 km of ski trails
running throughout Oslos pristine
forests there are plenty of options.
Skiers can drop in to 44 log cabins
along the trails, and you can stay
overnight in some if you have the
gear. Others offer roaring fires, hot
drinks and pastries to warm the
cockles of your heart. The most
surprising thing about this type
of skiing is the silence the deep
snow dampens the sound, and the
empty tracts of pine forest become
incredibly beautiful, serene places in
which to get a feel for Norway (not
to mention a great workout!).
oslo.com/en/your-oslo
winter/cross-country-skiing
EXPERIENCE
If theres one thing Norwegians like
more than cross-country skiing
its rock music, and the summer
months are a smorgasbord of
opportunities to see local and
foreign acts throughout the capital.
The hugely popular ya Festival
runs from 1115 August 2015 and
features Beck, Florence and the
Machine, and a bunch of Norwegian
up-and-coming rockers. If you
find yourself in Oslo in December,
dont miss the fabulously quaint
and charming Christmas markets,
right in the centre of Oslo, where
the mulled wine flows, and there
are reindeer aplenty (some you can
eat, some you cant). The deliciously
warm and fragrant atmosphere will
fend off the sub-zero bite.
oyafestivalen.com
62
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AUGUST 2015
p60_62_Travel_Oslo.indd 3
24/07/2015 10:21 am
Cultural escapes
January 2016
Next January, swap the torpor of the Australian summer for the invigorating cultural sites of Burma, Naples, Rome,
London, or Cuba! Academy Travels popular January program features long-stay tours and exotic destinations.
Expert tour leaders and carefully-planned itineraries ensure an experience that is out of the ordinary.
Burma
December 27, 2015 January 11, 2016, From $8,450 per person, twin share (land content only)
Discover Yangon, Inle Lake, Maymyo, Mandalay and Bagan, with an overnight
Ayeyarwaddy River cruise, on this carefully-paced journey.
December 29, 2015 January 12, 2016, From $6,950 per person, twin share (land content only)
A feast for the senses, with seven nights each in Palermo and Naples where centuries
of diverse cultures come together in art, architecture, food and culture.
Enjoy a two-week stay and explore wonderful art and architecture from the Romans
to the 21st-century, with great meals and music.
January 14-26, 2016, From $8,150 per person, twin share (land content only)
A feast for lovers of opera and orchestral music, with performances at Covent Garden,
all Londons great orchestras and new-season theatre productions.
January 28 February 11, 2016, From $7,850 per person, twin share (land content only)
Travel to colonial towns and plantations in the countryside before exploring the
charms of Havana now is the time to visit this enchanting island!
tailored small
group Journeys
Expert tour leaders
Maximum 20 in a group
Carefully planned itineraries
August ADS_FPC.indd 9
Academy Travel
Tailored Small Group Journeys
Academy Travel offers a program
of over 50 tours to Europe, the
Mediterranean, Asia and the
Americas. Our tours combine the
pleasures of independent travel
with the benefits of a small group,
with extended stays in centrallylocated hotels, meals at excellent
local restaurants and free time for
independent sightseeing.
academytravel.com.au
22/07/2015 2:33 pm
ANIMAL
LUXURY
Forget Africa if you want a quick
animal safari, head to Jamala Wildlife
Lodge in the National Zoo and Aquarium
in Canberra, writes JANE SOUTHWARD.
64
LSJ
AUGUST 2015
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21/07/2015 2:53 pm
CHECKLIST
Jamala Wildlife Lodge is in the National
Zoo near the Tuggeranong Parkway in
Canberra.
Rooms for two begin at $1,000 which
includes a 10-hour experience with two
guided zoo tours, afternoon tea, breakfast
and dinner with unlimited drinks.
Clockwise from top left: guests enjoy
the up-close and personal experience in
the cheetah jungle bungalow at Jamala
Wildlife Lodge; soaking up the beauty in
the bear jungle bungalow; dinner with the
lions; the giraffe treehouses; part of the
three-course meal included in the cost;
and pool and sundeck, which would be
handy in a Canberra summer.
The author travelled courtesy of
Visit Canberra.
Visit jamalawildlifelodge.com.au to book.
AUGUST 2015
p64_You Wish_August.indd 2
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65
21/07/2015 2:53 pm
LIFESTYLE
books
HACK ATTACK
BY NICK DAVIES
BY CHERYL CRITCHLEY
AND DR HELEN MCGRATH
OUT NOW
66
LSJ
BANTAM
THE TRUTH ACCORDING TO US
FEDERATION PRESS
THE AUSTRALASIAN CORONERS MANUAL
BY ANNIE BARROWS
AUGUST 2015
p66_67_LIFESTYLE_August.indd 1
22/07/2015 6:03 pm
LIFESTYLE
MOVIE GIVEAWAY
FAR FROM MEN
IN CINEMAS 30 JULY
We have 10 double passes
to see the new western
FAR FROM MEN. Featuring
a career-best performance
from the multi-talented Viggo
Mortensen and a superb
original soundtrack by Nick
Cave and Warren Ellis, FAR
FROM MEN is a gripping tale
of morality and friendship
set during the Algerian
War, against an unforgiving
mountainous landscape. Widely acclaimed at the Venice
Film Festival where it premiered, this is grand, big-screen
adult entertainment at its finest.
To enter, email postal contact details with FAR FROM MEN
in the subject line to filmoffers@lawsociety.com.au
by 10 August.
MUST SEE
28 JULY TO 25 OCTOBER
Sydney Lyric Theatre, Pyrmont
p66_67_LIFESTYLE_August.indd 2
LSJ
67
22/07/2015 2:47 pm
LAW SOCIETY
COUNCILLOR LIST
PRESIDENT
John Eades Noyce, Salmon & DAquino
DX 5902 Griffith; 6969 0000
68
LSJ
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AUGUST 2015
22/07/2015 4:40 pm
AUGUST 2015
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22/07/2015 4:40 pm
LAW SOCIETY
REGIONAL PRESIDENT LIST
70
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CONTINUED
It is also a legislative requirement in
NSW that police notify the ALS when an
Aboriginal person is taken into police
custody. Further, Aboriginal people
taken into police custody are entitled to
immediately speak to an ALS lawyer.
The Law Society is advised that the
service responds to over 300 calls
weekly, yet costs only $526,000 to run
annually. This equates roughly to $32
per call. Since its establishment, there
have been no Aboriginal deaths in police
custody in NSW and the ACT. The Law
Society understands that this is not true
of other jurisdictions without a custody
notification service. The Commonwealth
Government has since announced that it
will provide $263,000 to the CNS, which
equates to half of the necessary funding.
AUGUST 2015
22/07/2015 4:46 pm
By Toby Blyth
AUGUST 2015
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71
22/07/2015 6:05 pm
By Chelly Milliken
72
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AUGUST 2015
p72_73_LEGAL_Regulatory.indd 1
22/07/2015 6:48 pm
Transitional provisions
Practising certificates
The Uniform Law provides that practising
certificates granted prior to 1 July 2015
under the Legal Profession Act are taken
to be to be granted under the Uniform
Law. Any conditions attaching to the
certificate continue to apply (Sch 4, cl
12(1) and (4)).
If an application for a practising
certificate was made under the Legal
Profession Act, but not determined
before 1 July 2015, the application will
be determined as if it were an application
made under the Uniform Law.
A practising certificate already held by
the applicant remains in force until a new
certificate is granted or the application is
refused (Sch 4, cl 12(2)).
Legal costs
The Uniform Law introduces new costs
provisions which apply to a matter if the
client first instructs the law practice on
or after 1 July 2015. The costs provisions
contained in the Legal Profession Act
continue to apply to a matter if the
client first instructed the law practice in
the matter before 1 July 2015 (Sch 4, cl
18(1)).
The Law Societys Costs Committee has
updated the standard costs agreement
and costs disclosure, and the conditional
costs agreement and costs disclosure,
to reflect changes introduced by the
Uniform Law. The Committee has
also provided a form of notification to
accompany bills issued for matters where
first instructions are received on or after
1 July. Other costs precedents and the
costs guidebook will be updated shortly.
In addition, the Legal Services Council has
designed user-friendly costs disclosure
forms along with information sheets for
Compliance audits
The New South Wales Legal Services
Commissioner and Law Society Council
may audit a law practices compliance
with the Uniform Law.
Audits can only be conducted where
the Commissioner or Council considers
Further information
The Law Societys website provides
a wide range of information about
the new regulatory framework,
including factsheets on: incorporated
legal practices; unincorporated legal
practices; billing; costs disclosure;
consumer complaints; unqualified legal
practice; managed investment schemes;
admission of foreign lawyers; liability of
principals; solicitors stamps; transitional
arrangements for corporate and
government lawyers.
A number of CPD seminars and live
webcasts addressing aspects of the
Uniform Law are also scheduled on costs
disclosure and trust accounting among
other topics.
Queries about the Uniform Law can be
directed to the Professional Standards
Department. T: 9926 0390, or
E: psd@lawsociety.com.au.
AUGUST 2015
p72_73_LEGAL_Regulatory.indd 2
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73
22/07/2015 6:48 pm
UNDERSTANDING
INVESTOR-STATE
DISPUTE SETTLEMENTS
By Alex Baykitch and Aleks Sladojevic
74
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AUGUST 2015
p74_76_LEGAL_Free Trade.indd 1
23/07/2015 2:11 pm
In addition to providing
for public hearings,
the China-Australia
Free Trade Agreement
[ChAFTA] requires
the respondent state
to make certain
documents such as
pleadings available to
the public ... Compared
to a number of other
arbitral regimes,
ChAFTA provides a
relatively high degree
of transparency.
Philip Morris referred its claim to
arbitration under Article 10 of the
Australia-Hong Kong BIT, which provides
that any disputes between an investor
of one contracting party and the other
contracting party that have not been
settled amicably shall, after a period of
three months of notification of the claim,
be submitted to arbitration under the
UNCITRAL rules.
The case is still in its preliminary stages,
with submissions being received on
Australias preliminary procedural
objections. Notwithstanding that
proceedings are still in motion, and
that we are still quite some time away
from an award being handed down,
critics contend that by agreeing to ISDS,
Australia jeopardises its ability to regulate
on public policy grounds. There is no
evidence, however, to suggest that this is
in fact the case.
Further, and as mentioned earlier, certain
provisions in Chapter 9 of ChAFTA plainly
preserve the Governments freedom to
regulate in matters of public policy.
AUGUST 2015
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23/07/2015 2:11 pm
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AUGUST 2015
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23/07/2015 2:12 pm
WILL-MAKING
AND HIDDEN TAX STINGS
Jim Maine is an
accredited business
law specialist and a
chartered tax adviser.
He is also a director
of JMA Legal, Sydney,
Cootamundra,
Gundagai.
By Jim Maine
Transfers to beneficiaries of a
will under a power of sale or
testamentary option are not
CGT-free.
Be careful preparing wills
where there are non-resident
beneficiaries.
Never make a will of
any complexity without
consulting other family
advisers especially the family
accountant.
A few months later you hear that Sheila
has passed on, and soon afterwards the
three kids make an appointment to go
through the will. They also appreciate
the equal and considered treatment.
The stings
The problems start when you consult
Sophie, the family accountant for many
years. She says, with feeling, I so wish
you had spoken to me about this before
the will was signed.
Worriedly, you ask why.
Firstly, Sophie says, that share portfolio.
Michael is obviously a UK resident for
tax purposes. This means the gift to him
of one-third of the share portfolio will
trigger CGT event K3, which happens
when certain assets including listed
shares pass to a foreign resident
(see Income Tax Assessment Act 1997
(ITAA 1997) s 104.215).
What you should have done is give him
different assets of the same value for
example, cash or even that investment
property, which as real estate is not
subject to CGT event K3 (see ITAA 1997,
s 855.15 ).
Secondly, Sophie says grimly, that share
you required to be issued to Janes
testamentary trust. The cost base of
the share will be nil (s 112.20(3)) so that
if she sells it within a year, 100 per cent
of the value will be added to her
assessable income.
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77
21/07/2015 10:53 am
Khanh Hoang is an
Associate Lecturer
with the Migration
Law Program at the
Australian National
University.
By Khanh Hoang
78
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AUGUST 2015
p78_79_LEGAL_Migration law.indd 1
22/07/2015 9:06 am
Conclusion
The Border Force Act 2015 (Cth) provides
the legislative basis for an Australian
Border Force to be created within the
DIBP. The Australian Border Force ushers
in a new era for the DIBP with renewed
focus on enforcement and integrity
measures. Practitioners should expect to
see greater numbers of visa refusals and
cancellations. The secrecy provisions of
the Act are controversial and it remains
to be seen whether whistleblower
protection provisions under the PIDA are
adequate to protect disclosures made in
the public interest.
AUGUST 2015
p78_79_LEGAL_Migration law.indd 2
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79
22/07/2015 9:06 am
NEW MEGA-TRIBUNAL
RESERVES SPACE FOR
FREEDOM OF INFORMATION
Sophie Farthing is a
senior policy officer
at the Public Interest
Advocacy Centre.
By Sophie Farthing
80
LSJ
Allocating expertise
The AAT will have seven specialist
divisions, including in relation to: General
Matters; Refugee and Migration; the
National Disability Insurance Scheme;
Security; Social Services and Child
Support; Taxation and Commercial; and,
as mentioned, Freedom of Information.
Further divisions can be appointed by
way of regulation.
Division and Deputy Division heads
will be appointed to manage the seven
streams. The Attorney-General will
appoint non-presidential members
to one or more of the divisions when
satisfied the prospective member has
the relevant training, knowledge or
experience appropriate for that division
(AAT Act, ss 17C to 17H).
AUGUST 2015
p80_81_LEGAL_FOI.indd 1
22/07/2015 6:40 pm
Looking ahead
The success of the new AATs
performance as a mega-tribunal is
certainly one to watch. It is hoped that it
will provide the simple, straightforward
approach that best serves both
applicants and respondents to legal
disputes. It is a reform that has the
potential to appropriately balance
the dual necessities of efficiency and
improved access to justice.
On the other hand, the FOI Amendment
Bill poses a grave threat to transparency
and accountability in government.
Hopefully the addition of a specialist
FOI stream in the new AAT will go some
way to mitigate the damage to the FOI
regime that will occur should the FOI
Amendment Bill be eventually pushed
through Parliament.
A well-functioning FOI
regime is a central plank
of open government,
ensuring transparency
and accountability for
decisions made by those
who have been elected
to govern.
AUGUST 2015
p80_81_LEGAL_FOI.indd 2
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81
22/07/2015 6:40 pm
Stephen Tully
is a barrister at
6 St James Hall
Chambers in
Sydney.
By Stephen Tully
Background
The Commonwealth treaty-making
process was last reformed in 1996 under
the Howard government. Among other
reforms, a Joint Standing Committee
on Treaties (JSCOT) was established
to provide oversight, scrutiny and
foster a greater level of parliamentary
involvement. Nearly 20 years later, the
recent inquiry has examined whether
further refinements are required and
whether there are opportunities for
more openness, transparency and
accountability in the way Australia
negotiates treaties (para 1.8).
The terms of reference were very broad
and included the Commonwealths
treaty-making process (including
Parliaments role in negotiating,
approving and reviewing treaties),
appropriate institutional roles (for
parliamentary committees and other
consultative bodies), developing treatyrelated materials, opportunities for
independent assessment, the extent of
stakeholder consultation, State practice
in other jurisdictions and related matters.
One impetus for the inquiry was the
recent conclusion of high-profile free
trade agreements with Korea, Japan
and China as well as the Trans-Pacific
Partnership. The Committee reported it
heard compelling evidence that these
treaties reach into domestic policy arenas
which are ordinarily subject to public
debate or domestic legislation, and affect
a States regulatory ability (para 2.27).
82
LSJ
A recent Commonwealth
Parliamentary Committee
inquiry found that free trade
agreements intrude into many
domestic policy spheres without
democratic oversight and curtail
Australias regulatory abilities.
The Committees report
Blind agreement: Reforming
Australias treaty-making
process asserts that
Parliaments role in the
Commonwealths treaty-making
process needs strengthening.
Practical proposals include
confidential access to draft
treaty text during negotiations,
publishing preparatory material,
communications mechanisms
which enhance stakeholder
contributions, a negotiation
template, improved analysis and
strategic approaches.
AUGUST 2015
p82_83_LEGAL_International Treaties.indd 1
23/07/2015 10:26 am
An assessment
Parliamentary participation
The Report helpfully advances
consideration of parliamentary
participation in treaty-making.
Many submissions expressed public
discomfort with the present position
(para 3.41). Previous attempts to legislate
for parliamentary approval of treaties
include the Parliamentary Approval of
Treaties Bill 1994/1995 and the Treaties
Ratification Bill 2012. But the Committee
was unconvinced by this distracting
issue which lacked political traction
(para 6.18). A dramatic recasting of
roles was not presently desirable or
necessary, and there was no evidence
of a compelling case for change of
this nature (para 3.48). In its view, the
executives role vis-a-vis Parliament or
the external affairs power were no longer
debated. The issues had been addressed
by the Legal and Constitutional Affairs
References Committee in Trick or Treaty?
Commonwealth Power to Make and
Implement Treaties (1995). The Senate
Foreign Affairs, Defence and Trade
References Committee merely noted
there may be no constitutional barriers
to Parliament playing a greater role in
treaty-making (para 6.3). This reluctance
not to evaluate fundamental reform will
inevitably limit what is achievable.
Conclusion
Finally, consultation between the
Commonwealth and the States/Territories
needs improvement. Only the ACT
government contributed to this Inquiry
and the Committee lacked sufficient
evidence to make recommendations
(para 4.82). Clearly, there is more work to
be done.
AUGUST 2015
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23/07/2015 10:27 am
NO PRESUMPTIONS, NO ASSUMPTIONS:
JUST AND EQUITABLE PRINCIPLES
IN FAMILY PROPERTY DISPUTES
Ian Coleman SC is a
barrister at Culwulla
Chambers and a former
judge of the Family
Court of Australia.
By Ian Coleman SC
84
LSJ
AUGUST 2015
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Conclusion
This article identifies aspects of family
law in which, less than three years
after it was decided, the High Courts
reminder in Stanford of the importance
of equitable principles in family law has
been heeded by the Family Court.
The extent to which family law continues
to reflect the principles of equity that
underpin the general law remains
challenging and uncertain.
AUGUST 2015
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21/07/2015 10:50 am
PROPORTIONALITY
IN COSTS ASSESSMENT:
A NEW DAWN?
By Peter Rosier
A new test?
The test in s 172 is:
(1) A law practice must, in charging
legal costs, charge costs that are no
more than fair and reasonable in all the
circumstances and that in particular are:
(a) proportionately and reasonably
incurred; and
(b) proportionate and reasonable in
amount.
For the moment, we do not need
to consider the other matters to
be considered in determining the
reasonableness of costs in s 172 (2).
It is immediately obvious that the test
to be applied is expressed in different
language from the test in ss 363 and 364
of the Legal Profession Act 2004 (the
Act). The general principles of statutory
interpretation would suggest that this
requires a different interpretation.
86
LSJ
AUGUST 2015
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23/07/2015 2:53 pm
ABORIGINAL CULTURAL
HERITAGE LAW:
A LONG ROAD TO REFORM
By Norman Laing and Kellyanne Stanford*
88
LSJ
Norman Laing is an
Acting Commissioner
of the NSW Land &
Environment Court.
Kellyanne Stanford is
a law student. Both are
partners of Waratah
Partners Aboriginal
Corporation.
AUGUST 2015
23/07/2015 10:11 am
Where to now?
Despite decades of bipartisan consensus
to create stand-alone Aboriginal
cultural heritage legislation, the reform
process continues to develop at a slow
rate. There have been no government
announcements about next steps
since the consultation process for the
proposed model was completed in
March 2014
As at June 2015 some 76 years since
the NSW government commenced
discussions about the Aboriginal
cultural legislation there still remains
a legislative void in the recognition
and practical implementation of
various governments commitments
and, importantly, Aboriginal peoples
aspirations for the self governance of
their heritage.
The National Parks and Wildlife Act is the
oldest legislation in Australia managing
Aboriginal cultural heritage. Although it
has been amended multiple times and
delivers some positive results, it still
does not deliver the outcomes expected
and needed for the people of NSW.
The Aboriginal cultural heritage reform
process in NSW has been a long journey,
especially for the first peoples of what is
Australias first State.
*Norman Laing is a decendent of the Dunghutti
people. Kellyanne Stanford is a descendant of
the Yuin people.
AUGUST 2015
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23/07/2015 10:11 am
hat do humans,
corporations, ships and the
Whanganui River in New
Zealand have in common?
They are all recognised as legal entities
capable of possessing legal rights.
Absent from this privileged list are those
non-human animals with whom we
share many characteristics, such as high
cognitive ability, practical autonomy,
complex social structures, and the
capacity to feel pain.
Despite these common traits, all nonhuman animals are still treated as property.
Unless an animals interests happen to
coincide with that of a humans, he or she
is largely invisible to judges.
For example, although it is an offence to
commit an act of animal cruelty under
the Prevention of Cruelty to Animals
Act 1979 (NSW), the act of cruelty must
have been unnecessary (as subjectively
determined by a human).
Non-human animals do not have an
absolute inalienable right to bodily
integrity.
90
LSJ
Rebekah Lam is an
Associate at Baker
& McKenzie and
Daniel Cung is a
student of Law at
Sydney University.
Liberty
In his book Drawing the Line: Science
and the Case for Animal Rights (Perseus
Books, 2002), Professor Wise refers to
liberty and equality as the first principles
of Western Law. These fundamental
values are enshrined in the United
States Declaration of Independence,
the Universal Declaration of Human
Rights (Articles 3 and 10), and were at
the core of the catch cry of the French
Revolutionaries who demanded Liberte,
egalite et fraternite.
Professor Wise describes liberty as the
entitlement to be treated a certain way
because of how one is, which turns on
an individuals qualities, irrespective of
how others are treated. Identifying these
qualities is at the heart of the actions
instigated by the NhRP.
In the 18th century, the British jurist,
philosopher and social reformer
Jeremy Bentham said in relation to
whether animals should receive equal
consideration to humans, The question
is not, Can they reason? nor Can they
talk? but, Can they suffer? (Bentham,
Jeremy, Introduction to the Principles of
Morals and Legislation, J.H. Burns and
H.L.A. Hart (eds) 1982). Despite this line
of thinking from almost 200 years ago,
the fact that animals are sentient beings
with the ability to feel, perceive and
experience subjectively is not considered
sufficient to alter their status as chattels.
The NhRP believes that practical
autonomy (which implies sentience) is
the key to legal rights.
Practical autonomy
Professor Wise describes practical
autonomy as (i) the ability to desire; (ii)
the ability to intentionally try to fulfil
ones desires; and (iii) the possession of
a sense of self-sufficiency (Steven Wise,
Drawing the Line, Science and the Case
for Animal Rights, Perseus Books, 2002).
AUGUST 2015
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Next steps
Judgment in Leo and Hercules case is
expected very soon, but it is possible
that the university may wind up its
project before judgment is delivered,
rendering the cause of action somewhat
redundant. If, however, the court rules
in favour of the chimpanzees, the
intention is for Leo and Hercules to live
out the remainder of their lives in a large
sanctuary in Florida.
Some have used the intention to release
Leo and Hercules into something less
than full freedom as an argument
against the granting of the writ, which
requires that a person be set free.
Professor Wises response to this is
to again draw the analogy with what
would happen if children or the mentally
incapacitated were recipients of a writ
ie they would also be released into the
custody of a guardian and not be set
completely free, either.
Irrespective of the outcome in the
current cases before the New York
Courts, what the NhRP has done
is to challenge judges to honour
established principles of jurisprudence
and the scientific evidence that
certain non-human animals display
practical autonomy and share many
characteristics with humans.
Voiceless, the animal protection institute
based in Sydney, is working with the
NhRP to set up a working group to
determine whether a test case could be
run in Australia.
Our court systems and standing
requirements are likely to make any
action much more difficult to mount, but
it is clear that, eventually, our common
law must evolve to no longer treat
certain non-human animals as property,
but recognise that they are sophisticated,
highly intelligent beings worthy of
possessing rights of their own.
Note: The NSW Young Lawyers Animal Law
Conference will be held on 29 August 2015 at
the University of New South Wales.
Speakers include: The Hon Michael Kirby AC
CMG, Phillip Wollen OAM, Dr Alex Bruce (ANU),
Dr Mehreen Faruqi (NSW Greens) and legal
advocates from RSPCA Australia and RSPCA
NSW, Animals Australia and Voiceless.
www.lawsociety.com.au/
animallawconference
AUGUST 2015
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22/07/2015 6:14 pm
E-CONVEYANCING
THE VERDICT
A Q&A with Richard Harvey and George Patrinos
Congratulations on being
among the first solicitors in
NSW to embrace the revolution
in conveyancing practice.
Q. What made you take the leap from
paper to electronic conveyancing?
GEORGE PATRINOS (GP): I had longstanding clients who were familiar
with the new electronic conveyancing
system and wanted to try it. I was also
interested to see if the new system was
more efficient than my process and
whether it was going to allow me to give
a better level of service to clients. I am
also interested in technology generally.
RICHARD HARVEY (RH): Well,
technically I nearly got to complete
a transfer but the transaction had to
be settled in paper. The purchasers
incoming mortgagee claimed they were
unable to complete in PEXA because it
was out of scope on PEXA. Because the
purchaser was a company and mortgage
duty may be payable, currently PEXA
does not support this function. I have,
however, completed five caveats for
various purchaser clients.
Richard Harvey is an
Accredited Specialist in
Property Law and Chair of the
Property Law Committee.
George Patrinos is the
Principal lawyer of Lawsome
Property Lawyers.
92
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Disadvantages:
RH: Advantages:
AUGUST 2015
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The facts
The case concerned a development
application and subsequent development
consent for the development and use
of a Crown land reserve in Newcastle
as a function centre. The King Edward
Headland Reserve (the Reserve in
question) is situated within King Edward
Park and was reserved from sale for the
purposes of public recreation under the
Crown Lands Act in 2005.
The Reserve was, at the relevant time,
zoned 6(a) Open Space and Recreation
under the Newcastle Local Environment
Plan 2003 (LEP) (which was replaced
in 2012). Under this zoning, function
centres were a prohibited purpose as
they were not listed as permitted with
or without consent. However, the LEP
further provided that any development
allowed by a plan of management under
the Local Government Act 1993 (NSW)
or the Crown Lands Act was permitted
with consent.
94
LSJ
Determinations
Was the proposed development within
the reserved purpose, being public
recreation?
After a review of the relevant case
law, Justice Sheahan concluded it
was clearly established that land
can be said to be used for public
recreation only if it is open to the
public as of right and is not a source
of private profit. This was not the case
with the proposed function centre.
Accordingly, the proposed use was
not for the declared purpose of the
Reserve, being public recreation.
Did the Plan of Management add an
additional purpose for the use of the
Reserve?
Additional purposes of conference
centres and commercial facilities that
provide for public recreation needed
to have been validly adopted by the
Minister in the Plan of Management.
The Minister was required to have
regard to the four specific matters set
out in s 114(1C) of the Crown Lands
Act, namely: in determining whether
to adopt a plan of management that
authorises a reserve to be used for an
additional purpose, the Minister must
have regard to the declared purpose
of the reserve, the compatibility of
the proposed additional purpose with
the declared purpose, the principles
of Crown land management and the
public interest.
Justice Sheahan concluded the
Minister did not take into consideration
the section 114(1C) matters and that
the Plan of Management was neither
drafted, nor adopted, with the intention
of adopting an additional purpose.
Could the Plan of Management have
an additional purpose different from
the declared purpose of the Reserve?
Justice Sheahan determined that, on
a proper construction of s 114, the
power to add an additional purpose
AUGUST 2015
p94_95_LEGAL_Planning Law.indd 1
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Cremean,
Admiralty jurisdiction law
and practice: Australia, New
Zealand, Singapore, Hong
Kong and Malaysia.
4th edition.
The Federation Press. 2015.
George,
Social media and the law.
LexisNexis Butterworths. 2014.
Hughes,
The Law Council of Australia:
The people, the profession
and the institutions.
Halstead Press. 2013.
Lang,
Horsleys Meetings
procedure, law and practice.
7th edition.
LexisNexis Butterworths. 2015.
Orders
The Court declared the Plan of
Management was invalid and of no
effect. Accordingly, the Development
Consent was invalid and of no effect.
Furthermore, the Court found that even
if the Plan of Management was valid, the
proposed development was not within
the additional purposes in the Plan of
Management.
Practical implications
For Local Councils and Crown land trusts
proposing the adoption of a plan of
management for land reserved under the
Crown Lands Act consideration should
be given to ensure that:
any uses to be permitted on the
Crown reserve are permitted under,
or in connection with, the declared
purpose of the Crown reserve; and
where an additional purpose is
proposed to be adopted by a plan of
management, the requirements of the
Crown Lands Act are complied with
and all mandatory matters are given
genuine consideration in an active
intellectual process.
This will require more than formal
references to the matters listed
in section 114(1C) in the plan of
Legg,
Annotated class actions
legislation.
LexisNexis Butterworths. 2014.
Linton,
Legal project management.
LexisNexis Butterworths. 2015.
Seddon on deeds.
The Federation Press. 2015.
Sweeney,
Marketing and the law.
5th edition.
LexisNexis Butterworths. 2015.
Van Caenegem,
Intellectual and industrial
property law.
2nd edition.
LexisNexis Butterworths. 2015
We remind library
users that 15
LexisNexis Red
electronic looseleaf
titles were recently
added to the
collection and are
available for loan
via your iOS device
or your Windows
desktop PC.
Please visit our
Digital Resources
page for details.
Contact us for the complete catalogue and information concerning library services:
Phone: +61 2 9926 0324
Library_Additions_HP Horizontal_AUGUST.indd 1
p94_95_LEGAL_Planning Law.indd 2
Email: library@lawsociety.com.au
www.lawsociety.com.au/library
20/07/2015 1:19 pm
AUGUST 2015
LSJ
95
22/07/2015 11:23 am
CRIMINAL LAW
By Thomas Spohr, solicitor with the NSW Director of Public Prosecutions,
Law Society Councillor and member of the Law Society Ethics, Human Rights and Criminal Law Committees
96
LSJ
AUGUST 2015
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FAMILY LAW
By Robert Glade-Wright, founder and senior editor of The Family Law Book
AUGUST 2015
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23/07/2015 4:14 pm
FAMILY LAW
CONTINUED
was therefore filed within time, and the
primary judge was in error in holding
that it was not. That result accords
with the plain meaning of the subsection, and there is no warrant in
that sub-section, in s 36(1) of the Acts
Interpretation Act, or in any relevant
authority for, in this instance, excluding
from the calculation of when the two
year period ends, the last day of that
two year period, ie 9 January 2013.
98
LSJ
AUGUST 2015
p96_99_Case Notes_August.indd 3
23/07/2015 4:15 pm
By Pamela Suttor, partner at L Rundle & Co and Chair of the Law Society Elder Law and Succession Committee
Judicial advice
Vulnerable clients
Committee member Ray Ward has
drawn my attention to the Practice Note
issued by the UK Law Society in relation
to acting for vulnerable clients. It can be
found at:
lawsociety.org.uk/support-services/
advice/practice-notes/meeting-theneeds-of-vulnerable-clients-july-2015/
Probate registry
Long-serving Probate Deputy Registrar
Paul Studdert recently retired and was
suitably farewelled by members of both
branches of the profession.
The depth of his knowledge and
experience in the court and as a
mediator will be sorely missed. I hope
retirement will enable him to complete
the next edition of his renowned,
although now outdated, practice book.
Capacity texts
TheQueensland Handbook for
Practitioners on Legal Capacitywas
launched on 19 May 2015.
The handbook is the product of work by
Queensland Advocacy Inc. and Allens,
with input from members of Queensland
Law Society (QLS) Ethics Centre. The
electronic resource has been endorsed
by QLS and you can access it as follows.
qls.com.au/Knowledge_centre/Ethics/
Resources/Client_instructions_and_
capacity/Queensland_Handbook_for_
Practitioners_on_Legal_Capacity
AUGUST 2015
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23/07/2015 4:15 pm
*Offer only available to current members of The Law Society of NSW on our 3 and
12 month membership options (Passport, Platinum or Black Label memberships).
For full terms and conditions visit www.lawsociety.com.au/fitnessfirst
August ADS_FPC.indd 7
23/07/2015 3:34 pm
CONSULTANTS
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advertisers. Make sure your product or
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contacting the Advertising Sales Account
Manager, Jessica Lupton via email: jessica.
lupton@lawsociety.com.au or phone: 02
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www.lawsociety.com.au/advertise
COSTING
ALYSON ASHE & ASSOCIATES
ACCOUNTANTS
ACCOUNTING, TAXATION AND PRACTICE
ADVISORY FOR LAW FIRMS
AGENCY/REFERRALS
ACT AGENCY WORK
All Sydney CBD Court appearances, copying Court files and filing. Urgent instructions
welcome. Contested matters conducted by
experienced litigators. TW Agency. 02 9269
9999, GPO Box 1959 Sydney 2001, DX 211
Sydney, solicitors@twagency.com.au.
Brett Slater Solicitor Accredited Specialist Specialising since 1985, 89 York Street,
Sydney NSW 2000, T: 02 9299 5815, www.
brettslater.com MARN 9251787.
IMMIGRATION LAW
BANKRUPTCY
DEBT COLLECTION
FAST TRACK DEBT COLLECTION
FOR SALE
LIFESTYLE & PRACTICE
MISSING WILLS
JEANINNE MICHELLE BRADY
Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Alfonzo Carmine De
Cerbo (also known as Alphonsus Di Cerbo)
late of Wahroonga who died on 20 June
2013 please contact Fairfax Lawyers of Suite
305, 10 Century Circuit, Norwest Business
Park, Baulkham Hills, NSW 2153, PO Box
7847, Baulkham Hills, 2153, Tel: 9841 0000,
Fax: 8850 2362.
AUGUST 2015
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22/07/2015 6:15 pm
Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Geoffrey Clement
Morville Gee of 357 Tilbaroo Crossing Road,
Toms Creek 2446 who died on 18 March
2014, please contact James Kay of Falvey
Kay Lawyers, Level 1, 33 Hay Street, Port
Macquarie 2444, DX 7422 Port Macquarie,
Tel: (02) 6583 8199, Fax: (02) 6583 4743,
Email: jkay@falveykaylawyers.com.au.
JENNIFER ANN GREENE
AGATHE PAPADOPOULOS
Would any person or firm holding or knowing the whereabouts of a will or any other
document purporting to embody the testamentary intentions of Agathe Papadopoulos
who died on 15 January 2015 please contact
Zaki Hajjar of Hajjar Legal on 9707 1947.
Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Wilfred Chapman
Hill late of Surf Beach, NSW, who died on 18
June 2015 please contact Cains Law of 38A
Candlagan Drive, Broulee, NSW 2537 Tel.
44717740 Fax 44717752.
Would any firm knowing the whereabouts
of a will of the late Fiona Rebecca Hooper
who died on 19 May 2015 please contact Mr
James Argiris of Gianacas Argiris McDonald
Solicitors 200 Union Street The Junction
Tel: 02 4969 3366 Fax: 02 4962 2202 Email:
office@gamlaw.com.au.
NEIL ANTHONY HOULTON
Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of Neil Anthony Houlton
late of Brighton-Le-Sands NSW who died
on 16 April 2015 in New Caledonia please
contact Wade L. Hewett, Solicitor of 26 Telegraph Road Pymble NSW 2073, PO Box
6242 Pymble NSW 2073, Tel: 0417 494260,
Email: thehewetts@glendaron.com.au.
PETER DAVID HUDSON
Would any person or firm holding or knowing the whereabouts of a will or other
document purporting to embody the testamentary intentions of the late Christopher
Ian Mann formerly of Billilla via Menindee
NSW but late of 283 Adelaide Road Murray
Bridge SA who died on 11th August 2014
please contact: Leonie Millard, Mellor Olsson Lawyers, Level 5, 80 King William Street,
Adelaide SA 5000 Phone: (08) 8414 3421
Facsimile: (08) 8414 3444 Email: lmillard@
mellorolsson.com.au.
102
LSJ
Would any person or firm holding or knowing the whereabouts of a will or any other
document purporting to embody the testamentary intentions of Elka Silland who
died 20 July 2013 please contact Cameron
Gillingham Boyd Solicitors, Level 3, 60 Pitt
Street, Sydney, NSW, 2000 Telephone: 9232
1577 Fax number: 9223 1075 Email address:
tonyatkinson@camgil.com.au.FIC
OFFICE SPACE
CULWULLA CHAMBERS
OFFICE SUPPORT
TYPING SERVICES
Small Crime / Conveyancing / Family / Probate / Civil practice for sale. Please forward
your expression of interest to Confidential
Box No. 4, August Law Society Journal, 170
Phillip Street, Sydney NSW 2000.
LIFESTYLE LEGAL PRACTICE
PROPERTY VALUATIONS
VALUATIONS
SERVICES
PROFESSIONAL WRITER/EDITOR
AUGUST 2015
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Locum Service
NEED
A LIFESAVER?
GET A LOCUM.
lawsociety.com.au
/locumservice
AUGUST 2015
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22/07/2015 2:29 pm
104
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AUGUST 2015
p101_AUGUST_Classies.indd 104
23/07/2015 3:42 pm
BUYERS
AWARE
IN THE MARKET
FOR A LEGAL
PRACTICE?
Savvy buyers know theres
only one place to look.
Browse NSWs most diverse
and comprehensive range of
law firms available online on
The Law Societys Practices
for Sale listings.
(Sellers, for a free online
listing take out a Practice for
Sale classified ad in the LSJ.)
lawsociety.com.au/pracsale
AUGUST 2015
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105
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LEGAL FUNNIES
witless
EXPERT
106
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AUGUST 2015
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Turbocharge
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