Queensland Law Society - Proctor, December 2013, Vol.33 No.11

Transcription

PROCTOR
December 2013 – Vol.33 No.11
VLAD tidings
Key features of the
new legislation
Women leading the way
WLAQ and Agnes McWhinney
award winners 2013
Published by the Queensland Law Society
ISSN 1321-8794 | RRP $14.30 (includes GST)
qls.com.au
Director
action
Queensland amends
laws imposing liability
for corporate fault
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PROCTOR
News and editorial
Practice skills and management
3,5
Executive reports
6-14
News
In camera
12-13
Look at me – online!
56
How your firm can compete
for internet attention
Keep it simple:
57
Don’t judge on ‘now’ – judge on ‘then’!
Regular features
16
Features
Director action
16
20
Design trends focus
on cost and productivity
VLAD tidings
Career pathways
Advocacy: The voice of your profession
32
Career moves
Alternative dispute
resolution: Mediation by model
34
Workplace law:
35
Back to basics: Citation with authority
36
Banking and financial services:
38
Vendor finance? Vendor beware!
Succession law: A lesson for solicitor executors
41
Equalising opportunity
in the law: Anti-racism on the job
42
Family law casenotes: Child’s interests
45
53
Outside the law
Wine:
Cheers to summer
22
Practice and procedure:
62
Humour: Secrets of Secret Santa
63
46
A clear view of costs ‘of and incidental to’
28
WLAQ and Agnes McWhinney
award winners 2013
Annual early career
lawyers edition
On appeal: 1-31 October 2013
48
Hurley’s casenotes
51
Business supporters
54
Classifieds
58
Contact directory, interest rates
64
Feature articles by and for
early career lawyers
The adversarial apprentice
18
Duty of disclosure
26
An overview for early career lawyers
Early career lawyer forum
highlights burnout issues
52
61
Crossword: Mould’s maze #16
outweigh breach of order
Key features of the new legislation
10
Implications of new workers’ comp
Queensland amends laws imposing
liability for corporate fault
Space mission
Ethics: Ten tips for better advocacy
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President’s report | News and editorial
Achievement and the way forward
Supporting the rule of law and a resilient profession
Another year has almost passed,
and it is time to review our progress
and look forward to the challenges
that lie ahead.
In the February edition of Proctor, I talked
about my key priorities for the year. These
were to uphold the rule of law and to advance
the interests of our members, where a major
concern was to continue the ‘attack’ on
depression and build a more resilient profession.
These are not the kind of tasks you can tick off a
list as ‘job done’, but it is pleasing to report that
much was achieved. We spoke out strongly
on behalf of our members in defence of basic
principles of justice, particularly in recent
months, and our voice was heard by many.
Our activity around the extraordinary legislative
events of mid-October illustrates this. During
the parliamentary sitting week of 15-17
October, we brought our members’ concerns
to public and parliamentary notice, resulting in
102 Hansard mentions across the three days.
And since 14 October, we have had a total
of 218 ‘media mentions’:
• 92 radio stories/mentions
• 68 online stories/mentions
• 44 print stories/mentions
• 14 television stories/mentions.
These figures add to many more across
the course of the year.
There remains much to do in improving the
wellbeing and resilience of our profession, but
I believe we have contributed significantly
to raising awareness of the issues through
our love law, live life campaign. This included
the launch of a dedicated web portal and
a continuing series of both practical and
thought-provoking articles in Proctor.
There is much else that has been done,
and there isn’t enough space here to list
everything, but I would draw your attention
to the restructuring of the Society to better
meet member needs through governance
changes, an important step in moving from
our role as a statutory body to a limited
company independent of government.
back to contents
As we move toward another year, all of
these matters will continue to be addressed
but, as is the nature of things, other issues
will come to the fore.
One of these, which has become ‘critical’
rather than ‘of concern’, is the employment
situation for law graduates. While it is difficult
to find anything more than anecdotal
evidence at this point, it is increasing apparent
that there are more graduates for fewer jobs.
Understandably, tertiary institutions
prefer to produce more rather than fewer
graduates, given the accompanying financial
considerations alone. Meanwhile, the
profession is under the influence of factors such
as the economy and increased outsourcing.
Our estimate is that Queensland produces
around 1500 law graduates a year, and we
know that there are less than 1000 new
admissions to practice annually. While not
all law graduates necessarily aim to practise,
we can surmise that there is a significant
disparity which is only likely to increase.
Annette Bradfield | Queensland Law Society president
We are seeking the cooperation of law firms,
tertiary institutions and other stakeholders,
firstly to establish the scale of this issue, and
secondly to seek solutions. At the least, we
will aim to ensure law students are given
a realistic picture of their employment
prospects as early as possible.
As it is a global phenomenon, we have
already begun talking with other societies
on how this is being addressed elsewhere.
Finally, I thank the many members who
have taken the time to talk to me during
my year in office and raise the issues they
are concerned about, as well as provide
feedback on our activities.
This information has been important in
helping to build a better Society. My thanks
also go to our Council, CEO and staff for their
hard work and support.
To all, I wish you a restful and enjoyable holiday
season and a professionally satisfying 2014.
Annette Bradfield
December 2013 | Proctor
3
21– 22 March 2014
Brisbane Convention & Exhibition Centre
Stay ahead >> 2014
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Our executive report | News and editorial
New era for
managing practices
Redesigned course meets today’s needs
Good practice management remains
critical to the success of every law
firm, from sole practitioner to global
practices, which is why the QLS
practice management course has
been the starting point for new
principals since 1988.
To meet the complex needs of our members
and ensure the success of their practices, I am
pleased to announce that we have revised the
practice management course to align it with
today’s best practice principles, both in adult
learning and in practice management.
The new course provides an intensified
knowledge transfer over three days from experts
in strategy, operations and leadership. With
a lighter load of prior study, the face-to-face
tutorials focus on these three areas of practice
management critical to success as a principal.
Day one concentrates on strategies for
business planning, development and
marketing, client service and practice finance.
Day two covers operational matters including
costs, billing and profitability, trust accounting,
risk and compliance, and information
technology and knowledge management.
Day three zeroes in on individual needs
such as ethics and responsibility, people
management and leadership.
Courses scheduled for next year begin on
7 February and 2 May for principals in sole
to small practices, and on 7 March and
13 June for medium to large practices.
Please see qls.com.au/pmc for more
information and enrolment details.
The G20 and you
The G20 leaders’ summit in 2014 will be held
on 15 and 16 November in Brisbane. The
summit is the climax of a year-long program
of events that begin on 1 December 2013.
It includes a meeting of finance Ministers
and central bank governors on 20 and
21 September 2014 in Cairns.
The G20 is the premier forum for its members’
international economic cooperation and
back to contents
decision-making. It comprises 19 nations plus
the European Union. The G20 in 2014 will
also be an opportunity to showcase Brisbane,
Queensland and Australia to member and nonmember countries as a world-class destination
for tourism, education and business.
We should ensure that we all understand the
nature of the G20 and look at the potential role
we can play. We see opportunities for many of
our members to be involved while the focus of
the world is on Queensland. We will be keeping
a watching brief on opportunities for the
members of the profession and advising as
the exciting year progresses.
The G20 works closely with non-government
groups from across the global community,
including business, labour, civil society,
thought leaders and youth. As host, Australia
will have national and Queensland-based
working groups to consider the key policy
areas of human capital, investment and
infrastructure, trade and financial regulation.
Other elements of the G20 year likely to be of
interest to QLS members include a focus on
five Asian countries – China, India, Indonesia,
South Korea and Japan. Australian embassies
in these countries will host events that
showcase Australia and Queensland.
Noela L’Estrange | Queensland Law Society CEO
There will be a number of public briefings
that explain the scope of the G20 and offer
potential for your involvement. See
dpmc.gov.au/g20 for more information.
Thank you to Council members
As we prepare to welcome several new
members to the QLS Council from 1 January,
I would like to thank our retiring Council
members for their dedication and effort in
meeting the demands of the role. I believe
many members may not appreciate the time
involved and sacrifices that must be made for
busy practitioners to perform their Council
duties. The Society is deeply appreciative of
their dedication and expertise working in the
interests of our members and the profession.
I would like to wish all of our members a very
safe and happy Christmas, and I look forward
to working with and for you in 2014.
Noela L’Estrange
5
YWCA recognises
125 women leaders
Queensland Law Society Inc.
179 Ann Street Brisbane 4000
GPO Box 1785 Brisbane 4001
Phone 1300 FOR QLS (1300 367 757) Fax 07 3221 2279
qls.com.au
President: Annette Bradfield
Vice president: Ian Brown
Immediate past president: Dr John de Groot
Councillors: Rohan Armstrong, Deborah Awyzio,
Genevieve Dee, Warren Denny, Michael Fitzgerald,
Suzanne Greenwood, Joanne Parisi, William Potts, Paul Tully
Chief executive officer: Noela L’Estrange
Editor: John Teerds
[email protected]
07 3842 5814
Design: Alisa Wortley, Clint Slogrove
Advertising: Daniela Raos [email protected]
07 3842 5921
Display Ads / Classifieds:
[email protected] /[email protected]
Subscriptions: Hayden De Waal
07 3842 5812
Proctor committee: Adrian Braithwaite, Dr Jennifer Corrin,
Kylie Downes QC, Steven Grant, Suzanne Greenwood,
Vanessa Leishman, Rowena McNally, Bruce Patane,
Christine Smyth, Anne Wallace.
Printing: Print Works. Proctor is published monthly
(except January) by Queensland Law Society.
Editorial submissions: All submissions must be received
at least six weeks prior to the month of intended publication.
Submissions with legal content are subject to approval by the
Proctor editorial committee, and guidelines for contributors
are available at qls.com.au
Advertising deadline: 1st of the month prior.
Subscriptions: $110 (inc. GST) a year (A$210 overseas)
Circulation: CAB, 31 March 2013 – 9397
No person should rely on the contents of this publication. Rather, they
should obtain advice from a qualified professional person. This publication
is distributed on the basis that Queensland Law Society as its publisher,
authors, consultants and editors are not responsible for the results of
any actions taken in reliance on the information in this publication, or
for any error in or omission from this publication, including those caused
by negligence. The publisher and the authors, consultants and editors
expressly disclaim all and any liability howsoever caused, including by
negligence, and responsibility to any person, whether a purchaser or reader
of this publication or not, in respect of anything, and of the consequences
of anything, done or omitted to be done by any such person in reliance,
whether wholly or partially, upon the whole or any part of the contents
of this publication. Without limiting the generality of the above, no author,
consultant or editor shall have any responsibility for any act or omission of
any other author, consultant or editor. Requests for reproduction of Proctor
articles are to be directed to the editor. Unless specifically stated, products
and services advertised or otherwise appearing in Proctor are not endorsed
by Queensland Law Society.
YWCA QLD has named incoming
Queensland Law Society Council
member Kara Cook as one of
125 leading Queensland women.
The list, announced last month, followed
nominations from the community and also
recognises other women well known in the
legal community. These include Murdoch
Lawyers director Leanne Matthewson and
former Attorney-General Linda Lavarch.
Kara, who is a member of the QLS Family
Law Committee and the Early Career
Lawyers Committee, was recognised for
her contribution to the Women’s Legal
Service and other organisations, and her
advocacy on behalf of women.
The 125 leading women were formally
recognised at a special event on November 15.
Indigenous law
student honoured
Griffith University student Jill Gujlas
has been named Indigenous Law
Student of the Year by the Law Council
of Australia (LCA).
The LCA also named the managing solicitor
of the North Australian Aboriginal Justice
Agency, David Woodroffe, as Indigenous
Lawyer of the Year.
LCA president Michael Colbran QC said
Ms Gujlas was recognised for her outstanding
academic and other achievements.
“Ms Gujlas has shown her dedication and
commitment to her studies by consistently
performing at a high level academically
whilst balancing the responsibilities of being
a single mother of two,” he said. “The panel
was impressed with Ms Guljas’ aspiration to
enter the legal profession to champion and
empower other young mothers and women.”
He said the awards highlighted the
valuable contributions Aboriginal and
Torres Strait Islander lawyers make to
the Australian legal profession.
Contributors to Proctor grant to the Society a royalty free, perpetual,
non-exclusive, irrevocable paid up licence to:
Queensland Law Society was a proud
sponsor of the PwC Cool Night Classic
held on 31 October 2013.
a. use, reproduce, communicate and adapt their contributions; and
b. perform any other act with respect to the Intellectual Property in
their contributions and to exploit or commercialise all those Intellectual
Property rights.
QLS will acknowledge a contributor’s moral rights by attributing authorship
to that contributor.
Small sums of money from the Copyright Agency Limited (CAL) are
periodically payable to authors when works are copied by CAL licensees
(including government departments, tertiary institutions, etc). As it is not
financially viable for the Society to collect and distribute these royalties
to individual authors, contributors undertake to become a member of CAL
and receive any due payments directly (see copyright.com.au) or they
waive all claims to moneys payable by CAL for works published in Society
publications. It is a condition of submission of an article that contributors
agree to either of these options. Contributors should read the Guidelines
for Contributors on the Society’s website: qls.com.au
If you do not intend to archive this magazine,
please place in an appropriate recycling bin.
Firmly entrenched in Brisbane’s corporate run
calendar, the event is in its 19th year and has
raised more than $670,000 for local charities.
Cool night
success
Among the thousands of participants who
completed the 3km walk and 5km run around
central Brisbane, QLS congratulates Sian Reece
from Herbert Smith Freehills and Mark Kenney
from Carter Newell Lawyers, who were our
fastest members on the day.
back to contents
News and editorial
Videos train those
helping the homeless
The QPILCH Homeless Persons’ Legal Clinic
(HPLC) has launched two training videos
which will help Queensland community
workers to identify the legal needs of their
clients and refer them to an appropriate
legal service.
The HPLC Legal Health Check training videos
were launched on 5 November at a function
hosted by Herbert Smith Freehills.
Volunteer actors from Roma House, a crisis
accommodation and support service
operated by Mission Australia, portrayed
scenarios regularly faced by disadvantaged
clients of the HPLC. Three of the actors were
homeless at the time of volunteering, and
were acknowledged at the launch.
QPILCH president Lucy Bretherton with Roma House clients and volunteer actors Patrick, Adam and
Brendan, and Attorney-General Jarrod Bleijie at the launch of the HPLC Legal Health Check training videos.
The videos were funded by Legal Aid
Queensland and can be viewed at
qpilch.org.au/lhc. While used by the HPLC
to train workers at community agencies, they
may also be useful for other practitioners
delivering legal services in community settings.
Society welcomes director liability changes
Queensland Law Society president
Annette Bradfield has congratulated
the State Government on its changes
to directors’ liability laws.
She said that the Directors’ Liability Reform
Amendment Act 2013, which was passed on
16 October, created an appropriate regulatory
regime for directors, one that balanced good
corporate governance against measures that
would foster entrepreneurship and economic
growth in Queensland.
“Queensland Law Society has an ongoing
commitment to reform laws that affect
directors’ personal liability,” Ms Bradfield said.
“Earlier this year we raised concerns about
the lack of consultation on the Bill, and that
the law’s provisions reversed the onus of
proof and created unnecessarily complex
liability provisions.
“Today we’re pleased to say the government
responded to concerns raised about the Bill,
which resulted in more than 360 changes.
We are particularly pleased to see our
recommendation adopted that Type 2 to 3
provisions be revised down to Type 1.
“In addition, the onus of proof is no longer
reversed in nearly all directors’ liability
provisions in Queensland.
“The positive outcome achieved here
demonstrates the fact that early and continued
consultation on draft legislation is key to
ensuring good law is made in Queensland.”
See page 16
NEW
Small Practice Portal
How will your practice
shape up in the New Year?
Start. Run. Grow.
>> qls.com.au/small-practice-portal
back to contents
7
News and
and editorial
editorial
A busy year for your library
2013 has been a busy year for the Supreme
Court of Queensland Library, as we’ve worked
to enhance services to all of our customers,
including Queensland Law Society members.
It’s also been a year of significant changes,
which have included:
• settling the library into its attractive and
functional new premises within the Queen
Elizabeth II Courts of Law in the Brisbane CBD
• taking over provision of the Queensland
Sentencing Information Service (QSIS)
• farewelling our long-serving librarian, Aladin
Rahemtula OAM, in August and welcoming
our new librarian (me) in September.
Each year the Supreme Court Library
publishes the Queensland Legal Yearbook as a
consolidated record of Queensland’s past legal
year. The latest edition (2012) is dedicated to
the opening of the Queen Elizabeth II Courts
of Law. It includes:
• essays by the project’s lead architect and
eminent members of the judiciary and legal
profession on aspects of the design of the
building and the relocation of the courts
to their new premises
• records of court ceremonies, including
valedictories and swearings-in, as well as
legal speeches and lectures (including
the 2012 Supreme Court Oration) held
throughout the year
• tributes to judges who passed
away during 2012
• legal personalia, including profiles
of judges and magistrates, and details
of appointments and admissions
• the Queensland Legal Year in review –
a timeline of key legal events for the year
• legal statistics relating to the judiciary and
legal profession, including key performance
indicators of the Queensland courts
• reviews of significant legal publications
released in 2012.
To celebrate the past year, your library will be
providing free copies of the latest yearbook
to members of the legal profession. To collect
your free copy, visit us at the library in Brisbane
during court opening hours, attend a lecture
or other event at the library, or contact us at
[email protected] to register your interest.
Please note that this offer is restricted to one
copy per member and is only available while
stocks last. If postage is required, a nominal
postage and handling fee will apply.
We look forward to assisting you with your
legal information needs in 2014. If you are
not already a member of the library, you
can register for free at sclqld.org.au >
For Legal Profession > Patron Registration
Form. QLS members wishing to access the
full range of library services need to register.
You’re always welcome to visit us in person
on level 12 QE II building, telephone us on
(07) 3247 4393, email us, or visit our website.
Other new book releases from the Supreme
Court of Queensland Library include:
Preparing you for success
as a law practice principal
Proven model
Practical learning
with experts
Tailored to your needs
Learning community
Publications
and resources
Launching 2014 >> qls.com.au/pmc
8
Proctor | December 2013
back to contents
News and editorial
by Supreme Court of Queensland librarian David Bratchford
The Idea of Legal History: A Tribute in
Honour of Dr Michael White QC
Edited by Aladin Rahemtula and Mark Sayers
History provides an important window into
the future. Throughout his career as Queen’s
Counsel and academic, Dr Michael White QC
– with unwavering enthusiasm and exemplary
energy – continually promoted the study
and importance of Queensland’s legal history
among the legal profession and broader
community. The Idea of Legal History has been
assembled in Dr White’s honour, to celebrate
that achievement and further provide a
forum for the study of legal history.
Featuring a wide-ranging collection of specially
commissioned articles by members of the
judiciary and notable scholars, this publication
provides an accessible forum for legal
professionals to delve into Queensland’s legal
past. Also featured are tributes to Dr White by
his contemporaries, colleagues and associates,
which provide fascinating insights into the
man who has achieved so much in this field.
Jurisprudence as Practical Reason:
A Celebration of the Collected
Essays of John Finnis
Edited by Mark Sayers and Aladin Rahemtula
Emeritus Professor John Finnis is an Australianborn legal scholar and philosopher. His
immense contribution to legal philosophy
and natural law, both in Australia and overseas,
culminated in the publication of his collected
essays by Oxford University Press in 2011.
Jurisprudence as Practical Reason features
reviews, articles and reflections on each of
the five volumes of those collected essays
and provides supplementary insights into the
man himself. It is a shared celebration of an
exceptional Australian as seen through the eyes
of friends, colleagues and former students.
Paperback $29.95, 200 pages, Published 2013
For more information or ordering details,
see sclqld.org.au.
Paperback $29.95, 318 pages, Published 2013
JM
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News and editorial | Ethics
Stop dreaming and
start sailing today!
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Ten tips for
better advocacy
Poor performance in the courtroom will never benefit you or your client.
Stafford Shepherd reminds us of several of the key elements of successful advocacy.
These pointers are based on
observations made by Magistrate
Annette Hennessy at the
Queensland Law Society Sunshine
Coast Intensive on 29 August.
Our thanks go to Magistrate Hennessy
for her permission to share these thoughts.
1.Prepare!
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Before attending court think through the
submissions you will make. Articulate clearly
the grounds on which you rely. Do not attempt
to develop thoughts or submissions on the run.
2.Prepare!
Do not repeat submissions made. Make the
points you intend to rely on clearly and concisely.
It will not aid your client to repeat submissions
already made. Saying the same thing repeatedly
only wastes your client’s and the court’s time.
3.Prepare!
Know the procedure of the court. Understand
the rules by which the court operates. Be
familiar with the rules of evidence. Bring with
you to court the Evidence Act 1977 (Qld),1
any legislation that relates to your case and
copies of authorities you intend to rely on.
Remember to always cite from the authorised
reports (see this month’s Back to basics column,
page 36) – do not rely on general statements
of principle in the textbooks.2
5. Respect the court
Use appropriate and courteous3 language.
Do not use slang – this only diminishes
your arguments.
6. We have a duty to be aware of the law
and be prepared to assist the court in
understanding legal principles and how
it applies to the case being argued.4
7. Know the rules of the court in which
you are to appear as to whether you
have a right of appearance.
8. If you are not familiar with a matter,
ask those in the firm who are.
Find out what you need to do. Ask for specific
instructions – be prepared to respond fully
to queries from the bench.
9. In matters that require you to do so,
remember to read the material you
intend to rely on.
For example: “If the court pleases, the
applicant relies on the following: Application
filed on 1 January 2013, affidavit of John
Smith filed on 1 January 2013.”
10. Be mindful of your duty of candour –
do not mislead the court.5
Stafford Shepherd is Queensland Law Society
senior ethics solicitor.
4. Make yourself familiar with the courtroom
Understand the physical surrounds – make
yourself heard, do not mumble or use a pitch
that cannot be heard. Be clear and understand
the acoustics of the courtroom.
Notes
1 J Forbes, Evidence Law in Queensland (2012,
9th ed., Thomson Reuters) provides reliable and
comprehensive commentary on the Evidence Act
1977 (Qld). For example, it could assist you with
how to prove a prior inconsistent statement, or
the procedure to follow if you need to declare
a witness hostile.
2 Jones v Baker (2002) 10 BPR 19, 115 at [47]
per Young CJ in Eq.
3 We have a fundamental ethical duty to be “…
courteous in all dealings in the course of legal
practice” (Australian Solicitors Conduct Rules 2012
(ASCR), rule 4.1.2).
This article is brought to you by the Queensland
Law Society ethics centre. It is also available at
qls.com.au/ethics along with extensive resources
on professional legal ethics.
10
4 Accurate Financial Consultants Pty Ltd v Koko Black
Pty Ltd (2008) 66 ACSR 325 at [194] per Forrest AJA.
See also ASCR, rules 19.6, 19.7, 19.8 and 19.9.
5 ASCR, rules 19.1 and 19.2.
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News and editorial
Pantomonium
under the big top
1
Brisbane Family Law Centre’s annual charity pantomime on
19 October was another resounding success, with barristers, family
lawyers – including incoming Queensland Law Society vice president
Deborah Awyzio – and other professionals hamming it up as circus
performers, all in the name of charity. The 270-plus audience raised
$16,308 for Aunties and Uncles Queensland, an early intervention and
prevention program of mentors for vulnerable and disadvantaged
children. QLS was a gold sponsor of this event.
2
3
1. D
azzling Disco Twins Deborah
Awyzio and Judy Stewart.
3. Strongman (Guy Andrew).
2. D
aisy (Laura Harpley) and
Arsene (John Selfridge).
5. Clowns Clare Dart and Rebecca Parry.
12
4
5
4. Iseea Fortune (Jenny Rimmer).
back to contents
In camera | News and editorial
QLS Succession and
Elder Law Residential
The Gold Coast’s RACV
Royal Pines Resort hosted
235 attendees at the QLS
Annual Succession and
Elder Law Residential on
1-2 November. Delegates
enjoyed presentations from
health broadcaster Dr Norman
Swan, talking on the divide
between doctors and lawyers
on incapacity, and Anthony
Molloy QC, who discussed the
fiduciary duties of trustees
and attorneys. Dinner guests
were well entertained by Judge
Horneman-Wren SC of the
District Court.
back to contents
13
News and editorial | Trust accounts
1 in 3 practices in error
Adjust prescribed account deposit by 21 January 2014
Almost one in three law practices
fail to maintain the Department
of Justice and Attorney-General
(DJAG) prescribed account deposit
in accordance with the legislative
requirements of Part 3.3 Division 2 of
the Legal Profession Regulation 2007.
The three most common irregularities
reported in Queensland Law Society trust
account investigations are:
• failure to correctly calculate the required
deposit to be made to the prescribed account
• failure to make the required adjustment to
the prescribed account by 21 January, and
• failure to redeposit trust funds to the
prescribed account after funds have been
withdrawn from that account.
Law practices are required to:
a. Determine the lowest amount of general
trust money held on any one day in the
previous calendar year (1 January 2013
to 31 December 2013) (law practices that
commenced during 2013 must exclude
the nil balance before the initial deposit
to the trust bank account).
b. Calculate two-thirds of the lowest amount
of general trust money held in 2013.
c. Round down the two-third calculation
to a multiple of $100.
d. Deposit to the DJAG prescribed account
on or before 21 January 2014 a sufficient
sum to increase the amount in that account
to the amount calculated in (c) above.
e. Keep that amount deposited in the
prescribed account throughout 2014 unless
it is necessary to return those moneys, or
some of those moneys, to the general trust
bank account to enable trust money to
be properly disbursed to the beneficiaries
entitled to those moneys, or in accordance
with the directions of those beneficiaries.
The amount of general trust money held on
any one day is the combined balance of:
a. the amount deposited to the DJAG
prescribed account, and
b. the trust account bank statement balance
(or if more than one trust bank account is
maintained, the total of the trust account
bank statement balances of those accounts)
on that same day.
14
Balance as per financial
institution statement
Prescribed
account deposit
Combined
balance
01/01/13
$160,000
$40,000
$200,000
12/01/13
$193,000
$125,000
$318,000
15/02/13
$55,000
$125,000
$180,000
22/03/13
$241,000
$125,000
$366,000
05/04/13
$1000
$125,000
$126,000
09/05/13
$31,500
$35,000
$66,500
17/06/13
$42,250
$35,000
$80,250
05/07/13
$4200
$5000
$9200
Date
25/08/13
$126,254
$5000
$131,254
05/09/13
$185,265
$5000
$190,265
15/10/13
$16,000
$5000
$21,000
22/11/13
$102,000
$5000
$107,000
28/12/13
$43,892
$5000
$48,892
NB: Moneys held in investment accounts,
controlled money accounts and power money
accounts are not general trust money.
An example of how to determine the lowest
combined balance of general trust money is
detailed below:
Looking at the table above, the lowest
combined balance of general trust money
on a particular day is $9200.
Therefore the required deposit amount
(rounded down to a multiple of $100) for
21 January 2014 is $6100 (two-thirds of $9200),
requiring an additional deposit of $1100 to be
made to the prescribed account.
The Society’s trust account investigation team
has developed a prescribed account deposit
calculation tool to help law practices to
calculate the required deposit. This free tool is
available at qls.com.au > For the profession >
Practice resources (in middle of page) > Trust
accounting resources > Prescribed account
deposit calculation tool.
DJAG maintains accounts in the name of
DJAG prescribed account at the main Brisbane
branch of each bank and other approved ADIs
(authorised deposit taking institutions). Deposits
to the prescribed account are to be effected by:
a. issuing a trust account cheque in favour
of Department of Justice and AttorneyGeneral prescribed account,
b. delivering the cheque to the local branch
of the bank where the trust account is
maintained, and
c. directing that the bank credit the cheque
to the DJAG prescribed account at the
bank’s main Brisbane branch.
NB: If moneys are already on deposit in the
DJAG prescribed account, the letter of credit
(or other bank supporting documentation)
issued by the bank in respect of the existing
deposit should be delivered to the bank
with the cheque. The bank will then record
the details of the additional deposit on the
letter of credit.
If a law practice needs to withdraw funds from
the prescribed account, it is permitted to do so
without obtaining the permission of the DJAG.
Once funds have been withdrawn from the
prescribed account and the balance is less than
the required amount, the law practice must
review the trust account bank statement to
determine whether the law practice is required
to redeposit funds to the prescribed account.
This article is provided courtesy of the Queensland Law
Society trust account investigation team as a reminder
for law practices. Comprehensive guidelines on deposits
to the prescribed account can be downloaded from
qls.com.au. If you have any questions about these
legislative requirements, please contact the team
on 07 3842 5908.
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Features
One of the biggest issues of
concern for company directors and
officers in recent years has been
the explosion in the number of
Commonwealth, state and territory
laws which impose personal liability
on directors and officers as a result
of a statutory breach by a company.
Many of these laws reverse the usual onus
of proof so that directors and officers are
deemed liable irrespective of whether or not
they are to blame – unless they can prove the
availability of a statutory defence.
At its peak, there were more than 100 such laws
in Queensland, creating a minefield of risk for
those holding office as directors and officers.
Director action
However, the Queensland Parliament passed
the Directors’ Liability Reform Amendment
Act 2013 (Qld) on 16 October to reform
Queensland’s laws imposing personal liability
on directors and officers for corporate fault.
Overview of the changes
The Act includes more than 360 amendments
to the original Bill, which was introduced into
the Legislative Assembly in November last
year. The amendments follow a further wholeof-government review and receipt of public
submissions, including one from the Queensland
Law Society. The Act adopts nearly all of the
recommendations in the public submissions and
introduces important changes that reduce the
regulatory burden on directors and officers.
Directors and officers should be reassured
by the fact that the number of directors’ liability
offences in Queensland will be substantially
reduced. Significantly, the Act removes all
provisions which were to be introduced under
the original Bill and which reversed the onus of
proof. The Act also removes nearly all provisions
in existing Queensland legislation which
contain a reversed onus of proof. These changes
are to be applauded and place Queensland at
the forefront of directors’ liability reform.
Amendment to types
of director liability provisions
Queensland amends laws imposing
liability for corporate fault
Changes to directors’ liability law in
Queensland have been hailed as making the
state a national leader in this reform. Bruce
Cowley and Steven Grant explain why.
16
The Act is the Queensland Government’s
response to the Council of Australian
Governments (COAG) guidelines approved
on 23 July 2012 to streamline director liability
provisions across Australian jurisdictions.
Under the original Bill, three new types of
personal liability provisions were proposed
(although there were, in effect, four types).
Varying combinations of those types of liability
provisions were applied across 80 Acts, leading
to uncertainty and complexity.
back to contents
Company law | Features
The Act removes this uncertainty by retaining
only two types of provisions which were
described in the second reading speech as ‘Type 1’
provisions and ‘deemed liability’ provisions.
list of offences under the respective Acts
rather than exposing directors and officers
to personal liability for the breach of any
provision in those Acts.
5.Foreign Ownership of Land Register
Act 1988 (Qld), and
6.Transport Security (Counter-Terrorism)
Act 2008 (Qld).
Type 1 provisions
In the second reading speech, the government
indicated that the majority of directors’ liability
provisions will be Type 1 provisions. Under a
Type 1 provision, the failure of the director or
officer to take reasonable steps is an element
of the offence. An executive officer of a
corporation commits an offence if:
Removal of the reversed
onus of proof
For the remaining 22 Acts, an explanation
provided in the second reading speech
identifies why the Acts were excluded from
the review. The only Act for which
no explanation was given is the Criminal
Proceeds Confiscation Act 2002 (Qld).
1.the corporation commits an offence against
an executive liability provision (which are the
provisions of the Act which impose personal
liability on the corporation and on directors
and officers through the application of the
directors’ liability provisions), and
2.the officer did not take all reasonable steps
to ensure the corporation did not engage
in the conduct constituting the offence.
There are no defences available and the
prosecution need only prove beyond
reasonable doubt that the director or officer
failed to take all reasonable steps, which is
indeed a very low bar for the prosecution. The
Act also inserts a new meaning of ‘reasonable
steps’ into some of the affected Acts.
Under the new meaning, the courts must
now have regard to the following in
considering whether an executive officer
has taken ‘reasonable steps’:
1. whether the officer knew, or ought reasonably
to have known, of the corporation’s conduct
constituting the offence against the executive
liability provision
2.whether the officer was in a position
to influence the corporation’s conduct
in relation to the offence against the
executive liability provision, and
3.any other relevant matter.
Previously, the court was only required
to have regard to (2) above.
Deemed liability provisions
Under the deemed liability provisions, if a
corporation commits an offence against a
provision of the Act, each executive officer is
taken to have committed an offence against
the provision if:
1.the officer authorised or permitted
the corporation’s conduct constituting
the offence, or
2.the officer was, directly or indirectly, knowingly
concerned in the corporation’s conduct.
Essentially, the deemed liability provisions impose
liability where directors or officers have a degree
of involvement in the offence by the company.
The amendments also limit the application
of the deemed liability provisions to a specific
back to contents
Significantly, the Act removes all provisions
which were to be introduced under the
original Bill and which reversed the onus of
proof. It also removes nearly all provisions in
existing Queensland legislation which contain
a reversed onus of proof. We note that certain
Acts are identified as being outside the scope
of the Queensland Government’s review (see
below) and accordingly, some of those Acts
continue to retain a reversed onus of proof
until such time as other existing reform or
legislative review programs are completed.
The amendments introduced by the Act mean
that in most cases directors and officers will
be afforded the presumption of innocence
afforded to the community at large unless the
prosecution can prove the required elements
of the directors’ liability provision. This change
is to be welcomed. The presumption of
innocence is a fundamental principle and
it is not appropriate that it be reversed.
For that reason, the Queensland Government
is to be commended for its reforms.
If there were a criticism to be levelled at the
reforms, it would be that the government has
chosen to use the Type 1 provision in the majority
of cases (under which all the prosecution needs
to establish is that the director or officer failed
to take all reasonable steps to ensure that the
legislation was complied with). This is opposed
to what would appear to be the fairer deemed
liability model, which requires the prosecution to
establish some level of complicity by the director
or officer in the commission of the offence.
Amendments to Acts
not previously captured
The original Bill failed to amend or repeal
29 Queensland Acts that contain directors’
liability provisions (most of which included
a reversal of the onus of proof ).
The Act rectifies this omission in part by
amending the director liability provisions
in the following Acts to either remove the
provision or to introduce a Type 1 or deemed
liability provision:
1.Community Services Act 2007 (Qld)
2.Cooperatives Act 1997 (Qld)
3.Contract Cleaning Industry (Portable
Long Service Leave) Act 2005 (Qld)
4.Family Services Act 1987 (Qld)
In the second reading speech, the
government indicated that most of the Acts
were excluded from the scope of its review on
the basis that they were already the subject of
existing reform or legislative review programs.
In respect of environmental legislation, which
was outside the scope of the COAG review,
the government has said it is considering its
options with regard to directors’ liability and
environmental regulation.
Definition of ‘executive officer’
This expansive definition of ‘executive officer’
remains a key policy concern. Under both
the original Bill and the Act, ‘executive officer’
is commonly defined to mean ‘a person
who is concerned with, or takes part in, the
corporation’s management, whether or not the
person is a director or the person’s position is
given the name of executive officer’. The failure
to change this definition means that a very wide
range of personnel, well beyond the directors
or officers of a company, will continue to be
captured by the personal liability provisions.
Conclusion
Overall, the Act takes a balanced approach
to reducing red tape and the regulatory
burden placed on directors, while ensuring
that directors and officers are held
accountable when they are involved in
offences committed by the companies
they manage to the required degree.
Changes to the director liability provisions
have already been enacted in New South
Wales, South Australia, the ACT and Victoria,
and have been introduced into the Tasmanian
Parliament. There are significant variations in
the level of reform pursued.
Until now, the most significant changes were
adopted in New South Wales, which removed
nearly all provisions reversing the onus of
proof. With Queensland now at the forefront
of directors’ liability reform together with New
South Wales, directors and officers will now
turn their focus to Western Australia and the
Northern Territory, which to date have not
proposed any amendments to laws imposing
personal liability on directors and officers.
Bruce Cowley is a partner at Minter Ellison, Brisbane, and chair of the Queensland Law Society Company Law
Committee. Steven Grant is a senior associate at Minter Ellison, Brisbane, and chair of the QLS Early Career
Lawyers Committee Proctor working group.
17
Features | Professional conduct
The adversarial apprentice
As lawyers, we will inevitably find
ourselves in a position in which
we have dealings with other legal
professionals in an adversarial context.
As an early career lawyer, it is often the case
that the opposing party has a greater level
of experience and knowledge. In contentious
matters this can be a daunting experience.
There will be a time where it becomes
necessary for us to inform the opposing
party’s legal representative that we disagree
with them on a legal point or a practical or
technical issue. It may even be that we simply
prefer an alternative solution that favours our
client’s interests more than the proposal put
forward by the opposing party.
Though we would expect to show, and
receive, professional collegiate respect, it is
never an easy situation to deal with. The art
of persuasion and negotiation is enlivened
in these moments and it can sometimes be
difficult to openly question another person’s
legal opinion. This is especially the case
in an adversarial context and even more
so when that person has more experience
and knowledge than ourselves.
Although most disputes or negotiations will not
have a right or wrong answer, there is always a
fear of getting it ‘wrong’ in terms of getting the
best result for your client and this is a legitimate
and prevalent concern for early career lawyers.
So how does an early career lawyer deal
with these difficult situations? I have found
the following techniques to be effective:
Keep an open mind: We cannot know
everything. Even when we think we know
something, our minds easily distort that
information without us even noticing. If we
happen to disagree with an opposing party
during a matter, it is best to approach the
situation as if the opposing party’s argument is as
equally valid as our own. This will assist us in our
choice of tone when drafting correspondence.
This also helps immensely when fact checking
and researching the law, as there is a tendency
for us to only read and accept the answers
we hope to be correct. Finally, it is important
to never underestimate anyone; there is almost
always a legitimate reason why someone holds
a different opinion to our own.
Know the law: When there is a disagreement
on a legal issue, it is best to avoid putting an
argument forward before it has been carefully
considered. Remember that you may have to
negotiate on this basis and being certain of
your client’s position could be the difference
between success and falling short of the best
result for your client. To do this, we must go
back to the textbooks, legislation, research
resources and relevant cases. We must also
ensure that we have considered any ‘noted
up’ or dissenting cases to make sure we have
the most recent law relevant to the issue.
Recalling the importance of never
underestimating your adversary, we should
consider the position from our opponent’s
point of view to identify any flaws in our
argument. This will also assist us in gaining
quality experience in that particular area of law.
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Professional conduct | Features
Engaging with experienced legal practitioners in adversarial situations can be a
daunting task for an early career lawyer. Byron Hunter offers some sensible advice.
An additional benefit of this process is that this
knowledge will also assist us in future matters.
Put it in writing: In some instances, it is best to
dispense with telephone calls and emails and
assert the client’s position in writing. The great
benefit of this is that it allows us to think carefully
about the situation and the needs of our client.
In turn, we will be less likely to forget any points
that require mentioning. Also, our argument
will be better articulated and will therefore
have much greater emphasis and impact.
It is also particularly important to avoid using
emotive language or unnecessary adjectives
and superlatives. If time permits, sleep on the
issue and revise the following day (even better
if you can consider the matter over several days).
Above all, keep it strictly professional; we should
always draft correspondence as if a judge or
magistrate will eventually read the document.
available in case it needs to be referred to.
An agenda must be prepared to determine
how we intend to direct the conversation.
Lastly, we need to think carefully about what
we want to say before we say it. It is quite
remarkable to discover just how effective it is
to spend a moment gathering our thoughts
on formulating an argument.
Remember your duty to your client: It is
of utmost importance to remember that our
actions must be governed by what is in our
client’s best interests. This is a phrase we often
hear, but it is not always easy to know exactly
what is in our client’s best interests. However,
it is safe to say that being well prepared and
being able to have meaningful discussions
and negotiations with a person acting for
the opposing party is a great starting point.
Be prepared: In the event that a telephone
conversation with an adversary is unavoidable,
it is critical that we have all of the salient issues
prepared and written down. We must also
ensure all of the relevant material is readily
136 Racecourse Rd, Ascot QLD 4007
07 3268 2127
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The suggestions made above may sound
easy in theory until the time comes when
we must to put them into practice. In some
instances these strategies may not apply
or be inappropriate. It is therefore necessary
that we create our own strategies that we
feel comfortable and confident using.
However, one thing is certain. That is that,
if we establish some strategies we know
work in adversarial situations, our workplace
stress will be significantly reduced and our
learning experience improved. Also, our
admirable conduct will create growing
respect from colleagues and we will be
a step closer to ensuring we are acting
in our client’s best interests.
Byron Hunter is a lawyer at Groom & Lavers, Toowoomba.
This article is brought to you by the QLS Early
Career Lawyers Committee. The committee’s
Proctor working group is chaired by Steven Grant
([email protected]).
CHRISTMAS CLEARANCE
19
Features | Office design
Space mission
Design trends focus on cost and productivity
Law firms throughout Australia
are changing rapidly.
Declining fee revenues and an increasingly
competitive marketplace are challenging
them to cut costs yet maintain staff numbers
for profitability.
As real estate costs and staff salaries are
the biggest expenses, it is crucial in this
economic environment that both are
managed as efficiently as possible.
The best time to recalibrate a legal office
is when there is an opportunity to relocate
and reorganise the workplace for greater
equity and greater productivity. We do this
by considering the four big areas that a law
firm can make changes to:
1. Standardising the work points
to break down the hierarchy
and reduce costs
Most firms in the legal industry are trying
to break down the ‘hierarchy law’ it is so well
known for and remove the costs and culture
of the closed-door workplace.
Firms used to build offices with tiered
sizes and layouts according to the pecking
order of the firm, but now office size and
facility is being standarised as much as
possible so there is no visible hierarchy.
This standardisation is driving efficiency in
the use of floor space, enabling most firms to
realise a reduction in the net lettable area by
up to 25%, significantly reducing rent costs
and also reducing the expensive costs of
senior partner management. There is simply
no longer a large corner office to aspire to, so
people just get on with doing business well.
In the Bartier Perry offices in Sydney (pictured)
and other firms, some partners now operate
from open-plan executive workspaces instead
of offices, really embracing the open workstyle
they are trying to create.
2. Using technology to store
documents instead of large
paper filing systems
It is rather amazing how much space in a law
firm has been devoted to paper files, until
now. With the evolution of online filing and
storage technology, legal firms have only
recently been able to dramatically decrease
the floor space allocated to filing of paper. In
reducing this storage, a firm can also decrease
the space allocated to utilities such as printers,
photocopiers, with collation again bringing
down the net lettable area.
Right: An atrium work area in the new Corrs office at 8 Chifley,
Sydney. The firm occupies levels 9-18 of the 34-storey building.
20
back to contents
Office design | Features
A major aim for today’s law firms is greater productivity and lower
operating costs. Many achieve this by relocation. Design expert
Gavin Farmer looks at the trends in office design for law firms.
3. Properly integrating modern
technology throughout the office
4. Opening the office
up for collaboration
Law offices have traditionally had a nice
front of house, and the rest of the workplace
has been fairly inefficient. But with newer
offices, we are seeing a shift to a more equal
balance of capital expenditure on the whole
workplace. Firms are realising that they have
to invest in the places people do the work
to improve productivity.
Law firms now more than ever are trying to
put together multifunctional offices – activitybased workplaces – where every bit of real
estate is used to its maximum potential and
every bit of space has a benefit.
New offices include interactive technology
that moves with the user, allowing them to pick
up files and interact with them on any digital
screen in the office from iPhone to iPad to
eboard and desktop, and onto LCD, seamlessly,
using wired and wireless technology.
Videoconferencing is now an essential feature
of every national law firm. This decreases
travel requirements, and reduces the need
for a lawyer to have a workpoint in multiple
offices, which was the previous norm. Instead,
a partner is designated one base office in their
home location and will hotdesk interstate.
Videoconference equipment is increasingly
housed in multiple meeting rooms of varying
sizes that can be used for videoconferencing
meetings and group meetings. They include
it in the boardroom, in smaller meeting rooms
and in one-on-one quiet rooms to enable
dynamic interaction across the country.
Traditionally law firms had a tea point in the
corridor and a partner’s dining room where
‘junior staff’ would never go. All this has
changed. Junior staff are demanding more
access to leaders and mentoring is becoming
an expected part of partners’ roles, making
their accessibility more important than ever.
No more partners’ dining rooms, or exclusive
havens for the deemed hierarchy. Instead,
these are being replaced by café-style
multifunctional spaces, which can be used
for casual meetings in the café breakout
environment. These spaces are ideal for oneon-one meetings, huddles, group meetings
and standing meetings, with both tall tables
for high-momentum meetings and standard
height tables for coffee meetings.
It is clear to those in property that legal firms
are finally on the productivity journey many
other businesses were forced to embrace
several years ago, and with it they must go
on the culture and change management
journey. With the right process in place, that
can be fairly seamless for staff, while being
transformational for profits.
Gavin Farmer is the Queensland manager
of design firm PCG. See pcg.com.au.
back to contents
21
Features
On 15 October 2013, the
Queensland Government took
the unusual step of introducing
into Parliament, debating and
passing a significant suite of
legislation directed mostly at
criminal motorcycle gangs.
The suite included three Acts:
• Vicious Lawless Association
Disestablishment Act 2013 (VLAD)
• Tattoo Parlours Act 2013
• Criminal Law (Criminal Organisations
Disruption) Amendment Act 2013.
This article focuses on the VLAD and Criminal
Organisations Disruption Act, given that they
are already in force. Under the Tattoo Parlours
Act 2013, the licensing scheme commences
on 6 January 2014 and the compliance
provisions commence on 1 July 2014.
What the Acts do
In summary, the Criminal Organisations
Disruption Act:
• Introduces mandatory minimum penalties
to be served wholly in a corrective
services facility for three new offences
committed by participants in a criminal
organisation who knowingly gather in a
group of three or more, enter or attempt
to enter a prescribed place or event or
recruit new members.
VLAD tidings
Key features of the new legislation
Queensland’s ‘anti-bikie’ legislation has attracted headlines around
the world. But what are the features of most concern to practitioners?
The Queensland Law Society advocacy team has prepared
a short summary of the changes.
22
back to contents
Criminal law | Features
• For the three new offences, the offence
of affray or the offence of a driver failing
to stop a motor vehicle when the driver
is a participant in a criminal organisation,
a vehicle used in the commission of these
offences is to be impounded and forfeited
to the state on conviction.
• Increases the maximum penalty (and
introduces a mandatory minimum penalty)
for offences committed by participants
in a criminal organisation for the offence
of affray, misconduct in relation to public
office, grievous bodily harm, serious
assault and obtaining or dealing with
identification information.
• For certain prescribed offences in which
the offender is a participant in a criminal
organisation, disqualification of licence
for a period of not less than three months
is mandated, regardless of whether the
offence was committed in connection
with or arose out of driving a motor vehicle.
• Enables the Minister to recommend an
entity be declared a criminal organisation
by regulation.
Bail Act 1980
• Establishes a presumption against bail
where the defendant is a participant in
a criminal organisation and applies to
indictable, simple and regulatory offences.
Crime and Misconduct Act 2001
• Enables the Crime and Misconduct
Commission (CMC) to hold intelligence
function hearings about criminal
organisations or a participant in
criminal organisations.
• Expands the exceptions to ‘use immunity’
to allow the use of information from any
CMC investigation or hearing to be used
in confiscation proceedings.
• Provides that ‘reasonable excuse’ to fail to
answer a question does not include fear of
retribution when a person is a participant in
a criminal organisation and the investigation
or hearing is about a criminal organisation
or participant in a criminal organisation.
• Imposes mandatory imprisonment for
the punishment of contempt (the second,
third and subsequent contempts for the
same subject matter have prescribed
periods of minimum imprisonment) for
a refusal to take an oath, answer a question
or produce a stated document or thing.
• Authorises the CMC, during a hearing, to
request a police officer to detain a witness
in contempt pending the issuing of a
warrant and bringing the person to court
to deal with the contempt.
• Clarifies that legal assistance for crime
investigations does not apply to crime
investigations authorised under the
immediate response function.
Police Powers and Responsibilities Act 2000
• Introduces powers for police to:
• Search without warrant a person reasonably
suspected of being a participant in a
criminal organisation and/or a vehicle
in that person’s possession or use.
HOPE IS NOT A STRATEGY...
• Require a person reasonably suspected
of being a participant in a criminal
organisation or a person found at a
prescribed place or event to state their
name and address to police. The person
can be detained for a reasonable time,
and the police officer can photograph
the person’s identifying particulars if
reasonably suspected that it is necessary
(they must be destroyed if the person is
not proceeded against for an identifying
particulars offence within 12 months).
• Increases the mandatory minimum
penalty for the offence of failing to stop
a motor vehicle to:
• 50 penalty units or 50 days’ imprisonment
to be served wholly in a correctional
services facility, or
• 100 penalty units or 100 days’ imprisonment
for a participant in a criminal organisation.
While the VLAD:
• Deems a person to be a vicious lawless
associate if they commit an offence declared
in Schedule 1 and are a member of an
association, unless they can show that the
relevant association does not have as one
of its purposes engaging in, or conspiring
to engage in, declared offences.
• Imposes a further sentence of 15 years’
imprisonment additional to the base
sentence for the declared offence, to be
served wholly in a corrective services facility
for anyone falling within the definition
of ‘vicious lawless associate’.
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23
Features | Criminal law
• Creates an additional 10 years’ cumulative
imprisonment on top of the 15 years for
a vicious lawless associate if they were at
the time an office bearer of the relevant
organisation, to be served wholly in a
corrective services facility.
• A vicious lawless associate is not eligible
for parole during the term of the additional
sentences, unless the offender has offered
to cooperate with law enforcement
authorities and the Commissioner of Police
has accepted the offer of cooperation in
writing. The decision of the commissioner
is not subject to review, except to the
extent it is affected by jurisdictional error.
• Schedule 1 details declared offences –
including, amongst others, murder, money
laundering, wounding, affray, assault
occasioning bodily harm, attempting to pervert
justice and possessing dangerous drugs.
Where the problems are
Queensland Law Society has identified a
number of concerning aspects of the legislation.
Mandatory sentencing
Maintaining judicial discretion in sentencing
decisions is core to the effective functioning
of our justice system. The Society opposes
mandatory and mandatory minimum sentences
as this will inevitably lead to injustices and
unintended consequences in sentencing.
The Society has consistently said that judicial
officers have the skills and knowledge to
understand and assess all the circumstances
of an individual case and are best placed to
make an informed decision on sentencing for
any particular offence. In the case of the VLAD,
the mandatory sentencing component can
be an additional 25 years’ imprisonment.
24
Definition of ‘association’ in VLAD
The definition of ‘association’ is so broadly
drawn that it can apply to groups such as
workplaces, social clubs, sporting associations
or teams. Take the example of a certain captain
of a State of Origin football team, who pleads
guilty to assault occasioning bodily harm
against another player during the course of
a game. It is arguable that, by his association
with the team and because the assault was
committed in the course of participating in
the affairs of that association, the captain
could be subject to up to 25 years’ additional
imprisonment, unless he could prove that
it is not one of the purposes of the team to
commit assaults on opposition players.
The definition of ‘participant’ in the affairs
of the association is also unduly broad, so
much so that a person who “has taken part
on any 1 or more occasions in the affairs of
the association in any other way” could be
a participant. This could include a person
acting in a professional capacity, such as an
accountant or legal practitioner. There are also
no timing provisions in the legislation linking
the act which has made a person a participant
of an association, and the charge for an offence.
This means that once you are established as
a participant, you are always a participant.
Reversal of the onus of proof
The onus of proof is reversed across a number
of the offences so that the defendant will have
to prove that the criminal organisation is not
an organisation that has, as one of its purposes,
the purpose of engaging in, or conspiring
to engage in, criminal activity. Being shown
to be a participant in a criminal organisation
is an inherent feature which triggers certain
offences or increased penalties. The Society
has consistently raised concern about the
reversal of the onus of proof in criminal law
legislation as it is contrary to fundamental
legal principles and undermines the
presumption of innocence.
Presumption against bail
The Society is concerned about the
presumption against bail for alleged
participants in criminal organisations applying
on being charged with any offence. There is
potential for the unintended consequence
that persons charged with offences which
normally would not justify a sentence of
imprisonment may be remanded into custody.
Minister recommending an entity
be declared a criminal organisation
While the Supreme Court has had the ability
to declare a criminal organisation under the
Criminal Organisation Act 2009, the Minister
is now also empowered to declare this by
regulation. A valid question arises whether
procedural fairness safeguards (such as
notice to an organisation that the Minister
intends to declare as a criminal organisation
and mechanisms to provide written
submissions) are needed in the process
for the Minister’s determination.
The latest advocacy from Queensland
Law Society is on page 32.
back to contents
Features | Litigation
Duty of disclosure An overview for early career lawyers
Once pleadings have closed, one task
routinely delegated to early career
lawyers (ECLs) in litigation is drafting
lists of documents pursuant to rule
216 of the Uniform Civil Procedure
Rules 1999 (Qld) (the rules).
Duty to disclose
While this task may seem procedural, its
importance cannot be overstated.
1.any paper or other material on which
there is writing
2.any paper or other material on which there
are marks, figures, symbols or perforations
having a meaning for a person qualified
to interpret them, and
3.any disc, tape or other article or any
material from which sounds, images,
writings or messages are capable of being
produced or reproduced (with or without
the aid of another article or device).3
Failing to disclose documents or, conversely,
disclosing documents which you are not
required or permitted to disclose, can have
very real consequences for you and your client.1
This article provides ECLs with a brief overview
of the disclosure obligations under rule 211
and the availability of relief from disclosure
pursuant to rule 224.
Rule 211 provides that a party to a proceeding
must disclose to each other party a document
which is in their possession or under their
control and is directly relevant to an allegation
in issue in the pleadings.2
Pursuant to the Acts Interpretation Act 1954
(Qld) a document includes:
This clearly includes correspondence
and reports as well as information held on
electronic devices, such as video recordings4
and computer databases.5
The next task is to determine whether a party
is in possession or control of a document.
Possession is defined as effective physical or
manual control or occupation.6 However, control
is a more stringent requirement which deals
with a party’s ability to ‘direct’ or ‘command’ the
production of a document.7 If a party is unable
to direct or command the production of a
document by a third party, then they may not
be considered to be in control of the document.8
The final element that needs to be satisfied
prior to disclosure under the rules is relevance
– that is, determining whether the document
is directly relevant to an allegation in issue in
the pleadings. In Robson v REB Engineering Pty
Ltd,9 Demack J held that the words ‘directly
relevant’ mean something which tends to
prove or disprove an allegation in issue.10
The operation of rule 211 and, in particular,
the use of the words ‘directly relevant’ place
a significant emphasis on the importance of
pleadings, given they essentially determine
the scope of the disclosure obligations.11
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Litigation | Features
‘Routine’ tasks delegated to early career lawyers are no less important than any other
part of a matter. Michael Peters looks at the duty of disclosure to illustrate this point.
It is also important to note that under
rule 211 the duty of disclosure continues
until the proceeding is completed.
Relief from disclosure
Rule 224 enables the court to relieve a party
from its disclosure obligations, either in full or in
part. When deciding to make an order pursuant
to rule 224, the court may take into account:
1.the likely time, cost and inconvenience
involved in disclosing the documents or
classes of documents compared with the
amount involved in the proceeding
2.the relative importance of the question
to which the documents or classes of
documents relate
3.the probable effect on the outcome of the
proceeding of disclosing or not disclosing
the documents or classes of documents
4.other relevant considerations.12
relevant considerations”, early career lawyers
should be mindful of situations where an
application under rule 224 may or may not
be appropriate.
Conclusion
Notes
Consequences of non-disclosure are found at section
225 of the Uniform Civil Procedure Rules 1999 (Qld) and
include being ordered to pay costs of a proceeding
or being held liable for contempt.
1
If there are no pleadings, then the document
must be directly relevant to a matter in issue in
the proceeding. See rule 211 of the Uniform Civil
Procedure Rules 1999 (Qld).
2
Section 36 and schedule 1 of the Acts Interpretation
Act 1954 (Qld).
3
Radio Ten Pty Ltd v Brisbane TV Ltd [1984] 1 Qd R 113.
4
Poteri v Clarke (1998) 19 QL Reps 108.
At times, the duty to disclose can be unclear
and quite complex. It is therefore important
that all ECLs, especially those in litigation,
understand the disclosure obligations that
arise under rule 211, the relief available under
rule 224 and the circumstances in which it
may be appropriate.
5
A future article will deal with matters of
privilege and how they relate to disclosure.
9
Nygh, P et al, Butterworths Concise Australia Legal
Dictionary (LexisNexis Butterworths Australia, third
edition, 2004) 333, as per Horsley v Phillips Fine Art
Auctioneers Pty Ltd (unreported SC(NSW), Santow J,
3211/92, 31 July 1995).
6
Erskine v McDowall [2001] QDC 192 at 11.
7
See Erskine v McDowall [2001] QDC 192.
8
[1997] 2 Qd A 102.
Ibid at 105.
10
Peninsula Shipping Lines Pty Ltd & Anor v. Adsteam
Agency Pty Ltd & Anor [2008] QSC 317 at 43.
11
Rule 224 (2) of the Uniform Civil Procedure Rules
1999 (Qld).
12
Michael Peters is a solicitor at Miller Harris Lawyers.
These considerations are discretionary and
are exercised judicially having regard to the
circumstances of each case.13 Given the court
is empowered to take into account “other
Coster v Bathgate [2005] QCA 210 at 20.
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27
WLAQ and Agnes McWhinney award winners 2013
Queensland’s top awards for women
lawyers were presented at the
Women Lawyers Association of
Queensland (WLAQ) 35th anniversary
gala awards dinner on 19 October.
address by Justice Jenny Hogan of the Family
Court, along with a three-course dinner and
music from the Brisbane Symphonic Band.
More than 190 guests attended the dinner,
held at the Brisbane Room in Brisbane City Hall,
which included the presentation of the Woman
Lawyer of the Year Award, Regional Woman
Lawyer of the Year Award, Emergent Woman
Lawyer of the Year Award and the Queensland
Law Society Agnes McWhinney Award.
Below right: The 2013 WLAQ committee (except
for Bree Smith, Kate Denning and Elena Sgorlon).
Below: WLAQ awards organising committee
members, from left, Kara Cook, Anita Clifford and
Gerowyn Schuster with a lucky door prize for the
event, a necklace of rare Queensland stones.
These awards were won by Dr Rachael Field,
Nerida Wilson, Corin Morcom and Michelle
James, respectively.
Features of the evening included a welcome
by WLAQ president Natalia Wuth and an
Queensland Woman Lawyer of the Year
Dr Rachael Field, president of Women’s Legal
Service and an associate professor in QUT
Faculty of Law, was admitted in 1992 and
has focused on the promotion of justice for
women, feminist perspectives on law and legal
practice, non-adversarial approaches to legal
practice and excellence in legal education.
She is a recognised leader in research on
dispute resolution, family law and other
areas of law that particularly affect women,
including domestic violence.
What do you see as the most significant issues
facing women in the legal profession today?
“There are important issues to mention such
as pay equity, equality of opportunity and
workplace conditions that support women
in fulfilling their role in families as well as in
the workplace,” she said.
“For me, however, a key issue is that women
are supported to find their best place of fit
within the profession. At law school, many
of our students have a limited view of
where their law degree will take them.
28
They see themselves simply as either a
solicitor or barrister. However, there are so
many and varied ways of being a woman
lawyer in the contemporary legal profession.
“It is important for our psychological wellbeing to find an area of the profession to
work in that we are passionate about and
want to commit ourselves to.”
What do you think can be done
to overcome these issues?
“In order to overcome these issues, women
need to remain true to the feminist agenda
of addressing the inequalities that continue
to exist between men and women in society.
Society has come a long way but there is still
much work to be done.
“Women need to reclaim the word feminist
and be proud of what it signifies. Women
lawyers also need to actively support each
other. This is what the WLAQ aims to foster
and it is why the organisation and its work
are so important I think.”
back to contents
Features
35 years of the WLAQ … original members, award winners, nominees and other involved with the WLAQ in its 35-year history gathered for this group photo.
Queensland Emergent Woman Lawyer of the Year
Corin Morcom, who was admitted to practice
in December 2012, has worked at Allens since
February 2012 and has been the firm’s Brisbane
pro bono coordinator since April 2013.
In this role she has significantly increased
the visibility of the pro bono practice in the
number of pro bono hours worked, and the
quality of bro bono matters obtained. She
has also built strong relationships with several
community legal centres and established a
network of Brisbane pro bono practitioners.
Why do you think these awards are important?
“The WLAQ awards are an incredibly important
recognition of the wonderful efforts and talents
of Queensland female legal practitioners,” Corin
said. “The awards provide a forum and platform
from which the legal profession can promote
the work of female lawyers and can recognise
the challenges that still face female practitioners
and, therefore, the profession as a whole.
“For myself … I feel that this award constitutes
a recognition of the fantastic efforts of the
many lawyers, firms and pro bono community
partners who have assisted me in promoting
and strengthening our pro bono practice, and I
hope that it will allow me to continue to do so.”
Who inspires you and why?
“I have so much respect for the work of the staff
of the community legal centres and other notfor-profit organisations that I deal with in my role
as pro bono coordinator. Their tireless efforts,
drive to create change and depth of compassion
continually inspire me and remind me of what
a privilege it is (for us in private practice) to
be working with them and to be involved in
supporting their organisations’ goals.”
Queensland Regional Woman Lawyer of the Year
back to contents
Barrister Nerida Wilson has practised at the
private bar in Cairns since 2008, previously
working at the Mackay and Cairns Legal Aid
Queensland offices and the Njiku Jowan
Indigenous Legal Service in Cairns. She has
also worked in private practice and as a
lecturer at James Cook University.
What is your message to all female legal
practitioners in Queensland?
She is committed to the needs of women,
including the need for safety for victims of
violent crime, stemming from her time as
president of the Cairns Regional Domestic
Violence Service. Nerida was also president
of the Far North Queensland Law Association
for three years.
Who inspires you, and why?
“Surround yourself with people who value
you, and use them as your sounding board,”
she said. “Women would do well to support
each other and seek out mentors.”
“People who do important and challenging
work behind the scenes inspire me. They
form part of the ‘silent good’ within our
communities and while their work is often
not glamorous or public, and usually poorly
remunerated, such people touch many lives
and find real meaning in their work. Many
of the finalists for these awards, for example,
have worked within prisons, or with victims,
or within the field of human rights.”
29
Features | The profession
Agnes McWhinney award winner Michelle James, centre,
with QLS CEO Noela L’Estrange, left, and president Annette Bradfield.
Queensland Law Society Agnes McWhinney Award
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Maurice Blackburn Strathpine office principal
Michelle James was presented with the award
by QLS president Annette Bradfield, who
described her as a leader in her field of law,
and generous and selfless in giving much
to the community.
Michelle is Queensland president of the
Australian Lawyers Alliance, vice president
of the Moreton Bay Law Association and
an accredited specialist (personal injuries).
Her community contributions include
membership of the management committee
of the Pine Rivers Neighbourhood Centre,
voluntary work at the Pine Rivers Legal Centre
and work as an adult literacy tutor.
Her acceptance speech, which appears below,
received a standing ovation from attendees at
the awards ceremony:
“This is an extremely humbling experience
for me. I would like to congratulate all of the
other nominees for this honour who are all
deserving of this award and I am proud to
be counted within their ranks.
“I am proud of the legal profession in
Queensland and I am also proud to be a
member of the legal profession in Queensland.
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30
“Despite recent convenient political
commentary to the contrary, ours is an
important profession and one with the
genuine best interests of the community
at its heart. This is true, I like to think, of all
practitioners, no matter which side of the
political spectrum you may sit on.
“All of these values are an important guide
to me in my professional life and all of them
are important aspects of fairness.
“Which is why the recent approach taken by
our State Government to the rule of law, and
the separation of powers, and their derogatory
comments about the legal profession as a
whole, are shocking on many levels.
“There are a number of legislative and policy
developments which occurred this week,
which I am personally staunchly opposed
to. I am not opposed to them as a plaintiff
lawyer nor am I opposed to them as a labour
lawyer but rather I am opposed to them as an
individual who has a fundamental belief in the
importance of fairness in our justice system.
“So when our government vests absolute
and unfettered power in one individual,
to determine, at their whim, jail sentences,
I worry about fairness.
“When our government mandates no bail
for certain types of offenders based on the
untested say-so of an arresting officer,
I worry about fairness.
“When our government takes away an injured
worker’s right to seek fair compensation,
without consultation, I worry about fairness.
“When our government cynically describes
the Queensland Law Society and the Bar
Association of Queensland as ‘self-interested’
because they put an opposing view, I worry
about fairness.
“When I talk about fairness in a legal context
I am talking about notions of:
“But I also know that merely worrying about
‘fairness’, or any of these issues, will achieve
nothing. It is up to each of us individually,
and our obligation collectively as a profession,
to continue to express our concerns and
demonstrate our unease about such matters
through whatever means available, regardless
of the criticism we may encounter.
• balance
• transparency
• respect
• empathy.
“Finally, in accepting this award, I wish
to acknowledge the many strong women
lawyers who have mentored me in my
career, and the unswerving love and support
of my husband, Matthew Smith.”
“When I am asked what I like about the law,
what it is that attracted me to legal practice in
the first place and what I enjoy about it most;
when I think about what is the common and
fundamental value, which all lawyers share,
I would have to say it is that of fairness.
back to contents
Regular features
The voice
of your
profession
Despite our best efforts, the State
Government recently changed workers’
compensation in ways that many regard
as unwarranted and unwelcome. This
month we trace the development
and progress of our advocacy on this
important issue through to the eventual
passing of the Workers’ Compensation
and Rehabilitation and Other Legislation
Amendment Bill 2013. Details of this
and other recent advocacy are available
here and at qls.com.au/submissions.
A member log-in is required to view
some of the submissions listed.
Costs assessment
Indemnity
and privilege
The Queensland Civil and Administrative
Tribunal Act 2009 was recently amended
to provide indemnity for assessors.
We wrote to the Attorney-General
commending the amendments and
recommended that the commencement
of the amendment involving assessor
immunity be expedited from a date to
be set by proclamation.
We noted that the issue of confidentiality
and privilege for assessors set out in ss78
and 79 of the Civil Proceedings Act 2011 was
not extended to assessment ordered under
the Queensland Civil and Administrative
Tribunal Act 2009. It follows that, if a cost
assessment is ordered by QCAT, the
parties will not be afforded protection
under the Civil Proceedings Act 2011 and
will be deemed to have waived privilege
(Giannarelli v Wraith (No.2)). We therefore
recommended that the Queensland Civil and
Administrative Tribunal Act 2009 be further
amended to include the provision with
respect to confidentiality and privilege.
Patrese McVeigh is a member
of the QLS advocacy team.
32
Police Powers and Responsibilities and Other Legislation Amendment Bill 2013
Out-of-control event Bill
Queensland Law Society wrote to the
parliamentary Legal Affairs and Community
Safety Committee about the proposed
Police Powers and Responsibilities and
Other Legislation Amendment Bill 2013.
The Bill, which introduces a scheme to tackle
out-of-control events and parties, defines
out-of-control conduct and authorises police
to use powers to prevent an event from
becoming an out-of-control event.
We noted that existing legislation includes
offences which address this type of offending
and submitted that the Bill’s proposals could
create unnecessary duplication.
The Bill also creates offences for people
organising an out-of-control event, with a
maximum penalty of 165 penalty units or three
years’ imprisonment. We suggested that the
defence for a person taking reasonable steps
to prevent the event becoming out of control
could include more examples, similar to those
outlined in West Australian legislation.
We noted that the proposed offence of ‘causing
an out-of-control event’ could make a person
liable for an offence even if another person’s
conduct contributed to the event becoming
out of control. We suggested that this could
lead to situations in which the liability of an
accused person was influenced by conduct
they were neither part of nor perhaps aware of.
We suggested that, if another person’s conduct
was to be taken into account as contributing
to the event becoming out of control, it should
be that the accused knew, or ought reasonably
have known, of that other conduct.
The Bill also sets out that costs orders can be
made against an adult, child or parent of a child
offender (subject to a show cause process).
We noted that legislation already provides for
compensation and restitution to be made.
We said that there could be issues in terms of
ensuring that reasonable costs are fairly sought
when there are multiple parties charged with
offences relating to the same conduct.
We suggested that the most effective way to
address out-of-control events was to strengthen
policing resources to deal with such events, and
also increase education to young people and
their parents or guardians on holding safe events.
The committee was to report to Parliament
by 11 November.
Jennifer Roan was a QLS policy solicitor
at the time of writing.
Australian Competition and Consumer Commission
Cartel immunity policy
In late September the Australian
Competition and Consumer Commission
(ACCC) invited public consultation on its
cartel immunity policy.
In our submissions to the ACCC, we considered
key aspects of the policy, including:
• criteria for conditional criminal
immunity for cartel conduct
• eligibility criteria for immunity
• the amnesty-plus policy
• proposals for withdrawing immunity
• the name and structure of the policy
• prepared statements
• proffer requirements, and
• waivers.
We supported introducing the ‘letter of comfort’
approach in respect to conditional criminal
immunity for cartel conduct but stressed that,
in order for the approach to be effective, written
communication of the comfort immunity
had to be provided to immunity applicants as
early as possible. We also considered that the
amnesty-plus policy would be further advanced
with clear and detailed guidance on factors
taken into account when applying the policy.
The ACCC discussion paper also invited
comment on changes to the process in
withdrawing immunity. While we considered
the proposed process for withdrawing immunity
was reasonable and workable, we highlighted
the importance in ensuring the transparency
of the withdrawal process and providing the
applicant opportunities to remedy the conduct
or omission prior to formal withdrawal.
In summary, we supported the proposal
to rename and restructure the policy
as outlined in the paper.
Louise Pennisi is a QLS policy solicitor.
back to contents
Advocacy | Regular features
Workers’ compensation
Anatomy of our advocacy
On 7 June 2012 the Legislative Assembly
agreed to a motion that the parliamentary
Finance and Administration Committee
inquire into the Queensland workers’
compensation scheme, including:
• the performance of the scheme
• how the Queensland scheme compared
to arrangements in other jurisdictions, and
• WorkCover’s financial position.
The Society advised members of the review
and liaised with district law associations by
providing information and assistance
in making submissions.
24 July 2012: Our representatives met with
the Chamber of Commerce and Industry
Queensland (CCIQ) in an attempt to identify
common concerns and views between
the two organisations.
We then made three submissions voicing
the concerns of members to the
parliamentary review.
14 November 2012: The Society was strongly
represented at the Brisbane public hearing
by then president Dr John de Groot, vice
president Ian Brown and principal policy
solicitor Matthew Dunn.
18 December 2012: We wrote to all members
of parliament, providing six key facts about
the workers’ compensation scheme.
15 February 2013: Representatives of the
Society met with the Treasurer to discuss
the review of workers’ compensation and
the national injury insurance scheme.
21 March 2013: During the course of the
parliamentary review, QLS representatives
met briefly with the Premier and AttorneyGeneral as a part of the ‘meet & greet’ for
new Society president Annette Bradfield.
At that meeting there was a high-level
discussion of several important issues on
the Society’s agenda, including the workers’
compensation review. There was, however,
no detailed discussion of the issue. At the
meeting the Premier expressed his desire
to see Queensland have the best workers’
compensation scheme in the nation.
28 March 2013: The Society sent a letter to
the Premier stating the view that Queensland
had the best workers’ compensation
arrangements in the nation.
30 April 2013: The Attorney-General introduced
the Industrial Relations (Transparency and
Accountability of Industrial Organisations)
and Other Acts Amendment Bill 2013, which
included amendments to the definition of
‘worker’ in the workers’ compensation scheme.
23 May 2013: The parliamentary Finance
and Administration Committee tabled
its report to Parliament. The report was
welcomed by the Society.
Following the release of the review, Society
representatives met again with the CCIQ.
Independently, we wrote to the AttorneyGeneral to provide our responses to the
recommendations of the review report.
5 June 2013: The Bill was passed.
6 August 2013: The Attorney-General
introduced changes to workers’ compensation
self-insurance arrangements in amendments to
the Criminal Law Amendment Bill (No.2) 2012.
13 August 2013: This Bill received assent
as the Criminal Law and Other Legislation
Amendment Act 2013.
26 August 2013: The Attorney-General tabled
the government’s interim response to the
parliamentary review.
In late September media reports indicated
that the government was considering changes
to the workers’ compensation scheme. The QLS
president wrote to and phoned the AttorneyGeneral and his office to request his advice
about the status of consideration of the issue
and to reiterate the standing offer to provide
comments on any proposals the government
may be considering. The Attorney-General
advised that he was aware of our views, the
matter was under consideration and that
no final decision had been made.
In response to the uncertainty about the
future of the scheme, we issued media
releases about the retention of journey claims
(23 September) and problems associated with
the introduction of incapacity thresholds for
access to common law claims (25 September).
The Society again liaised with district law
associations which met with their local MPs
and engaged with local media.
14 October 2013: We issued a media
release warning that proposed changes to
the state’s workers’ compensation scheme
put at risk its financial viability and would
increase costs to employers.
15 October 2013: The Courier-Mail
reported imminent changes to the scheme
and the Attorney-General issued a media
statement at 6am.
At 12.07pm the Attorney-General introduced
the Workers’ Compensation and Rehabilitation
and Other Legislation Amendment Bill 2013
and it was declared urgent at 12.30pm. The
Attorney-General also tabled the government’s
response to the parliamentary review.
At 3.15pm the Society advised members
of the introduction of the workers’
compensation reforms.
At 5pm that day, we issued a media statement
saying that rushed changes to workers’
compensation laws would seriously damage
the health of the state’s scheme.
16 October 2013: President Annette Bradfield,
supported by QLS councillors, held a press
conference on the steps of the Parliamentary
Annexe about the workers’ compensation
reforms and the other urgent legislation
introduced that week.
That day, she also wrote to all MPs raising
concern about a lack of any right of appeal
or review from a decision of the Medical
Assessment Tribunal (MAT) with respect to
the assessment of permanent impairment
and urging the members’ support for an
amendment to the Bill.
17 October 2013: Prior to the debate on
the Bill, we issued a media release stating
that the most fundamental attack on the
rights of Queenslanders in the week’s urgent
legislation came in the shape of the proposed
changes to the workers’ compensation
scheme. We also took the unusual step of
placing an advertisement in The Courier-Mail
on the same day explaining our view of the
effects of the proposed reforms.
During the week president Bradfield undertook
many television, radio and press interviews on
the workers’ compensation reforms and the
other urgent legislation of the week.
Ultimately the Workers’ Compensation
and Rehabilitation and Other Legislation
Amendment Bill 2013 was passed at 11.58pm
on 17 October with some minor amendments.
Matt Dunn is a QLS principal policy solicitor
back to contents
33
Regular features | Alternative dispute resolution
Mediation by model
But does it matter?
Different models of mediation have their adherents, but Tom Stodulka suggests
that other considerations are more important than reliance on a particular style.
“To suggest one approach is
superior to all others is to erect a
barrier to understanding the nature
of conflict and of resolution.” –
Bernard Mayer1
This topic of mediation models has been
with us for many years and took on particular
relevance with the introduction of the
Australian National Mediator Practice Standards
(practice standards) on 1 January 2008.
You will often hear discussion about whether
a mediator is interventionist or uses a facilitative
or evaluative model of practice. I recall hearing
Sir Laurence Street, one of the founders of the
Australian ADR movement, described as an
interventionist mediator. Also, often it is said
that barristers and retired judges will use an
evaluative or settlement model. There are of
course other models, though less well known,
such as narrative and therapeutic.
Introduction of the practice
standards and facilitative model
With the introduction of the practice
standards, some might have thought the
matter would be settled once and for all. In
small part this has been achieved, as most
Australian mediation training organisations
train and assess for national mediation
accreditation using the facilitative model.
For example, in the Bond University National
Mediation Standards Assessment Course 2013,
a student hoping to gain accreditation will
be examined on whether they managed the
mediation process in a facilitative manner.
They will also be tested on their capacity
to explore each agenda item and facilitate
discussions between the parties.
At the LEADR mediation accreditation course,
similarly, a student will be required to facilitate
direct communication between participants
and encourage each party to share
perspectives and ask questions. Also, they
will need to facilitate balanced interaction
by participants and assist the participants
to focus on interests.
Greatest challenge for students
Conclusion
After coaching and assessing hundreds of
mediation students, I have found the greatest
difficulty is in putting aside a lawyer’s role of
working directly with a client and taking their
instructions. It is understandably very difficult,
especially after many years of legal practice,
to get participants to actively engage with
each other using a facilitative framework.
In fact for many it goes against the grain
and needs much practice and patience. The
challenge is often to get one participant to
speak directly to the other, especially as both
the trainee mediator and the participant are
more inclined to speak to each other.
The discussions around which model and
style is preferred will continue as long as
mediation is practised. To assist in the debate,
it is timely to reflect on the literature, the
practice standards, and our own level of
experience and experiences.
However, I have found that whether the new
mediator intends to practise in the facilitative
or evaluative models or a combination
of the two, they invariably see the huge
benefits in their new found skills in assisting
parties to engage with each other in a more
collaborative and less adversarial manner,
and where possible to find common ground.
A lot will also depend on which areas of
practice we work in, the expectations of the
participants, and whether we are operating
within a legislative framework, or working in
an environment with responsibilities for the
welfare of third parties such as children.
One of the best guides will be to ensure
the participants are given every chance at
self-determination as required by the practice
standards. In addition, a mediator should
never lose sight of the well-established
mediator skills of listening, acknowledging,
reframing, summarising and questioning,
which are the foundation stones of the
facilitative model.
Reconciling an interventionist and
evaluative style with the facilitative
and less interventionist style
Professor Boulle2 goes to great lengths to
discuss the extensive literature on this subject,
especially in the context of the practice
standards. He says that the prescription that
mediation be non-directive as to content
is linked to the principle of party selfdetermination, which is a constant theme in
the practice standards. However, he adds that
the ‘blended process’ envisaged by the practice
standards does entertain mediators furnishing
advice, provided it is requested by parties and
enhances the principle of self-determination.
There is of course the purist view commented
on in other literature, stating that evaluation
is the antithesis of facilitation.3
Fisher and Brandon4 on a mediator’s style
simply say: “Ultimately, mediators develop
their own mediating approach and style.
It is worth remembering that mediation
is not an exact science … ”
The article appears courtesy of the Queensland Law
Society Alternative Dispute Resolution Committee. Tom
Stodulka is a nationally accredited mediator and family
dispute resolution practitioner, and was the recipient
of a 2013 LEADR excellence award for the practice of
mediation. See tomstodulka.com.
Notes
Bernard Mayer, The Dynamics of Conflict A Guide
to Engagement and Intervention 2nd edition,
Jossey-Bass (2012) p138.
1
Laurence Boulle, Mediation Principles, Process, Practice
3rd edition, LexisNexis Butterworths (2011) p42.
2
Freddie Strasser & Paul Randolph, Mediation:
A Psychological Insight into Conflict Resolution,
Continuum (2004) p68.
3
Linda Fisher and Mieke Brandon, Mediating With
Families 3rd edition, LawBook Company (2012) p55.
4
34
back to contents
Workplace law | Regular features
Implications of new workers’ comp
Employers may face increased duty of care
How will the amendments to the Workers’ Compensation and Rehabilitation Act affect
Queensland employers and workers? Report by Yvette McLaughlin and Alan Girle.
On 15 October, the Queensland
Government introduced the
Workers’ Compensation and
Rehabilitation and Other Legislative
Amendment Bill 2013, which
amends the Workers’ Compensation
and Rehabilitation Act 2003.
The Bill was passed late on 17 October and
the Act assented to on 29 October.
These changes generally apply to injuries
from the date of commencement and follow
earlier amendments to relax self-insurance
requirements and alter the definition of ‘worker’.
The amendments introduce new concepts
and procedures:
• The previous “work-related injury” is replaced
by a “degree of permanent impairment” (DPI).
• A threshold of more than 5% is introduced
for common law claims.
• It introduces a new process by which a
worker who has not made an application
for compensation can apply for and receive
a notice of assessment.
• Q-COMP is abolished, with a de-facto
Q-COMP board in place until 30 June 2014,
and a workers’ compensation regulator to
be created as part of the Department of
Justice and Attorney-General.
• Employers are now able to require a
worker to provide details of their claims
history. A failure to produce or a knowingly
fraudulent or misleading disclosure by a
worker may result in a loss of entitlement
to compensation and damages.
• The definition of psychiatric/psychological
injuries has been altered, requiring employment
to be “the major significant factor”.
• Changes to rehabilitation and return
to work requirements.
The Act does not significantly amend the Work
Health and Safety Act 2011 (WHS Act), which
aims to provide a balanced framework to secure
the health and safety of workers. The objective
of the Workers’ Compensation and Rehabilitation
Act includes encouraging improved health and
safety performance by employers, so given the
back to contents
alignment of these objectives in the health and
safety area, it is possible Queensland employers
will see increased regulatory scrutiny of events
resulting in injury.
Changes have been made to the circumstances
in which an employer is required to appoint a
rehabilitation and return-to-work coordinator,
the qualifications required of such coordinators,
and employers’ obligations to maintain and
review rehabilitation and return-to-work
policies and procedures.
Current and prospective rehabilitation and
return-to-work coordinators need now simply
be “appropriately qualified”.
Employers are no longer required to maintain
and review rehabilitation and return-to-work
policies and procedures, as sections 99D and
100 of the regulation have been omitted.
There will no longer be a requirement that
an employer submit a declaration saying that
they have a workplace rehabilitation policy
and procedures.
However, best practice in respect to
workplace health and safety requirements
may dictate that employers continue to
maintain and regularly review such policies.
The obligation to provide rehabilitation and
return to work seems to have shifted to the
insurer. An insurer is required to take practical
steps to secure the rehabilitation and early
return to suitable duties of workers who
have an entitlement to compensation.
Sections 571B(1) to 571D:
a. allow a prospective employer to
request that a prospective worker
disclose all pre-existing injuries and
medical conditions
b. provide for the request to be made in
writing and to include a warning about
the consequences of false or misleading
disclosure
c. ensure a worker is provided with a
reasonable opportunity to respond
to the request
d. impose consequences for a worker who
knowingly provides false or misleading
disclosure about a pre-existing injury or
medical condition and later aggravates
the pre-existing injury or medical condition
– entitlement to claim compensation
and/or seek damages in relation to the
aggravation is extinguished, and
e. allow a prospective employer to request
a copy of a prospective worker’s claims
history summary with the prospective
worker’s consent and subject to an
application fee.
An employer cannot:
a. disclose to anyone else the contents of,
or information contained in, the summary
b. give anyone else access to the document
c. use the contents of or information in the
summary for any purpose other than for
the purposes of the employment process.
The Act limits the scope of disclosure to an
injury or medical condition existing during
the period of the employment process that
a person suspects or, ought reasonably to
suspect, would be aggravated by performing
the duties the subject of employment, perhaps
limiting the requirement for disclosure to
those conditions which are either permanent
or which are symptomatic during the
employment process. Knowingly making a
false or misleading disclosure may disentitle
the worker for subsequent compensation
and damages arising from an event which
aggravates an undisclosed injury or condition.
It is possible that obtaining and using the
information requested in the employment
process could breach anti-discrimination
legislation and caution should therefore
be exercised by employers in requesting a
prospective worker’s pre-existing medical
history, except where the injuries or conditions
to be disclosed are relevant to the genuine
occupational requirements for that position.
Equally, employers will be placed on notice
by the worker’s medical history, which may
lead to an increased duty of care in some
circumstances, depending on the nature
of the duties undertaken.
Yvette McLaughlin is a partner and Alan Girle
is a special counsel at Sparke Helmore Lawyers.
35
Regular features | Back to basics
Citation with authority
New practice directions set the standard
In April 2013,1 this column noted that
Australian courts prefer parties to be
selective when citing case law and,
where possible, to cite authorised law
reports rather than those produced
in unauthorised publications or
unreported judgments.
On 18 October, Practice Direction 16 of 2013
(Supreme Court) and Practice Direction 11
of 2013 (District Court) were issued, and
on 29 October Practice Direction No.19
(Magistrates Court) was issued.2 The three
practice directions are identical in content
and apply to the citation of case law, whether
in written or oral submissions, by parties
appearing in any matter before any division
of the Supreme Court, District Court or
Magistrates Court respectively.
The stated purposes
The practice directions have two
stated purposes.
The first is to ensure the court is provided
with the most authoritative and functional
versions of the relevant authorities.
The second is to encourage parties to limit
their citation of authority to those judgments
which are apt to assist the court materially in
resolving the real matters in dispute.
It is a common mistake for practitioners to
rely on and cite the unreported version of
decisions without checking to see if they
have been reported and if so, whether the
report is an authorised report.
It is a mistake because the citation of an
unreported decision is less persuasive to
the court. Unless the decision is a very
recent one, an unreported decision tends
to indicate that the judgment was the
application of established principle to
new facts or is otherwise unremarkable.
If a judgment has been reported, especially
in an authorised report, then this is
persuasive because it indicates that the
decision is an important one.
36
Also, a reported decision will have a head
note at the beginning of the report prepared
by a lawyer. This will summarise the case,
state the relevant principles or propositions
and be cross-referenced to the passages
within the reasons. The reported decision will
also have the correct version of the reasons.
Citation
Paragraph 3 of the practice directions provides
that, when citing a judgment to the court:
(a)A citation of the judgment from a set
of authorised reports is to be preferred.
A set of authorised reports is one which has
been approved by a relevant court to publish
the authoritative version of its judgments.3
For judgments of Australian courts, the
current authorised reports are:
• Commonwealth Law Reports
(High Court of Australia)
• Australian Capital Territory Law Reports
(Supreme Court of the ACT)
• Federal Court Reports
(Federal Court of Australia)
• New South Wales Law Reports
(Supreme Court of NSW)
• Northern Territory Law Reports
(Supreme Court of NT)
• Queensland Reports
(Supreme Court of Queensland)
• South Australian State Reports
(Supreme Court of SA)
• Tasmanian Reports
(Supreme Court of Tasmania)
• Victorian Reports
(Supreme Court of Victoria)
• Western Australian Reports
(Supreme Court of WA).
(b)If no such report is available, a citation
of the judgment from another set of
accredited reports is to be preferred
to an unreported judgment.
A set of accredited reports is any set of
published reports or notes of judgments4
which is accepted by the court as providing
a reliable record of the relevant judgment.5 In
general terms, a set of accredited reports is a
set of published reports which contain cases
selected by lawyers as being of significance
and which contain a head note prepared by
a lawyer. An example of a set of accredited
reports is the Intellectual Property Reports.
(c)If no such reports are readily available,
an unreported version of the judgment
may be cited.
You should always double check that the
unreported decision you wish to cite has not
yet been reported by the time you cite that
decision to the court.
(d)The medium neutral citation of a
judgment (if any) should be provided.
The medium neutral citation means that
the citation will appear as year of publication
in square brackets + court abbreviation +
judgment number. This appears on the front of
the judgment when it is published by the court.
If the case is a reported one, then the
reference to the report appears first and then
the medium neutral citation appears next as:
Zabusky v Virgtel Ltd [2013] 1 Qd R 285;
[2012] QCA 107
If the case is not a reported one, then the
citation would appears as:
Adams v Zen 28 Pty Ltd [2010] QSC 36
(e)The particular passages in the judgment
which are relied upon should be
identified.
It is preferable that this is done within the
outline of submissions rather than handing
up highlighted or tabbed copies of cases.
The passages in a reported decision can
be identified by reference to page and line
numbers or page and paragraph numbers.
Passages in an unreported decision should
be identified by reference to paragraph
numbers in the reasons (being the numbers
in the square brackets).
(f ) Reference should also be made to
any subsequent judgment which has
doubted, or not followed, the cited
judgment in a relevant respect.
Selectivity
that, in selecting the authorities to be cited
to the court, parties are encouraged:
(a)to limit their citation to the authorities
which are necessary to establish the
principles or propositions which are
relied upon
back to contents
Back to basics | Regular features
Practice directions which set the required standards for
the citation of authority have been issued by the state
courts of Queensland. Report by Kylie Downes QC.
(b)to avoid citing authorities which merely
rephrase, illustrate or apply those
principles or propositions in a way which
is not apt to assist the court materially
in resolving the real matters in dispute.
that an unreported judgment should not usually
be cited unless it contains a statement of legal
principle, or a material application of principle,
which is not found in reported authority.
You should cite the reported decision of the
highest appellate court which establishes the
principle or proposition which you rely on
and stop there. Do not go further and cite all
of the later decisions which have applied the
principle to the particular facts before them
in a case, particularly if the later decisions
do nothing more than rephrase, illustrate
or apply the principle.
There are many categories of cases which
are not reported, such as matters concerning
procedural issues or quantum cases. Beyond
these, there should be less need to refer
to unreported judgments because of the
restriction imposed by the practice directions.
The unreported cases which apply the
established principle usually add nothing and
may even restate the principle using varying
and sometimes erroneous forms of words.
They also have no head note or indication of
the important or pertinent passages within the
reasons and so are not user-friendly for the court.
Notes
Back to Basics April 2013 with Lee Clark.
1
Practice Direction 12 of 2013 was also issued
for the Planning and Environment Court
in identical form.
2
See paragraph 6 of the practice directions.
See also Back to Basics, Proctor, April 2013 for
a more extensive list of authorised reports,
including those from overseas.
3
Such as Queensland Weekly Notes.
4
See paragraph 7 of the practice directions.
5
All practice directions are available at
courts.qld.gov.au > For lawyers >
Practice directions.
Kylie Downes QC is a Brisbane barrister and member
of the Proctor editorial committee.
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37
Regular features | Banking and financial services
Vendor finance? Vendor beware!
Decisions affirm need for caution
Several recent decisions highlight
the risks inherent in vendor financing
and remind lawyers negotiating and
documenting these arrangements
that they must take the right steps
to protect the vendor’s position.
A discussion of these decisions and vendor
finance generally will help to ensure
practitioners are up to date. The relevant
decisions include Naxatu Pty Ltd v Perpetual
Trustee Company Limited1 (Naxatu), Bofinger v
Kingsway Group Limited2 (Bofinger) and Raging
Thunder Pty Ltd & Anor v Bank of Western
Australia Ltd3 (Raging Thunder).
What is vendor financing?
At its most basic, the concept is quite simple
and involves the vendor contractually
agreeing that portions of the purchase price
are characterised as a loan by the vendor
to the purchaser. This can be for speed and
convenience or, more often, to bridge the gap
between the purchaser’s equity contribution,
what a bank will lend for the acquisition, and
the agreed price of the business or property.
Title to the assets is transferred and security
and guarantees can then be granted to the
vendor over the assets of the purchaser to
provide the vendor with comfort that they
will be able to recover amounts owed under
the vendor finance arrangements.
Perceived benefits
Vendor financing is attractive to purchasers
because:
a. It can bridge a value gap between
what the vendor is asking and what
the purchaser is willing to pay.
b. It is potentially faster, less onerous
and more immediately available than
bank financing.
c. It offers a form of holdback in the
event there have been misrepresentations
or undisclosed liabilities.
38
d. When there is a vendor/purchaser handover
component in the sale contract, the
element of vendor vested interest provides
the purchaser with comfort that the vendor
will fully discharge their obligations.
Likewise, vendors are attracted to this form
of financing as:
a. Funding to facilitate completion
is immediately available.
b. It gives them greater control over
the price which they accept for their
business or property.
c. A vested interest in the business or
property provides an enhanced ability
to protect their investment.
d. It can have a higher rate of interest than
that available from banks for a cash deposit.
e. It provides an opportunity to reposition
themselves in the capital structure.
Considerations and risks
From the vendor’s perspective, recovering
the purchase price and effectively enforcing
the security in the event that the purchaser
defaults under its payment arrangements
are paramount.
It is crucial that lawyers acting for either
vendors or purchasers are able to identify issues
for their clients and create and document
robust risk management plans to ensure that
the interests of both parties are protected.
Obviously, any financing transaction carries
a level of risk whether it is associated with:
• valuation
• serviceability
• available equity in the property once
higher priority debts are discharged, or
• generic market risk.
The lender must analyse that risk and make
an educated and objective assessment of the
value of the security and the capacity of the
borrower to fulfil its payment obligations.
A vendor financier is still a lender and needs
to be aware that its relationship with the
purchaser will change once the transfer
of title has occurred.
In many vendor financing transactions,
these risks are magnified by the proximity
of the parties and a careful, objective analysis
needs to be made about whether the
benefit to the vendor is sufficient to override
the obvious concerns.
If a purchaser needs financing to complete
a transaction and is unable to obtain
commercial funding at all, or in an amount
sufficient to complete the transaction, a
vendor needs to understand why. There may
be valid grounds, such as low appetite for
lending into particular industry sectors or
the application of tight financial covenants
on bank policy grounds, but if the financial
health, existing debt load or credentials of
the purchaser, cash-flow associated with the
asset or valuation of the security property
are in dispute, the vendor needs to be
commercial about the heightened risk.
Priority
If a commercial financier is providing
a proportion of the funds required to
complete the transactions, there are very
few circumstances in which they will agree
to anything other than a first-ranking
secured position. Accordingly, a vendor
taking security over the same assets will
rank behind that lender and must be
certain that there is sufficient equity in the
security property to make a second-ranking
position sustainable on realisation of the
assets. Priority arrangements are imperative
to protect the vendor’s position, but must
be appropriate to the transaction and
negotiated with a clear understanding
of the obligations of the parties.
The recent decision in Naxatu concerned
a dispute between Naxatu Pty Ltd (NPL),
the second mortgagee, and Perpetual
Trustee Company Limited (Perpetual), the
first mortgage holder. It involved a number
of strata units held by Sterling Estates
back to contents
Banking and financial services | Regular features
The courts have reaffirmed that second-ranking and vendor financiers must
exercise extreme caution. Report by Charlotte Davis and Cherie Leatham.
Development Corporation Pty Ltd (Sterling).
Sterling also held a number of strata units that
had been mortgaged by Bridgecorp Financial
Ltd (Bridgecorp) to Perpetual. Perpetual and
Bridgecorp entered into a priority agreement
that restricted Perpetual’s priority under its
first mortgage to $9.4 million and stated
that Bridgecorp would receive any money
in excess of this amount.
When Perpetual sold some of its secured
properties and paid a portion of the
proceeds to Bridgecorp, NPL claimed that
this transaction reduced the value of its
mortgages and therefore that Perpetual
breached a duty owed to them. NPL sought
to rely on the rule in Hopkinson v Rolt4
(Hopkinson) in regard to priorities between
first and second-ranking mortgages. This
states that “advances made to the first
mortgagee, after notice, are deferred in
priority to the second mortgagee’s debt”.5
had breached implied terms of the deed of
priority including an obligation to “exercise
the care and skill of a reasonably competent
and prudent banker”6 in making the loans to
the borrower, Fitzroy Island Pty Ltd (Fitzroy).
The claim was monumentally unsuccessful
and Applegarth J neatly dismissed it in the
following terms:
“One might readily accept that Bankwest
should be expected to protect its own interests.
It is an entirely different matter to argue that it
has an implied obligation to another party to
protect its own financial interests”.7
In his Honour’s view, it was neither equitable
nor reasonable to attribute legal liability to
Bankwest because it made an uncommercial
business decision which had severe
implications for the vendor financier. The risk
remained squarely with the vendor financier
and with second-ranking financiers more
generally, to protect their own positions.
At first instance, the trial judge dismissed NPL’s
claim on the basis that NPL had no proprietary
interest in the properties that were sold. The
rule in Hopkinson only applied to protect
further advances made by NPL, and there
was no evidence of any such advances.
Importance of the guarantee
Naxatu acts as a reminder that, in addition
to making initial inquiries to determine the
amounts owing under other mortgages,
vendors should enter into a clear deed of
priority that ensures:
In regard to property, under section 58
of the Real Property Act 1900 (RPA) money
received from the sale of land by a mortgagee
exercising its power of sale must be applied:
a. Other parties cannot make further advances
to the owner of the business or property
without notice to other mortgagees.
b. A new obligation to make payments
is imposed on the owner, ensuring that
obligations to lenders continue to be
embodied in relevant primary security
documents.
c. The arrangement between parties
impacts on the regulation of priorities
and arrangements of payment.
In Raging Thunder the outcome for the
second-ranking lender, in this case a vendor
financier, was similarly unfortunate. The vendor
financier, Raging Thunder Pty Ltd, attempted
to argue that the first-ranking lender, Bank
of Western Australia Limited (Bankwest)
back to contents
The question of whether guarantors or second
mortgages take priority after the first mortgage
has significant implications for vendors that
want to exercise their power of sale.
1.firstly in payment of expenses of the sale
2.secondly in payment of the first mortgage
3.thirdly in payment of mortgagees
in order of priority, and
4.finally, the surplus must be paid
to the borrower.
The High Court decision in Bofinger
considered whether guarantors who have
satisfied all or part of a loan under a personal
deed of guarantee are entitled to surplus and,
if so, who they have priority over. This question
first arose in the case of Adams v Bank of New
South Wales [1984] 1 NSWLR 2858 which is
authority for the proposition that section 58 of
the RPA “must be read in a manner consistent
with the equitable duty of the first mortgagee
… as a trustee for any surplus”.
In Bofinger, a developer borrowed from
three different mortgagees to finalise
a property development. Mr and Mrs
Bofinger provided personal guarantees
secured by three mortgages against the
title of two properties owned by them.
When the developer defaulted under each
loan, the guarantors sold their properties
and repaid part of the amount owing to the
first mortgagee. The first mortgagee then
took possession of the property, exercised
its right of sale and provided the second
mortgagee with the surplus funds. The
guarantors asserted that they should have
been given possession of the unsold lots
and should have received the surplus funds
instead of the second mortgagee.
In a unanimous decision, the High Court
upheld the guarantors’ claim, preferring to
take the view that the first mortgagee was
obliged in equity to account to the guarantors
for any securities and surplus money held. This
obligation was in priority to the entitlement
of the second mortgagee under section 58
of the RPA. The fact that a waiver was present
in the deed of guarantee with the second
mortgagee did not mean that it extended to
a waiver of the guarantor’s rights under the
deed of guarantee with the first mortgagee.
This case illustrates how important it is for
first mortgagees to ensure that they are not
breaching their equitable fiduciary duties
when applying surplus funds. It is equally
important for second mortgagees to check
that a guarantee is in place positioning them
immediately behind the first mortgagee
because a second mortgagee is not
necessarily second in priority. Both issues are
relevant for a vendor providing finance, who
may be either the first or second mortgagee.
39
Regular features | Banking and financial services
Lessons learnt and things to look out for
Vendor issues
Purchaser issues
Create a deed of priority that clearly identifies the client’s position
with respect to other mortgagees
Conduct due diligence covering the risks and issues
faced by the client.
Check that a guarantee is in place that positions the client
immediately in front of or behind the other mortgagees as
appropriate.
Ensure the client is appropriately directed when entering into
any financing arrangements to avoid circumstances of undue
influence or unconscionable conduct by the vendor.
When exercising power of sale, ensure that the client is not
breaching its equitable fiduciary duties when applying surplus funds.
Ensure that valuations are independent and verifiable.
Register any security interests over personal property on the PPSR
to ensure that they are perfected.
Balance the commercial drivers against the realities of valuation, purchaser’s
financial health and credentials, and capacity to service the debt.
PPSA
Final thoughts
It should also be noted that personal property
is frequently an integral part of the collateral
package securing finance for a purchaser. The
Personal Property Security Act 2009 (Cth) (PPSA)
has fundamentally altered how vendors can
protect their priority ranking over these assets,
requiring them to register their interests on
the Personal Properties Security Register
(PPSR) or risk losing priority over those assets
to a competing perfected security interest.
Vendor financiers need to be encouraged
to look very closely at the assets available to
secure the amounts owed to them and to
ensure that they take all steps necessary
to perfect their security interest.
Naxatu, Raging Thunder and Bofinger act as
clear warnings that courts will not take steps
to improve the security position of secondranking and vendor financiers if they have
not exercised a high degree of caution and
prudence on their own behalf.
The chair of the Queensland Law
Society Banking and Finance
Committee, Ian Lockhart, writes:
by the credit provider including in regard
to amendments, hardship notice procedures
and enforcement. As well as custodial
sentences, the NCCP Act contains offence
provisions and significant civil penalties
for non-compliance.
Thank you to Charlotte and Cherie for
this timely reminder on vendor finance
arrangements.
A further potential risk associated with vendor
finance is the possible application of the
National Consumer Credit Protection Act 2009
(NCCP Act). The issue here is that, when the
operation of the NCCP Act is attracted, the
credit provider needs to be the holder of an
Australian credit licence (or have the benefit
of a specific exemption). If it does not, severe
sanctions could follow, including custodial
sentences of up to two years.
Arrangements regulated by the NCCP Act
also must comply with comprehensive and
onerous rules on ‘responsible lending ’, precontractual disclosure, the form and content
of the contract documents, related securities
and guarantees, and also ongoing conduct
40
In assessing the appropriateness of vendor
financing arrangements, a clear understanding
of the relevant issues will assist in mitigating
potential risks and striking a balance between
commercial drivers and the legal implications
of getting it wrong.
Notes
Naxatu Pty Ltd v Perpetual Trustee Company
Limited [2012] FCAFC 163.
1
Bofinger v Kingsway Group Limited [2009] HCA 44.
2
Raging Thunder Pty Ltd & Anor v Bank of Western
Australia Ltd [2012] QSC 329.
3
Hopkinson v Rolt (1861) 9 HL Cas 514.
4
Ibid, at [23].
5
Raging Thunder Pty Ltd & Anor v Bank of Western
Australia Ltd [2012] QSC 329 at [39].
6
Ibid, at [62].
7
Adams v Bank of New South Wales [1984] 1
NSWLR 285.
8
This article appears courtesy of the QLS Banking
and Finance Committee. Charlotte Davis is a special
counsel and Cherie Leatham is a senior associate
at McCullough Robertson.
Therefore, if the debtor under a vendor
finance arrangement is an individual or a
strata corporation, care should be taken to
ensure that the arrangements do not breach
the NCCP Act. In this respect regard should
be had to s5 of the National Credit Code in
Schedule 1 of the NCCP Act. This sets out the
basic test for credit to which the National
Credit Code applies.
If there will be a fee or charge for the agreed
deferral of the purchase price or a part of
it, then the arrangement may attract the
operation of the NCCP Act. The purpose
of the arrangement is also relevant because
the legislation will only apply if the credit is
to be applied wholly or predominantly for
domestic, personal or household purposes, or
for the purchase, renovation or improvement
of residential property for investment
purposes (or for a refinancing of such a loan).
It also important here to remember that
vendor finance arrangements will only
attract the operation of the NCCP Act if the
credit is provided in the course of a business
of providing credit “or in the course of or
incidentally to any other business”. This last
limb of the test is potentially quite wide and
takes the operation of the NCCPA Act beyond
‘traditional’ credit providers like banks, credit
unions and finance companies.
Care also needs to be taken when considering
instalment contract arrangements. There
are specific provisions in ss10 and 11 of the
National Credit Code that speak to whether
or not contracts for the sale of land or goods
by instalment should be regarded as credit
contracts for the purposes of the legislation
and so structuring an arrangement as an
instalment contract will not necessarily
avoid the operation of the NCCP Act.
back to contents
Succession law | Regular features
What’s new in succession law
A lesson for
solicitor executors
Legal Services Commissioner v Bone
[2013] QCAT
but it does not, however, necessarily follow
that the fees so charged by the bill are so
excessive as to constitute a breach of ethics.”5
This disciplinary proceeding against a senior
solicitor related to his conduct in making
two wills and charges for his services in the
administration of the estates.
In reaching this conclusion the court noted, it
was open to Mr Bone for charges for his work
to be “referenced to the Uniform Civil Procedure
Rules 1999 (Qld) (UCPR) and Schedule 1 – Scale
of Costs – which, in item 1 plainly makes an
allowance for ‘general care and conduct’”.6
Described as a ‘test case’,1 the matter contains
a number of unusual facts.
While there were initially eight charges,
it ultimately involved consideration of two
charges related to alleged breaches of the Legal
Profession (Solicitors) Rule 2007 (Qld)(LPR), r10.2
It was alleged Mr Bone breached this rule in
that both wills in which he was appointed
executor contained charging clauses for
which his articled clerk (who drew the wills)
failed to provide prior written notice before
the testators signed their wills.3
The second charge related to his claim for
‘care and consideration’, as the costs agreement
(which he entered into with himself ) did not
contain a provision allowing for that charge.
Ultimately, both charges were dismissed with
indemnity costs awarded to Mr Bone.
In regard to the failure to provide written
notice, the court found the charge could not be
sustained as the will was urgently drawn, verbal
advice was provided and the charging clause
was in a prominent position. The determination
regarding the charge for ‘care and consideration’
was resolved by the court determining that
“a person may not enter into a contract with
themselves”,4 so Mr Bone’s costs agreement
was void and therefore he did not breach it.
On the question as to whether his charges
were unreasonable, the court said it would
“only constitute a breach of professional or
ethical standards where it is so excessive as
to clearly establish wilful or reckless behaviour
or blatant rapaciousness”.
It continued: “A fee that a solicitor may seek
to charge by way of a bill of costs may, upon
taxation, be found to be unreasonable and
therefore subject to appropriate reduction
back to contents
Informal wills – where is the bar?
Re Rosaro [2013] VSC 531
A recent ‘informal will’ case in the Victorian
Supreme Court involved an application to
probate a statutory declaration which had
elements of a will.
State Trustees Ltd had management of the
testator’s affairs and, while she was alive,
discovered the statutory declaration amongst
her possessions. It raised the deficiencies
of the document with the testator, but she
elected not to take any steps to rectify them.
The decision details the legal principles
applied when seeking a grant of document(s)
that do not formally comply with legislated
requirements for a will. Importantly it also
points to a trend, at least in Victoria, of a
higher expectation imposed on will makers
in respect of ‘informal wills’.
In finding the document was not a will, the
court considered the elements of s9 of the
Wills Act 1997 (Vic),7 then applied the relevant
legal principles.8 While those paragraphs are
instructive, a greater concern for practitioners
arises from statements made by the court
at paragraphs 57-59 of the judgment.
Albeit obiter, the court criticised State Trustees
for its conduct in the matter, saying it was
not enough for State Trustees to raise the
deficiencies of the document with the testator,
to accept her instructions that she did not
care the document was deficient, to ask her if
she wanted to make another will and accept
her instructions that she did not, and for State
Trustees to make arrangements to attend upon
her should she change her mind. The court
went so far as to say that, “State Trustees could
have asked her to rip up the declaration…”.
with Christine Smyth
Multiple grants of probate
The issue of multiple grants has recently
been raised with the Queensland Law
Society Succession Law Committee, the most
common instance being when one executor
proves, reserving leave for the other or others.
While executors must act jointly,9 there is an
anomaly in the Uniform Civil Procedure Rules
1999 which enables one of multiple executors
to apply for a grant in his/her sole name. There
is no step by way of ‘clearing off’ in relation to
the non-proving executors, which has to be
evidenced. As a consequence, an initial grant
(reserving leave) may issue, and if the other
executor or executors subsequently prove
(by double probate), two grants may be in
circulation concurrently.
This can have a significant impact on the
estate. It is recommended that if a solicitor
acts for a party who is proposing to obtain a
grant reserving leave, that solicitor should take
reasonable steps to inform the executor(s) for
whom leave is reserved. This recommendation
arises out of consideration of Australian
Solicitors Conduct Rules r3.1 and 4.1.2.
Christine Smyth is a Queensland Law Society
accredited specialist (succession law) and partner
at Robbins Watson Solicitors. She is a member of the
QLS Succession Law Committee, STEP (Qld) committee
and the Proctor editorial committee.
Notes
At [98].
1
The Legal Profession (Solicitors) Rule 2007 was replaced
by the Australian Solicitors Conduct Rules (ASCR) on
1 June 2012. The equivalent provisions in the ASCR
include r12.4.1 and 12.4.2.
2
At [2].
3
At [69].
4
At [73].
5
At [71].
6
See equivalent provision – Succession Act 1981 (Qld) s18.
7
At [36]-[55].
8
Loughnan v McConnell [2006] QSC 359 at [49]:
“The powers given by s49 of the Succession Act 1981
to an executor are now co-extensive with those given
to a trustee. … they are now obliged, as are trustees,
to act jointly…”
9
41
Regular features | Equalising opportunity in the law
Anti-racism on the job
Tackling discrimination in employment and the workplace
Race Discrimination Commissioner Dr Tim Soutphommasane profiles racial discrimination in employment
and the workplace, its impact on individuals and initiatives that have been developed to overcome it.
One of the paradoxes of Australian
society is that racial discrimination
persists, in spite of our success as
a multicultural society.
Perhaps it will always be thus. Racism
may never be eradicated; even the most
enlightened of societies will never be entirely
free from its incidence. When it concerns
Australian society, one study conducted by
the University of Western Sydney found that
20% of Australians have experienced some
form of racist hate speech. The Scanlon
Foundation’s annual study of social cohesion
has consistently found that between 10-19%
of Australians have experienced racism at
some point during the past 12 months.1
The workplace is one common setting
where Australians experience racial
discrimination. During 2012-13, 46% of all
racial discrimination complaints lodged with
the Australian Human Rights Commission
concerned matters related to employment.
The Victorian Equal Opportunity and Human
Rights Commission has found that employmentrelated discrimination was the most commonly
reported type of racial discrimination witnessed
or experienced in Victoria.2 This is indicative of
one underappreciated reality. For all the headlines
that racist incidents on public transport or in
sporting arenas may attract, the experience of
racial discrimination is most acutely felt in the
pursuit and conduct of employment.
1. Access to employment
post-graduate qualifications receive 8% and
14% lower pay respectively than similarly
qualified Australian-born employees.4
One frequent explanation for this discrepancy
is that immigrants may possess English language
skills that are not good enough to meet
language requirements. However, the English
proficiency of immigrants to Australia is typically
high. Since the late 1970s, the immigrant intake
in Australia has been weighted towards
skilled immigrants who have to demonstrate
English language proficiency in obtaining a
visa.5 Those who arrive in a visa stream that
does not contain an English requirement – for
instance, as humanitarian entrants or family
reunion immigrants – make up a minority.
It is open to suggestion that “linguistic and
cultural stereotyping on the part of employers”
may be at play, rather than a deficit in
“factual language proficiency” on the part
of immigrants.6
This problem is not confined to new arrivals. It
also affects those of minority ethnic or cultural
backgrounds born, raised or educated in
Australia. Consider one recent experiment by
researchers at the Australian National University.
The study involved sending 4000 fictional CVs
to various employment agencies in response
to actual advertisements for entry-level jobs
in hospitality, sales and data-entry. The CVs
were identical, differing only in the names of
applicants (names that were typical of AngloSaxon, Indigenous, Italian, Chinese, and MiddleEastern backgrounds). All applicants were said
to have completed high-school in Australia,
reducing problems associated with overseas
qualifications and low-level English skills.
Employment-related racial discrimination
comes in a variety of forms. The first concerns
access to employment. It is notable that
unemployment and underemployment
of people from immigrant backgrounds
is higher than that of the native-born
population. The most recent figures compiled
by the Australian Bureau of Statistics on the
characteristics of recent migrants found that
8.5% of recent migrants were unemployed,
compared to 4.6% of people born in Australia.3
The study found significantly higher callback rates for Anglo-Saxon applicants. There
was clear evidence of discrimination, with
Chinese and Middle Eastern background
applicants both having to submit at least 64%
more applications in order to receive the same
number of callbacks as Anglo-Saxon candidates.
Indigenous applicants had to submit 35%
more applications by the same measure.7
There is also a wage gap between nativeborn Australians and those of an immigrant
background. Those of non-English speaking
background with university degrees and
It should be noted that such problems
are by no means exclusive or distinct to
Australia. Research conducted in Canada
– another country that has long regarded
42
itself as an ‘immigrant nation’ – similarly
finds discrimination in the labour market.8
In one 2009 study of sub-Saharan African
immigrants in Vancouver, researchers
found that immigrants from Anglophone
countries, who had professional experience
in their home countries, struggled to find
equivalent jobs.
The experience of many was characterised
by “deskilling”. Their conclusion was that
there was a system of “economic apartheid”
which transformed “skilled migrants” into
“uneducated Africans”. In Australia, the
frequently heard stories of former doctors,
lawyers and engineers driving taxis are
reminders that downward mobility also
exists among immigrants here.
2. Racial discrimination
in the workplace
Racial discrimination also takes place through
the adverse treatment of employees in
the workforce – that is, separate from any
discrimination in access to employment. In
some cases, the perpetrators are employers
or co-workers who engage in racial abuse
and vilification.
Some recent complaints to the commission
about racial discrimination in the workplace
include a complainant of Lebanese
background being called a “f***ing wog”
and a “f***ing terrorist”, a complainant of Sri
Lankan background being labelled a “black
bastard”, and an Aboriginal complainant
overhearing a supervisor making comments
about “putrid Abos”.
Discrimination need not always involve
explicit or violent forms of abuse. It can
occur in the course of the termination of
employment, the denial of leave, or in the
differential treatment in the assignment of
shifts. One recent US class-action against
brokerage firm Merrill Lynch highlights the
complex nature of such discrimination –
current and former employees of the firm
have alleged that lucrative accounts were
diverted to white employees and that black
employees were frequently steered into
clerical positions with lower status and
pay than their white counterparts.9
back to contents
Equalising opportunity in the law | Regular features
The manner in which racial discrimination
can be expressed can sometimes make it
difficult to bring to attention. Discrimination,
according to linguist Ingrid Piller, is often
expressed under the guise of concerns about
culture and language proficiency.10 Yet the
symptoms can be easily detected. As one
study of low-paid work found:
“Discrimination on cultural grounds is not an
uncommon experience for low-paid workers,
especially from their managers. Discrimination
on cultural grounds manifested in many ways,
including being refused promotion, being
limited in the types of work they were allowed
to perform, intimidation to work harder and
longer, abusive behaviour, manipulation of
student and ‘guest workers’ seeking citizenship
points, and favouring Australian-born
employees for higher positions and wages.”11
There are perhaps structural barriers at the
higher end of the labour market, too. A recent
study by Diversity Council Australia found that
those from culturally diverse backgrounds were
underrepresented in top-level positions within
ASX 200 companies. Although those from AngloCeltic or north-west European backgrounds were
well-represented among board directors and
senior executives, people from other migrant
backgrounds fared poorly. Those from a cultural
background other than English, Celtic or north-
west European made up only 10% of executives
and 11% of directors (compared to 24% of
the general Australian population). Particularly
noteworthy was that only 2% of executives and
4% of directors in ASX 200 companies have an
Asian background (compared to 10% of the
general population who do).12
There are also forms of workplace discrimination
that have to date received less attention.
Namely, there is the problem of ‘casual racism’.
This is the kind of racism that can cause harm
to others, but which is often interpreted as
benign, harmless fun. Whether it is namecalling, joke-telling or the throwaway comment,
such expressions of racism are not always
accompanied by malign intentions. When it is
challenged, it can sometimes be dismissed as
being of no significance; those complaining are
frequently told that they are making a needless
fuss or are guilty of ‘political correctness’.
Racism, however, need not be rooted in
hateful motive – it is as much about impact as
it is about intention. It is important to respond
to it at all levels. Allowing bigotry or bullying
to happen can lead to racial discrimination
to be accepted and replicated; worse, it can
encourage it to escalate. What may begin as
supposedly harmless, casual racism can over
time transform into something much uglier.13
3. The harms of racial discrimination
The harms of racism exist at a number of
levels. In the first place, racism violates values
of fairness and equality. It denies its targets
respect and dignity. And it can empower
perpetrators to humiliate others.
Racism can have significant health effects.
There is strong evidence that it can contribute
to mental health and well-being problems such
as stress, anxiety and depression. Experiencing
racial discrimination has also been linked to
substance and alcohol misuse and an increased
risk of obesity, heart disease and stroke.14
Moreover, workplace racism makes for
bad business. There is an economic cost to
discrimination. When an organisation is exposed
for licensing or tolerating bad behaviour, the
reputational damage can be significant. In a
society and economy in which brand power
matters, no organisation should downplay the
cost of being associated with racism.
In any case, a workplace containing racial
discrimination will be a less productive workplace.
Racial discrimination has been associated with
poor job quality, reduced morale and increased
staff turnover. In contrast, companies committed
to workplace diversity have reported enhanced
creativity and improved employee problemsolving skills and productivity.15
a
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“I now have a more complete understanding of
all areas of family law and the subjects were all
relevant to my day-to-day work.
The practical nature of the program was important
to me, as well as the online format so I could fit
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Nicole Smith
Senior Solicitor, KDB HolmeS SolicitorS
maSter of applieD law (family law) graDuate
Our next semester commences 3 March 2014.
Email [email protected] to request a
handbook today.
Call 1300 506 402 or visit collaw.edu.au/alp
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43
Regular features | Equalising opportunity in the law
Add to this the clear moral imperative to take
a stand against racism and there is a clear
motivation for employers to prioritise tackling
racial discrimination in the workplace.
4. Legislative protections
in the workplace
There are legal protections against racial
discrimination. The Racial Discrimination Act
1975 (Cth) makes it unlawful to treat a person
less favourably than someone in a comparable
situation because of their race, colour, or
ethnic or national origin.16 It also guarantees
that everyone has equality before the law.17
More specific to employment, Section 15 of
the Act makes racial discrimination unlawful
in the offer of employment, in the terms of
employment, in the conditions of work, and in
the provision of opportunities for training and
promotion. Whether it concerns recruitment,
selection and interviewing, job allocation,
seniority, performance evaluation, training
and promotion, remuneration, dismissal,
resignations and retirement, decisions in
the workplace must not be influenced by
a person’s racial background.18
The Act also prohibits racial vilification.
Section 18C of the Act makes unlawful
any act that is “reasonably likely, in all the
circumstances, to offend, insult, humiliate
or intimidate another person or group of
people” on the basis of race.19 The provisions
on racial vilification include vicarious liability
(as do other provisions in the Act).20 That
is to say, employers are responsible for
ensuring that employees do not racially
vilify their colleagues.
The Act makes racial discrimination a civil
offence – those who fall foul of it are not guilty
of a criminal offence (with those in breach of
the Act liable only for civil and not criminal
penalties). This is one aspect of the law that is
perhaps not well understood. The mechanism
for making a complaint under the law is also
not understood as well is it could be. When
someone believes there has been a breach
in the Act, they lodge a complaint to the
Australian Human Rights Commission, which
will then attempt to conciliate the matter, at
no cost to parties. Only if the matter cannot
be resolved through conciliation may the
complainant then take the matter to a
federal court for determination.
5. Tackling discrimination
in workplaces
Racial discrimination cannot be remedied
through legislation alone. Indeed, the most
effective way of tackling discrimination in the
workplace is through employer leadership.
44
First, employers must take the time to investigate
the prevalence of racial discrimination. To
support this, the commission, in partnership
with Diversity Council Australia and VicHealth,
is piloting a workplace cultural diversity health
check, which is expected to roll out in early
2014. The health check aims to assist employers
to assess their organisation’s performance
on cultural diversity, identify barriers to the
recruitment and retention of culturally diverse
employees, and address potential areas of
discrimination. Through becoming aware of
actual or potential discriminatory practices
within their company or organisation, employers
are better equipped to address them, such as
through anti-discrimination policies, grievance
procedures or diversity training programs.
Employers can also raise awareness of racial
discrimination within the workforce. This can
be done by publicising a company’s zerotolerance stance on racism and by educating
the workforce as to what constitutes racial
discrimination. Focus on this latter issue is
particularly important, given that casual
racism is often influenced by unconscious
bias or prejudice.
Finally, what is also needed is for employers
to promote a new way of thinking about
diversity in the workplace. Ending workplace
discrimination does not only make sense
from a risk-management perspective. Given
the pay-offs in productivity, it simply makes
good business sense. Embracing cultural
diversity should be promoted as a goal, with
cultural assets valued and people of different
backgrounds included rather than assimilated
into the workforce.21
The good news is that an increasing number
of employers are recognising the importance
of standing up to racism, and of valuing cultural
diversity. Since its launch in August 2012, the
‘Racism. It Stops with Me’ campaign (led by the
Australian Human Rights Commission as part of
the national anti-racism strategy) has attracted
more than 190 organisational supporters across
business, government and civil society. This
public awareness campaign provides supporters
with a range of tools and strategies that can be
used to prevent racial discrimination.
Joining the campaign allows supporters to send
a clear message that racism is not tolerated in the
workplace. But it all starts with the recognition:
when it comes to racial discrimination, there
is always something that all of us can do.
Notes
A Markus, Mapping Social Cohesion 2013:
Scanlon Foundation’s Surveys National Report
(Scanlon Foundation, 2013); University of Western
Sydney, Challenging Racism: The Anti-Racism
Research Project (2010).
1
Australian Human Rights Commission, Annual
Report 2012-2013 (forthcoming); Victorian Equal
Opportunity and Human Rights Commission
(VEOHRC), Reporting Racism: What you say matters
(VEOHRC, 2013).
2
Australian Bureau of Statistics, Characteristics of
Recent Migrants, (26 September 2012): abs.gov.au/
AUSSTATS/[email protected]/Lookup/3416.0Main+Features22
011?OpenDocument.
3
G Berman, Harnessing Diversity: Addressing
Racial and Religious Discrimination in Employment,
(VEOHRC, 2008).
4
For historical background, see
T Soutphommasane, Don’t Go Back to Where
you Came From (Newsouth, 2012).
5
G Berman, Harnessing Diversity: Addressing
Racial and Religious Discrimination in Employment,
(VEOHRC, 2008).
6
A Booth et al, Does Racial and Ethnic Discrimination
Vary Across Minority Groups? Evidence from a Field
Experiment, (December 2009) p15. Available at:
ssrn.com/abstract=1521229 or http://dx.doi.org/
10.2139/ssrn.1521229.
7
G Creese and B Wiebe, ‘Survival employment’:
gender and deskilling among African immigrants in
Canada’ (2009) 50 (5) International Migration 56.
8
A Becker, ‘BofA’s Merrill to settle racial bias suit for
$160 million’, Reuters (online) 28 August 2013.
9
I Piller, Intercultural Communication: A Critical
Introduction (Edinburgh University Press, 2011)
Chapter 9.
10
H Masterman-Smith and B Pocock 2008, Living Low
Paid: The Dark Side of Prosperous Australia, (Allen and
Unwin, 2008).
11
Diversity Council Australia, Capitalising on Culture:
A Study of the Cultural Origins of ASX 200 Business
Leaders (DCA, 2013).
12
VEOHRC, above n1, p4.
13
VicHealth, Review of audit and assessment tools,
programs and resources in workplace settings to
prevent race-based discrimination and support
diversity (VicHealth, 2010) pp14-15.
14
VicHealth, Preventing race-based discrimination
and supporting cultural diversity in the workplace
(VicHealth, 2012) p4; Diversity Council Australia,
above n13.
15
Racial Discrimination Act 1975 (Cth) s9.
16
Ibid, s10.
17
Ibid, s15.
18
Ibid, s18C(1).
19
Ibid, ss18A & 18E.
20
Diversity Council Australia, above n7, p46.
21
For information on the campaign, see
itstopswithme.humanrights.gov.au.
This article is endorsed by the Queensland Law Society
Equalising Opportunity in the Law Committee. Dr
Soutphommasane took up his five-year appointment
as Race Discrimination Commissioner at the Australian
Human Rights Commission on 20 August 2013.
back to contents
Family law casenotes | Regular features
Child’s interests
outweigh breach of order
Children – parenting order varied where
child’s newly ‘difficult situation’ created by
applicant’s breach of order
In Prewett & Mann [2013] FamCAFC 130
(27 August 2013) Fowler J granted the
mother’s application to vary a final parenting
order, holding that the rule in Rice & Asplund
(1979) FLC 90-723 (requiring a significant
change in circumstances) had been satisfied.
The father appealed to the Full Court (AinslieWallace, Ryan & Le Poer Trench JJ). The mother
had initially complied with the order which
allowed her to live with the child in M, south
of Sydney, until January 2010 after which she
was required to live in Sydney. The mother
did rent property in Sydney but for financial
reasons returned to live in M. In dismissing
the appeal, the Full Court said (para 57):
“ … it was submitted by … the father that
a party cannot disobey parenting orders
and, because of the consequences of …
her disobedience, have a court entertain
an application to change those orders. We
do not accept that there is a principle of
general application in parenting cases to
that effect. It is well settled that the court’s
task … is to take steps with the child’s best
interests as the paramount consideration.
It follows that when evidence is presented
which demonstrates that, for whatever
reason, a child is in a difficult situation which
[either parent] seeks to address, even if that
parent, in disobedience of orders, created the
circumstance under which the child suffers,
the child needs the problem to be solved.”
Property – wife wins $6 million after
separation – two pools – no contribution
by husband
In Eufrosin [2013] FamCA 311 (3 May 2013)
parties to a long marriage had net assets of
$2 million until six months after separation
when the wife won $6 million. The wife
regularly gambled with her sister who let
the wife use her gaming card and gave
her $20-$50 towards her weekly ticket.
They agreed that the sister should receive
$1 million. The wife sought a two-pool
approach, arguing that the husband had
made no contribution to her windfall; also
arguing that Farmer & Bramley (2000) 27
FamLR 316 was distinguishable, inter alia, as
there were no other assets in that case. The
husband sought a one-pool approach as the
back to contents
wife had used funds paid to her through the
family company. He also sought the addback
of the $1 million ‘gifted’ to the wife’s sister.
Stevenson J adopted a two-pool approach
and did not add back the $1 million, saying
(paras 89-90) that “[t]he winning … ticket
was purchased in [the sister’s] name,
possibly with money provided … by her,
and the prize money was deposited into
[the sister’s] account … $5 million [then
being transferred] into an account of the wife
… [who had agreed] to share any winnings”.
Stevenson J found (paras 106-109) that it was
“impossible to identify the precise source of
the funds used by the wife to purchase the
winning ticket”, finding that “the husband
made no contribution to the money which
the wife applied to purchase [it]”. The
husband received a s75(2) adjustment
of $500,000 from the windfall pool due
to his age (62) and future needs.
Children – bullied child allowed to change
schools – schools’ policies as to bullying
considered under s60CC(3)(m)
In Bardot & Benjamin [2013] FCCA 1024
(28 August 2013) Chief Judge Pascoe granted
the mother’s application to move the parties’
eldest child (in Year 6) from the school she
had attended since kindergarten to avoid
alleged bullying at that school. The parties
put each school’s anti-bullying policies before
the court. The court at paras 81-84 compared
the schools’ respective policies on bullying
under s60CC(3)(m) (“any other relevant fact
or circumstance”), finding that a change of
schools would be in the child’s best interests.
Procedure – children – court refuses to
grant consent parenting order – mother in
contravention of earlier order
In Thomas & Hogan [2013] FCCA 1108
(1 August 2013) on the mother’s failure to
appear a final parenting order was made
that the child live with the father and the
mother have supervised time. The mother
promptly went “into hiding” with the child
(para 4). Further proceedings led to orders
being sought by consent that all previous
orders be discharged, that the child live with
the mother and that the father have no time
with the child except as agreed. In refusing to
make that order, Judge Jarrett (paras 24-27)
examined the nature of a court’s role where
parenting orders are sought by consent and
with Robert Glade-Wright
(paras 30-32) said that the court’s “discretion
ought to be exercised against determining”
the application for consent orders as “[the
mother’s] contravention is long-standing,
wilful and there is … no attempt by her to
place any evidence before the court as to
[the child’s] current circumstances or welfare”.
Children – long-standing equal time varied
at final hearing – recommendation of family
consultant not followed – sole parental
responsibility – disrespectful father
In Thackeray & Rand [2013] FCCA 875
(20 August 2013) the parties had
implemented a ‘week about’ routine since
November 2011. Equal time was sought
by each party and supported by the family
consultant. Judge Coker found the father to
be “entirely focused on his own wishes” (para
86), that he had “no respect for the mother”
nor “her position in the life of the child and
had no intent whatsoever of recognising the
hurt that would be caused to this young child
if that relationship were not fostered and
developed” (para 87). It was held (para 105)
“that the only child-focused and appropriate
arrangement is one that reflects the mother
having sole parental responsibility”. As to the
long-standing arrangement of equal time,
Judge Coker said at para 107:
“I am not of the view that equal time would
be appropriate. Clearly, the expert evidence
recommended contrary to that and the
evidence … from the parties would also
clearly show that equal time between each
of the … households has not been in the
best interests of this little boy.”
It was ordered that the child live with the
mother and spend time with the father from
Friday to Tuesday on alternate weekends.
Robert Glade-Wright is the founder and senior editor
of The Family Law Book, a one-volume looseleaf and
online family law service (thefamilylawbook.com.au).
He is assisted by Queensland family lawyer Craig Nicol.
45
Regular features | Practice and procedure
A clear view of costs
‘of and incidental to’
Costs orders – implications where
costs are reserved – scope of
order for costs ‘of and incidental
to’ – success on some issues –
application to strike out pleading
– whether predisposition for
indemnity costs
In Mio Art Pty Ltd v Macequest (No.2) Pty Ltd
[2013] QSC 271 Jackson J provided considered
analysis of several aspects of costs law.
His Honour regarded various orders which
are commonly sought or made as reflecting
practice that is inappropriate or unnecessary
under the Uniform Civil Procedure Rules 1999
(Qld) (UCPR).
Facts
On 19 August 2013, Jackson J made orders
disposing of six cross applications made by
the parties (Mio Art Pty Ltd v Macequest Pty
Ltd [2013] QSC 211). The parties took the
opportunity provided to them to file written
submissions on costs. A number of interesting
questions relating to the costs arose as a result.
Reserved costs
Rule 698 of the UCPR provides:
“If the court reserves costs of an application
in a proceeding, the costs reserved follow the
event, unless the court otherwise orders.”
Jackson J noted that he had made an order on
31 January 2013 that the costs be reserved. His
Honour said that he had not intended by that
order to deal with the costs of the applications
generally, but the costs thrown away by the
adjournment. His Honour said, in proposing an
order that the applicant pay the costs of the
application, he did not propose any specific
order for reserved costs because of UCPR r698.
In his Honour’s view, this rule was intended to
make it unnecessary to make a specific order
dealing with reserved costs, unless those costs
were not to follow the order for costs of the
application. He proceeded (at [5]):
46
Mio Art Pty Ltd v Macequest
(No.2) Pty Ltd [2013] QSC 271
“That interpretation means the practice
followed under previous rules of court that
reserved costs must be specifically dealt with,
does not generally apply in making an order
for costs of an application under the UCPR.”
His Honour accepted, however, that the scope
of the particular order for reserved costs was
not as clear as it could have been. Accordingly
it was appropriate to order that the costs of
each of the applications should include costs
which were reserved on 31 January.
Costs ‘of and incidental to’
the application
It was submitted for some of the defendants
that the form of the order should include the
costs ‘of and incidental to’ the application.
Jackson J referred to cases which had
considered orders in this form, including Warley
Hospital Inc v Attorney-General for the State of
Victoria [2011] VSC 145 and Queensland Building
Society Authority v Mahoney [2012] QDC 226.
His Honour noted the view taken from the
statutory contexts in other jurisdictions seemed
to be that the addition of the words ‘and
incidental to’ extended the ambit of an order
for costs ‘of’ an application to costs incurred as
part of the preparation for litigation. His Honour
then examined whether that view was justified.
As the power to award costs is purely a
creature of statute, Jackson J considered
the relevant statutory text. This included the
power to order costs as now conferred by s15
of the Civil Proceedings Act 2011 (Qld) (CPA),
and the provisions of UCPR chapter 17A which
in general terms take up the power conferred
by the CPA. His Honour noted in particular
that UCPR r678 applies chapter 17A to costs
payable under an order of the court.
He also referred to the definitions of
‘assessed costs’ and ‘costs of the proceeding’
in UCPR r679. It was significant, in his
Honour’s view, that express provision was
already made for costs before the start of the
proceeding in preparing for the proceeding
or in relation to settlement negotiations to
fall within the ‘costs of the proceeding’.
His Honour concluded that it was undesirable
for the court to further endorse a practice of
making orders for costs ‘of and incidental to’
an application, and he declined to make such
an order. His Honour identified three reasons
for his conclusion. In summary:
1.The cases on which the distinction
between an order for costs ‘of [a
proceeding]’ on the one hand and costs
‘of and incidental to [a proceeding]’ on
the other were said to arise did not give
any clear meaning to the difference in
scope between the two formulations.
2.To introduce the practice in orders for
costs made under s15 of the CPA and UCPR
chapter 17A would seem to depend on
acceptance of the proposition that an order
made under them that a party ‘pay the costs
of the application’ to another party does not
include proper costs of preparation for the
application. His Honour regarded that as a
proposition which was not supported by
the provisions of chapter 17A.
3.The text of chapter 17A evinces a clear
intention to avoid the need to make some
of the forms of order previously made,
as a matter of course, under the prior
statutory provisions. There is no reference
in any part of the text of chapter 17A to
costs which are ‘incidental’. There were
some references to such costs outside the
context of chapter 17A, but these did not
lead to a conclusion that orders for costs
made under s15 and chapter 17A ought
to follow that terminology.
Jackson J made it clear, however, that he
intended that the orders he made for the
‘costs of the application’ extended to any
costs “actually, necessarily and reasonably
incurred” in relation to the application,
including costs of preparation.
Costs when success on some issues
One of the costs orders to be made related
to the plaintiff‘s application for leave to
bring the proceeding on behalf of the 20th
defendant under s237 of the Corporations
Act 2001 (Cth). The plaintiff argued that the
costs order should reflect that it succeeded
on some of the disputed questions relevant
to that application.
back to contents
Practice and procedure | Regular features
This case offers helpful guidance on a number of practices relating to costs
that remain common but not required under the Uniform Civil Procedure
Rules. Report by Sheryl Jackson.
Jackson J referred to the general restriction
in UCPR r680 on the entitlement to recover
costs, and to UCPR r684 in relation to costs
of a question or part of a proceeding, which
expressly permits the court to declare what
percentage of the costs of the proceeding
is attributable to the question or part of the
proceeding to which the order relates. His
Honour also repeated observations he had
made in relation to these two rules in Aion
Corporation Pty Ltd v Yolla Holdings Pty Ltd
[2013] QSC 216. That included reference to
authorities in which it was suggested that a
rough apportionment of costs “intelligently
made” leads to a fairer result that may have
been reached through the taxation of ‘issues’
prior to the UCPR.
These observations were found to be
applicable to the application for leave under
s237. After examination of the circumstances
relating to that application, it was concluded
that it was reasonable that the order for
costs be limited to 70% of the successful
respondents‘ costs. This order reflected the
respondents’ success yet recognised that
on some of the issues their opposition
added to the costs to an extent by which
they should not all be recoverable.
It was also necessary to make costs orders
in relation to applications by the respective
defendants or groups of them for the costs
of applications to strike out the statement of
claim and dismiss the proceeding. Although
successful on the event of an order to strike
out the statement of claim, these applications
did not succeed on the event of an order
to dismiss the proceeding. It was submitted
for the plaintiff that in these circumstances
costs should be limited to 75% of the relevant
successful defendant‘s costs.
That submission was rejected. Jackson J
noted it was not uncommon for orders for
strike out and dismissal to be sought in one
application. Here the plaintiff had through
successive iterations of the statement of claim
insisted that it was entitled to maintain the
statement of claim in substantially the same
form, despite clear opposition based on the
same grounds on which the defendants
were successful. Jackson J found it was not
overreaching in these circumstances for the
defendants to apply for there to be an end
back to contents
to the proceedings, although they were
ultimately unsuccessful on those applications
because some of the plaintiff’s causes of
action were viewed as viable or potentially
viable. His Honour also noted that little overall
time was spent on the dismissal aspect in the
hearing of the applications. He concluded that
the plaintiff should pay the respondent’s costs
of the applications to strike out and dismiss.
Basis on which costs assessed
The final question was whether the plaintiff
should be ordered to pay the costs of the
applications to strike out and dismiss on
the indemnity basis.
UCPR r171(2) provides: “The court, at any
stage of the proceeding, may strike out all
or part of the pleading and order the costs
of the application to be paid by a party
calculated on the indemnity basis.”
The plaintiff submitted that it should not be
ordered to pay the costs of these applications
on the indemnity basis. It referred to Gunns
Ltd v Marr (No.3) [2006] VSC 386 at [5], where
the discretion to order indemnity costs was
said to be warranted only “where the losing
party had misconducted itself in relation to
the proceeding or where the institution of
the proceeding was plainly unreasonable”.
However, Jackson J did not accept that
misconduct or unreasonableness in starting
a proceeding constrained the exercise of
the discretion to award indemnity costs
under the UCPR.
Jackson J then examined the purpose of
UCPR r171. He said this was that a pleading
which engaged one of the grounds for
striking out a pleading should not proceed
to engage the obligations of the opposite
party to plead in response and to proceed
to trial on the infringing pleading. His Honour
found the interpretation which best achieved
that purpose did not dictate that there be
a greater disposition towards making an
order for costs to be paid on the indemnity
basis in the case of applications to strike out
under UCPR r171 than in the case of other
interlocutory applications, notwithstanding
the specific reference in the rule to the
indemnity basis.
It was accordingly necessary to consider
the factors which would inform the exercise
of the discretion to order costs on the
indemnity basis. As part of that examination,
Jackson J referred to his own conclusions in
his reasons for judgment on the application
to strike out and dismiss ([2013] QSC 211
at 273) that the plaintiff “has persisted in
the face of clear opposition to its excessive
pleadings of fraud and a number of causes
of action against a number of the defendants
which are not viable or not viably pleaded”.
He was satisfied that it was appropriate in
the circumstances to order the plaintiff to
pay the costs of the applications to strike
out and dismiss on the indemnity basis.
Comment
In the course of his judgment, Jackson J
provided helpful advice which should be
noted by practitioners about a couple of
other practices which remain common
but are not required under the UCPR.
One of these is that practitioners regularly
seek an order that costs be assessed. As his
Honour observed, it was necessary under
an earlier statement regime that there be
an order for costs. However, under the UCPR,
it is expressly provided that costs may be
assessed without an order for assessment
having been made if the court orders a party
to pay another party’s costs: UCPR r686(a).
The other practice referred to is that of
seeking an order that costs be assessed
on the standard basis. This is unnecessary
because there is express provision in the
UCPR requiring a costs assessor to assess on
the standard basis unless there is on order of
the court providing otherwise: UCPR r702(1).
Sheryl Jackson is an associate professor at the QUT
School of Law. The Queensland Law Society Litigation
Rules Committee welcomes contributions from
members. Email details or a copy of decisions of general
importance to [email protected]. The committee is
interested in decisions from all jurisdictions, especially
the District Court and Supreme Court.
47
Regular features | On appeal
Court of Appeal judgments
1 – 31 October 2013
with Bruce Godfrey
Civil appeals
Cairns Regional Council v Sharp [2013] QCA 297,
4 October 2013
Application for Leave s118 DCA (Civil) – where the
respondent, who was employed as a gardener
by the applicant, was mowing a median strip
on a busy Cairns thoroughfare – where the
respondent was less than one metre from a
60kph flow of traffic – where the respondent bent
down to pick up a spring which had come off
the motor-mower and, on being startled by the
sound of a car horn, knocked the mower handle
with his hip and the mower blades moved onto
his left hand, partially amputating his ring and
little finger – where the respondent successfully
brought an action in negligence against the
applicant – where the applicant applies for leave
to appeal, contending that the primary judge
erred in concluding that the applicant had
breached its duty of care to the respondent –
where the applicant contends that the primary
judge improperly considered the matter with
hindsight and failed to take into account or give
proper weight to the evidence relied on by the
applicant – whether the primary judge erred in
concluding that the applicant breached its duty
of care to the respondent – where the use of
a mower close to busy traffic clearly created a
situation of considerable risk – where there was
a real potential for serious injury or even death to
Mr Sharp while mowing a narrow median strip
in the middle of seven lanes of traffic on a major
and busy thoroughfare through the abnormal
behaviour of close passing traffic startling him and
causing him to inadvertently knock the motormower and injure himself – where in finding that
the council as employer breached its duty to Mr
Sharp in not ensuring appropriate signs and traffic
control devices were used to provide a safe buffer
between where he was mowing and passing
traffic, the judge was not acting with hindsight
but was applying in an orthodox fashion the wellestablished Shirt principles – where the council’s
contention that the judge erred in concluding
that it breached its duty of care is not made out
– where the applicant contends that the primary
judge erred in concluding that its alleged breach
of duty caused the respondent’s injuries – where
the applicant contends that the respondent was
injured because of his unpredictable response to
a random act of the sounding of a car horn by a
passing driver, over which the applicant had no
control and the risk of which was slight – whether
the primary judge erred in concluding that there
existed a causal connection between the breach
of duty and the respondent’s injuries – where
the council’s emphasis on the road rules is a
distraction – where motorists all too commonly
48
offend road rules, but even the lawful sounding
of a horn in close proximity to a worker mowing
a median strip in the midst of a busy road could
easily cause workers to be startled – where a
substantial cause of the injury was the council’s
failure to ensure Mr Sharp adopted a safe system
of work while mowing the narrow median strip in
a busy, major thoroughfare – where the primary
judge permitted Mr McDougall, an engineer
experienced in occupational health and safety risk
assessment, to give expert evidence identifying
deficiencies in the conduct of the mowing task
– where the applicant contends that the primary
judge wrongly admitted the evidence as Mr
McDougall lacked the experience necessary to
give opinion evidence; that many of the matters
on which he expressed an opinion were selfevident and should not have been the subject
of expert evidence; and that he effectively ‘swore
the issue’ – whether the primary judge erred in
admitting the evidence of Mr McDougall – where
Mr McDougall’s degree in mechanical engineering
and his subsequent extensive study and practical
experience in the field of workplace health and
safety and accident prevention provided him with
special knowledge and experience beyond that
of ordinary people – where it was for the judge to
decide whether he accepted the facts on which
Mr McDougall’s opinion was based; whether he
accepted Mr McDougall’s expert opinion; and
after considering other relevant evidence, to
determine whether Mr Sharp established that the
council breached its duty of care to him – where
the evidence was rightly admitted and did not
amount to ‘swearing the issue’.
Application refused with costs.
Leisure Kart City Pty Ltd v Professional Auction
& Valuation Services Pty Ltd [2013] QCA 298,
4 October 2013
General Civil Appeal – where the primary judge
set aside a statutory demand on the ground that
there existed genuine disputes as to the existence
of the debt on which the demand was based
– where the statutory demand described the
alleged debt of $15,643.28 as moneys payable at
15 March 2013 for rent and outgoings remaining
outstanding for the period 1 February 2013 to 28
February 2013 and for the period 1 March 2013
to 31 March 2013 – whether genuine dispute
existed as to the frustration of the lease or tenancy
– whether genuine dispute existed as to the
basis of occupancy – whether genuine dispute
existed as to termination of the monthly tenancy
– where notice to remedy breach was served on
the respondent – where the appellant re-entered
the premises – where the respondent then went
back into possession and paid the December
2012 and January 2013 rent and outgoings in
advance – whether the debt the subject of the
statutory demand arose under a periodic monthly
tenancy – where the monthly period on which
the tenancy was based was a calendar month
commencing on the first day of the month –
whether the monthly tenancy was terminated
by a valid notice – where the primary ground
on which the judge at first instance set aside the
statutory demand was that the basis on which the
respondent was liable to pay rent or outgoings for
the period in question was ‘uncertain at best’ and
that there was a genuine dispute as to whether
there was any obligation on the respondent to
pay rent or outgoings for February or March of
2013 – where the contention by the appellant
that after re-entry there arose a periodic monthly
tenancy and that there was no basis for the view
that there was a genuine dispute as to the nature
of the occupancy is correct – where after the
appellant’s re-entry, the respondent went back
into possession and paid the December 2012
and January 2013 rent and outgoings in advance
in accordance with the invoices issued, with
nothing being done in relation to the proposal to
regularise the basis of occupancy – where there
is no cause for uncertainty in the circumstances
as to the nature of the periodic tenancy being
a monthly tenancy arising by operation of law
– where the effect of s130(1)(c) and s134(1) of
the Property Law Act 1974 (Qld) is that notice
in respect of a monthly tenancy must be for
no less than the period of one month and to
expire at the end of the following month of the
tenancy – where given that the monthly period
on which the tenancy in question was based was
a calendar month commencing on the first day of
the month, notice given in January 2013, if it had
been properly given, could only have operated to
terminate the tenancy effective on the last day of
February 2013 – where the notice that was given
was incapable of achieving that result (and the
letter of 4 February 2013 suffered from the same
defect in terms of giving insufficient notice to
avoid liability for the March 2013 rental) – where
neither letter, as a matter of law, could have
relieved the respondent from its obligation to pay
the amounts the subject of the statutory demand
– where accordingly, the finding that there was a
genuine dispute as to the existence of the debt
was wrong in law; the dispute as to the liability to
pay the debt did not provide a proper basis to set
aside the statutory demand.
Appeal allowed with costs. Order setting aside
statutory demand set aside with costs.
back to contents
On appeal | Regular features
Attorney-General for the State of Queensland v
Fardon [2013] QCA 299, 4 October 2013
Application for Stay of Execution – where the
respondent has a history of sexual offending
– where the respondent was detained in
custody for an indefinite term for care, control
or treatment – where the respondent sought
a periodic review of the continuing detention
order – where the primary judge ordered that
the continuing detention order be rescinded
and that the respondent be released from
prison at 4pm on 4 October 2013 – where the
respondent was released from prison at that
time – where an application for the stay of the
primary judge’s orders pending appeal was
brought to this court 4.30pm on 4 October
2013 – where that application was adjourned,
and the order of the primary judge stayed, until
9 October 2013 and again until 10 October
2013 – whether a stay should be granted –
where it is arguable that the primary judge
gave insufficient weight to the evidence of the
psychiatrists, namely that for the supervision
orders to work the respondent had to be
fully accepting of their need, and his need to
co-operate – where the respondent did not,
on one reading of the evidence, accept that
he must cooperate, as opposed to indicating
that he would do his best to do so, but with
reservations – where evidence quoted from
two psychiatrists demonstrates a real risk that
the supervision orders will not be effective,
even in the short time period between now
and when the appeal is heard – where even
though the risk of sexual reoffending can be
identified in terms of the respondent’s abuse
of a relationship, each of the psychiatrists was
quite clear that the impact of drugs and alcohol
would likely change that scenario – where
those comments should be seen in the light
of the evidence from each of the psychiatrists
that the transition for community would be
a period of high stress and anxiety for the
respondent, and therefore a situation likely to
provoke the feelings of hostility and defiance
which he had exhibited in the past – where
one psychiatrist’s view was that the anxiety, and
therefore the negative attitude, would be at its
greatest in the early stages of release – where
that points to the fact that the initial few weeks
of such release would be a time when the
respondent was undergoing heightened stress
and anxiety, leading to a greater probability of
breaching the orders than, perhaps, later under
his supervision – where one factor taken into
account in assessing whether a stay should
be granted is that of whether a prisoner in the
position of the respondent should be released
into the community and then a short time later
returned in the event that an appeal should
succeed – where in this case that factor applies
– where the appeal can be heard in about
seven weeks.
Orders of 4 October 2013 stayed until the
determination of the appeal in this matter.
back to contents
LPD Holdings (Aust) Pty Ltd & Anor v Phillips,
Hickey and Toigo & Ors [2013] QCA 305, 11
October 2013
General Civil Appeal – where the appellants
were ordered to pay the respondents’ costs of
and incidental to the proceeding on an indemnity
basis – where the appellants contend the primary
judge acted on a wrong principle in finding the
appellants’ conduct warranted an indemnity
costs order – where the awarding of costs on
an indemnity basis will always ultimately depend
on the exercise of a discretion in the particular
circumstances of each individual case, the
justification for an award of indemnity costs
continues to require some special or unusual
feature of the particular case – where the
primary judge found the appellants’ conduct
was unreasonable and improper for pursuing
flawed proceedings and that costs of the
proceeding were wasted – where oppression
proceedings were commenced by the appellants
in circumstances where neither appellant was a
member of the second respondent at the time of
commencement of the proceedings – where this
lack of competency to bring the proceedings was
raised by the respondents at a very early stage
– where despite recognition of the substance of
that contention, the appellants persisted in the
proceedings – where that persistence included
not discontinuing proceedings in respect of the
second appellant, notwithstanding an indication
in proposed amended pleadings to not pursue
its claim any further – where no error of principle
had been identified by the appellants in relation
to the exercise of the primary judge’s discretion
– where no finding of the primary judge had
been identified by the appellants as not being
reasonably open – where at the hearing of the
appeal the appellants sought to challenge the
underlying findings for the primary judge’s
conclusion that the appellants persisted with the
proceedings despite knowing of the incompetent
nature of those proceedings – where the grounds
of appeal can only properly be read as seeking
to challenge the finding of impropriety of
conduct on the facts found, not as a challenge
to the underlying findings of fact – where
although another judge may have concluded the
appellants’ conduct, overall, did not constitute
unreasonableness of the type necessary to
justify an award of costs on an indemnity basis,
it cannot be said a finding of unreasonableness
on the appellants’ part in pursuing the flawed
proceedings despite repeated demands by the
respondent to end those proceedings, was not
open in all of the circumstances – whether the
discretion of the primary judge miscarried.
Appeal dismissed with costs.
Queensland Building Services Authority v JM Kelly
(Project Builders) Pty Ltd [2013] QCA 320, 25
October 2013
General Civil Appeal – where the appellant
issued directions to the respondent pursuant to
s72 of the Queensland Building Services Authority
Act 1991 (Qld) (the Act) requiring rectification of
certain building work within 28 days – where the
appellant sent two directions to the respondent
by post on 17 December 2010 and 17 June 2011
– where the primary judge held those directions
were not validly given by post because they
required the rectification work to be carried out
within a period of less than 28 days – where
the appellant also sent the 17 December 2010
direction to the respondent by email on that date
– where the appellant argued that the primary
judge erred in holding that the 17 December
2010 direction had not been effectively served by
email – where the appellant contended that the
respondent failed to fulfil the onus which lay on it
to prove that the email had not been opened on
17 December 2010 – where the respondent did
not adduce direct evidence that the email had
not been received and opened by an employee
of the respondent acting in the scope of their
employment – where the respondent argued
that the evidence justified the primary judge in
inferring that the email had not been opened
on that date – whether the primary judge erred
in holding that the 17 December 2010 direction
was invalid – where all the evidence reveals, the
person who ordinarily would have received and
dealt with the email and the attached direction
was the respondent’s managing director who, in
common with the unnamed administrative staff
member and any other employee who might
have received the email, did not give evidence
where the general manager’s silence on the topic
of the identity (whether it was himself or someone
else) both of the person of whom any enquiry
ordinarily would be made about this email and of
the company representative to whom the email
ordinarily would have been forwarded after any
necessary enquiry on that topic was answered
is deafening – where the appellant’s case relied
on the inadequacy of the respondent’s evidence
rather than on challenges to that evidence or
inferences capable of arising from it, the fact
that Mr Murphy was not cross-examined did not
contravene the rule of practice in Browne v Dunn –
where there was no evidence which was capable
of giving rise to any ‘reasonable and definite
inference’ to negate the inference, arising from
Mr Murphy’s evidence of the respondent’s usual
practice, that the email and attached electronic
direction were opened and read by an employee
of the respondent whose duties comprehended
the receipt of that direction on the respondent’s
behalf – where the appellant argued that the
declaration that the 17 June 2011 direction was
invalid should be set aside for lack of utility –
where the appellant only conceded in the Trial
Division that the 17 June 2011 did not comply
with s72(3) of the Act, and did not clearly concede
that the 17 June 2011 direction was invalid until
the appeal – where the work described in the two
directions differed – whether the 17 June 2011
direction should be set aside for want of utility.
Allow the appeal with costs. Vary the declaration
ordered in the Trial Division that the Direction
of 17 December 2010 be declared void. Dismiss
the application made in the Trial Division for a
declaration that the 17 June 2011 declaration is
void. Given leave to make submissions on costs.
49
Regular features | On appeal
Criminal appeals
R v Tahir; Ex parte Attorney-General (Qld) [2013]
QCA 294, 4 October 2013
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50
Sentence Appeal by Attorney-General (Qld)
– where the respondent pleaded guilty to
one count of grievous bodily harm – where
the respondent was sentenced to 8½ years’
imprisonment with parole eligibility after serving
one third of the term of imprisonment – where
the complainant suffered severe physical and
psychological injuries as a result of the offending
– where the respondent had no prior conviction
for offences of violence – where the respondent’s
remorse, young age, attempted rehabilitation
and favourable references were taken into
account by the sentencing judge – where the
appellant contended that the sentencing judge
erred in failing to declare that the respondent
be convicted of a serious violent offence –
where the appellant otherwise argued that the
term of imprisonment was within the proper
exercise of the sentencing discretion – where
the respondent’s personal circumstances formed
the decisive consideration in the sentencing
judge’s decision not to make the declaration –
where those circumstances notably included his
young age, the plea of guilty, the absence of any
previous conviction for an offence of violence,
the evidence that the respondent was genuinely
remorseful, his attempted rehabilitation, and his
favourable references – where the weight capable
of being afforded to the respondent’s personal
circumstances was diminished by the significant
and necessary qualification on the sentencing
judge’s finding that the respondent was otherwise
of good character and by the limited extent of
the respondent’s rehabilitation described in the
psychologists’ reports – where it is difficult to see
a sufficient justification for treating the
aggregation of those matters as the decisive
consideration for not making a serious violent
offence declaration when regard is had to
the extreme violence and seriousness of the
respondent’s offence and the severity of its
consequences for the complainant – where in
the context of the lengthy term of imprisonment
and the uncertainty about parole, the comparable
sentencing decisions confirm the strong
impression that the decision not to make the
declaration coupled with the fixing of the early
parole eligibility date must reflect an error in the
exercise of the sentencing discretion – whether
the failure to make a declaration reflected an error
in the exercise of the sentencing discretion –
whether the sentence was manifestly inadequate.
was sentenced to six months’ imprisonment
for wilfully and unlawfully killing an alpaca by
night and three months’ imprisonment for
wilfully and unlawfully wounding an alpaca
by night – where the sentencing magistrate
imposed a restitution order and ordered that the
respondent be released on parole immediately
– where the co-offender was sentenced to 12
months’ probation and 80 hours of community
service – where the appellant submits that the
sentencing magistrate erred in not ordering
a period of actual incarceration – where the
appellant submits that the sentencing magistrate
was overly influenced by the non-custodial
sentence imposed on the juvenile co-offender
and that considerations of parity should have
been given little weight due to the application
of differing sentencing regimes – where the
respondent contends that the imposition of a
short term of actual imprisonment is inherently
undesirable – whether the sentencing magistrate
erred in regarding considerations of parity as of
particular importance in circumstances where cooffenders are sentenced under different statutory
regimes – where the respondent engaged in
wantonly cruel conduct over an extended period,
terrorising animals and inflicting extensive injuries
and pain – where the sentencing magistrate
regarded “considerations of parity with [the]
co-offender” as of particular significance – where
her Honour erred in so doing – where the cooffender, being a minor, was sentenced under a
different sentencing regime – where the animals
were public property used in the education of
children, which was, no doubt in part, directed
to inculcating respect for animals and awareness
of the need to safeguard their welfare – where
the offending affected many more people than
would be affected by the killing of a domestic
pet – where the fact that the respondent has
satisfactorily undergone five months of his parole
would not prevent his sentence being increased
on appeal but, as the appellant implicitly
recognised, it is a matter which may be taken into
account in mitigation – whether the sentences
imposed were manifestly inadequate.
Appeal allowed. Sentences varied by increasing to
six months, wholly suspended with an operational
period of 18 months from the date of this order.
Respondent to be subjected to an 18-month
probation order. Restitution order confirmed.
Prohibition order confirmed.
Allow the appeal. Order varied – Respondent
convicted of a serious violent offence (brief ).
R v Hartwig; Ex parte Attorney-General (Qld)
[2013] QCA 295, 4 October 2013
Reference under s669A Criminal Code – where
CCTV footage showed the 19-year-old respondent
and his 16-year-old co-offender throwing
objects at and repeatedly striking two alpacas
used in the public education system – where
one alpaca was found dead and another had
to be euthanised – where the respondent
Prepared by Bruce Godfrey, research officer, Queensland
Court of Appeal. These notes provide a brief overview
of each case and extended summaries can be found at
sclqld.org.au/qjudgment/summary-notes. For detailed
information, please consult the reasons for judgment.
back to contents
Hurley’s casenotes | Regular features
High Court and Federal Court notes
High Court
Constitutional law – judicial power –
mandatory minimum sentences for marginally
differing offences – whether exercise of judicial
power dictated by decision of executive
In Magaming v The Queen [2013] HCA 40 (11
October 2013) s233A(1) of the Migration Act 1958
(Cth) created the offence of people smuggling.
This was committed when a person facilitated
the travel of an unlawful non-citizen to Australia,
and carried no minimum penalty. Under
s233C(1) the offence of aggravated people
smuggling was created. It was committed when
the travel of five or more persons was facilitated
and carried a minimum penalty of five years’
imprisonment. M was an Indonesian fisherman,
and one of four crew on a fishing boat carrying
52 asylum seekers to Australia. He pleaded guilty
to the charge of aggravated people smuggling.
He was sentenced as required to five years’
imprisonment with a minimum term of three
years. His appeal to the Court of Criminal Appeal
(NSW) was dismissed. This court concluded
the provisions were not unconstitutional. His
further appeal to the High Court was dismissed
by majority: French CJ, Hayne, Crennan, Kiefel
and Bell JJ jointly; sim Keane J; contra Gageler
J. The majority rejected the contention that the
presence of a minimum term provision meant
the outcome was dictated by the offence the
prosecution selected, thereby making the
provisions incompatible with the exercise
of judicial power. Appeal dismissed.
Criminal law – prosecution appeals
In Munda v Western Australia [2013] HCA 38
(2 October 2013) M was an Aboriginal person
who lived in an Aboriginal community in
Western Australia. M’s domestic partner
died after he assaulted her following the
consumption of cannabis and alcohol. M
pleaded guilty to manslaughter. The primary
judge sentenced him to five years and three
months’ imprisonment with a non-parole
period of three years and 11 months. The Crown
appealed. The Court of Appeal (WA) allowed
the appeal and resentenced M to a term of
seven years and nine months with the same
non-parole period. M appealed to the High
Court. He claimed the Court of Appeal erred
in finding there were grounds for appellate
court intervention and failing to appreciate
the significance of M’s disadvantage as an
Aboriginal person. M’s appeal was dismissed:
French CJ, Hayne, Crennan, Kiefel, Gageler and
Keane JJ: contra Bell J. The majority concluded
the Court of Appeal (WA) had not erred in the
way it approached the questions of manifest
inadequacy, antecedents and personal
back to contents
with Thomas Hurley
circumstances, and the residual discretion
given by s41(4) of the Criminal Appeals Act
2004 (WA). Appeal dismissed.
Environmental law – approval – relevant
matters – state conditions that may vary
to respond to approval
Criminal law – sentence – Crown appeal –
appeal against sentence – need for appellate
court to first determine sentence imposed
is inadequate – sentencing persons with
deprived social backgrounds
In Buzzacott v Minister for Sustainability,
Environment, Water, Population and Communities
[2013] FCAFC 111 (8 October 2013) s134(4)(a)
of the Environment Protection and Biodiversity
Conservation Act 1999 (Cth) required the Minister,
in deciding whether to attach a condition to
the approval of a project (viz the expansion
of the Olympic Dam in South Australia), to
consider “any relevant conditions that have
been imposed … under a law of the State …
on the taking of the action … ”. A Full Court
concluded the Minister had considered the
appropriate state conditions and the fact that
they may respond to the development as
approved did not make the approval invalid.
The court rejected a submission that the
totality of the conditions imposed rendered
the approval uncertain within s5(2) of the
Administrative Decisions (Judicial Review) Act 1977.
In Bugmy v The Queen [2013] HCA 37 (2 October
2013) B was an Aboriginal prisoner in NSW who
had a deprived background. On becoming
dissatisfied with arrangements for a prison visit,
B assaulted a prison officer causing the loss
of use of one eye. B pleaded guilty to charges
of assaulting the prison officer and causing
grievous bodily harm. The primary judge
sentenced B to a non-parole term of four years
and three months with a balance of term of
two years and a recommendation that B be
released on an alcohol management program
at the end of the non-parole period. The DPP
(NSW) appealed contending the sentence
was manifestly inadequate and later asserted
the sentence gave too much weight to B’s
circumstances. The Court of Appeal (NSW)
allowed the appeal on the assault charge, finding
the primary judge had given too much weight to
B’s subjective circumstances and not enough to
the seriousness of the offending. It resentenced
B to a non-parole term of five years with a
balance of two years and six months. B’s appeal
to the High Court was allowed: French CJ, Hayne,
Crennan, Kiefel, Bell and Keane JJ jointly; sim
Gageler J. The High Court concluded the Court
of Appeal erred in failing to first determine the
sentence on the assault charge was manifestly
inadequate. Having allowed the appeal, the
High Court reviewed decisions such as Fernando
(1992) 76 A Crim R 58, and Kennedy v The Queen
[2010] NSWCCA 260 and reflected how the facts
of an offender’s deprived background and the
effects of alcohol were to be approached over
time and at various times when the offender
was sentenced. Appeal allowed.
Federal Court
Corporations – winding up – insolvency –
standing of creditor – cross claim not genuine
In First Equilibrium Pty Limited v Bluestone Property
Services Pty Limited (in liq) [2013] FCAFC 108
(18 September 2013) a Full Court concluded
the primary judge had not erred in finding the
company’s cross-claim against the creditor was
not bona fide so that the creditor of the company
had standing to seek winding up under
s459P(1)(b) of the Corporations Act 2001 (Cth).
Taxation – GST – sale of reversion to lessor –
whether continuing supply of lease
In MBI Properties Pty Ltd v Commissioner
of Taxation [2013] FCAFC 112 (18 October
2013) after leasing the freehold the lessor
purchased the reversion. A Full Court
considered whether there was a continuing
‘supply’ of the lease under s135-5 of the
A New Tax System (GST) Act 1999 (Cth) after
the lessor purchased the reversion.
Trade marks – validity – mark using
foreign words
In Modena Trading Pty Ltd v Cantarella Bros Pty
Ltd [2013] FCAFC 110 (30 September 2013) a
Full Court considered the validity of trade marks
based on the distinctiveness of the Italian words
for ‘gold’ (oro) and ‘five star’ (cinque stelle) in
relation to coffee and coffee products.
Trade practices – passing-off – delay –
effect on costs
In Knott Investments v Winnebago Industries,
Inc (No.2) [2013] FCAFC 117 (17 October 2013)
a Full Court concluded that the failure of the
respondent to protect its reputation in the
travelling home market over 25 years, while
the appellant built up a business using its
products in Australia, meant that the successful
respondent would only receive 75% of its costs.
Thomas Hurley is a Victorian barrister, 03 9225 7034,
email [email protected]. The full version of these
judgments can be found at austlii.edu.au.
51
Regular features | Love law, live life.
Early career lawyer forum
highlights burnout issues
A recent forum on burnout provided early career lawyers with some helpful advice
from senior practitioners. Report by Brianna Bell and Georgia Plunkett-Scott.
Resilient, hard-working, diligent,
tough-skinned, perfectionist,
prudent – these are some of
the adjectives used to describe
members of the legal profession.
It’s no surprise, then, that the term ‘burnout’
is met with some resistance.
As early career lawyers (ECLs) we are
continually told that the secret to preventing
burnout is ‘work-life balance’ and to ‘get plenty
of exercise’. If only we could bill units for every
time we have heard these…
The problem is that this well-meaning advice
is far from effective when the mountain of
urgent work on your desk is higher than
Everest (and just about as conquerable).
Yet ECLs seem to shy away from discussing
burnout because we either:
• don’t think it will happen to us
• feel it is inevitable in our industry
and can’t be changed
• are tired of receiving impractical
suggestions for preventing burnout
• worry that the concept of burn out
carries with it unwritten, unspoken
negative connotations of weakness.
On 17 October, the Queensland Law Society
Early Career Lawyers Committee convened an
open forum to attempt to find some real and
practical solutions to the problem.
The event, chaired by Michael Fitzgerald
of Ashurst, was a panel discussion featuring
partner-level representatives from across
the legal sector:
• Michelle James, principal,
Maurice Blackburn Lawyers.
• James Hall, partner, Ashurst.
• Liz Poulos, partner, Herbert Smith Freehills.
LawCare’s national director of EAP services,
Bernie Scully, also sat on the panel to provide
his insights from a psychological perspective.
Questions were put to the panel requiring
them to draw on their observations and
personal experiences in preventing and
coping with burnout. Some great tips from
the night included:
• Michelle reminded us that preventing
burnout is a two-way street. Employers are
not mind readers, so ECLs need to approach
their supervisor when their workload
is becoming unmanageable. That said,
employers should be actively working to
create an environment that eliminates any
fear of criticism of the lawyer for speaking up.
• James told us that, while there will be
expectations placed on ECLs when a
practice is busy, equally, ECLs need to wean
themselves off the idea that they have to be
at the office at all hours of the day and night
for the sake of being ‘seen’. If we are not busy,
then we should all leave at a sensible hour.
• Liz shared her number one practical tip to
avoid burnout, which is to run our own race
and ensure that we approach our career in a
way that is consistent with our own personal
goals and ambitions, and not those of others.
She believes strongly that burnout should
not be a taboo topic and that we should
feel comfortable putting our hand up after a
period of hard work and saying “I need a break”.
• Bernie shed light on the economic and
psycho-social impact of burnout and the
reasons why we should be highly motivated
to prevent rather than manage the issue.
He said that the key to combating burnout
is not about avoiding high pressure
situations but more in understanding the
types of pressure likely to occur in our
industry and developing strategies to
remain resilient when they do.
52
We also discussed some of the varying
types of pressure that can be experienced
by lawyers and the forms that burnout can
present in a lawyer, including:
• Physical – when the number of hours
worked continually exceeds the hours slept
• Emotional – when a lawyer fails to see utility
in, or derive satisfaction from, the work
they’re doing on a daily basis
• Expectational – the slow realisation by a
lawyer that the legal industry is less like Law
and Order and more like that cartoon of the
lawyer covered head to toe with Post-it notes
• Intellectual – when a lawyer is intellectually
drained and starts to question their ability
or lose confidence because every task is
an intellectual battle.
The ECLs committee believes that burnout is
a prevalent issue in our industry that can, and
should be, proactively reduced. We believe
that both employers and employees need to
take action and engage in an open dialogue.
If you have any comments or suggestions,
in particular practical tips or methods for
avoiding or coping with burnout, we would
love to hear from you. Please send your
comments or suggestions through to
Katrina Dunn on [email protected].
For more information on burnout, look at the
resilience and wellbeing resources available
from the love law, live life pages at qls.com.au.
Brianna Bell is a solicitor at Ashurst and Georgia
Plunkett-Scott is a lawyer at Maurice Blackburn.
>> qls.com.au/lovelawlivelife
back to contents
Carter Newell
Carter Newell welcomed special counsel
Mark Kenney, senior associate Katherine
Hayes and associate Allison Haworth.
Mark, who joined the construction and
engineering team, has more than 12 years’
experience in construction, infrastructure
and resources, including working at an
international firm and in-house.
Katherine, with more than 10 years’ postadmission experience, joined the financial
lines team. She has worked in insurance,
commercial litigation and dispute resolution,
and joins the firm after several years at a
top-tier firm as well as a period as assistant
in-house counsel in London.
Allison, who joined the property and injury
liability team, has experience in insurance,
dispute resolution and risk management
for insurers, brokers and self-insureds. She
previously worked at a top-tier firm and has
also had experience in the United Kingdom.
Slater & Gordon
Slater & Gordon welcomed Dan Sutherland
and Tristan Higham to its Brisbane team.
Dan, who works with the firm as a senior
lawyer, focuses on personal injuries law with
a particular interest in workers’ compensation.
He has also gained wide experience in
compulsory third party insurance, public
liability, product liability and class actions,
working on behalf of both injured individuals
and defendant insurers.
Katherine Hayes
Allison Haworth
Justin Marschke
Dan Sutherland
Career
moves
Tristan Higham
Mark Kenney
Career moves | Career pathways
Tucker & Cowen
Tucker & Cowen announced the appointment
of Justin Marschke as a partner effective
from 1 December. Justin has more than 15
years’ experience and has practised with large
multinational firms, focusing on commercial
disputes at local and international levels.
Lawyer Tristan has a particular interest in motor
vehicle claims and brings a unique perspective
to this role, having been left a paraplegic
following a serious car accident in 2009.
“Being able to help others, particularly
people who have been through a similar
situation to mine, is what motivates me
every day,” Tristan said.
Proctor career moves: For inclusion in this section,
please email details and a photo to [email protected]
by the 1st of the month prior to the desired month
of publication. This is a complimentary service for all
firms, but inclusion is subject to available space.
BACK TO BASICS
Your essential guide for day-to-day legal tasks.
Order now
>> qls.com.au/backtobasics
$10 from each copy sold goes to the QLS Back to Basics legal career assistance fund
back to contents
53
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GPO Box 279
Brisbane Qld 4001
P 1800 773 773
[email protected]
www.confirm.com.au
Investigators/process serving
The Lawyers’ Accountant
Specialising in accounting
services and strategic advisory
for law firms and lawyers.
Matt Schlyder
Ground Floor, Green Square
North Tower, 515 St Paul’s Terrace,
Fortitude Valley QLD 4006
GPO Box 81, Brisbane QLD 4001
P 07 3833 3999
F 07 3833 3900
[email protected]
www.financiallywellorganised.com
Accounting
Formerly International
Detection Services
Services in Process Serving,
Location Enquiries, Investigations,
Surveillance, Background
Screening & Debugging
Security Sweeps.
PO Box 13173
George Street Post Office
Brisbane Qld 4003
P (07) 3210 5000
F (07) 3229 7323
[email protected]
www.idsgroup.com.au
For information on becoming a
Queensland Law Society
Specialist accounting experts
& business advisors.
Level 34, 32 Turbot Street
Brisbane Qld 4000
business supporter,
P (07) 3228 4000
F (07) 3228 4099
[email protected]
www.vincents.com.au
please contact:
Cate Gazal
Sponsorship Manager
P 07 3842 5931| [email protected]
Investigators/process serving
Process Serving, Location
Enquiries, Occupancy Checks
and Repossessions.
National and International
Service Provider
Legal software
PO Box 566,
Toowong BC Qld 4066
T 07 3371 7330
F 07 3371 7335
[email protected]
Innovative and versatile software
solutions priced and developed to meet
unique smaller firm needs, including
documents, precedents, accounting,
searching, research and publishing.
www.sharmans.net.au
Legal publishing
Ramsey Cabbani – 0448 403 041
PO Box 10314
Brisbane Adelaide St, Qld 4000
P (07) 3831 2488
F (07) 3831 2044
[email protected]
www.leap.com.au
Printing services
Smokeball is an online legal publisher
that provides practical and affordable
online resources including Step-by-Step
Legal Practice Guides and Precedents,
in depth Legal Practice Manuals,
Agreement Suites and over 5,000
free legal forms.
PO Box 10314
Level 1, 365 Turbot Street
Spring Hill Qld 4000
P 1300 292 602
F (07) 3831 2044
[email protected]
Copy, print, e-discovery &
consulting. 24 /7 – free pickup/
delivery in Brisbane CBD.
Geoff Davey – General Manager
Level 5, 116 Adelaide Street
Brisbane Qld 4000
P (07) 3220 1655
F (07) 3220 1677
[email protected]
www.lawinorder.com.au
www.smokeball.com.au
Property advisors
Legal software
Specialising in Legal Accounting,
Documents and Practice Management
Software. Catering for firms between 1-200
users. Roll all of your systems into one.
Innovative tax effective and on-chargeable
per file payment for the software.
Kelly Mills
Level 3/447 Upper Edward St
Brisbane Qld 4000
P 07 3040 3036
[email protected]
www.lawsupport.com.au
Australia’s largest independent
property advisors.
Greg Coman
Level 6, 167 Eagle St
Brisbane Qld 4000
P (07) 3002 0900
F (07) 3002 0930
[email protected]
www.htw.com.au
Look at me – online!
How your firm can compete for internet attention
Another part should be asking what kind
of image your clients will be expecting. That
is, can you concurrently look like a serious,
professional advisor and a hard-hitting retail
discount warehouse with flashing special offers
and the like? How do you look professionally
reassuring yet somehow still grab the limited
attention spans that are out there?
This article provides a practical
overview of the things that matter
when trying to compete for
attention online.
The emphasis here is competing for attention
rather than competing per se. Therefore, we do
not address the very significant and growing
field of online/self-serve/assisted self-serve legal
products. That is an entirely different discussion.
In this paper, the goal is simply to help readers
better understand the elements that really
matter in an effective, dynamic website.
Return to basics
A law firm’s website needs to meet high
standards in structure and content. How
you manage both of those will powerfully
influence your site’s interaction with search
engines and first impressions when people
come to it.
Structure has three elements:
• the general look and feel (does it visually
create the first impression you are looking for?)
• the operational menus and headings
(are they logical in terms of not only the
work you do but also the typical questions
a client wants answered?)
• ease of use (will an inquirer find it easy
to navigate their way around it in search
of what they are looking for?)
You need to do well on all three to have
a site capable of being effective. However,
good structure doesn’t matter much without
engaging content.
So what’s the right design?
Working out the best way forward for your
website actually involves dealing with a range
of contradictions. For example, while first
impressions are critical as part of the ‘look and
feel’, one part of you says let’s go for Wow!
factor and try to look unlike any other law firm.
56
Another potential contradiction involves
choice of language and ‘personality’. The
practice of law is generally conservative, but
is that what your clients want? This is very
much about defining your target market. If it
is very corporate, then there is a good case for
your site to mirror that style with a generally
conservative look, feel and language.
However, if your target clients are private
individuals, then there is a case for looking less
like a corporation and feeling more personal
– by using simplified language, more visual
images, and providing information that is likely
to be non-threatening and build confidence.
Or, if your main target market is entrepreneurs
and small business people, then the fine
tuning of language, images and message
will be different yet again.
Getting this design stuff right …
There are some tried and tested rules for
setting up a site. If you follow them, the value
you get back versus the money you spend
will always be better.
Know what you want: You need to take control
of what you want. This means the home page
structure, the menu structure, the core (all
text and images), and how you want the site
to work. That is, do you want it to be purely to
provide information (called a ‘brochure site’), or
do you want it to be more sophisticated so that
it can enable transactions? The persistent error
that clients make is in somehow assuming that
web designers are mind readers. The clearer
your initial brief, the less drama and cost you
will have with its creation.
Give examples of your preferred look and feel:
This is very similar to point 1. It is extremely
helpful to your digital partner to see examples
of the styles that you like and those that you
definitely dislike. So if you want to help the
process, do some site trawling and provide
examples of what you like. This doesn’t have
to remove scope for creativity, but it sure will
reduce the chances of the designers getting
it totally wrong.
Settle the overall layout and look and feel
before the site is created: If your web builder
goes ahead with the technical build from day
one and you don’t like the design, then there
is a good chance they will have to ‘unbuild’ a
lot of their links, which just frustrates everyone.
Some degree of fine tuning always happens
– but if you agree the overarching design
elements on paper with wireframes and visual
design documents first, then everything after
that is usually fairly plain sailing.
Designer or builder?: The strengths and
weaknesses in your site will usually reflect
the dominant capabilities of the people you
brief. You can’t expect an IT-centric, oneman band to be a great creative director/
designer. It can happen, but often it doesn’t.
Remember, the style/look and feel/image
will be just as important in achieving impact
as the back-end technical construction. So if
you want both ends covered well, consider
briefing an experienced digital agency with
design expertise as well as coding skills. And
always consider their existing portfolio of work
before making a decision. Choosing a partner
that understands your longer-term business
strategy will create a winning team.
It’s not all about size and complexity:
Seriously, bigger isn’t always better and
complex isn’t always what your target clients
are looking for. Usually, all your site needs to
do is attract searches from your target market,
convince them in the quickest, most straighttalking way that you have the capability they
need and will be easy to deal with, and that
you have the personality that best fits them
as buyers. Remember also… don’t feel a need
to provide all the legal answers on your site.
You don’t have to. Your clients only want
enough information to know they’ve come
to the right place – combined with a menu
of easy ways they can contact you.
Content
The basics: With content, a good starting
point is asking yourself: What are the typical
questions, issues and feelings that a person
who comes to my site will have? Usually they
are: What do you do? What don’t you do? What
are you especially good at? Who is involved? How
do you do business? Why should I choose you?
Why should I trust you? How do I contact you?
These questions are so simple, but still form
the core of how most professional websites
are planned.
back to contents
Online content | Practice skills and management
The constantly growing role of the internet in daily life mandates that law
firms consider several key questions when updating or developing their
online presence. Report by Peter Lynch and Jason Hawkins.
It’s all about people: Because person-to-person
referrals are such a big part of law firm business
generation, it is critical that the profiles of
your key directors/partners are up to date
and properly showcase their talent. Use only
professional photos that are consistent with
the firm’s branding. Statistically, these pages
are often the most visited on a firm’s website.
And remember, if your information isn’t current,
it sends a signal to visitors that perhaps you
aren’t on the ball in other ways as well!
Get your profiles active: Connect these profiles
to your website’s newsfeed or blog. Most
website management systems worth their
weight can do this fairly easily. This is a critical
step in being able to tell Google that you have
experts in your business that publish valuable
content related to their area of expertise
– content that will rank higher in search
rankings than your competitors.
Learn what matters MOST in Google: This is
related to Google’s push to personalise and
deliver more meaningful content. It is called
Google Authorship and provides subject
matter experts a significant advantage
in search rankings when their articles are
connected to their Google account and
company website. There are a few technical
things to set up to make this happen, but the
effort is well worth it. Every time you or one
of your staff write an article in their area of
speciality, Google connects it to their profile,
which in turn can be recommended by more
people. This is perfect for law firms wanting to
become thought leaders in their chosen areas.
Summing up
Publish your content: The final part of this
strategy is to publish content regularly.
Google loves fresh, original content and
rewards firm websites that display a pattern
of releasing industry-related articles that are
on topic. The best part of this approach is that
your articles are not only helping to out-rank
your competitors in search results, but you
can use the content for other marketing
material in print and email newsletters.
For a quick and free test on how your
current site measures up, have a look at
yourdigitalcompass.com.au. You may be
better or worse than you think.
This article has revisited some basic issues
in web design for law firms, and provided
an update around the things that matter
in content and search engines.
Regarding structure, the abiding rule is to
understand your target market and design
accordingly. Regarding content, today’s reality
is that if you want to be noticed, you can no
longer ‘set and forget’. You need a continuous
stream of fresh content to compete effectively.
Dr Peter Lynch ([email protected]) is principal
of dci lyncon, and is the author of the regular ‘Keep it
simple…’ practice tips in this section. Jason Hawkins
([email protected]) is a digital strategist and director
of KND Digital.
Keep it simple…
Don’t judge on ‘now’ – judge on ‘then’!
The final of four practice tips offering handy suggestions on solicitor performance and review.
One of the enduring challenges for partners
is managing their own expectations about
the people around them.
I reflect on the words of a recently retired
managing partner to the effect that: “Fifteen
or so years ago, I seriously felt that I could have
easily kicked half of the people who are now
my partners down the stairs; I just felt some
of them were close to useless. But the vast
majority of them have absolutely surprised me
over the years – and now I would pretty much
stand beside them all in the trenches.”
So what is he saying?
When you reach an advanced stage in your
career, but are still in the thick of the action,
you tend to expect capabilities from people
in line with how good you are now – instead
of in line with how capable you were yourself
when at their level.
This just doesn’t make sense, because everyone
needs both the time and opportunity to grow.
If you expect them to be geniuses way ahead
of their time, then you will drive them away.
So next time you are about to strip
someone down for ‘being so dumb in
the circumstances’, pause for a moment
and ask yourself – how good was I when
at about the same career stage? You’ll find
things will start going a little smoother.
Peter Lynch
[email protected]
A practice idea that might make a difference.
back to contents
57
Classifieds
[email protected]
Agency work
XAVIER KELLY & CO
INTELLECTUAL PROPERTY LAWYERS
Tel: 07 3229 5440
Email: [email protected]
For referral of:
Specialist services and advice in Intellectual
Property and Information Technology Law:
• patent, copyright, trade mark, design and
• confidential information;
• technology contracts: license, transfer,
franchise, shareholder & joint venture;
• infringement procedure and practice;
• related rights under Competition and
Consumer Act; Passing Off and Unfair
Competition;
• IPAUSTRALIA searches, notices,
applications & registrations.
Level 13, 97 Creek Street
Brisbane, Qld 4000
GPO Box 2022 Brisbane 4001
www.xavierklaw.com.au
ATHERTON TABLELANDS LAW
of suite 3, Level 17 Herberton Rd, Atherton,
Tel 07 4091 5388 Fax 07 4091 5205.
We accept all types of agency work in the
Tablelands district.
CAIRNS - BOTTOMS ENGLISH LAWYERS
of 63 Mulgrave Road, Cairns, PO Box 5196
CMC Cairns, Tel 07 4051 5388 Fax 07 4051
5206. We accept all types of agency work in
the Cairns district.
SYDNEY – AGENCY WORK
Webster O’Halloran & Associates
Solicitors, Attorneys & Notaries
Telephone 02 9233 2688
Facsimile 02 9233 3828
DX 504 SYDNEY
TWEED COAST AND NORTHERN NSW
O’Reilly & Sochacki Lawyers
(Murwillumbah Lawyers Pty)
(Greg O’Reilly)
for matters in Northern New South Wales
including Conveyancing, Family Law,
Personal Injury – Workers’ Compensation
and Motor Vehicle law.
Accredited Specialists Family Law
We listen and focus on your needs.
FREECALL 1800 811 599
PO Box 84 Murwillumbah NSW 2484
Fax 02 6672 4990 A/H 02 6672 4545
email: [email protected]
58
NOOSA – AGENCY WORK
SIEMONS LAWYERS,
Noosa Professional Centre,
1 Lanyana Way, Noosa Heads or
PO Box 870, Noosa Heads
phone 07 5474 5777, fax 07 5447 3408,
email [email protected] - Agency
work in the Noosa area including conveyancing,
settlements, body corporate searches.
BRISBANE FAMILY LAW –
ROBYN McKENZIE
Appearances in Family Court and Federal
Magistrates Court including Legal Aid matters.
Referrals welcome. Contact Robyn.
GPO Box 472, BRISBANE 4001
Telephone: 3221 5533 Fax: 3218 2110
email: [email protected]
SYDNEY AGENTS
MCDERMOTT & ASSOCIATES
135 Macquarie Street, Sydney, 2000
•
•
•
•
•
•
•
•
•
•
•
Queensland agents for over 20 years
We will quote where possible
Accredited Business Specialists (NSW)
Accredited Property Specialists (NSW)
Estates, Elder Law, Reverse Mortgages
Litigation, mentions and hearings;
Senior Arbitrator and Mediator
(Law Society Panels)
Commercial and Retail Leases
Franchises, Commercial and Business Law
Debt Recovery, Notary Public.
Conference Room & Facilities available
Phone John McDermott or Amber Hopkins
On (02) 9247 0800 Fax: (02) 9247 0947
DX 200 SYDNEY
TOOWOOMBA
Dean Kath Kohler Solicitors
Tel: 07 4698 9600 Fax: 07 4698 9644
[email protected]
ACCEPT all types of agency work including
court appearances in family, civil or criminal
matters and conveyancing settlements.
BRISBANE – AGENCY WORK
BRUCE DULLEY FAMILY LAWYERS
Est. 1973 - Over 40 years
of experience in Family Law
Brisbane Town Agency Appearances in
Family Court & Federal Circuit Court
Contact our solicitors:
Bruce Dulley, Yasmin Dulley
or Emario Welgampola
Lvl 11, 231 North Quay, Brisbane Q 4003
PO Box 13062, Brisbane Q 4003
Ph: (07) 3236 1612 Fax: (07) 3236 2152
Victorian Agency Referrals
Litigation
Uncertain of litigation procedures in Victoria?
• We are a medium-sized Melbourne CBD Law firm.
• We act as agents for interstate practitioners in
all Victorian Courts and for Federal Court matters.
Our offices are also available for use by visiting
Queensland firms.
Ben Wyatt
T: 03 9321 7823
[email protected]
Rob Oxley
T: 03 9321 7818
[email protected]
Probate & Estate Administration
We can assist with obtaining Grants of Probate,
Reseal applications, and Testamentary Family
Maintenance claims.
Rachael Grabovic T: 03 9321 7826
[email protected]
Rigby Cooke Lawyers
Level 13, 469 LaTrobe Street Melbourne VIC 3000
www.rigbycooke.com.au
For rent or lease
POINT LOOKOUT BEACH RESORT:
Very comfortable modern fully furnished two
bedroom unit ocean views and pool. Linen
TV video CD stereo and dishwasher. Unit 13.
Closest freehold to Main Beach. Whale watch
from balcony July – April. Weekend or holiday
bookings. Ph: (07) 3409 8213.
POINT LOOKOUT – NTH STRADBROKE
4 bedroom family holiday house. Great ocean
views and easy walking distance to beaches.
Ph: 07- 38709694 or 0409 709 694
Casuarina Beach - Modern Beach House
New architect designed holiday beach house
available for rent. 4 bedrooms + 3 bathrooms
right on the beach and within walking distance
of Salt at Kingscliff and Cabarita Beach. Huge
private deck facing the ocean with BBQ.
Phone: 0419 707 327
NOTE: CLASSIFIED ADVERTISEMENTS
Unless specifically stated, products and services
advertised or otherwise appearing in Proctor
are not endorsed by Queensland Law Society.
back to contents
Classifieds
P 07 3842 5921
For rent or lease continued
For sale continued
COMMERCIAL OFFICE SPACE 46m² to 235m²
PRACTICE FOR SALE
Available at Northpoint, North Quay.
Established over 15 years in a major
commercial hub on Brisbane South side.
Work consists of Commercial, Conveyancing,
Leasing, Litigation and Wills and Estates.
Excellent location, ample parking and near
new office fit out. Owner is retiring but willing to
remain for an agreed period, if required.
Close proximity to new Law Courts.
Please direct enquiries to Don on 3008 4434.
LEGAL OFFICE FOR RENT
Brisbane CBD office available for lease. Currently
fitted out as a legal office with reception, library,
boardroom, 3 carparks etc. Suit 1 - 3 partner firm
seeking presence in CBD. Ph: 0414 373 850.
For sale
Gold Coast Law Practice for Sale
Dynamic practice in the heart of Bundall, right
near the Gold Coast City Council. Commercial,
Litigation, Estates, Conveyancing. Would suit
couple. About $70,000 ONO. Freehold available.
[email protected]
Northside Bris:
Work is Lit, Wills & Estates,
Conveyancing, Commercial. Est. 7 yrs. Good location.
Gross fees $250-$350k pa. Price $89k + WIP
A.C.C. TOWN AGENTS est 1989
BODY CORPORATE SEARCHES
From $80.00
*Settlements: $15.00 *Stampings: $12.00
*Registrations: $12.00
ALL LEGAL SERVICES & LODGINGS
FOR FAST PROFESSIONAL &
COMPETITIVE RATES CONTACT
SAM BUSSA
Over 800 safe custody packets held.
Experienced staff in place. Suit 1 or 2 lawyers
with room for expansion. New lease or
Freehold purchase at buyer’s option. Gross
Fees 2012 financial year about $537K for a
profit of (PEBIT) over $148K. Price $150K +
WIP. Reply to [email protected]
Full Professional Indemnity Insurance
TEL 0414 804080 FAX 07 3353 6933
PO BOX 511, LUTWYCHE, QLD, 4030
Locum tenens
FOR SALE
Jimboomba practice for sale
This general practice in a growth area was
established in 1988 and deals with a wide
variety of work.
2013 PEBIT was $81K.
LAW PRACTICES
FOR SALE
Legal services
$80K plus WIP.
Contact Dr Craig Jensen 3711 6722
FOR SALE
BRAND NEW
‘Plates Say It All’
………………………………….
TOM BENCE experienced Solicitor
(admitted 1975) available for locums
anywhere in Queensland. Many years
experience as principal.
Phone 0407 773 632
PETER WILLEY
Experienced solicitor, admitted in 1981
with 20 years as a principal in general
practice, available for locum or overload
work in South East Queensland.
Tropical North: Estab. 23 yrs. Principal retiring.
Work is Property, Succession & Family. Gross 2013 of
$300k. The freehold is also available. Price $50k + WIP
Phone 0407 631 719
Live The Dream!!
ROSS McLEOD
or email at [email protected]
………………………………….
Rare opportunity to acquire
this highly profitable practice in a popular Gold Coast
Hinterland location. Great lifestyle. Enquire Now!!
Willing to travel anywhere in Qld.
Admitted 30 years with many years as Principal
………………………………….
Ph 0409772314
Nth Qld: Gross Fees of approx $1.5mil. Estab’ 30 yrs.
SOLD
………………………………….
Work From Home:
Unique, specialised
Commercial Litigation practice. 3 yr ave Profit of
$213k (PEBIT). Gross $500k. Price $165k + WIP
………………………………….
Moreton Bay Shire: General practice est. 7
years. Great location, low rent, ample parking
available. Gross $215k, Net $91k. Sell $95k + WIP
Full details of these and other practices
at: www.lawbrokers.com.au
Peter D avi son - Law Brok ers
07 3821 3018 or 0405 018 480
[email protected]
[email protected]
$10,000.00 ono
www.locumlawyerqld.com.au
Ph: 0408 157 647
BUNDABERG LAW PRACTICE FOR SALE
Well established since 2005 law firm in the
heart of Bundaberg CBD.
Family Law, Criminal Law, Conveyancing,
Wills and Estates, Leasing.
Well promoted in the local area, great location,
low rent.
Strong turn over and growth during last
financial year. Price $70,000 + WIP.
Contact the office manager on 0411 735 381.
Bruce Sockhill Experienced
commercial lawyer
Admitted 1986 available for
locums south east Queensland
Many years as principal
Phone: 0425327513
Bill McMillan
Experienced Solicitor (over 40 years admitted)
•
Experienced in all phases of
general practice
•
Willing to travel throughout
Queensland
•
CV available on request
•
Contact details are as follows:
NOTE TO PERSONAL INJURY ADVERTISERS
The Queensland Law Society advises that it can not accept any advertisements which appear to be prohibited
by the Personal Injuries Proceedings Act 2002. All advertisements in Proctor relating to personal injury
practices must not include any statements that may reasonably be thought to be intended or likely
to encourage or induce a person to make a personal injuries claim, or use the services of a particular
practitioner or a named law practice in making a personal injuries claim.
back to contents
Mobile: 0418 886 935
59
Classifieds
[email protected]
Locum tenens continued
Greg Clair
Locum available for work throughout
Queensland. Highly experienced in personal
injuries matters.
Call 3257 0346, or 0415 735 228
E-mail [email protected]
Missing wills
Would any person or firm holding or knowing
the whereabouts of any original will of AMY
GRACE HOWE late of Sundale Nursing Home,
Doolan Street, Nambour who died on 2 May
2013, please contact Greenhalgh Pickard
Solicitors PO Box 52, Buddina Qld 4575,
telephone (07) 5444 1022 or email
[email protected]
MATE RADIC aka MATO RADIC
died on 9 June 2013 at 66 Brookvale Drive,
Underwood, Brisbane.
If you hold his Will please contact Dr Craig
Jensen Lawyers on 3711 6722.
Executive Legal Assistants Est 1992
• LEGAL TRANSCRIPTION
• DISCLOSURE/IMPLIED WARRANTY
STATEMENTS
• BODY CORPORATE SEARCHES
• LEGAL SECRETARIAL SERVICES
Judy Hoy : 0408 75 6461
E-Mail: [email protected]
Phone/Fax: 5530 6777
www.ExecutiveLegalAssistants.com
Mediation
Karl Manning LLB Nationally Accredited
Mediator. Mediation and facilitation in all areas
of law excluding family law.Excellent mediation
venue and facilities available. Prepared to travel.
Contact Karl Manning 07 31815745
Premises to share
Brisbane CBD Office Space/Merger
Opportunity
Established CBD general practice looking to
explore merger opportunity or sublease with sole
practitioner/small legal practice. Ample office
space – prime location.
For further discussion please send email to:
[email protected]
Wanted to buy
WANTED TO BUY
A senior practitioner retiring from partnership
is interested in acquiring a well established
Brisbane City Legal Practice. Suited to sole
practitioner seeking a transition to retirement.
Contact Marcus Johnson by email;
[email protected]
MEDIATION AND ARBITRATION
Stephen E Jones
MCIArb (London) Prof. Cert. Arb.(Adel.)
Arbitration or Mediation of Commercial or
Personal Disputes (ex. Family Law)
[email protected]
Phone: 0422018247
MEDIATION
Dr Craig Jensen
35 years in practice both as Counsel
and Solicitor
Accredited Mediator and Case Appraiser
Professional Certificate in Arbitration
(with High Distinction)
Mediation in Commercial, Property, Family
Law and Personal Injury Claims.
Reasonable fees.
Ph: 3711 6722 Fax: 37116733
60
NOTE: CLASSIFIED ADVERTISEMENTS
Unless specifically stated, products and services
advertised or otherwise appearing in Proctor
are not endorsed by Queensland Law Society.
back to contents
Wine | Outside the Law
Cheers to summer
When beer and wine intertwine with Matthew Dunn
Beer, the perfect antidote to a hot
summer afternoon … but not just
any beer.
Craft beer has been a movement growing
steadily for nearly 20 years and shows no sign
of abating its relentless struggle to make beer
interesting, in Australia.
While the link with wine may not be
immediately apparent, craft beer – that is
microbrewery, small brewery or beer produced
to celebrate and showcase the talents of the
brewer as craftsman – is the ideal tipple for
long, hot days. And without the wine industry
and its revival of the 1980s, we could bet safely
that a focus on craft and quality in beer-making
may not have so enthusiastically followed.
The story of Australian craft beer arguably began
with a young brewer and aspirant winemaker
called Phil Sexton, who grew up in the heady
flowering of Western Australia’s Margaret River
wine scene. In 1981, a young Phil took a job as
brewer at the mighty Swan Brewery and also
established the Devils Lair vineyard. In 1984, he
founded with friends the Matilda Bay brewing
company and set out to make beer which was
the antithesis of the popular parochial mass
market lagers flogged by big blokesy beer ads.
The tasting
The fledging craft beer company found itself
effectively locked out of all licenced venues
in WA due to the commercial dominance of
the mainstream brewers. To overcome this
disadvantage, Sexton and his mates bought a
pub, renamed it the Sail and Anchor (formerly
the Freemasons) and sold direct. They also took
another revolutionary step, by making the pub,
the beer and the experience female friendly.
The venture flourished and more venues
opened in Perth. In time, the success attracted
the Fosters brewing group, which bought the
entire outfit in 1990. Sexton admitted to some
differences of opinion with the new owners.
Phil continued with his wine venture at Devils
Lair before selling it to Southcorp in 1996
(which itself was bought by Fosters and then
split from the brewing businesses into Treasury
Wine Estates). Not content with remaining
stationary, Phil moved to the Yarra Valley and
established Giant Steps in 1997, with a view
to making fine chardonnay and pinot noir.
The craft beer story continued, however, with
Sexton joining together with his friends from
Matilda Bay to “attend to unfinished business”
in craft beer. The reunion launched the Little
Creatures Brewery in 2000 in Freemantle,
focusing initially on American-style pale ale.
The Yarra Valley outpost of Little Creatures
opened in 2008 and shot to success. Little
Creatures was itself bought by the craft
brewing arm of Japanese-owned brewing
giant Lion Nathan in 2012.
The legacy that Phil Sexton and his friends
have given us is a vibrant and diverse craft
brewing scene which, although small in sales
volumes compared to the mainstream brands,
has the growth, vigour and excitement lacking
in the dwindling regular beer market.
Queensland has some excellent local
crafters, including the Burleigh Brewing
Company and the MT Brewery at Mt
Tamborine, amongst others.
A further legacy of the craft beer revolution is
the winery brewery. While Phil Sexton said his
winery would never produce beer, others have
embraced the making of fine wine and brews.
Notable are the excellent Knappstein Enterprise
Winery and Brewery (also owned by Lion
Nathan, but by its wine arm) with the powerful
Reserve Lager. In Hobart, the Moorilla Estate
produces the well-respected Moo Brew.
Wine and craft beer are closer companions
than we may have expected and the
perfect accompaniment to a languid
summer afternoon.
Four readily accessible beers were assessed for suitability for summer service.
The Little Creatures Pale Ale
was bright golden amber with
a rich, zesty and hoppy nose
that showed fruity and woody
notes. The palate was of rounded
malt sweetness cut by a citrus
bitterness and hop overtone.
The Knappstein Enterprise
Brewery Reserve Lager was
golden summery yellow with
a nose of light but fruity floral
hops. The creamy malt core of the
palate had a rising note of zesty
zing and citrus which moved to
dryness as the long sensation of
taste lingered on the palate.
The White Rabbit White Ale was
a cloudy yellow-tinged white
with a fine sediment swirling in
suspension moving to an almost
golden sand as it settled. The
soft, demure nose showed a little
yeast complexity which was well
echoed on the palate. There was a
slight citrus on the palate, but the
opulent softness of the flavours
was smooth and gentle.
The Kosciuszko Brewing
Company Pale Ale was dark
gold and slightly cloudy with a
nose of tropical if not passionfruit.
The palate was malty but with
a cutting hop twinge on the
tongue that balanced out
the complexity of the beer’s
sweetness completely.
Verdict: T he offerings were all good with different stories to tell, but the White Rabbit
and Knappstein won out on the day. Cheers!
back to contents
Matthew Dunn is QLS principal policy lawyer.
61
Outside the law | Crossword
Mould’s maze #16
with Sunshine Coast
barrister John-Paul Mould
Across
1 Regulatory body of Australian professional
sport. (abbr.) (5)
3 Doctrine mandating the legislature not
encroach on the authority of the judiciary,
separation of ...... . (6)
1
2
4
5
6
6 Silk and recent Supreme Court appointment. (8)
7
8
8 Queensland anti-bikie legislation, the ....... Lawless
Association Disestablishment Act 2013. (7)
9 Money or document held by a third party
for delivery to a contracting party on
particular performance. (6)
3
9
11
10
12
13
11 Firm acting for the Italian father in the
‘four sisters case’, ..... Lawyers. (5)
14
12 Regent v Millett concerned the doctrine
of .... performance. (4)
13 High Court of Australia case involving
causation, ..... v Stramare. (5)
18
15
16
17
19
20
15 ........ insurance covers beneficiaries
for their actual losses. (9)
21
18 Item of personal property. (7)
22
23
20 A manager and administrator of barristers’
chambers in Victoria. (5)
24
21 Power of a government to acquire title
to property for which there is no owner. (7)
23 Noosa solicitor, Chris ..... . (5)
25
26
27
26 The meaning of a defamatory word. (10)
28
30
29 Initials for ‘Legumptionorum’ in the doctorate. (2)
31
29
32
30 Silk and recent appointment as Queensland’s
Chief Magistrate (7)
32 Decision made by a judge when no
reasonable jury could reach a decision
to the contrary, ......... verdict (8)
33
34
33 Contract between employer and trade
union that benefits both at the expense
of employees, ......... deal. (10)
34 Principle that a property owner is not liable for
their straying animals, Rule in ...... v Wallbank. (6)
Down
2 A wilful wrong in civil law (cf. common law)
jurisdictions. (6)
3 Principle that no interest in property
is valid unless is vests within 21 years,
Rule against ............ . (12)
4 Proponent of the deontological theory
of law, Ronald ....... . (7)
5 Notorious villain renown for the quote
“never plead guilty”. (7)
7 Defamation defence also known
as justification (5)
10 Gladstone magistrate. (8)
14 Author of the quote, “Do as adversaries
do in law, – strive mightily, but eat and drink
as friends’, William ........... . (11)
16 Rules and regulations, ......... legislation. (9)
62
17 Wrongful birth decision, Catanach v ....... . (8)
19 Not quite an offer, invitation to ..... . (5)
Solution on page 64
22 English feudal doctrine displaced
by the Mabo decision. (6)
24 Test for vicarious liability. (7)
25 Courts apply the ..... Rule to avoid absurdity
when interpreting legislation. (6)
27 Author of the quote, “A jury consists
of 12 persons chosen to decide who has
the better lawyer”, Robert ...... (5)
28 Documents introduced into Parliament
without formal government support,
private members’ ..... . (5)
31 Period of years within which to institute
a defamation action. (3)
back to contents
Humour | Outside the Law
Secrets of Secret Santa
Why I hope to see red at Christmas
Lawyers are generally regarded
by the rest of society as being
somewhat ignorant of the world
around them, in the same sense
that a rubber plant is somewhat
ignorant of the moons of Jupiter.
Despite this, it is probably safe to say that
most of us have noticed that Christmas is
upon us (with the possible exception of
some of the founding partners of firms, who
would probably not notice if the office was
on fire, if you get my drift – and if you don’t,
you might be one of them).
One of the big clues that Christmas is coming
is that your larger retail chains have had
Christmas paraphernalia for sale for about
four months, meaning that Christmas can
only be another two months away. Another
is that they play cherished Christmas songs
(and by ‘cherished’ I mean ‘repeated so often
that we hate them, not in the same way we
hated Osama Bin Laden, but more often’)
non-stop in an effort to reduce customers’
brains to sludge, at which point they (the
customers, not the songs) will purchase
anything in the store, just to get away.
The onset of Christmas means many
wondrous things to the legal profession,
most of which involve free drinks; after all,
giving is what Christmas is all about, and if
you can’t give your time to attend Christmas
drinks in chambers, you may as well sit back
and wait for the ghost of Christmas past to
pop in and force you to watch your horrible
future as a person with a functioning liver.
Christmas also heralds a concept full of
great danger, especially to young lawyers –
participating in the Secret Santa tradition.
For those founding partners among you –
most of whom regard Scrooge as an unfairly
vilified economic rationalist with an excellent
take on the economy and industrial relations
– I will explain: Secret Santa is a tradition in
which workers buy a Christmas present for
a randomly selected co-worker, with no one
back to contents
finding out who bought what for whom
until the secretary who arranged it gets
tipsy at the Christmas Party and reveals all,
and sometimes even tells everyone who
bought what present as well. This is a fine
tradition which works exceedingly well on the
planet Vulcan, where no one ever shows any
emotion, and amongst politicians, who can
be insincerely appreciative of receiving a set
of sandpaper underwear (“Thanks! I’ll never
have to scratch myself again!”).
This is a fine tradition which
works exceedingly well on the
planet Vulcan, where no one ever
shows any emotion …
Among humans, however, there is great
risk in this practice, in that the person who
picks your name out of the hat might be
unimaginative, lazy or secretly planning your
death (if you suspect a co-worker of being in
the last group, do not open any present that
ticks). I mean, Secret Santa probably works
great if your name is picked by Bill Gates
(“France! Wow, just what I always wanted!”),
but not so well if you get a former co-worker
of mine, who shall remain nameless, and who
once bought his giftee a $1.50 ‘travel clock’
which worked for almost eight seconds
after being unwrapped.
It wasn’t that my co-worker didn’t like his
giftee, he was simply cheap – and I don’t want
to alarm you, but there is some chance he is
not the only cheap lawyer in the world. This
means that you risk getting a present that is
less than optimal, in the same sense that
Miley Cyrus’ intelligence is less than optimal.
My point is that it is very hard – unless you
are a Vulcan or a politician – to pretend to
like having received, for example, a flyswatter
(I know a guy who gave a flyswatter as a
Secret Santa present. Twice. To the same
person.). When people receive such gifts,
by Shane Budden
they usually adopt an expression similar
to the one they would favour if you had
handed them a jar of bat urine, before
recovering and attempting to pretend that,
yes, the one thing they have always wanted
is a plastic model of the Cutty Sark which still
has the $2 price tag on it (I received exactly
that in the Secret Santa at a previous job).
Worse still, what if you have to buy something
for your boss? All well and good if you know
her, but in some of your larger firms you might
not even meet your immediate supervisor,
until the day you are sacked for buying her a
novelty BBQ apron with fake breasts, because
you thought you were buying for the old man
who said hello to you every morning, and
who is actually the guy who waters the plants.
If you don’t know the person for whom you
are buying, or don’t know them well, there is
no safe Secret Santa present. Buy someone
a cookbook, you are saying they eat out too
much; buy them a set of golf balls, you are
saying they are lazy – and buy them a book
on feng shui, you are saying they are a gullible
doofus who would believe anything (at least,
that is what I would think you were saying).
Also, do not think that the ‘secret’ in ‘Secret
Santa’ will protect you – let’s face it, your
secretary will probably have done the
actual buying, and he or she is not going
to jeopardise a good career by telling
lies for the likes of you.
As is so often the case with my column,
I don’t have any actual advice for you, but I
do need to write another paragraph to meet
my word count. In furtherance of that noble
goal, I can say that, if by chance you get a
government legal officer in the Secret Santa
– or you simply wish to express appreciation
for an entertaining and whimsical columnist
in Proctor – red wine is always a good gift,
preferably in a bottle but I am not picky.
© Shane Budden 2013.
Shane Budden is manager of legal services for the
Queensland Building Services Authority.
63
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Solution from page 62
A S A D
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P O R T
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C H A
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R E E
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I M P
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S W E E
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I N D E MN I
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T T E L
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R
E S C H E
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G
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R MO D Y
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T H E A R T
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OW E R S
R I S O N
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13
M A R C H
T Y
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C L E R K
22
A T
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7
For up-to-date information and more historical rates see the QLS website >> qls.com.au
under ‘For the Profession’ and ‘Resources for Practitioners’
Interest rates
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Queensland Law Society - Proctor, December 2013, Vol.33 No.11

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