PROCTOR
APRIL APRIL 21 2019 | Federal call to parties
APRIL 2019 FAMILY LAW AT THE CROSSROADS Federal call to parties
PROFESSIONAL STANDARDS WELLNESS TECHNOLOGY Mind your manners Mental illness and The changing stigma in legal practice face of practice 22 The Process Serving Evolution Continues The ProcessTheThe Process Process Serving Serving Serving Evolution Evolution Evolution Continues Continues Continues
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FEATURES LAW CAREER PATHWAYS
16 Federal call to parties 30 Back to basics 50 Diary dates Family law at the crossroads 10 things you should know about affidavits 51 Practice management 20 Professional standards 32 Early career lawyers Mind your manners Make the most of mentoring OUTSIDE THE LAW 22 Wellness 33 Legal policy Mental illness and stigma in legal practice QLS uncovers solitary confinement data 52 Classifieds 24 Technology 34 Ethics 57 Spirits The changing face of practice Representation roadblock RedefiningRedefining Process Process Serving, Serving, Skip Skip Tracing Tracing 58 Crossword RedefiningRedefining Process Process Serving, Serving, Skip Skip Tracing Tracing 36 Legal technology andand InvestigationsInvestigations throughthrough Innovation,Innovation, NEWS AND EDITORIAL Social robotics 59 Humour andand Investigations Investigations through through Innovation, Innovation, 38 What’s new in succession law 60 Directory 3 President’s report Quality,Quality,Quality, Culture Culture Culture and and and Experience. Experience. Experience. Passing and filing estate accounts Quality, Culture and Experience. 5 Our executive report 40 Book review 6 The road to family law reform At last, a workplace investigations manual 7 News 41 Your library CaseLaw upgrades 10 Career moves 42 Family law 12 In camera Court rejects receiver NorthshoreNorthshore Hamilton Hamilton | |Brisbane Brisbane CBD CBD | |Melbourne Melbourne | |Sydney Sydney for ‘dysfunctional’ business Northshore Hamilton | Brisbane CBD | Melbourne | Sydney 44 On appeal Northshore Hamilton | Brisbane CBD | Melbourne | Sydney Court of Appeal judgments 13001300 712 712 978 978 1300 712 978 www.riskandsecurity.com.auwww.riskandsecurity.com.auwww.riskandsecurity.com.au 1300 712 978 www.riskandsecurity.com.au Vol. 39 No. 3 | ISSN 1321-8794 22 The Process Serving Evolution Continues The ProcessThe Process Serving Serving Evolution Evolution Continues Continues
16 20 24
FEATURES LAW CAREER PATHWAYS
16 Federal call to parties 30 Back to basics 50 Diary dates Family law at the crossroads 10 things you should know about affidavits 51 Practice management 20 Professional standards 32 Early career lawyers Mind your manners Make the most of mentoring OUTSIDE THE LAW 22 Wellness 33 Legal policy Mental illness and stigma in legal practice QLS uncovers solitary confinement data 52 Classifieds 24 Technology 34 Ethics 57 Spirits The changing face of practice Representation roadblock Redefining Process Serving, Skip Tracing 58 Crossword RedefiningRedefining Process Process Serving, Serving, Skip Skip Tracing Tracing 36 Legal technology and Investigations through Innovation, NEWS AND EDITORIAL Social robotics 59 Humour andand Investigations Investigations through through Innovation, Innovation, 38 What’s new in succession law 60 Directory 3 President’s report Quality,Quality, Culture Culture and and Experience. Experience. Passing and filing estate accounts Quality, Culture and Experience. 5 Our executive report 40 Book review 6 The road to family law reform At last, a workplace investigations manual 7 News 41 Your library CaseLaw upgrades 10 Career moves 42 Family law 12 In camera Court rejects receiver Northshore Hamilton | Brisbane CBD | Melbourne | Sydney for ‘dysfunctional’ business Northshore Hamilton | Brisbane CBD | Melbourne | Sydney 44 On appeal Northshore Hamilton | Brisbane CBD | Melbourne | Sydney Court of Appeal judgments 1300 712 978 1300 712 978 www.riskandsecurity.com.auwww.riskandsecurity.com.au 1300 712 978 www.riskandsecurity.com.au Vol. 39 No. 3 | ISSN 1321-8794 PROCTOR | April 2019 1 2019 COURSES Choose from two streams to suit your practice size. INVEST SOLE PRACTITIONER TO SMALL PRACTICE 2-4 May IN YOUR 11-13 July 24-26 October FUTURE 21-23 November
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A voice for good law And a ready-made path to sensible law reform
One of the vital tasks that occupies of national import in its own advocacy Speaking of judges, one way to ensure that efforts while QLS, as one of the largest lay people have confidence in their efforts much of any QLS President’s representative bodies for the legal profession would be to establish a judicial commission time is that of advocacy on behalf in Australia, has an obligation to be vocal on to formalise a transparent and merit-based behalf of our members. appointment process. While we within the of the legal profession, often at profession can vouch for the fairness, ability Chief among our submissions will be a call parliamentary committee hearings and work ethic of those on the bench, the for a commitment to an increase in federal public rarely sees that and usually base their and inquiries, or when the Society funds for legal aid. Australians enjoy greater opinions in this regard on the reporting of rights and freedom than any other nation, is specifically asked to comment a sometimes mercurial and inexpert media. backed by largely effective legislation and on policy or proposed legislation. an excellent and hard-working court system. Opening up the process and involving an Unfortunately, many cannot afford access independent commission would allow those In an election year, this task is greater, as to the justice that the legal profession strives outside the legal profession to appreciate governments become more responsive so valiantly to provide; this cannot be the quality and commitment of our judges, to the issues which might help shape an allowed to continue. and the depth of the talent pool from which election outcome. At these times the need they are selected. The resultant increase in for a strong and clear voice on issues of Legal aid funding has sadly been a low priority confidence in the legal system would be a importance to our members becomes acute. for governments of all stripes and at all levels win for us all, and one would hope that no for many years. Whereas once legal aid sane politician would be against that. One of the most powerful tools for ensuring was available for some civil claims, now the the passage of good law is the Queensland stretched resources can scarcely cover the These are but a few of the matters we will Law Society’s Call to Parties Statement. Via most serious criminal matters. We need this be addressing in our Call to Parties Statement this document, put together through intensive funding to ensure society’s least fortunate and the advocacy in support of it. I will speak consultation with our policy committees have the same access to justice as the 1%. more of these and others in the run up to the and a lot of elbow grease from our policy We will be calling for this to be addressed election. You will also find a summary solicitors, the Society can do much good. before the current National Partnership of the key issues raised in the Call to Parties In it we ask the major parties to commit to Agreement expires in 2020; there is no time to document in this edition of Proctor. a number of reforms which will improve our waste as this needs to be in the 2019 budget. Regardless of who is victorious come election justice system and make our laws more day, thanks to our Call to Parties Statement We will also maintain our continuing call for efficient, fairer and easier to access for they will have a ready-made path to sensible more resources for the courts, in particular solicitors and their clients. law reform. the Family Court and Federal Circuit Court. These statements can be great forces for No area of the law creates more stress and Bill Potts positive change. In 2015, the incoming state trauma for parents and children than our Queensland Law Society President Labor government committed to adopting family law jurisdiction, and much of that stress almost all of the reforms called for by QLS, comes from exorbitant delays in our Federal [email protected] a signal achievement made on the back of Circuit Court and Family Court regimes. Twitter: @QLSpresident great work from the policy team and QLS LinkedIn: linkedin.com/in/bill-potts-qlspresident representatives. By relentlessly following Those delays relate directly to the fact that up that work through 2016-2017, we were there simply aren’t enough judges being able to push through many changes that appointed. As an example, the Gold Coast are delivering great results for members shares a Family Court judge with Ipswich and and their clients. Lismore – no independent observer would consider that adequate. When we have QLS will again call on our politicians to young children who have been on interim commit to sensible reforms in the upcoming custody orders more than half their lives, federal election, with our Call to Parties we know there is no argument against an Statement receiving its finishing touches increase in judicial numbers. at the time of writing. The Law Council of Australia will of course address many matters
PROCTOR | April 2019 3 Are your details up to date?
QLS will contact you in April to remind you to update your details ahead of practising certificate and QLS membership renewals for 2019/20. To ensure you don’t miss any of these important messages, update your details today via myQLS or by contacting QLS’s Records & Member Services team on1300 367 757 or [email protected].
CHECK YOUR DETAILS
qls.com.au/myQLS Our executive report
Have your say Maybe a letter is better
Twitter and other online forums Change is in the air Symposium thanks
often become cluttered with Speaking of Proctor, you may have noticed Congratulations are in order to all those input to various discussions. some changes in this month’s issue, including who made this year’s Symposium such a stronger, restyled cover format. a successful event, including our keynote Comments come and move down your Because I know that you love to find out speakers – Attorney-General and Justice timeline, often before you’ve had a chance how your past colleagues or friends from law Minister Yvette D’Ath, Chief Justice Catherine to absorb them or tweet a reply. school are getting on, we have ‘promoted’ Holmes and former Australia/New Zealand I know it’s a bit ‘old school’, but there are the Career Moves section to the front of the Facebook CEO Stephen Scheeler. many positives about a ‘letters to the editor’ magazine, where you can get to it faster. And of course there were the many column in magazines such as Proctor. You By the way, if you or your friends are earning presenters, exhibitors, attendees and QLS have time to reflect on your comments and promotions or changing jobs, make sure that staff who each year make Symposium an revise until you’re happy with them. you or your HR person take advantage of the occasion to remember. You’re not competing with any number of complimentary listing in the Career Moves My congratulations also go to the winners at others wishing to add their thoughts, and section. Just email the details, along with a this year’s Legal Profession Dinner and Awards. while your letter to the editor isn’t engraved high-quality head-and-shoulders image to It is a pleasure to see your contributions to this in stone, it is far less ephemeral than an [email protected] (include ‘Career Moves’ wonderful profession publicly acknowledged in online blog – making it a better choice in your email subject line). the presence of your peers. when you want to make an important point. You’ll notice some more changes coming You will find some pictorial highlights from Proctor, more so than many magazines, goes up in Proctor, and I invite you to submit any Symposium further on in this edition of to a select audience, giving your message a feedback you have on Proctor to either of the Proctor, and on our Facebook page. better chance of being heard. Our audience email addresses provided here so that we includes you, your colleagues, many of can take it into consideration. Renewals time Queensland’s judges and magistrates Don’t forget, Proctor is your magazine, and (including the judges of the Supreme Court), Finally, a reminder that practising certificate we want to provide you with the news and and state and federal Queensland politicians. and QLS membership renewals kick off information that you need, so please let us on 1 May, so don’t forget to log on to So why not give it a go? Of course, letters know what you want. Also, contributions qls.com.au/myqls and update your should be about legal issues and the shorter, are always welcome. details before then. the better (300 words is a good length). Mark them clearly as a ‘Letter to the editor’ and You could also take the opportunity to send them to [email protected]. If you are register with the ‘Find a solicitor’ search writing about an issue you think I should be tool, a membership benefit for those keen aware of, please cc me: [email protected]. to attract new clients. And when you are tweeting, why not add a Renewals end on 31 May, so there is a full #qlsproctor tag? That way, your comments month to complete this task. If you experience can also be considered for inclusion in a slow system response while engaged in the Proctor as well! renewals process, it is most likely indicative of heavy traffic at that time. Simply log back in at any other time, 24/7, to complete this.
Rolf Moses Queensland Law Society CEO
PROCTOR | April 2019 5 ALRC = Australian Law Reform Commission
ALRC Review = Australian Law Reform Commission Review of the Family Law System Queensland Law Society Inc. ‘Merger Bills’ = Federal Circuit 179 Ann Street Brisbane 4000 GPO Box 1785 Brisbane 4001 and Family Court of Australia Phone 1300 FOR QLS (1300 367 757) Bill 2018 and Federal Circuit Fax 07 3221 2279 and Family Court of Australia qls.com.au (Consequential Amendment and Published by Queensland Law Society ISSN 1321-8794 | RRP $14.30 (includes GST) THE Transitional Provisions) Bill 2018 QLS = Queensland Law Society President: Bill Potts Vice President: Christopher Coyne ROAD TO Senate Committee = Senate Immediate Past President: Ken Taylor Legal and Constitutional Councillors: Michael Brennan, Chloe Kopilovic, Peter Lyons, Kirsty Mackie, Luke Murphy, Travis Schultz, FAMILY Affairs Committee Karen Simpson (Attorney-General’s nominee), Kara Thomson, Paul Tully. LAW Chief Executive Officer: Rolf Moses Editor: John Teerds 18 MAY 2018 [email protected] | 07 3842 5814 Design: Courtney Wiemann REFORM QLS submission to ALRC Art direction: Clint Slogrove Issues Paper. Advertising: Daniela Raos | [email protected] Subscriptions: 07 3842 5921 | [email protected] Proctor committee: Dr Jennifer Corrin, Kylie Downes QC, Steven Grant, Vanessa Leishman, Callan Lloyd, Bruce Patane, William Prizeman, Christine Smyth, Anne Wallace. Proctor is published monthly (except January) 27 SEP 2017 by Queensland Law Society. Editorial submissions: All submissions must be received ALRC Review and the Terms at least six weeks prior to the month of intended publication. Submissions with legal content are subject of Reference announced by to approval by the Proctor editorial committee, and 14 FEB 2018 former Attorney-General. guidelines for contributors are available at qls.com.au The Senate Committee Advertising deadline: 1st of the month prior. releases its report on the Subscriptions: $110 (inc. GST) a year (A$210 overseas) Circulation: CAB 30 September 2018 – 11,468 ‘merger Bills’. (10,535 print plus 933 digital) 28 SEP 2018 QLS submission to the 13 DEC 2018 Senate Committee regarding No person should rely on the contents of this publication. Rather, they should obtain advice from a qualified professional person. This The Senate Committee’s the ‘merger bills’. publication is distributed on the basis that Queensland Law Society as its publisher, authors, consultants and editors are not responsible public hearing held in for the results of any actions taken in reliance on the information in Brisbane, QLS in attendance. 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 31 MAR 2019 not, in respect of anything, and of the consequences of anything, done or omitted to be done by any such person in reliance, whether ALRC Final Report due wholly or partially, upon the whole or any part of the contents of Our Call to Parties to be delivered to the this publication. Without limiting the generality of the above, no author, consultant or editor shall have any responsibility for any act Attorney-General. or omission of any other author, consultant or editor. Requests for Statement for the reproduction of Proctor articles are to be directed to the editor. Unless specifically stated, products and services advertised or otherwise 2019 federal election appearing in Proctor are not endorsed by Queensland Law Society. Contributors to Proctor grant to the Society a royalty free, perpetual, addresses the critical non-exclusive, irrevocable paid up licence to: a. use, reproduce, communicate and adapt their contributions; and state of family law in b. perform any other act with respect to the Intellectual Property 2–3 APR 2019 in their contributions and to exploit or commercialise all those Australia, along with Intellectual Property rights. Federal Senate sitting dates. QLS will acknowledge a contributor’s moral rights by attributing 15 other key issues. Last chance to consider authorship to that contributor. Small sums of money from the Copyright Agency Limited (CAL) See page 16. merging bills. 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. News
Request for feedback Redraft of Independent Solicitor’s Certificate by Randal Dennings
The Queensland Law Society Banking Law Council of Australia (albeit that no one requisite certifications. The Lexon Third Party and Financial Services Law Committee standard form or approach could ultimately be LastCheck can assist, however a good test (BFSLC) created a standard certificate in agreed between the various law societies). is: “If the certification I give is later challenged, the mid-1990s for use by solicitors when In general terms, the ‘standard form’ was what paper trail will I have to prove I had a asked by lenders to provide a certificate initially adopted by most (if not all) lenders as reasonable basis for so certifying?” of independent advice to guarantors. meeting their requirements. The then Chair Accordingly, the BFSLC would welcome of the BFSLC was also happy to engage any feedback from the profession on: Over the years this form and guidance with any lender or its lawyers who had any have been ‘tweaked’ to more closely follow 1. The drafting of the current form and difficulties or concerns with the form, with a developments in current practice of the view to dealing with these and if necessary guidance – in particular, what (if any) lenders, the profession and case law. (The taking on board any constructive suggestions. improvements in drafting or approach current form and guidance is available under should/could be made? At a recent meeting of the BFSLC it was the practising resources section of the 2. Whether there are any concerns currently noted that the guidance notes for the Knowledge Centre at qls.com.au). coming from lender, borrower or guarantor certificate were now potentially somewhat The reason for promulgating a ‘standard form’ perspectives on the current approach dated and required amplification. in the first instance was that many solicitors adopted or if they are drafting standard at that time had been asked by lenders to With this is mind, we have approached Lexon forms themselves? provide different forms of certification specific Insurance for its feedback, based on relevant 3. Is there a current need for further like to each lender’s requirements. Many contained claims history in these matters. Lexon is still certificates and if so, in what contexts? onerous and invasive provisions which may receiving samples of third-party certificates 4. If amendments/further certificates are have had the effect of significantly increasing from practitioners as examples of attempts to required, what process should be followed the ‘legal risk’ of the practitioner providing the shift risk from a financier or other third party certificate as well as increasing the costs to to the profession. to seek input from all relevant stakeholders prior to promulgation? be incurred by the guarantor in obtaining the Many of these certificates differ from the 5. Any other matters relevant to the use and necessary advice. standard form certificate and place further drafting of the guidance information and The standard form finally adopted had obligations on the practitioner. Often these the certificate. the benefit of input from lenders, Lexon requests come at the last minute and Insurance, along with comments from other practitioners risk exposure if not allowing Email any comments to [email protected] state and territory law societies and the time and work to ensure they can provide the by 30 May 2019.
Join colleagues from across the profession on Tuesday 14 May 2019 to fundraise for LawRight and celebrate the pro bono effort in Queensland.
The Queensland Law Society is a proud sponsor of the Register now at www.qldlegalwalk.org.au
BRISBANE | TOOWOOMBA | GOLD COAST | SUNSHINE COAST | MACKAY | TOWNSVILLE | CAIRNS
PROCTOR | April 2019 7 Lawyer CEOs lead the dance! QLS welcomes passing
Next month some 16 corporate of Human Rights Bill leaders will take to the stage of Brisbane City Hall for this year’s Queensland Law Society has protection of families and children, Dancing CEOs competition to raise welcomed the historic passing of recognition and equality before the law funds and awareness for Women’s the Human Rights Bill 2018 in State and the right to education and health services, to name a few. Legal Service Queensland. Parliament on 27 February. “This Bill adds to already existing Among them, three senior lawyers are “We applaud the Parliament on passing rights, and will lead to the creation of a returning to the competition – Genevieve this Bill, and throughout the debate, our Queensland Human Rights Commission Dee, Clarissa Rayward and Kelli Martin – solicitors put forth both for and against which will enable Queenslanders to in an Allstars Group, while this year views,” QLS President Bill Potts said. raise their concerns about human rights Domino’s Pizza Enterprises Limited Senior “QLS formed a working group twice breaches from public entities,” he said. Legal Counsel Erin Walford will make her with experts in the area, firstly to “QLS and the solicitors of Queensland Dancing CEOs debut. discuss the proposal and then a will always support good law for the “The Women’s Legal Service approached second time to review the Bill and public good, and we thank our working me in November 2018 about getting involved make relevant submissions.” group members and solicitors who with their Dancing CEOs platform,” Erin said. Mr Potts said the Bill would ensure provided their feedback on this “Of course I said yes! Dancing CEOs is respect for human rights across 23 important piece of legislation.” an opportunity for me to give back to the areas, including freedom of expression, community and to genuinely help women and kids experiencing family violence. A few dance steps at City Hall is nothing compared to the courage and bravery of the women reaching out for help. External examination “Having worked in community legal centres in my early years of practice, I have sat reports now due across the desk from women facing domestic violence and complex family law matters, and An external examination report covers The obligation to provide the Society with the in some cases, they still had dried blood on the audit period 1 April each year to QLS Form 4 and QLS Form 5 is imposed by their face and visible bruising. 31 March the following year, with the Section 274 of the Act and Section 61 of the Regulation. If you are the principal of a law “I have given advice and watched clients go latest reporting period ending on practice, the obligation on you to provide the from feeling helpless to feeling like there is a 31 March 2019. light at the end of the tunnel.” forms to the Society is imposed by Section Lodgements are due with Queensland Law 244 of the Act. See dancingceos.com.au to support. Society by 31 May 2019. Please note there is no provision under the legislation for Failure to lodge extensions to be granted for late lodgements. Last year the Society commenced action Statutory obligation against practitioners who had failed to comply with their obligation under the Act. A law practice which held or received trust It is the Society’s view that failure to comply money during the 12-month period which with the external examination report provision ended 31 March is required to: is a ‘suitability matter’ under Section 9(1) (k) of the Act and a matter which may be • complete the QLS Form 4 Part A and taken into account when assessing whether Part B: Law Practice Declaration and a practitioner is a fit and proper person to Trust Money Statement (Section 61 continue to hold a practising certificate (see Legal Profession Regulation 2017 (the Section 46(2)(c) of the Act). Regulation)) including necessary schedules Submissions were made to the Council • provide the completed QLS Form 4 to the Executive Committee in respect of external examiner practitioners who had not lodged a report • have the trust records externally examined for determination of whether it believed (Section 268 of the Legal Profession Act grounds existed to suspend, amend or 2007 (the Act)). cancel practising certificates (see Section The external examiner must issue a report 60(a) and Section 61 of the Act). on QLS Form 5: External Examiner’s Report, So far, 10 practitioners have been issued with Erin Walford, left, with Domino’s Team Legal raising funds and awareness at QUT for Women’s Legal pursuant to Section 273 of the Act and Section show cause notices in regard to the “proposed Service Queensland. 66 of the Regulation. The completed QLS suspension, amendment or cancellation of the Form 4 must be attached to the QLS Form 5. practitioner’s practising certificate”.
8 PROCTOR | April 2019 News
Bond to offer masters Appointment of receivers for AMH in enterprise governance Lawyers and KB Law Bond University will offer Commission into Aged Care Quality and Australia’s first Master of Laws Safety established in October 2018 and On 26 February 2019, the Executive in Enterprise Governance. due to finally report in April 2020. Committee of the Council of the The university’s Faculty of Law Executive “Every enterprise must be led by people with Queensland Law Society Incorporated Dean, Professor Nick James, announced a thorough understanding of the principles (the Society), as Council’s delegate, the new degree at the recent Committee of good governance, and it is for this reason passed resolutions to appoint officers for Economic Development of Australia that Bond University has created the Master of the Society, jointly and severally, as (CEDA) 2019 Economic and Political of Laws in Enterprise Governance,” Professor the receiver for the law practice, AMH Overview in Brisbane. James said. Lawyers, Brisbane. Professor James said that the Final Report He said the foundation of good enterprise On 27 February 2019, it passed governance was an understanding of, and further resolutions to appoint officers of the Royal Commission into Misconduct in compliance with, the enterprise’s legal and of the Society, jointly and severally, as the Banking, Superannuation and Financial ethical obligations, and that the expertise of the receiver for the law practice, KB Services had confirmed the findings in the lawyers and legal scholars was invaluable Law, Widgee. The role of the receiver interim report from last year, highlighting in teaching others about best practice is to arrange for the orderly disposition significant gaps in governance within of client files and safe custody Australian financial institutions, including risk in governance. documents to clients and to organise management and compliance problems, The program will commence in May 2019 the payment of trust money to clients and evidence of unethical decision making. and can be completed on a part-time or entitled beneficiaries. He said similar problems with enterprise basis in 16 months. It will be delivered as a Enquiries regarding should be directed governance had been revealed in the combination of online modules and intensive to Sherry Brown or Bill Hourigan, at the final report of the Royal Commission into workshops at Bond University’s Gold Coast Society on 07 3842 5888. Institutional Responses to Child Sexual campus, and will be available to both law Abuse tabled in December 2017 and were graduates and other graduates with relevant likely to be found by the upcoming Royal enterprise experience.
The Do you have A monthly newsletter from MEDICO THEProfessor David MORGAN A F Morgan OAM -LEGAL REPORT? Mind
Professor David A F Morgan OAM Orthopaedic Surgeon/Medicolegal Reporter More than 30 years experience in Personal Injury and Medical Negligence analysis (07) 3832 1652 Respected for Accuracy, Balance, [email protected] Clarity, Objectivity and Reliability www.themedicolegalmind.com.au Subscribe to the monthly The Medicolegal Mind newsletter online PROFESSOR DAVID A F MORGAN OAM Orthopaedic Surgeon/ Medicolegal Reporter More than 30 years experience in Personal Injury and Medical Negligence analysis 07 3832 1652 Respected for Accuracy, Balance, Clarity, Objectivity and [email protected] www.themedicolegalmind.com.au
PROCTOR | April 2019 9 Sarah Tuhtan Allison Haworth Brooke Mallard Brooke Joelene Seaton Career moves
Carter Newell In Sydney, Rochelle Rieck (Financial Lines) MBA Lawyers and Ryan Stehlik (Property & Injury Liability) Carter Newell has announced the elevation were promoted to Special Counsel, while MBA Lawyers has announced the appointment of seven solicitors, including four in Brisbane. in Melbourne, Michelle Christmas (Financial of Joelene Seaton as a Senior Associate. Allison Haworth, a member of the Property Lines) was promoted to Senior Associate. Joelene has practised in family law for more & Injury Liability team in Brisbane, has than 15 years and is experienced in all been promoted to Special Counsel. Allison Collas Moro Ross matrimonial and de-facto relationship matters. has extensive experience acting for major Collas Moro Ross has announced the Brooke Mallard has been promoted to insurers and corporate clients in complex appointment of Chris Barron as an Associate. Lawyer in the firm’s family law department insurance and commercial litigation matters. Chris practises predominantly in litigation and supports clients in all family law matters, She focuses on defending public, products and commercial law, and appears regularly including parenting disputes, property and property liability insurance claims, and in court. He also enjoys acting in pro bono settlements, de-facto relationships and is routinely instructed in complex coverage matters that the firm undertakes. domestic violence matters. disputes, multi-party large loss, dust disease and catastrophic injury claims. Evans & Company Lawyers Michael Lynch Family Lawyers Sarah Tuhtan, also a member of the Property Michael Lynch Family Lawyers has & Injury Liability team, and Jasmine Wood, Gold Coast family law firm Evans & Company welcomed back Amy Ryan to the team a member of the Energy & Resources team, Lawyers has advised that it has changed its as a Senior Associate. were promoted to Senior Associate. name to Evans Brandon Family Lawyers, with effect from 8 March. Principal Dean Amy, a QLS Accredited Specialist in family Sarah focuses on public liability claims (both Evans said that the change reflected law, has experience in the full range of family in personal injuries and property damage), the progression of Luke Brandon to full law matters, including property and parenting. product liability and worker’s compensation partnership. Luke began with the firm as an Amy returns to the firm after working in child claims. Her experience as a defendant articled clerk in 2004, was admitted in 2006, protection in the United States. insurance lawyer includes advising Australian and became a partner in 2011, the same and international insurers, claims agents, year he gained QLS Specialist Accreditation Susan Moriarty & Associates corporate clients, educational institutions in family law. and local authorities. Susan Moriarty & Associates has welcomed Jasmine has experience in resources McCullough Robertson Lawyers Benedict Coyne to the firm as Special transactions including the sale and Counsel. Benedict manages a busy acquisition of mining and petroleum projects, McCullough Robertson Lawyers has litigation practice in employment law, undertaking land access negotiations and announced changes to its Executive anti-discrimination law, administrative drafting compensation agreements, legal due Leadership team, including the appointment law, education law, and human rights law. diligence, advising on contractual risk and of Corporate and Commercial business unit Benedict is a former national President of the impact of various state-based petroleum, senior partner Reece Walker as Chair of Australian Lawyers for Human Rights and is mining and environmental regulatory regimes. Partners. currently a candidate for the 2019 Federal Tamara Baldwin, another member of the He succeeds Dominic McGann, who has election in the Division of Dickson. Property & Injury Liability team in Brisbane, held the position since 2014. Also joining the has been promoted to Associate. Tamara’s Executive Leadership team is Sydney-based experience extends to personal injury and partner Jason Munstermann, who leads the property damage claims, including multi-party firm’s Sydney commercial litigation practice. disputes involving complex liability Existing members of the team include and indemnity issues. Michael (Mick) Moy, Matt Bradbury, and Managing Partner Kristen Podagiel.
10 PROCTOR | April 2019 Career moves Chris Barron Reece Walker Luke Brandon Jasmine Wood Tamara Baldwin Tamara Jason Munstermann Amy Ryan Rhys Larsen Tamlyn Leahy Tamlyn Benedict Coyne Joshua McDiarmid Jessika Reghenzani
WGC Lawyers Jessika Reghenzani practises predominantly Joshua McDiarmid works closely with in employment law, assisting both Director Doug McKinstry in the Construction WGC Lawyers has announced the promotion employers and employees, and is active Law Team. He gained valuable experience of four staff to Associate. also in dispute resolution, corporate as an Associate in the District Court of Tamlyn Leahy, who works with Managing governance and debt recovery. Queensland during 2015. Director Eddy Lago in the Family Law Rhys Larsen joined the firm as a graduate in Team, has gained wide experience in 2014 and works in the Commercial and Property litigation and family law in both the Team with Director Graham Dutton. He also Proctor career moves: For inclusion in this section, Northern Territory and Queensland. manages the Conveyancing Team. 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.
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PROCTOR | April 2019 11
For learning and collegiality...
From an engaging Welcome The opening address by Chief Justice From there the serious business of learning to Country right through to the Catherine Holmes brought delegates up began, with more than 40 professional to date with trends in the Supreme Court, development sessions across Symposium’s closing remarks of Queensland including the rapid growth of class actions, seven streams. The two-day event featured Law Society CEO Rolf Moses, QLS before former Australia and New Zealand built-in opportunities to catch up with friends and share the collegiality for which the Symposium 2019 presented the Facebook CEO Stephen Scheeler provided an eye-opening account of what ‘breaking profession is noted. attendees with two amazing days the mould’ really means in running a 21st Some 670 delegates, sponsors and presenters of learning and collegiality. Century business. ensured it was another sensational Symposium.
Major sponsor Gold sponsor Silver sponsor Bronze sponsor Awards centre stage on the profession’s Night of nights A glittering celebration in the midst “Not only does Edwina represent children in court, she also plays a leadership role on of Symposium recognised the the ground in domestic violence through the remarkable achievements of leading EDON Place Domestic and Family Violence Centre and her work finalising a text on the legal profession members. topic; she is also a strong advocate for the At the QLS Legal Profession Dinner and Men’s Behavioural Change Program,” he said. Awards, top criminal lawyer Glen Cranny was The winners of other awards on the night were: presented with the President’s Medal, while Community Legal Centre Member children’s representative and advocate against of the Year – William Mitchell domestic violence Edwina Rowan won the annual QLS Agnes McWhinney Award. Innovation in Law Award – Andrea Perry-Petersen President Bill Potts said that Mr Cranny had dedicated his career to advancing Queensland First Nations Lawyer Queensland’s legal profession and working of the Year – William Munro for good law in the state. Queensland First Nations Student “Glen is a true advocate for good policy of the Year – Giselle Kilner-Parmenter in Queensland,” he said. “It’s a pleasure Equity Advocate Award – Ian Hazzard to present him with this award, as he has and Michael Bidwell worked tirelessly as part of our policy committees and working groups over the Equity and Inclusion: Large and Medium years to see good law for the public good.” Legal Practice – McCullough Robertson Mr Potts said that Ms Rowan’s work to Equity and Inclusion: Small Legal better the lives of women and children fleeing Practice – BTLawyers. domestic violence was to be commended, and showed her commitment to bettering her local community. Proudly sponsored by
PROCTOR | April 2019 15 IT’S UNUSUAL FOR A FEDERAL ELECTION TO PLAY SUCH A LARGE ROLE IN ISSUES OF IMPORTANCE TO THE QUEENSLAND LEGAL PROFESSION. HOWEVER, THIS YEAR’S ELECTION IS SET TO HAVE MORE THAN ITS USUAL SHARE OF LEGAL PROFESSION INTEREST. ON THE POLICY RUNWAY FOR DECISION ARE THINGS LIKE:
• The ALRC Review of the family law system and the future role of lawyers and the court in resolving family disputes, particularly highlighted should the court merger Bills pass in early April. There will be more in May Proctor to keep you on track with developments. • The expiring National Partnership Agreement on Legal Assistance Services which sets Commonwealth funding for Legal Aid Commissions and community legal centres. • Reform of the banking and financial services sector following the FEDERAL CALL Hayne Royal Commission and his recommendations. • The shape of a Federal TO PARTIES 2019 Integrity Commission to police corruption and misconduct at the Commonwealth level. • Shaping an effective and funded national plan to combat elder abuse. • Whether anti-money laundering compliance regime should be extended to lawyers, as it was in New Zealand last year. The QLS 2019 Election Call to Parties Statement brings together a number of by Pip Harvey Ross these threads and stakes Queensland solicitors’ interest in this process. The April 2019 Federal Budget will also be a key part of progressing these issues and the pre-election theatre. We live in interesting times. Call to parties
First Nations People advancement Family law dispute resolution IN THE LEAD-UP TO THE Through the QLS Reconciliation Action The statement calls for the simplification of 2019 FEDERAL ELECTION, Plan, QLS has committed to setting out the family law system by creating a single QUEENSLAND LAW SOCIETY practical plans of action to assist in creating specialist court, with a single set of rules HAS LOBBIED THE FEDERAL social change and building relationships and single set of forms, and with a particular and respect for Aboriginal and Torres Strait focus on the appointment of judicial officers POLITICAL PARTIES TO Islander Australians. This includes promoting with specialised family law experience. QLS calls on the Federal Government to assist the advancement of First Nations People CONSIDER AND RESPOND the chronically overburdened court by through advocacy. The statement calls for TO PRIORITY ISSUES increasing legal assistance sector funding to real and tangible progress to close the gap streamline family law matters. The statement HIGHLIGHTED IN OUR 2019 in all areas of inequality and to remove the also highlights the importance of improving CALL TO PARTIES STATEMENT. entrenched levels of disadvantage for First children’s experience in court proceedings Nations People and communities within the by ensuring their views are heard and context of legal and justice outcomes. In understood. This will require additional Each election, QLS releases a Call to Parties particular, the statement calls for meaningful funding for experts, including independent Statement following extensive consultation and evidence-based strategies to address children’s lawyers and family consultants, and with members, including the experts in our the disparate imprisonment rates and the further training of family law professionals and 26 policy committees. In the past, we have judicial officers on relevant matters such as received commitments from the major parties rates of violence against First Nations People. domestic violence and child development. to consider and reform key legal and social justice issues in response to the statement. National plan to We have advocated on 16 legal issues in combat elder abuse our 2019 statement, including: THE 16 AREAS OF REFORM Attention is urgently required to respond Access to justice FLAGGED IN THE CALL TO to elder abuse and its direct impacts in the PARTIES STATEMENT ARE: community. The prevalence of elder abuse To make the federal justice system more is increasingly recognised in the community accessible, the community must receive 1. Access to Justice and in various institutional settings such as appropriate advice and assistance, regardless 2. Court, tribunal and hospitals, retirement villages and aged care of how they enter the justice system. The commission funding facilities. The Call to Parties Statement calls statement calls for a commitment to increase 3. First Nations People advancement on the Federal Government to implement the per capita level of Federal Government the National Plan to Combat Elder Abuse, 4. Family law dispute resolution Legal Aid and legal assistance sector funding as recommended in the Australian Law to restore equality between the state and 5. Consumer protection Reform Commission (ALRC) report, ‘Elder Commonwealth shares of funding by the 2020- and protection for employees Abuse – A National Legal Response’. This 2021 financial year, in addition to the assurance 6. Strong and sustainable would include the implementation of priority that the funding will be certain and sustainable compensation schemes recommendations as determined in the report, long-term. QLS also calls for a commitment 7. Assistance for businesses, as well as the provision of adequate funding to remove existing clauses in community legal including law firms for community legal centres to assist people centre contracts that restrict engagement in suffering elder abuse, and implementing advocacy activities and to refrain from imposing 8. Regional and professional policies which support the autonomy and such restrictions in future contracts. development agency of older people, irrespective of their 9. Engagement with the decision-making ability. Court, tribunal and not-for-profit sector commission funding 10. Royal commissions of inquiry Preserving privacy 11. National plan to combat elder abuse In order to promote access to, and the QLS considers that the preservation of administration of justice, federal courts, 12. Independence of the Australian privacy and personal information is essential commissions and tribunals must be Law Reform Commission to civil society. It is necessary that the law be appropriately funded. Appropriately 13. Commonwealth law reform processes developed to keep pace with technological resourcing the Federal Court of Australia, 14. Review of the Corporations Act 2001 advancements, and we call for a commitment to investigate the creation of a statutory the Federal Circuit Court, the Family Court 15. Preserving the integrity of our framework providing greater protection of of Australia and the Administrative Appeals justice system Tribunal involves appointing a sufficient the privacy of Australians and prohibiting number of judges and members, promptly 16. Preserving privacy. the invasion of privacy and misuse of private filling judicial vacancies and providing These items form part of the Society’s information. Harmonisation of federal and adequate infrastructure and resourcing. advocacy platforms for 2019. The state/territory privacy laws is also needed. The statement calls on the Government to complete statement is available at allow legal representation as of right in federal qls.com.au/fedelection commissions and tribunals to benefit each QLS members interested in these or other party that is appearing and to help matters issues are encouraged to contact their proceed as expeditiously as possible. local member. We welcome comments and feedback to [email protected]. Pip Harvey Ross is a QLS legal policy clerk. This article was prepared under the supervision of solicitors on the QLS Legal Policy Team.
PROCTOR | April 2019 17 FAMILY LAW AT THE CROSSROADS New Bills and ALRC review on collision course by Matthew Dunn and Deborah Kim
2019 may well be seen in coming The Bills’ proposed shift away from family to the justice system; it will help clients meet law specialisation in favour of a multi- basic litigation costs; it will increase timely years as the time it all started to purpose court is an alarming one. Loss of assistance to victims of family violence; it change for family law in Australia. knowledge and expertise in determination of will help families access multiple courts; and family law matters risks erroneous decision- it will help the adequate representation of On foot currently in Federal Parliament is making and poorer outcomes, leading to an children’s best interests in the courtroom. the Bill to merge the Federal Circuit Court overflow in appeals and imposing additional QLS also made comments on ways to and Family Court, and this sits alongside the burdens on an already overworked system. improve accessibility for various sectors of the Australian Law Reform Commission (ALRC) The proposed merger does not address the Queensland community, such as Aboriginal review of the family law system. Both of issue of chronic underfunding. Insufficient and Torres Strait Islander people, culturally these have timeframes that converge in resources mean reduced capacity to hear and linguistically diverse communities, people the early part of this month. matters in a timely manner. Current wait times with disabilities, LGBTIQ people, and people The ALRC is scheduled to hand its final are already delivering detrimental outcomes in regional and remote areas of Australia. We report to the Federal Attorney-General on for families and children, and exposing victims recognised, and emphasised, that ongoing 31 March (a Sunday) and the Senate has of family violence to greater risk. education and training of legal practitioners, only two sitting days left (2 and 3 April) to amendment of legislation and court forms The Senate Legal and Constitutional Affairs pass the Federal Circuit and Family Court as required, and direct consultations with Legislation Committee released its report on affected groups and individuals is necessary of Australia Bill 2018 and Family Court of the Bills earlier than expected, on 14 February to facilitate improved accessibility across all Australia (Consequential Amendment and 2019. Despite exposing deep flaws with of these communities. Transitional Provisions) Bill 2018 (the Bills) the merger, the committee recommended before the likely federal election next month. that the Bills be passed. Uncertainty While QLS supports the creation of a single As the legal profession’s representatives remains as to whether the split report, specialist court, the Bills and their proposed have consistently called for the court merger will be considered by the Government structural reform to the federal courts proposal to be dealt with after the receipt of or its recommendations adopted. system should not be implemented at this point in time. The Government should defer the ALRC report, the opportunities for the What is also perplexing is the limited and Government to achieve this reform will come the passing of the Bills until the final ALRC rushed nature of consultation around the report has been given proper consideration. down to who has the numbers in the Senate proposed restructuring. The Bills were on those two April days. introduced with no regard to the However, the single point of entry into the Whether the ALRC report will recommend, abovementioned ALRC review, despite family law jurisdiction, the harmonisation oppose, or be silent on the merger is not the issues at hand clearly falling within of rules and forms, and the unification yet known – but it may play a large role in that review’s terms of reference. of procedures in the family law system whether the merger reform gets over the can be implemented without legislative The ALRC review is a comprehensive analysis amendment, by reference to the rules of line if the Senate cross-bench is looking for of the entire family court system. It examines guidance. What is certain, however, is that court. QLS has recommended that this the existing deficiencies holistically. move be implemented without further 2019 will see the commencement of some delay as there is little controversy and sizable shifts in our family law system that In its submission to the ALRC in May 2018, near universal acceptance as to its merit. will likely affect all those who participate QLS commented on issues often experienced in this jurisdiction. by family law practitioners. Lack of resources Upon receipt of the ALRC report and its and lack of funding were identified as proposals, recommendations and critiques, In its submission to the Senate Committee in common causes of many deficiencies. consideration should be given to whether September 2018, Queensland Law Society the stated aims of the Bills can be better expressed its concerns regarding the court In particular, cuts to the legal assistance and more effectively achieved, and further merger. The proposed model is significantly sector – including Legal Aid, community comprehensive consultation undertaken flawed. The proposed ‘Federal Circuit and legal centres, and Australian and Torres where necessary. Family Court of Australia’ (FCFC) would be Strait Islander legal services – have created made up of two divisions – Division 1 being a critical need for extra resources. a continuation of the Family Court and Increased funding will significantly improve Division 2 the Federal Circuit Court. In effect, many of the issues, including judicial the amalgamation will leave unresolved the resourcing and delays, experienced in Matthew Dunn is Queensland Law Society General existing issues regarding complexity, lengthy family law system. It will reduce escalation Manager, Policy, Public Affairs and Governance, and delays and cost-effectiveness. of legal problems and reduce overall cost Deborah Kim is a QLS Policy Solicitor.
18 PROCTOR | April 2019 HOW TO FIX A FAMILY (LAW SYSTEM)
Queensland Law Society supports family law reforms which promote better outcomes for families. Family law is a complex and emotional area of law. The family law courts are chronically overburdened, which creates delays and exacerbates frustration and conflict.
Queensland Law Society calls for a commitment to: a. simplification of the family law system including the creation of a single specialist family court, with a single set of rules and single set of forms b. appointment of judicial officers with specialist family law experience, noting that family law is a highly specialised jurisdiction and the proper determination of family law disputes requires considerable expertise c. additional funding to the legal assistance sector to improve accessibility to the family law system. Access to legal advice and representation is key to the resolution of matters and helps to ensure litigants are properly informed and understand legal matters d. amendments to the Family Law Act 1975 which reflect the diversity of family structures and backgrounds of Australians and promotes the welfare of all children, without reference to their family structure e. simplification of Part VII of the Family Law Act 1975, including the ‘legislative pathway’ currently provided f. amendments to family law which improve the accessibility of the system for vulnerable and disadvantaged groups including Aboriginal and Torres Strait Islander people, people from culturally and linguistically diverse backgrounds and people with disability g. national status of children legislation which creates a consistent approach to parentage h. maintaining the principle that the child’s best interest is the paramount consideration. Importantly, provisions around parenting should not prioritise or favour any particular parenting arrangement as this gives artificial weight to a particular outcome in contraction to the paramountcy principle i. measures which protect vulnerable litigants from systems abuse j. improved collaboration and information sharing between the family courts and state and territory child protection and family violence systems k. improving children’s experience of court proceedings and ensuring children’s views are heard and understood through the provision of additional funding for appropriate experts including Independent Children’s Lawyers and family consultants l. ongoing training of family law professionals, including judicial officers, on relevant matters including family violence, child development, post-separation family dynamics, diverse family structures and cultural awareness.
Extracted from the QLS Federal Election – 2019 Call to Parties Statement Read the full version online at qls.com.au 20 PROCTOR | April 2019 Professional standards
Courtesy, civility, collegiality: Constant companions for the ethical practitioner by Shane Budden
It wasn’t exactly what we had in mind when out quickly that being pleasant to the registry we rolled up to law school, but an important staff made our jobs easier, and also more fun. part of our development nonetheless. In Swapping a few jokes as documents were addition to the technical grounding of our stamped was much better than the stony A person who degrees, we articled clerks developed other silence that greeted rudeness. skills doing this, including everything from It also paid great dividends with fellow articled is nice to you, good preparation – meticulously checking clerks if a civil and collegial camaraderie that the documents to be filed had the paper could be achieved. In fact, this was essential, clip on the correct side and were in the right because often timings meant that one person but rude to the order (there was one clerk in the Magistrates simply couldn’t get it all done. Having a mate Court who would send you to the back of to get your documents stamped while you waiter, is not a the line if the documents were out of order) shot over to a settlement often saved the day, to working out how to get from the District and an articled clerk who could not, through nice person.” Court registry to the QLS Library during rudeness or other uncivility, rely on their cohort a Brisbane thunderstorm without getting for a favour or two was in serious strife. soaked when you had forgotten – Humorist Dave Barry your umbrella (yes, it could be done). On admission, of course, the three Cs moved from highly desirable to ethically mandated. Most importantly, we learnt the three Cs – Officers of the court are duty bound to be Courtesy, Civility and Collegiality. They were It may be hard to fathom courteous, and that duty goes beyond their vital then, and remain vital now, even if the professional lives. The wisdom in the quote for millennial and younger office of articled clerk has long since been at the start of this article applies here – mothballed (and there no longer being a need practitioners, but once upon officers of the court should not go abusing to find a dry route to the library). We learned serving staff or treating others rudely, and a time it wasn’t possible to serve, early that these three things were essential must remember that how they behave affects to continuing to be an asset to our employer, file or complete anything online. the way in which our profession, and the legal and so continuing to have an employer, if you system itself, is seen. get my drift; sometimes the value of these A solid part of any graduate’s first foray into qualities were highlighted by their absence. That isn’t to say that the Legal Services employment in the legal profession involved Commission will come calling if a lawyer darting through Brisbane’s CBD, from registry The old Family Court registry on Tank yells at the chemist for giving them the wrong to department, settlement to service address, Street worked on a ‘take a number’ basis, prescription, but better is expected of us – attending to filing, serving, stamping and and articled clerks whiled away many and lapses can still do damage. You never delivering the innumerable documents that hours waiting for that number to be called. know when a potential client, employer, or were the lifeblood of the legal system. Unfortunately, some solicitors had a reputation indeed judge is watching on as someone with the registry staff, such that some of those These tasks used to be the province of the berates a waiter. Your personal brand is on staff would point-blank refuse to file material now-extinct articled clerks, who won this show 24/7, just as you are an officer of the from certain solicitors. They sympathised with duty on the back of being paid far less than court 24/7. Rudeness is not a luxury many our plight, but had been abused and yelled at anyone else in the firm, even including people lawyers can afford. by those solicitors too often. Any clerk who specifically paid to be filing clerks. A high struck one of these staff had no choice but Articles went the way of the dodo many TE score (now OP) and a law degree meant to trudge back to the number-dispenser and moons ago, but courtesy in the law will nothing once the sheer economics were hope luck would serve them up to a different never go out of style, and will always mark factored in; only articled clerks were paid so registry clerk next time around. the leading lights of the profession. little that they could be spared to stand in line or pick numbers off the wall and wait for their By being discourteous and uncivil, these number to be called – and wait, and wait, solicitors had failed their clients, and also Shane Budden is a Queensland Law Society and wait… put their clerks through hell. We worked ethics solicitor.
PROCTOR | April 2019 21 A well lawyer is MENTAL ILLNESS an ethical lawyer. Really?
On the Queensland Legal Services AND STIGMA IN Commission website, we are told that: “[L]awyers who are psychologically distressed will one way or another reveal their distress in conduct that falls short of the standard of competence and diligence and the ethical standards that members of the public and their LEGAL PRACTICE professional peers are entitled to expect of them. “We are unaware of any research which bears out an assumption to this effect but it seems likely to be true. Certainly psychological distress is the elephant in the room in a large proportion of the matters we deal with at the Commission. It’s explicitly a factor in many of the matters that find their way to the by Bridget Burton disciplinary bodies. Our best guess is that it features in 1 in 3 of all the matters we deal with and the professional indemnity insurers tell us they reckon it features in about 1 in 3 of all professional negligence matters also.”1 Last year, at the National Wellness for Law Forum, one presentation referred to the above when displaying a slide with the phrase ‘a well lawyer is an ethical lawyer’. This is all very alarming, but is it true? Wellness
One in three! That’s a lot, right? Stigma A healthy workplace is an ethical workplace Reading just the above, it would seem that We routinely encourage lawyers experiencing indeed if one in three matters coming to the mental distress to talk and seek help. When As well as attacking the barriers (bias, attention of the Legal Services Commission individuals do not, we talk about perceptions discrimination, stigma, harassment, bullying, feature some aspect of mental distress of possible stigma, negative self-talk and workplace culture, etc.), there are positive then there must be some correlation (even lawyers’ scepticism about treatment3 (that is, steps legal workplaces can take to become causative) to diminished performance – personal internal factors rather than external healthier places to work. While we all wish as is assumed by the commission. environmental ones). therapy puppies and lunchtime yoga were However, studies into the prevalence of But the real barrier is not a perception of the answer, they are not. Healthy legal mental illness and mental distress within the stigma. It is actual stigma, of a deep-seated workplaces address the root causes of the legal profession put the figures at between structural variety. The sort of stigma that high rates of distress among lawyers rather 30% and 50%2 of the profession as a whole. accepts (with no evidence) an unwell lawyer than focusing on employees’ responsibilities The prevalence of mental distress noticed is likely to fall short professionally based on to be unrealistically resilient. (anecdotally) by the Legal Services Commission assumptions about the relationship between Happy, productive employees (and, for is no higher than the prevalence in the competence and mental health. that matter, students and volunteers) feel profession more broadly and may even be less. Reducing stigma around mental health, mental autonomously, intrinsically motivated; they Anxiety and depression specifically are real illness and psychological distress is urgent. do good quality work because it is important and awful features of the legal profession. Challenging it involves addressing unconscious to them. High performers feel as though they There is, of course, a need to identify and bias and examining our own responses to belong and have meaningful relationships address the structural problems underlying the distress in others. It includes rethinking the still with colleagues. They are encouraged to terrible statistics and to alleviate distress and prominent view that mental illness is a fragility feel competent and are given control of their manage illnesses, but not because individuals or weakness that renders a lawyer unsuitable day-to-day workflow and decisions. The best who are struggling are somehow failing or for certain work types or promotions. workplaces give employees opportunities likely to let down clients or employers. to develop and show character, values and We need to agree, as a professional strengths through their work. Personalising the epidemic of distress community, that having a mental illness is places added stress and responsibility onto not a professional failing and there is no vulnerable colleagues for no good reason, reason to think it will lead to any sort of cultivates the very secrecy and stigma professional downfall. At between a third and that makes illness hard to handle in legal half of our colleagues, lawyers with mental workplaces, and obscures the solutions illness or distress (or a history of) are already Bridget Burton is the Acting Director of the UQ Pro Bono to the hazards of legal practice. shining among our best and brightest at all Centre. She has been seconded to the law school from levels, though many have had to hide their Caxton Legal Centre where she holds the position of internal struggles at great (and sometimes Director, Human Rights and Civil Law Practice. Bridget insurmountable) personal cost. has worked in community legal centres and at Legal Aid for 13 years as a solicitor and practises mainly in human rights and anti-discrimination law. Bridget gratefully acknowledges the assistance of Associate Professor Francesca Bartlett and Dr Jason Chin at UQ Law and Andrea Perry-Petersen of LawRight.
Resources There is a substantial amount of guidance out there to improve workplace health. Start with mindscount. org/the-guidelines/the-13-workplace-factors and go from there. mindscount.org/ qls.com.au/wellbeing cald.asn.au/wp-content/uploads/2017/11/BMRI- Report-Courting-the-BluesLaw-Report-Website- version-4-May-091.pdf headsup.org.au/training-and-resources/educational- and-training/national-workplace-program melbourne-cshe.unimelb.edu.au/__data/assets/ pdf_file/0006/2408604/MCSHE-Student-Wellbeing- Handbook-FINAL.pdf qls.com.au/LawCare.
Notes 1 lsc.qld.gov.au/headline-issues/lawyers,-law- students-and-depression. 2 trove.nla.gov.au/work/31619934?q&version Id=38333598; mindscount.org/about-mental- health. 3 youtube.com/watch?v=ghzVoyzefvw&index=8&list= PLFGNuyxG6vjlMB-rTEW4qpKEL2Akx5M-8.
PROCTOR | April 2019 23 THE CHANGING FACE OF PRACTICE The technologies shaping a brave new legal world
24 PROCTOR | April 2019 Law Tech
PROCTOR | April 2019 25 Regular Proctor readers will already be aware of several of the major innovations that have been identified as major ‘disruptors’ for the legal profession. In this article Matthew Shearing provides an updated summary of the key technologies that are changing the face of practice.
Emergent technologies are beneficiaries to seek relief against the trustee participate on the networks. This will be if they discover it did the wrong thing. I call particularly true once clients become more changing the practice of law instruments like a trust deed and our laws comfortable with digital currency as in unique ways. This article is reactive, as they’re only enforceable if the a genuine unit of exchange. wronged party takes action after the fact. by no means exhaustive, but It will be necessary for firms to educate A trust which utilises a smart contract their staff about blockchain technology and demonstrates some of the major in conjunction with a traditional written equip them to build proactive legal solutions changes about to wash over agreement circumvents much of this in concert with software developers and ambiguity. Most importantly, rules can the profession. engineers. Firms which commit to becoming be coded (not just written down) at the increasingly ‘blockchain native’ will, provided establishment of the trust. If there are five It’s worth stating at the outset that the networks continue to grow, separate beneficiaries to be paid in equal, 20% technological disruption isn’t to be feared, themselves from their competition. portions every six months from the trust but embraced – and will provide astute account, that non-discretionary distribution lawyers, firms and entrepreneurs with Machine learning and AI can be built directly into the smart contract, unprecedented opportunities to separate as the smart contract is attached to the trust It’s become popular for ‘experts’ to rattle off themselves and build truly innovative account and deals directly with any currency all the professions that will be ‘replaced’ by practices in the coming years. which comes in. machines, and lawyers are often included in these lists. This usually shows that the Blockchain and smart Any trustee looking to discretely favour experts don’t really understand the role of contract technology one trustee over another would find that the contract prohibits it, because the code the lawyer. Distributed ledger technology, colloquially doesn’t allow an action inconsistent with Machine-learning software and ‘AI’ (artificial referred to as ‘blockchain’, allows the its terms. I call these proactive agreements intelligence) programs excel in repetitive transfer of money and information on an because (try as they might) a trustee can’t do task management, binary or gated decision- open, shared, transparent, auditable and something which isn’t permitted by the smart making and the interpretation of data. They decentralised platform, free of third-party contract. are constructs designed to do some very intermediaries. Using a blockchain like Currently, almost all of our legal framework specific tasks and do them well, but they are Bitcoin, capital exchange can occur near- and technology can be characterised as only as powerful as the human engineers instantly without the need for banks, agents, reactionary. We draft contracts, make who build them. payment processors or settlement services. agreements and conduct transactional Developed properly, the algorithms can do On newer platforms like Ethereum and relationships without any true form of many tasks to a higher standard than that Cardano, complex code can be written to active contract enforcement. Instead, of humans. Take the recent machine-learning interact directly with blockchain transactions. these instruments rely on the threat of algorithm developed by IBM for identification Referred to as ‘smart contracts’, they make consequences, implied trust and good and diagnosis of skin cancer. In a scan it possible to automate business logic and faith in establishing legal relations. of 3000 images, the technology was able the transfer of money and information in Blockchain technology provides an avenue to correctly identify a melanoma with an a manner that is transparent, consistent for lawyers to increasingly develop proactive accuracy of 95%, as opposed to the 75-85% and auditable. This will have applications solutions for clients. It promotes trust, allows of most general practitioners. Similar results in almost every industry as the technology condition-based transactional execution and are being seen in areas from automated matures, but the innovation is particularly prevents many of the simpler, but expensive, vehicle piloting to predictive speech. relevant to the practice of law. litigation issues that are prevalent in our It’s important to understand, however, Take, for example, the simple trust. Currently, legal framework. Forward-thinking firms may that AI and machine-learning technology trust deeds require extensive documentation begin offering ‘blended’ solutions which use still depends on human input. The melanoma to establish the trustee’s obligations and set smart contracts and develop tools which blur algorithm first needed to be engineered and out exactly how the trustee will benefit the the lines between a law firm and a software then ‘trained’ by feeding it data – photos beneficiaries. However, the documents (and development company. which represented positive and negative common law) don’t intrinsically prevent the While the technology is still on the fringe, melanomas. Only after being coached on trustee from taking harmful or fraudulent the advantages it provides will only increase the meaning of the data could the program actions. Rather, they merely allow the as the technology matures and more users begin to analyse new images.
26 PROCTOR | April 2019 The same is true for the capabilities of programs. You couldn’t, for example, feed the program new images of brain scans and ask it to identify tumours. Fresh ‘training’ would be required, which could only be undertaken with considerable time and effort by qualified professionals. Nor does the algorithm have BLOCKCHAIN any ability to treat the cancer itself. Indeed, given the higher success rate, the net effect of a program like IBM’s would be to give medical professionals more substantial treatment work, as there’d be an increase TECHNOLOGY in successful diagnoses. What would be reduced, or removed completely, is the tedium of scrutinising patients’ bodies and the risk of medical negligence claims for incorrect diagnoses. PROVIDES This perspective can be applied to almost any industry, including law. A well-built algorithm can be trained to analyse court databases and collate judicial rulings on a particular topic. An AI program could take limited data from an enquiry form and give LAWYERS a predicted success rate. Virtual dispute resolution ‘assistants’ could analyse small legal disagreements and provide basic guidance at a fraction of the cost of court proceedings. However, these examples all occur on a PROACTIVE micro level. They take place in controlled environments where parameters are well defined and don’t stray from their chosen purpose. AI is still code, and code doesn’t handle unknown quantities well. Any SOLUTIONS successful algorithm will, therefore, rely on strictly defined parameters and input control. Subjective judgments, nuanced drafting and the provision of holistic advice which contemplates the complexities of Decentralised autonomous governs typical corporate functions like a client’s unique circumstances cannot organisations the constitution, voting, shareholding, be performed by code. payroll and project management, they The bottom line is that machine learning At its most basic level, a decentralised represent an entirely new way of building organisations. Mechanisms such as is only as good as those who build it, and autonomous organisation (DAO) utilises company shares, dividends and reporting building takes time. While firms and lawyers blockchain and smart contract technology could be handled far more effectively (and who begin developing machine-learning to create an organisation governed by code. efficiently) by coding those mechanisms solutions now may initially find the process Because the DAO (and the rules which directly into the code of a DAO, provided slow and cumbersome, they will steadily govern it) exist on a distributed ledger, all that they’re coupled with some robust DAO functions, rights and responsibilities reap benefits as their understanding of what APIs for reporting to external regulators. the technology can (and can’t) do grows. are controlled by the programming, usually It will become part of their toolkit, but it in concert with a detailed permissions Foundations, joint ventures and large won’t replace the lawyers themselves. system. A DAO can give members limited projects are just some of the traditional At best it will augment them. or full access to organisation financials, corporate instruments that may perform contracts, documents, business dealings and better under a DAO model, but the Given that legal technology isn’t typically applications are practically unlimited. open-source, it’s unlikely that proprietary information at the software level. Because the smart contract code controlling the DAO is technology developed by other firms will Online jurisdictions be available on the open market (especially immutable and can be audited by all, it gives certainty that no one can break the rules. given the potential for ‘packaged’ legal In any agreement between parties, it’s advice which could be offered as a product DAOs are governed by consensus of necessary to set the rules. When two parties in its own right). It’s therefore imperative that members (often a defined sub-set of are located in a particular state or country, firms begin investigating and harnessing the members) and are typically borderless. it’s relatively easy for the parties technology now. Because blockchain-based code actively
PROCTOR | April 2019 27 to stipulate what authority they will appeal bound by mutually satisfactory rules not tied The most immediate benefit that early- to if everything goes wrong. This is usually to any one land-based jurisdiction. Rulesets adopters are seeing in a business sense is done by specifying an agreed jurisdiction could feasibly be developed which are far shifting from expensive physical offices to towards the end of a contract. less restrictive than legislative frameworks inexpensive virtual workplaces. eXp Realty, As the world becomes increasingly offered by traditional nation-states. a publicly-traded United States real estate connected, choosing a jurisdiction is Digital jurisdictions are in many ways tailor- brokerage company, is run entirely in a virtual more challenging when parties are based made for use with blockchain technology, world. The company claims this has allowed in different countries (or continents). and indeed, initiatives like Aragon’s it to almost double staff from 6500 to over Consideration is often given to the various decentralised jurisdictions and EOS’s 12,000 estate agents last year and reach restrictions, exemptions and protections blockchain constitutions are beginning to over a $1 billion market capitalisation on the afforded by the law of each jurisdiction, provide practical solutions to these problems. Nasdaq in the first day of public trading. and where the relationship isn’t based It will be important for legal practitioners to eXp’s virtual world allows all company predominantly in one country, the parties assess where they can provide value in this staff to attend team meetings, conferences, usually favour the jurisdiction least restrictive emerging sector. training and functions from anywhere in the to their shared goals. Be it collaborating on an open-source world. The brokers still meet with clients There is, however, an increasing amount digital jurisdictional framework, providing and sell houses in the physical world, but of business occurring online, without dispute resolution services or simply alerting their entire corporate office is housed in any easily-identifiable jurisdiction. From clients that new models are available, the VR, meaning no expensive leases, cleaners, news aggregation websites to off-shore intersection between emergent technology furniture and upkeep. Further, employees no outsourcing, working out what the rules and truly global business presents longer need to commute to work, meaning are and who to appeal to when things go compelling opportunities. less time spent in traffic and more time with wrong is becoming difficult. When you add their families. decentralised organisations like DAOs and Virtual reality Considering that many law firms spend blockchain-based contracts into the mix, up to 50% of the fee dollar on the expenses trying to assign a nation-based jurisdiction The inclusion of virtual reality in a primer of running an office, the potential for drastic can become almost impossible. on future legal changes may seem strange, reductions in those fees can’t be overlooked. but it’s very relevant. With developments The most promising approach to tackling While some would prefer the more traditional from virtual workspaces to immersive the issue is the establishment of ‘digital’ ‘face-to-face’ working environment, shopping experiences becoming a reality, the jurisdictions, where parties can agree to be text-messaging, social media and video- combination of high-fidelity experiences and conferencing has shown us that people developer-friendly software is fostering are willing to embrace new technology rapid growth in the sector. for the sake of convenience and connectivity. When that technology could also significantly reduce fees, raise profits and give an advantage over the competition, it becomes incredibly compelling.
The 'Events Auditorium' in eXp Realty's virtual world. Credit: eXp Realtyw
28 PROCTOR | April 2019 SMART CONTRACT TRUST
Company Trust Contract Account Beneficiaries Pays percentage n payment receipt, Can audit contract of profits to trust pays each beneficiary transactions any time Contract code is immutable unless agreed otherwise Payments and administration occur automatically Trustee (and other parties) unable to change code without appropriate permissions
Trust Deed Trustee References the smart contract nly has access allowed by contract Pulls terms in plain English Legal doccument
There’s another, more indirect benefit to Embrace the opportunities As the old adage goes, knowing is half integrating virtual reality technology in legal the battle. If you’re not familiar with the practice. As the user base of VR experiences Digital disruption is a real issue, but it’s not technologies mentioned, spend some time like Amazon’s Sumerian, Linden Lab’s Sansar a bogeyman out to make lawyers redundant. researching them. Get an expert with both and Philip Rosedale’s High Fidelity increase, Technological developments like machine a legal and technological background in to it will also mean access to a new type of learning, blockchain and virtual reality are educate your firm and help you develop an customer with their own unique needs and just new tools for the ever-expanding legal innovation strategy. Having a legitimate plan novel legal issues. It’s not so fantastic to arsenal – tools which, when harnessed to deal with technological disruption will put imagine that many future clients may prefer correctly, can be put to great use. you ahead of 99% of the competition. to meet at a ‘virtual’ firm rather than travelling While lawyers will always be necessary, The bottom line? Technology is a tool. to inner-city offices, especially if they’re what may change is the expectations of Automation and disruption are only a travelling or based internationally. This may clients, the skills required and the method threat for those who aren’t making use also be beneficial for face-to-face meetings of delivery. The key is to position yourself of it already. For those who are, it’s an such as mediations, settlement conferences to capitalise on disruptive technologies and unprecedented opportunity – and one and interviews, especially in today’s crowded put them into the ‘toolbox’ in the same way to be tackled head on. business environment. that a carpenter upgrades their equipment Just like the other sectors we’ve covered, to increase efficiency and reduce cost. it’s still early – and there’s no telling what opportunities will present themselves as Matthew Shearing is a technology lawyer, consultant and podcast host. He is the founder of BlockSense, the technology matures. The only sure co-hosts The FOMO Show (a fortnightly technology way to miss out is to not be involved. podcast) and runs Blockchain for Business Brisbane.
PROCTOR | April 2019 29 10 things you should know about affidavits Key tips for Queensland’s state courts
1. It is not necessary to serve When the case is being presented in court, In general terms, a lay witness can give a sealed copy of an affidavit. the court can then be taken to a specific evidence in an affidavit about what they page of the exhibits to an affidavit, and there saw or heard or thought at a particular Practitioners often delay serving affidavits is no confusion or delay about which page time (if relevant) or physically experienced. until they have been filed and bear the is being discussed. In very rare instances, they can express an opinion such as their opinion about court’s stamp. Pagination of exhibits when there is more the speed at which a car was travelling. than one documentary exhibit or the exhibits However, after an affidavit is sworn or What they cannot do is express an opinion are a group of documents is mandated by affirmed, it can (and should) be served on about whether a finding of fact should be rule 435(11)(a) UCPR. the other parties without waiting for it to made based upon other facts or an opinion first be filed. This is especially so if there are 4. There must be an index about someone else’s state of mind or circumstances of urgency or if there is a time motivation or give reasons why one party limit within which an affidavit must be served. to the exhibits. should succeed or fail. Such evidence is 2. Avoid duplication of exhibits. After paginating the documentary exhibits, inadmissible and amounts to submissions. prepare an index of the exhibits which Even if admitted into evidence, the judge will As a general rule, if a document is exhibited describes each document and identifies be unlikely to pay any attention to it and will to an affidavit, the same document should the pages on which that exhibit appears. be likely to discount other evidence given by not be exhibited to any other affidavit. that witness. Depending on the number of exhibits and If a witness wishes to refer to the document, whether the exhibits are contained in one 7. The affidavit must contain then the witness can refer to the exhibit or more paginated books, the index should evidence which the witness by reference to the affidavit to which it is appear at the front of each book addressing exhibited, even if it is an exhibit to an affidavit the exhibits in that book.1 knows to be true. which is relied upon by another party. 5. The judge may like a working Because a client is often keen to win the Such an approach prevents voluminous application or trial, they will be prepared to affidavits being filed which contain the same copy of the affidavits. include statements of fact in their evidence documents, which reduces costs. which they do not in fact know to be true. Depending on the number of affidavits and It is also mandatory by reason of rule 435(12) Rather, they suspect them to be true or the type of hearing, you should consider hope they are true or believe they are true. Uniform Civil Procedure Rules 1999 (UCPR). preparing a working bundle of your client’s If neither party intends to read and rely upon affidavits, with tabs and an index, and When preparing an affidavit, ensure the affidavit which exhibits the document, contained in a ring binder (or more than that it is confined to evidence which the it is permissible for a party to read and rely one if needed). witness knows to be true from their own observations. If the affidavit is to be used on the exhibit to the affidavit, rather than the This will enable the judge to highlight, entire affidavit. at a hearing at which final relief is not being annotate and tab parts of the affidavits, sought, the witness can give evidence on including exhibits, during the hearing. It 3. The exhibits must be paginated. information and belief, but it must then also assists with locating the evidence comply with rule 430(2) UCPR. quickly during oral submissions. It is critical that documentary exhibits be 8. Rules of evidence apply unless paginated, meaning that the first page of the 6. The affidavit should not first exhibited document is page 1 and then the UCPR allows otherwise. the pagination continues through to the last contain submissions. page of the last exhibit. Subject to the UCPR, the evidence in an A common mistake is for witnesses, affidavit must be confined to the evidence This does not mean starting the pagination especially lay witnesses with an interest in the which the person making it could give if again at page 1 for each exhibit. outcome of the litigation or a solicitor acting giving evidence orally. It follows that the for a party, to provide their opinions in their evidence in an affidavit must be relevant and affidavit about why one party is right or wrong otherwise admissible, having regard to the or the merits of particular legal arguments. exclusionary rules of evidence such as the rule against hearsay.
30 PROCTOR | April 2019 Back to basics
Kylie Downes QC provides 10 essential tips for the preparation, filing and service of affidavits in Queensland’s state courts.
Thinking in particular about relevance, it is UCPR. These types of applications include an requiring that person for cross-examination a mistake to include evidence from a witness application for further and better particulars. at least one business day before the hearing.2 about aspects of the case which are not In relation to such applications, rule 447(2) If the affidavit is served less than two relevant to the issues which will be in play at UCPR identifies the documents (including business days before the hearing, then the the hearing in which the affidavit will be relied correspondence) which must be filed with the person who made the affidavit must attend upon. For example, a deponent’s evidence application. Rule 448(2) UCPR provides that court to be available for cross-examination, concerning the truth or otherwise of an the court may decide an application based subject to any different agreement reached alleged fact in the statement of claim would on the correspondence. with the other parties. not usually be relevant to an application for further and better particulars. 10. Cross-examination of deponents. 9. Affidavit evidence is Kylie Downes QC is a Brisbane barrister and member of the Proctor Editorial Committee. not always required. A deponent may be cross-examined in relation to their affidavit. If the affidavit is served more Notes Chapter 11 Part 8 of the UCPR permits than one business day before the hearing, 1 a party to both file and rely upon then the other party, if they wish to cross- Rule 435(11) UCPR. 2 correspondence exchanged in relation to examine the deponent, must serve a notice See rule 439(2) UCPR. applications which are described in rule 443
PROCTOR | April 2019 31 Early career lawyers Make the most of mentoring by Olivia Pine
The advantages of a successful Tip 2: Set the ground rules Once you complete a task, think about what next steps are required and ask if you can mentor-mentee relationship Everyone works differently, so start by asking assist in undertaking them. cannot be overlooked. your mentor how they prefer to work. In particular, some things to consider with Tip 4: Improve your skills Whether it is a formal mentoring relationship your mentor are: or simply the connection you have with Working closely with a mentor is a great • What level of involvement will your your direct supervisor, it is important that way to improve your skills. Some things mentor have? For example, will they early career lawyers put time and effort into to consider are: settle everything you draft? building that relationship, which will provide • Make a list of goals with your mentor and • What time of the day is best for them lasting benefits. check in regularly about your progress in to discuss any questions or concerns achieving those goals. For early career lawyers in particular, mentors you may have? can make or break how you feel about a • Whenever appropriate, ask questions. • Would they prefer to schedule regular firm or a particular area of the law. A good Ask about the challenges that your catch ups or are you free to speak to mentor relationship can also be the difference mentor has faced on files and in practice, them whenever you have a question? between a good junior lawyer and a great and ask how they managed or overcame junior lawyer, so it’s important for both • Would they like you to email questions those issues. Your mentor has probably parties to prioritise building the relationship. to discuss in advance of any meeting? faced similar challenges to you, and can • Scheduling a monthly coffee to ‘check With this in mind, we have compiled some provide invaluable advice about the best in’ and discuss any general concerns. helpful tips on how a junior lawyer can make way forward. the most out of their mentor relationship. It’s important to remember that your mentor’s • Read their letters, advices and pleadings. time is likely to be limited, so use the time This will help you understand their Tip 1: Build the rapport wisely and be upfront about what you feel thought process. has worked (and not worked) for you in the • Sit in on their client phone calls and It’s important to try and build an open past, and what you think you need to focus meetings. Listen to what questions they relationship with your mentor, so you can on going forward. ask and what advice they give. This will share ideas and communicate effectively. improve your oral communication skills Consider attending firm social events and Tip 3: Be prepared and your confidence. don’t be afraid to make general conversation Always carry a notepad with you – often a • Ask to run a file/case together from start with your mentor about life outside of work. discussion about one file/issue will lead to to finish. Be present at the initial client Be upfront with your mentor about what you discussions about other work. It’s also a good interview, discuss strategy with your feel is out of your depth. Your mentor should idea to take notes on your mentor’s advice. mentor and ask to attend any mediation be mindful of this and tailor your work and or court appearances. This is a great way their advice to help you improve your skills If you’re going to ask your mentor specific to learn what is involved in running a file, in this area. questions about a file or task you’ve been while being supported by your mentor given, make sure you’re familiar with the each step of the way. background first. They may need the general facts first before they can assist you. Try to The above advice is just a starting point. anticipate what questions they may have or Each mentor/mentee relationship is different, what information they need to help you (this so find what works for both of you. might include bringing relevant sections of the file with you). Always try your best to present a possible solution – don’t just turn up with a problem. Your mentor is likely to be incredibly busy, if you can go to your mentor with a problem and possible solution it not only short-cuts the process, but shows that you respect their time.
This article appears courtesy of the Queensland Law Society Early Career Lawyers Committee Proctor working group, chaired by Adam Moschella ([email protected]). Olivia Pine is a solicitor at Barry.Nilsson. Lawyers.
32 PROCTOR | April 2019 Legal policy QLS uncovers solitary confinement data by Vanessa Krulin and Madelaine van den Berg
In 2018, Queensland Law Society 9 July 2018 11 October 2018 commenced a project liaising with QLS wrote to the Commissioner of QCS QLS submitted a Request for Information requesting a census snapshot of prisoners application to QCS. The application sought Prisoners’ Legal Service (PLS) and held in prolonged solitary confinement on a response to the questions asked by QLS Queensland Corrective Services Monday 2 July 2018. in the letter sent on 9 July 2018, including any Queensland Corrective Services (QCS) following a Human Rights The correspondence requested specificity in the numbers of male and female prisoners internal documents, memos, emails and/or Watch report on the treatment in solitary confinement on that day, as well correspondence forming a draft response to QLS, and any associated briefing notes of prisoners with disabilities as the average length of the collective time spent in prolonged solitary confinement or reports which related to the questions in Australian prisons. in a continuous period, the name of each asked in the QLS letter dated 9 July 2018. facility holding prisoners in prolonged solitary The content of this report was read with confinement, the number of prisoners in 15 November 2018 interest by the QLS Health and Disability prolonged solitary confinement who are QLS received a response from Queensland Law Committee and the QLS Criminal impacted by a physical and/or mental Corrective Services and the release of our Law Committee, and raised a number of disability or cognitive impairment, and the application. The release advised that on concerns. As a result, QLS met with PLS number of those prisoners who received Monday, 2 July 2018: and has corresponded with QCS to obtain daily visits from health care professionals. data relating to the number and conditions • 130 prisoners were subject to separate confinement (15+ consecutive days) on of prisoners held in prolonged solitary 13 July 2018 confinement in Queensland. Safety Orders, Consecutive Safety Orders QCS replied via email enquiring about or Maximum Security Orders the intended use of this information and 6 February 2018 • 120 of those prisoners were male, explaining the expected timeframe to compile 10 were female Human Rights Watch published a report, the data. QLS responded on 24 July advising ‘I Needed Help, Instead I Was Punished’ that the QLS Criminal Law Committee and • 30 of those prisoners were between Abuse and Neglect of Prisoners with QLS Health and Disability Law Committee 17 and 25 years of age Disabilities in Australia (the report). The had expressed concerns regarding prisoners • 51 of the 130 prisoners were impacted report followed an investigation into the in prolonged solitary confinement and the by a physical and/or mental disability treatment of prisoners with disabilities in information requested was to assist QLS or cognitive impairment prisons in Australia. The inquiry looked at in forming a position on the issue. eight correctional facilities in Queensland. • On 2 July 2018, over 75% of those prisoners recorded were accommodated 28 August 2018 The report claimed that, in 2017, the total for a continuous period of between population of prisoners in Australia reached QLS wrote a follow-up letter requesting an 15 days and three months. its highest level of more than 41,000, with update regarding a response to our letter Queensland holding the second highest dated 9 July 2018. QLS is grateful for the ongoing number of prisoners across all states correspondence with Queensland Corrective and territories.1 2 October 2018 Services and will continue to liaise with Prior to receiving a formal response from Prisoners’ Legal Service on these issues. 15 March 2018 QCS, QLS received a letter from one of 2018 QLS President Ken Taylor, PLS Director our members who became interested and Principal Solicitor Peter Lyons and QLS in the project after reading our letters Legal Policy Manager Binny De Saram, on the QLS legal policy webpage. Senior Policy Solicitor Vanessa Krulin and Legal Assistant Madelaine van den Berg first met to discuss the report. Since then, QLS and PLS have met regularly with PLS Vanessa Krulin is a QLS senior policy solicitor and representatives including PLS Acting Director Madelaine van den Berg is a QLS legal assistant and Principal Casework Solicitor Helen with the QLS Legal Policy Team. Blaber as well as QLS General Manager, Policy, Public Affairs and Governance Matthew Dunn to discuss the report and Notes consider options related to a joint campaign 1 Daniel Soekov, D. (2017), ‘I Needed Help, Instead I for better treatment of prisoners, in particular Was Punished’ Abuse and Neglect of Prisoners with Disabilities in Australia, 2018 Human Rights Watch; those with disabilities including cognitive available at hrw.org/report/2018/02/06/i-needed- impairment, and prisoners kept in solitary help-instead-i-was-punished/abuse-and-neglect- confinement for prolonged periods of time. prisoners-disabilities, accessed 7 February 2019.
PROCTOR | April 2019 33 Representation roadblock
The decision of Holt AsJ in Allison could recover $25 million in damages, that objectivity of a lawyer will undermine the they had two reputable and independent integrity of the judicial process. v Tuna Tasmania Pty Ltd (Allison)1 witnesses and that the defendants were If a solicitor or barrister is in default in this illustrates the need to keep in likely to lose the action. regard, the court not only may intervene but, mind that we are not entitled to M further said that he could persuade his in all probability, should intervene.9 As officers clients to settle for $2 million inclusive of of the court we must be mindful of the fact communicate with a litigant that we costs. F asked M to put his proposal in that the efficient administration of justice is know is represented by a lawyer. writing to his solicitor. Despite other things dependent upon us adhering to high ethical being alleged, the court concluded that it standards. As Mason CJ noted:10 That is unless that person’s lawyer has need not resolve those issues. The court “…the course of litigation depends on the consented to the communication, or the noted that what was important was that the exercise by counsel of an independent communication would otherwise comply with meeting occurred and that the detail of what discretion or judgment in the conduct and Rule 33 Australian Solicitors Conduct Rules was said at the meeting only had relevance management of a case in which he has an 2012 (ASCR).2 as to whether the meeting had caused eye, not only to his client’s success, but also In general, there are three grounds for prejudice to the defendants. to the speedy and efficient administration of restraining a lawyer from continuing to During cross-examination of M it became justice…This is why our system of justice as represent a client. Firstly, where we hold a apparent that M was in severe financial administered by the courts has proceeded on retainer from more than one party, where the straits. M had also written to the solicitors for the footing that, in general, the litigant will be interests of those parties are in conflict and the defendant stating that “it was blindingly represented by a lawyer who, not being a mere they have not provided informed consent obvious that [F] would report our meeting agent for the litigant, exercises an independent to the solicitor acting. to you, if he had not already alerted you in judgment in the interests of the court.” 6 Secondly, where a solicitor has been retained advance, which I thought he very likely had”. The ground of relief sought by the defendant by a new client to act against a former client Holt AsJ noted that M should have given was discretionary, which required the court and has in his or her possession confidential more detailed consideration to the propriety to balance the entitlement of a litigant information that might reasonably be of attending the meeting. to the representation of choice and the considered to be material to the matter consequences to such a litigant through of the prospective client and detrimental The court found that M’s fees were only consequential delay, inconvenience and to the interests of the former client.3 recoverable in the event that his client was expense. The court considered the following:11 successful. M was in personal financial Thirdly, where a fair-minded, reasonably difficulty. He had a social relationship with • “Confidence that these standards and informed member of the public would the client as well. M attended a meeting duties will be observed is dependent conclude that the proper administration of with F without the consent of F’s solicitor to upon the lawyer not participating in justice requires that the solicitor be restrained attempt to secure a settlement of his client’s proceedings where he or she lacks the from acting for a client, in the interests of action. M acknowledged that his conduct necessary objectivity and independence the protection of the integrity of the judicial was “egregious”.7 The court observed: and in some cases where that objectivity process and the due administration of justice, and independence, although in fact there, 4 including the appearance of justice. “The facts that a lawyer will not recover fees might be doubted. unless the client is successful, that the lawyer The first ground is based on the fiduciary • “[M], in the present proceedings, has is in financial difficulty and that the lawyer has duty we owe to clients to avoid conflict of demonstrated that he lacks the objectivity a social relationship with the client would not, duties5 and the second on the protection of required for there to be confidence that in isolation or cumulatively, be sufficient to confidences. The third is based on the inherent standards and duties will be complied justify a conclusion that the lawyer might lack jurisdiction of the court over its officers. with in future. the necessary objectivity and independence In Allison, the defendants brought an application to fulfil his or her obligations to the Court. • “Accordingly, allowing [M] to continue to to restrain a practitioner, M, from continuing to However, here, these features are combined act in the proceedings undermines the represent the plaintiff. The application sought with actual misconduct. The misconduct was integrity of the judicial process and the the intervention of the court so as to protect a result of [M] failing to give due attention to due administration of justice, including the integrity of the judicial process. the ascertainment of appropriate professional the appearance of justice. M attended a meeting with F, one of the standards. He gave no explanation for this lack • “The application to have [M] restrained defendants. The plaintiff’s claim was based on of attention. The most likely reason lies in a lack was made promptly following the breach conversations the plaintiff had with F; F was of objectivity and independence and I so find.”8 coming to the attention of the defendants’ lawyers. therefore an important witness in the action. The court’s finding was reinforced by • “The action is yet to be set down for hearing.” The meeting between M and F was held M’s statement that the reason he did not without the consent of the defendant’s communicate the settlement offer through F’s It was accepted that nothing was said by solicitor and only they were present. M made solicitor was that he did not trust him. M said F at the meeting which would prejudice a number of assertions with respect to the that he had let his emotions get the better the defendants’ interests. There was plaintiff’s claim. which included that his client of him. The court accepted that a lack of no suggestion that F was overborne or
34 PROCTOR | April 2019 Ethics
Stafford Shepherd discusses the inherent jurisdiction to restrain a lawyer from continuing to act in a matter.
intimidated by M, nor was anything said that first seeking the consent of that practitioner. Finally, the interest of justice ground is a could provide M with a forensic advantage Secondly, as officers of the court we have demonstration that the court will in exceptional at trial. The plaintiff still desired M to continue a paramount duty to retain independence circumstances exercise its inherent jurisdiction to represent him (this was after the plaintiff and objectivity when representing our client’s to control the conduct of its officers. obtained independent advice). interest. Over familiarity with our clients may The court concluded that the interests cloud judgment (this is so particularly when of justice and the protection of the judicial clients are good friends or relatives). Notes process outweighed the factors against 1 Thirdly, when personal interests intervene [2011] TASSC 52. imposing a restraint. His Honour held that M’s 2 our judgment becomes impaired. We In particular, see Rules 33.1.2 to 33.1.4 ASCR. lack of objectivity and independence meant that 3 See Rule 10 ASCR. his continued presence in the action meant that must be vigilant not to permit securing 4 Kallinicos v Hunt (2005) 64 NSWLR 561 per “the judicial process is genuinely, rather than an early settlement to litigation to secure Brereton J at paragraph [76] and also the judgment merely possibly, under threat” and a fair-minded, payment of professional fees to draw us of McMurdo J in Pott v Jones Mitchell & Anor reasonably informed member of the public in to inappropriate behaviour and breach [2004] QSC 48 at paragraphs [21 ] and [22]). 5 See also Rule 11 ASCR. would conclude that the proper administration our ethical duties. Fourthly, the rationale 6 Above, n 1 [10]. of justice required that M be restrained from behind the no contact rule is to prevent 7 Ibid [16]. continuing to represent the plaintiff. potential undermining of the solicitor-client 8 Ibid [17]. What are the lessons to be learned? Firstly, do relationship and potential for the opponent’s 9 Kooky Garments Limited v Charlton (1994) not contact the client of another lawyer without interest to be prejudiced. 1 NZLR 587 per Thomas J at 590. 10 Giannarelli v Wraith (1988) 165 CLR 543 at 556-557. 11 Above n 1 [24]. 12 Ibid [35]. Stafford Shepherd is the Director of the Queensland Law Society Ethics and Practice Centre.
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PROCTOR | April 2019 35 Social robotics Should sex robots be criminalised?
Numerous developments in In contrast, opponents find sex robots Regardless, it is an issue that needs to be problematic, arguing that the creation carefully researched and the possibility of communicative technology have of this technology should be criminalised using sex robots as remedial tools should served to embody and express because it encourages the objectification not be dismissed without consideration. It and commodification of those in society is imperative that society does not get too human sexuality. who are already vulnerable (specifically far ahead of reality. 6 Social robotics, while not yet a conventional women and children). So, how should Australia react to the contributor, is gaining considerable attention There is no denying that there is something quite development of sex robot technology? in discussions around the representation and disturbing about the representational properties enactment of societies’ sexual practices. of sex robots. It is easy to argue, for example, Few jurisdictions, including Australia, are One such topic of discussion surrounds that they recreate women as submissive and yet to legislate on the creation, distribution the development of sex robots. ever-consenting tools, which will contribute and general use of sex robots. In June 2018, however, the United States House Sex robots are already in existence, being further to subordination, suppression and the normalisation of ‘rape culture’. of Representatives unanimously passed both manufactured and marketed by various the Curbing Realistic Exploitative Electronic 1 companies. While the technology is relatively However, there is no conclusive scientific Pedophilic Robots (CREEPER) Act, which unheard of and certainly not widespread, it evidence to suggest that this will actually bans the importation and distribution of is probable that highly realistic sex robots will be the case. Society should therefore be childlike sex robots. The Congressional be created in the near future, thus eliciting concerned about expanding the scope of findings include the allegations that childlike unprecedented questions as to what their criminal law too far. Without any empirical sex robots both lead to rape and teach development could mean for the future of evidence for or against sex robots, their the user how to overcome resistance and social behaviour and intimacy. total criminalisation remains an subdue the victim.9 uncomfortable concept. Assuming that robots do not have moral Childlike sex robots are just one niche of status and thus cannot be moral victims Should sex robots be criminalised even the nascent robotic sex industry that has of sexual violence, what happens if this if their use has no extrinsically harmful generated serious debate and is met by technology is designed specifically to allow effects on others? most with outright revulsion. However, with users to engage in acts of robotic sexual no empirical evidence that childlike sex Regardless of the pro-sex robot/anti-sex violence? More seriously, should they robots do actually lead to rape, it suggests robot debate, it could be prima facie argued be criminalised even if their use has that lawmakers in the US legislated using that sex robots should be criminalised no extrinsically harmful effects? their feelings, rather than science or reason. because they are ‘morally wrong’, meaning What constitutes robotic sexual violence? that they are both harmful to moral character It is quite possible that sex with robots could It is quite obvious, by virtue of their name, and amount to public wrongdoings. create a dehumanisation of interpersonal relationships between humans, further that sex robots are not the same as industrial According to legal moralism, it is a proper isolating those who already struggle with robots. Rather, a sex robot is categorised as object of the criminal law to regulate conduct human connection and therefore increasing artificial entity that is used for sexual purposes.2 that is morally wrong, even where such their risk of offending.10 However, society conduct has no extrinsically harmful effects on The technology is intended to represent should be cautious of arguments that make others.7 It is likely that society will think about human-like appearance and movement, and robust claims about the effects of sex robots sex robots from a legal moralistic standpoint possesses some degree of artificial intelligence without any conclusive scientific evidence. in which it is capable of interpreting and and within the context of current norms. While opponents of sex robots raise responding to its environment.3 However, this prima facie argument could significant arguments regarding how women be defeated by obtaining scientific evidence However, the question of what constitutes and children are being represented, the suggesting that such usage will decrease the robotic sexual violence is a tricky issue. For response should not necessarily be to incidence of real-world sexual violence. There instance, criminal law provides that rape is criminalise the creation of such technology. may be a link between the consumption any non-consensual penetrative act,4 but As a society, in order to truly do everything of pornography and its harmful effects that if the robot is not a moral agent, then it is we can to decrease the occurrence of sexual could provide guidance on the sex robot incapable of granting consent. violence in Australia, maybe we need to debate. In fact, there are several studies reimagine what it means to create a sex robot, that show no positive correlation between So, why is the development of sex and to think about how such technology pornography and sexual crimes, and possibly robots contentious? could assist us to explore sexuality. even a negative correlation.8 Some proponents of sex robots argue that the technology has both the ability to protect women and children from sexual predators, while concurrently treating those who have illegal sexual desires.5
36 PROCTOR | April 2019 Legal technology
by Josephine Bird, The Legal Forecast
We should use technology to our advantage and consider how it could complement and Notes 1 For example, TrueCompanion’s male and female sex 8 Christopher Ferguson and Richard Hartley, ‘The enhance human relationships. Therefore, robots, Roxxy and Rocky. See truecompanion.com. Pleasure is momentary...the expense damnable? rather than denying or repressing inevitable 2 John Danaher, ‘Robotic Rape and Robotic Child Sex The influence of pornography on rape and technological advancements in social robotics, Abuse: Should they be criminalised?’ (2017) 11(1) sexual assault’ (2009) 14(5) Aggression and we could simply try to make it more positive. Criminal Law and Philosophy 71, 74. Violent Behavior, 323, 325-329; Milton Diamond, 3 Ibid. ‘Pornography, Public Acceptance and Sex Related If you’ve been sexually assaulted, you can 4 Criminal Code Act 1899 (Qld) s349. Crime: A Review’ (2009) 32(5) International Journal of Law and Psychiatry 304, 309-314. get help and support. There are a number 5 Marc Behrendt, ‘Reflections on Moral Challenges 9 of services available nationally, such as 1800 Posed by a Therapeutic Childlike Sexbot’ in Adrian Curbing Realistic Exploitative Electronic Pedophilic David Cheok and David Levy (eds), International Robots, HR 4655, 115th Congress (2017-2018). RESPECT. In Queensland, you can contact 10 Conference on Love and Sex with Robots (Springer, Richardson, above n6, 290. the Sexual Assault Helpline on 1800 010 120. 2007) 96, 103. 6 Kathleen Richardson, ‘The asymmetrical ‘relationship’: Parallels between prostitution and the development of sex robots’ (2015) 45(3), Special issue of the ACM SIGCAS newsletter, SIGCAS Computers & Society 290, 293. Josephine Bird is a Queensland Executive Member 7 of The Legal Forecast. Special thanks to Michael Danaher, above n2, 72. Bidwell of The Legal Forecast for technical advice and editing. The Legal Forecast (thelegalforecast.com) aims to advance legal practice through technology and innovation. TLF is a not-for-profit run by early career professionals passionate about disruptive thinking and access to justice.
Master your career. Postgraduate Applied Law Programs with practical learning you can immediately apply to your work. Intake 2 Commences 20 May 2019 Choose from 11 areas of law Enrol at collaw.edu.au/ALP specialisation or call 1300 506 402 streams
PROCTOR | April 2019 37 Passing and filing estate accounts
To many of us, estate administration or otherwise of the estate accounting and this proposition is Re Schilling [1995] 1 Qd R administration, increasing the costs and 696. In that decision, the beneficiary’s right to disputes can seem Pythonesque – acrimony between the parties without any seek an account was generally limited to those gravely serious, yet often comedic real or satisfactory resolution. in whom a beneficial interest, as opposed in their depth and nature. An application to file and pass estate to a mere right to due administration, had accounts therefore has the very real potential vested on completion of the administration. The position of personal representative (PR)1,2 to save time and money by bypassing It was further held that the beneficiary should is, at times, burdensome; for beneficiaries, at these exchanges, providing the parties with ordinarily exercise the right to inspect the 10 times bewildering. The mix frequently results in an independent assessment of the issues accounts before bringing an action. disputes over the manner in which the estate in contention which is proscriptive, and Step 2: Notice to the trustee administration is conducted, with both often therefore economic and efficient. of the estate – rule 646(1) left floundering for a productive resolution. Process – by person representative The beneficiary must write to the PR and Introduced in 2011, Chapter 15, Part 10 of request an estate account to be prepared the Uniform Civil Procedure Rules 1999 (Qld) As a shield, a PR concerned about potential and served within 30 days.11 3 (UCPR) is an overlooked yet economic way to or actual criticism of their conduct in resolve these disputes. It starts as a quasi- administering the estate can simply apply to Step 3: No response judicial process and, if necessary, can proceed 8 the court, ex parte, seeking an order for the If no estate account is provided after 30 through to a full judicial determination. appointment of an estate account assessor days, the beneficiary is entitled to make an This article provides a practical step-by-step to assess and pass the estate accounts. The application to the court under rule 645 for guide to navigating Part 10. process provides the PR with the imprimatur the filing, assessing and passing of an estate of the court for its conduct in the estate account – see rule 646(7). Legislation administration and, if necessary, guidance on any matters to be addressed. Step 4: Response provided – Objection The current version of Part 104 was Part 10 sets out the minimum requirements If the response is not satisfactory, then the introduced through 2011 amending for what must be included in a set of estate beneficiary may serve a notice of objection legislation under the Uniform Civil Procedure accounts and the way in which they are on the PR – rule 646 (2). Amendment Rule (No.1) 2011.5 presented – see rule 648. This proscription The notice of objection must be in the The explanatory memorandum to this alone can remove a great deal of approved form and must set out in a amendment summarised its objectives unnecessary disputation on what ought particular manner the objections – rules as follows: to be included in estate account reporting. 646(3)-(6). The approved form is form • clarifying the procedure for applying As with all things related to the law, language 127 of the UCPR. for the assessment and passing of is key to understanding the process. The notice must give the PR 21 days to an estate accounts Practitioners are directed to rule 644, which address the objections – rules 646(7)(b)-(c). • prescribing the minimum standards contains the definitions for Part 10. These for the procedure of the assessment clarify the expectations on what must be Step 5: Estate account included in the material sought and presented. • clarifying the powers and functions assessor appointment of an estate account assessor Once the PR has filed an application for the If no response is given or is unsatisfactory, • clarifying and updating the procedure for filing and passing of estate accounts, they the beneficiary may then apply to the court applying for and awarding of a trustee’s must follow the process as per steps five for the appointment of an estate account or executor’s commission.6 and six below. assessor.12 In preparation for that application, the beneficiary must write to the estate Part 10 proscribes a formal process Process – by beneficiary account assessor13 seeking their written whereby the manner in which an estate consent to act, confirmation of their fees, trust is administered can be considered in a A concerned beneficiary may utilise Part 10 and to obtain clearance of conflict of structured way through the oversight of an as a sword by holding the trustee to account interest – rule 645(3). independent third party, an estate account in a formal and relatively economic way. assessor. The estate account assessor is The beneficiary then files an application both accredited and appointed by the court, Step 1: Eligibility seeking orders that the PR file an estate and an accredited specialist in succession Is the beneficiary eligible to seek an account and that the estate accounts be law. The estate account assessor has powers assessment of the estate accounts?9 assessed and passed – rule 645(1). The akin to a registrar, including the power to See the definitions in rule 644. respondent to the application is the PR – determine the process.7 rule 645. The application is supported Only a beneficiary entitled to an accounting by an affidavit. Sadly, estate administration disputes may apply to the court under Part 10. Typically, often involve prolix and incendiary the residuary beneficiary/ies are the only The affidavit must depose to the reasons correspondence disputing the adequacy entitled beneficiaries. The case authority for for the application – rule 645(2).
38 PROCTOR | April 2019 What’s new in succession law
NEED AN EXPERIENCED Christine Smyth offers a practical guide to FAMILY LAWYER? resolving estate administration disputes. Michael Lynch Family Lawyers are specialist family lawyers, located in Brisbane. By recommending us, you can ensure your Exhibited to the affidavit are the following: an expensive escalation of tensions as to client receives up-to-date, tailored and the rights and responsibilities of the parties. 1. Letter to the PR seeking account practical advice on: 2. Response from PR The process of applying for the passing of • Property settlement 3. Notice of objection estate accounts, while not a panacea, can • Parenting go a long way to resolving those disputes 4. Response to notice of objection • Divorce in an efficient and final way through the • Other family law matters. 5. Consent to act from nominated estate supervision and imprimatur of the court. account assessor Hopefully, with this step-by-step guide, Contact us to discuss matters 6. Any other relevant material. practitioners can add another tool to confidentially or to make an appointment. If the court orders the estate account be their reservoir of options available to assessed, then it must appoint an estate clients, which you can recommend, account assessor and may give directions while demonstrating your value to the estate account assessor as to the proposition as a trusted legal adviser. assessment – rule 645(6).
Step 6: Process of assessment Christine Smyth is a former President of Queensland Law Society, a QLS Accredited Specialist (succession The appointed estate account assessor law) – Qld, and Consultant at Robbins Watson may determine the process – rule 651(1). Solicitors. She is an Executive Committee member However, that power is tempered by the of the Law Council Australia – Legal Practice Section, P: (07) 3221 4300 requirements of rules 651(2) and (3). The member of the QLS Specialist Accreditation Board, www.mlfl.com.au Proctor Editorial Committee and STEP and an costs of the estate account assessor are Associate Member of the Tax Institute. ordinarily borne by the estate – rule 651(4). ADVICE. SERVICE. SOLUTIONS.
The powers of the estate account assessor Notes are quasi-judicial – rule 652. 1 It is notable that the definitions simply refer to ‘personal representative’, without mention of ‘legal’. Once the assessment of the estate accounts 2 Note that the definition of ‘trustee’ in this part has been completed by the estate account includes a personal representative of a deceased assessor, they prepare, sign and file a individual – see rule 644. Proctor Advert - 59mm W x 118mm D.indd 1 20/12/18 2:12 pm certificate – rule 657(1), within 14 days after 3 Referred to in this article as Part 10. the end of the assessment, providing a copy 4 legislation.qld.gov.au/view/html/inforce/current/sl- 1999-0111#ch.15-pt.10. to the parties – see rule 657(4). The certificate 5 legislation.qld.gov.au/view/html/asmade/sl-2011- confirms the appropriateness of the manner in 0296#sl-2011-0296. It amended the original FIXED FEE which the estate has been administered – rule UCPR as effective 1 July 1999 – legislation.qld. REMOTE TRUST & OFFICE 657(1)(a) or otherwise see rules 657(1)(b)-(d). gov.au/view/html/inforce/1999-07-01/sl-1999- 0111#SL-1999-0111. ACCOUNT BOOKKEEPING The estate account assessor isn’t required 6 Space doesn’t permit an analysis of the process FIXED FEE to give reasons in the first instance, but must of executor’s commission on this occasion. • Payroll 7 REMOTE TRUST & OFFICE provide them if requested – rule 657A. The In accordance with rule 651. 8 • Supplier payments cost of preparing the reasons is borne by the See rule 647, although the court can direct the ACCOUNT BOOKKEEPING application be served. • Payroll• Disbursements person requesting – rule 657A(4). 9 Note that this application is different to an • Supplier• Debtor payments management Once the certificate has been filed, the application under s52(1)(b) Succession Act 1981, which provides for a legal personal representative • Disbursements matter may be relisted for the accounts to be • Trust Reconciliation and compliance to provide accounts to the court, and Section 8 • Debtor management passed – rule 657B. If a party is dissatisfied Trusts Act 1973, which enables any person with • BAS Lodgement • Trust Reconciliation and compliance with the decision of the estate account an interest in any trust property to apply to court to review acts and give directions. assessor, they may seek the court’s review – LEAP• BAS or Lodgement Actionstep integration 10 Lee’s Manual of Queensland Succession Law rule 657B(3). From there the court determines (7th ed., 2013). Note that Re Schilling was LEAP or Actionstepwith Xero integration or MYOB the matter on the material filed, at which decided pre-UCPR. with Xero or MYOB point it becomes a wholly judicial process. 11 Note the Acts Interpretation Act 1954 (Qld) s38 excludes the day the notice issues, but includes all ordinary calendar days, not just business days. Conclusion 12 But note the court may dispense with compliance if it is considered urgent – rule 646(8). Grief, expectation and responsibility are 13 CALL OR EMAIL US TODAY! Please note the author is a registered estate CALL OR EMAIL US TODAY! a heady mix that can easily spill over into account assessor. For a list of all registered estate 1300 226 657 [email protected] 1300 226 657 [email protected] intractable, heated disputes. Often it is a lack account assessors see courts.qld.gov.au/__data/ www.booksonsite.com.au assets/pdf_file/0020/173306/register-approved- of knowledge about what is expected of both account-assessors.pdf. www.booksonsite.com.au the PR and the beneficiaries that results in
PROCTOR | April 2019 39 Book review At last, a workplace investigations manual by Sarah Ford
As this publication correctly Of particular interest to employers may be chapters 14 to 18. Those chapters address identifies, the commissioning complaints of a specific nature, and allegations of workplace investigations is involving criminal and corrupt conduct. Topics such as sexual harassment, bullying, and increasingly prevalent and complex. disability discrimination are considered, and Editors Paula Hoctor and Michael Robertson the contributors (all of legal backgrounds) (both of national workplace investigations firm provide useful commentary for employers Q Workplace Solutions) have banded together about an employer’s liability and duty of care in those contexts. Valuable tips on how to to publish what could aptly be described as a manage such investigations, as well as when workplace investigations manual. to involve the police, are also proffered. Utilising the legal and investigative Interwoven throughout the book are also experiences and skills of 21 contributors, welcome reminders about fundamental Workplace Investigations Principles and concepts (such as investigator ethics, Practice is a well-written, comprehensive procedural fairness, and legal professional and practical resource. privilege) which are crucial to the success In the first chapter, the editors articulate Title: Workplace Investigations Principles of the workplace investigations framework. their hope that the book “…stands as a and Practice This book should be applauded for providing step along pathway towards building a Author: Paula Hoctor and Dr Michael a much-needed best-practice guide for professional framework for the workplace Robertson (editors) workplace investigations. Whilst the focus is investigations market”.The book manages Publisher: LexisNexis Butterworths undoubtedly on the obligations and duties of to achieve precisely that. From the receipt of ISBN: 9780409347654 employers and investigators, the book’s detailed a workplace complaint/concern, up until the Format: Paperback/356pp analysis and discussion about the workplace submission of an investigation report, each RRP: $139 investigations model generally should prove step of the process is carefully deconstructed useful to anybody engaged in the process. and mapped out for the reader. The requisite legal and ethical considerations utilise in practice. To that end, the book’s checklists, example investigation plans, and applicable to each step are examined, and Sarah Ford is an associate at Gilshenan & Luton the ‘how to’ elements of the chapters are example ‘draft’ letters are well-crafted and Legal Practice, and a member of the Queensland Law complemented by tools that the reader can valuable resources. Society Occupational Discipline Law Committee.
40 PROCTOR | April 2019 Your library Improving access to the law –
CaseLaw upgrades with Supreme Court Librarian David Bratchford
Finding decisions from Queensland My case list What’s next courts and tribunals is now a whole A great new feature is ‘My case list’, which allows you to save, view and print your This is just the first step. We are planning lot easier. selected cases in one location. You don’t even significant enhancements to our online need to login – your case list will remain in services over the coming year. Stay tuned As the official publisher of unreported your browser until you remove specific cases for more news. judgments in Queensland, Supreme Court from your list or clear your browser’s cache. Library Queensland is committed to making CaseLaw help? its CaseLaw service (sclqld.org.au/caselaw) Improved case landing pages Visit sclqld.org.au/caselaw/about-caselaw world-class. Improved case landing pages make it easier for information on how to construct to browse and select relevant cases by Over the last year we devoted significant time searches, instructions on using advanced providing a quick overview of a judgment and resources to improving our online services search features, and a full list of the without needing to download the full- to enable better access to legal information for CaseLaw collections. all Queenslanders. A key focus was the review text PDF document. They highlight key and upgrade of our CaseLaw service. information about a decision, including Complete the CaseLaw feedback form catchwords, cited cases, cited legislation, (sclqld.org.au/caselaw-feedback) to Until recently, advanced search functionality and subsequent judicial consideration by report a bug or tell us what you think and certain collections were only available Queensland courts and tribunals. Listed about the improvements. to Queensland Legal Indices (QLI) Online cases will also be hyperlinked if they are subscribers. Now everyone – including the Contact the library for support and training: available in the CaseLaw collection, making judiciary, legal practitioners, researchers and visit sclqld.org.au/contact-us or phone it easier to community members – can freely access and 07 3247 4373. locate related decisions. easily search the decisions of Queensland courts and tribunals. More content
What’s new Explore new collections, previously only available to QLI Online subscribers: Advanced search Have you heard? • Supreme Court of Queensland – Tailor your search to find relevant results Court of Criminal Appeal: 1972-1992 using advanced search fields and filters, Have you listened to our • Supreme Court of Queensland – including: Full Court: 1972-1992 new Selden Society lecture • party names • Supreme Court of Queensland – series podcasts? The series • catchwords Trial Division: 1984-1999 features popular Selden • judgment date • District Court of Queensland: 1984-1999 Society lectures that explore • judge or decision maker • Queensland Planning and Environment the cases, people and events • cited cases Court: 1991-99 of our unique legal heritage, • legislation • Queensland Retail Shop Lease Tribunal: presented by expert • reported or unreported decisions. 1984-1999 and experienced judicial • Local Government Court of Queensland: Better search results, display 1984-1991 officers, legal professionals and navigation • Anti-discrimination Tribunal Queensland: and academics. Customise your search results view with new 1996-98, 2002. Subscribe now on iTunes, sort and display options, such as the number Spotify or RSS feed. of results to display on each page. New navigation links allow you to move between the next or previous decision in your search results, and when browsing decisions by year, you can move between the next or previous year.
PROCTOR | April 2019 41 Family law Court rejects receiver for
‘dysfunctional’ business with Robert Glade-Wright
Property – court’s interim appointment of Australian Government as an engineer. The Children – child smacked by mother – receiver to sell parties’ business set aside wife had superannuation worth $289,705 in no unacceptable risk of harm – lawful chastisement In Scott [2019] FamCAFC 9 (24 January two accumulation accounts in the growth 2019) the wife worked as practice manager in phase and the husband a defined benefit In Cao [2018] FamCAFC 252 (19 December a professional practice in which the husband interest in the Commonwealth Public Sector 2018) the father of eight and four-year-old worked as a professional until 2016, a year Superannuation Scheme (PSS) in the growth children filed an urgent interim application for after separation, when he set up his own phase worth $636,013. a change of residence to him, his case being practice. A month earlier the court appointed At first instance Judge Heffernan ordered that that the eldest child told him that the mother an independent interim manager to run the the parties’ super entitlements be “equalised” had struck her. The father kept the children in practice and directed the parties to remain by a splitting order under s90XT(1)(a) of his care after the disclosure notwithstanding involved in the business, subject to the the Family Law Act, which allocated a an interim order made in 2016 that the manager’s discretion. base amount of $173,154 to the wife. The children live with the mother. The independent children’s lawyer (ICL) supported the father’s In 2018 when the wife sought an order that husband appealed, arguing that the court case, submitting that the mother’s new partner the manager no longer be required to involve erred in its approach, particularly given that (Mr C) also posed a welfare risk to the child, the husband in decisions, the husband throughout the four years since separation he who witnessed a prior assault of the mother sought the discharge of the manager and the had increased contributions from 2% to 10% by Mr C. Judge Obradovic dismissed the appointment of a receiver. Cleary J removed of his salary. application and the father appealed. the manager and appointed a receiver on the The Full Court allowed the appeal, saying In dismissing the appeal with costs, Austin basis that the business was dysfunctional (from [17]): and each party would have the chance to J ([24]) said that the child’s exposure to a buy the business from the receiver. “…[W]here the superannuation interests prior assault occurred 15 months before of both parties to family law proceedings the father filed his urgent application and The Full Court (Ainslie-Wallace, Ryan and are accumulation interests, few difficulties ([26]) that “[i]n reality it was the first asserted Watts JJ) said (from [22]): are usually encountered. However, an risk [alleged physical abuse by the mother] “At its highest…the husband’s complaints are accumulation interest in the growth phase (as which motivated the father to act”. Austin J that the manager acted inconsistently with his held by the wife in this case) and a defined continued (from [37]): appointment in not providing the husband with benefit interest in the growth phase (as held “In summary, the primary judge found the financial information and the husband said that by the husband in this case) differ in several risk of harm to the children in the mother’s he would not sign the documents to roll over important respects. household was not unacceptably high the financial facility…where he was unaware because she lived alone with the children and of the financial state of the business. (…) [18] Those differences include the method by which the ultimate benefit is calculated; the Mr C was not a member of her household…, [24] (…) [T]he husband’s solution to his risk to the member inherent in each and, very [and] she agreed to…an injunction restraining complaints about the manager and the importantly, the effect of a s90XT(1)(a) order the children’s interaction with Mr C (…) suggestion that the business was insolvent (an order which allocates a base amount to [42]…[E]ven if the eldest child was struck by was that a receiver be appointed to sell the non-member spouse). Each and all of the mother…it did not necessarily mean she the business. those differences can, and very often do, was physically assaulted. For example, she [25] Her Honour’s reasons do not indicate have a dramatic impact upon the justice and may only have been physically chastised. Even the basis on which she concluded that equity of a proposed splitting order and, in though corporal punishment is falling out of the business was ‘dysfunctional’ and that turn, its place within just and equitable orders favour under contemporary moral standards, it management ha[d] been ‘shredded’ such for settlement of property. (…) is still not yet unlawful to use modest physical that the manager’s position was untenable… [20] Crucially…defined benefit funds…are not force to chastise a child (s61AA of the Crimes Act 1900 (NSW)). Corporal punishment does [26] (…) Her Honour’s order, if the receivers regulated by Part 7A of the SIS Regulations… not amount to physical ‘abuse’ under the Act exercised their power of sale, would be It is therefore fundamental to a consideration unless it constitutes an assault (s4(1)). (…) incapable of being reversed at a final hearing of any proposed splitting order that the Court and…the wife’s hope of purchasing the consider the governing rules of such funds [43] It would…seem [from their records that] business as a going concern would be lost. contained within their specific trust deeds. It the police contemplated [that] the mother To sell the business would also bring the is those rules which will determine the effect may have smacked the…child and they wife’s employment to an end.” of any splitting order on the underlying interest remained unconvinced [that] the incident amounted to an assault (…).” Property – ‘equalisation’ of parties’ within that particular fund. As an example, superannuation entitlements set aside within a defined benefit fund the fund’s rules can dictate that a splitting order has In Bulow [2019] FamCAFC 3 (18 January significant effects on the formula by which a 2019) the Full Court (Strickland, Murphy Robert Glade-Wright is the founder and senior editor member’s ultimate entitlement is calculated.” of The Family Law Book, a one-volume loose-leaf and & Kent JJ) considered a 20-year marriage online family law service (thefamilylawbook.com.au). between the wife (a registered nurse) and He is assisted by Queensland lawyer Craig Nicol, the husband, who had worked for the who is a QLS Accredited Specialist (family law).
42 PROCTOR | April 2019 Your QLS member logo A versatile and powerful brand-building asset
Promote your membership The exclusive QLS member logo makes it easy for you to promote your membership. By using the asset on your marketing material, clients and colleagues will immediately recognise your integrity and commitment to quality professional standards.
Download now at qls.com.au/memberlogo Court of Appeal judgments 1-28 February 2019 with Bruce Godfrey
Civil appeals for that reason, and because the proposed appeal director misappropriated funds from the second involves a substantial departure from the way in respondent company – where the second appellant Swan v Santos GLNG Pty Ltd & Ors which the applicant litigated the case in the Planning was ordered to repay the second respondent [2019] QCA 6, 1 February 2019 and Environment Court, it is unnecessary to consider the misappropriated funds, including interest, by the merits of the third main ground for the trial judge’s a specified date and time – where the second Miscellaneous Applications – Civil – where the decision – where the relief the applicant sought appellant failed to repay the misappropriated funds applicant seeks leave to appeal from two decisions throughout, including in final submissions, was by the specified date and time – whether failure to of the Planning and Environment Court – where based upon the trial judge accepting Dudgeon’s pay money in accordance with the order amounted the grounds of the proposed appeals to this court evidence (the expert for the applicant) about the to contempt of court – where Chapter 19 of the are confined to error in law – where Santos built a appropriate remediation, which substantially differed Uniform Civil Procedure Rules 1999 (Qld) makes 420-kilometre gas pipeline between the Surat and from the remediation recommended by Sutherland express provision for enforcement of such orders Bowen Basins and Curtis Island near Gladstone – (the expert for the respondent); and the applicant and enforcement does not involve proceedings where part of the respondent’s [Santos’] gas sought only the appointment of an expert to define for contempt – where contempt proceedings pipeline was built on the applicant’s properties – contraventions, or their extent, and to determine are the subject of Chapter 20, a part of the rules where Environmental Authorities were granted to the appropriate remedy – where having lost his that applies to non-money orders, that is to say, Santos – where the applicant filed an originating challenge to Sutherland’s evidence about how the orders that require “a person to perform an act… application applying for declarations under s505 land should be remediated and the argument about within a time specified in the order” – where of the Environmental Protection Act 1994 (Qld) that whether the orders he claimed could or should it follows that the requirement that payment be Santos was in breach of various conditions of the be granted (which formed a central plank of the made by a particular time could not be enforced Environmental Authorities – where the applicant applicant’s case at trial) the applicant now seeks and was otiose – where this is simply a case in sought the appointment of an independent expert to leave to appeal from the decision that Santos did which a claimant was entitled to judgment for a report to the court on the extent of the breaches and not commit the alleged offences merely so that he sum of money – where notwithstanding Mr Ryan’s the rehabilitations required – where the primary judge can construct a very different form of relief on appeal exclusion from a management position and his found that the orders sought at trial were beyond – where the applicant was wholly unsuccessful in resignation as director of the companies, Messrs power – where Santos’ argument is accepted that the proceeding below – where the primary judge Boland (the fourth respondent) and Edwards (the leave to appeal should be refused on the ground ordered the applicant to pay the respondents’ costs fifth respondent) caused Boedry (the second that the only substantive relief sought at trial was that of the proceedings on the standard basis or as respondent) to send Mr Ryan a notice pursuant to a technical expert be appointed both to identify, or at agreed – where s457(1) of the Sustainable Planning the unit holders’ agreement requiring him to lend the least define the extent of, what contraventions had Act 2009 (Qld) (SPA) provides that the costs of the company $102,000 by way of “capital contribution” occurred and what should be done to remedy any proceeding are in the discretion of the Planning – where Mr Ryan was a “Covenantor” in relation to such contraventions so identified or defined, and the and Environment Court – where it was accepted the unit holder Jawhite and was, therefore, liable trial judge correctly held that such relief should not that the general rule that costs follow the event did to be bound to perform the obligations in clause be granted – where Santos’ expert believed that all not apply and instead the non-exhaustive list of 8 of the Unit Holders’ Agreement – where on recommended rehabilitation had been undertaken considerations in s457(2) SPA should be considered 4 December 2014 solicitors acting for Boedry, except those obligations that required ongoing – where the primary judge observed that the court as trustee of the unit trust, made demand upon maintenance – where Santos undertook to continue never ruled against the no-case submission – Jawhite and Mr Ryan for payment of $102,000 that ongoing maintenance – where the trial judge where the court did in fact rule against the no-case pursuant to clause 8 – where Boddice J found that considered that specific events gave considerable submission – where the trial judge’s rejection of the notice demanding that sum had been properly insight into the difficulty Santos had in dealing with the no-case submission is not readily reconcilable given and that it contractually obliged Jawhite and the applicant and that the dispute about the soil was with a conclusion that the claimed relief was so Mr Ryan to pay the money – where that finding is not unnecessary and resulted only from the applicant’s obviously unavailable as to justify a finding that challenged – where Boddice J did not find that the “stubbornness and inability to work through matters the proceeding lacked reasonable prospects of failure to pay the money had caused the company constructively and simply” – where the applicant’s success – where the primary judge considered any loss – where a contract to lend money will not attitude to that issue was found to be consistent with the factor in s457(2)(d) SPA of whether a party be specifically enforced – where that is because his approach generally to issues including access commenced or participated in the proceeding such an order would create a position of inequality – for rehabilitation purposes, particularly after the without reasonable prospects of success in light where the remedy for a breach of a contract to lend commencement of the proceedings; that attitude of this error – whether the primary judge erred in money is damages – where no loss was proved to was perhaps understandable but the trial judge ordering the applicant to pay the respondents’ have been caused by the breach and, consequently, concluded that it was unhelpful to the reasonable costs of the proceeding on the standard basis. no damages could be awarded other than nominal resolution of the problem – where those findings In CA 2779/17, refuse the application for leave damages – where the respondents had also claimed also supplied support for the trial judge’s conclusion to appeal, with costs. In CA 4367/17, grant the damages for Mr Ryan’s and Jawhite’s breach of their that the applicant would only ever be satisfied if an application for leave to appeal and allow the appeal obligation to furnish security to Westpac – where independent expert were controlled by him, which with costs, set aside the costs order made in the an agreement to give security may be specifically would inevitably lead to further difficulties about Planning and Environment Court on 24 March 2017, enforceable if damages would not be an adequate access and returns to the court to resolve disputed and instead order that the applicant pay the costs remedy – where in this case, the lender made no questions about implementation of any orders – incurred by the respondents after 16 June 2016. demand on Mr Ryan or Jawhite – where rather, it where accordingly they were relevant to the exercise was their quasi-partners who wanted to compel Jawhite Pty Ltd & Anor v Trabme Pty Ltd of the discretion whether to grant relief of the kind Mr Ryan and Jawhite to perform their contractual & Ors [2019] QCA 7, 1 February 2019 claimed by the applicant – where the applicant has obligation to give security – where the breach may not demonstrated that there is any error of law in General Civil Appeal – where the second appellant have caused loss and, if it did, there was a right to either of the first and second main grounds for the (Mr Ryan) is the controller of the first appellant claim damages and, indeed, damages were claimed trial judge’s decision, each of which is of itself a (Jawhite) and is a real estate agent – where – where however, the innocent parties have not sufficient reason for refusing leave to appeal – where the primary judge found the second appellant proved that they have suffered any loss by reason
44 PROCTOR | April 2019 On appeal
of the breach and so, there being no loss, no Civil Mining & Construction Pty Ltd v Wiggins 2011 to 19 February 2012, by reference to the extra damages could be awarded – where a breach of Island Coal Export Terminal Pty Limited; Wiggins time the works took to complete – where Mr Vance’s the general obligation owed to the respondents to Island Coal Export Terminal Pty Limited v Civil calculations were consistent with the pleaded case give some kind of security to Westpac cannot justify Mining & Construction Pty Ltd [2019] QCA 12, and relevant to the issues alive on the pleadings – the court in making an equally general order to give 6 February 2019 whether the trial judge was correct to admit Exhibit security for a loan. Appeal allowed. The court will hear General Civil Appeals – where Wiggins Island Coal 31, the Vance Measurement. In CA 4068 of 2018, the parties as to the appropriate orders, and costs. Export Terminal Pty Ltd (WICET) is the corporate the appeal is dismissed, with costs. In CA 4286 of 2018, the appeal is dismissed, with costs. Santos Limited v BNP Paribas [2019] QCA 11, vehicle for a joint venture to develop and operate 5 February 2019 a coal export terminal – where Civil Mining & Palmer v Parbery & Ors; QNI Metals Pty Ltd & Ors v Construction Pty Ltd (CMC) was contracted by Parbery & Anor [2019] QCA 27, 22 February 2019 General Civil Appeal – where the appellant appeals WICET to complete some of the earthworks and civil against the primary judge’s dismissal of its General Civil Appeals – where these appeals seek to works required for the construction of the terminal application for summary judgment on its claim for overturn freezing orders made against the appellants – where WICET caused CMC to be delayed by 208 payment of a sum said to be due and owing under who are some of the defendants in a proceeding days in completing the work under the contract, a performance security given by the respondent – brought by the respondents in the Trial Division for which CMC was entitled to an extension of where the primary judge refused summary judgment (the judgment) – where their claims arise from the time to the date for practical completion – where for the appellant because he found that the appellant in a section of the contract dealing with variations liquidation of the respondent company (Queensland had no real prospect of succeeding on its claim and the contract contained a table headed “Schedule Nickel) – where liquidators commenced proceedings there was no need for a trial – where the respondent of Daywork Indirect Personnel and Facilities Rates” against former directors and certain companies issued to the appellant a “bank guarantee” in the (DIPFR) – where the central question on CMC’s within the corporate group – where the liquidators nature of an unconditional bond to pay money on appeal is whether the DIPFR schedule contains were successful in an application for freezing orders demand up to a stated maximum amount – where rates such that it can be said to be one where the and ancillary orders – where the respondents’ case the bond requires the demand to be “purporting contract “prescribes specific rates…to be applied is that, as a director of Queensland Nickel, Mr Palmer to be signed by an authorised representative” of in determining the value” of the CMC’s on-site owed to the company statutory and general law plaintiff – where the bond requires demand to be overhead costs for the 208 days of delay caused duties to ensure that the property of Queensland in form of letter annexed to demand which states by WICET – whether on a proper construction of Nickel was used only for the purposes of the joint under signature line “authorised signatory of Santos the contract the DIPFR schedule is not one that is venture and not for the benefit of Mr Palmer or other Limited” – where the letter of demand stated above prescribed under the relevant clause of the contract entities which he controlled – where the payments the signature “Santos Limited – GLNG Upstream – where Clause 35.5 and 36 of the contract provided totalling more than $200 million are alleged in each Project” and under the signature a name and the that if CMC was granted an extension of time for case to be the result of a breach by Mr Palmer title “General Manager Development” – where delay, then WICET would have to pay for “on- of these duties and to have resulted in a loss to the principle of strict compliance is to be applied Site overheads” attributable to the delay, valued Queensland Nickel because the amount has not intelligently, not mechanically – where the strict under Clause 40.5 – where in turn, Clause 40.5(a) been repaid – where the primary judge found that compliance principle, which relieves the issuer of provided that “if the Contract prescribes specific there was a good arguable case that Mr Palmer was the necessity to look beyond whether the party rates or prices to be applied in determining the a shadow director – where the primary judge found making the demand has met the stipulations of the value, those rates or prices shall be used” – where that there was a good arguable case that Mr Palmer performance security – where in this case, those Clause 40.5(a) of the contract provides that what breached company statutory and general law stipulations being entirely concerned with the form the principal is to pay is an amount “ascertained duties – whether the primary judge erred in finding and content of the demand, Santos Limited was by the Principal’s Representative”, and then that there was a good arguable case – whether required to deliver a letter of demand on the face of sub-paragraphs (a)-(h) provide various alternative a good arguable case requires a finding of fact which all essential matters appeared, without any methods of valuation, and some components on the balance of probabilities – where no error is obligation, or indeed entitlement, in BNP Paribas that have to be applied in reaching the valuation – demonstrated in the conclusion of the primary judge to supplement any deficiency with conjecture or where sub-clause (a) provides that the principal’s that there was a good arguable case that Mr Palmer investigation – where the demand must contain representative shall use particular rates, but only was a shadow director (when not an appointed the essential features of the draft letter – where the “if the Contract prescribes specific rates…to be director) at all relevant times – where his Honour did draft letter, by containing the words “Authorised applied in determining the value” – where use of the not need to find that, more probably than not, Mr signatory of Santos Limited”, makes it clear that an phrase “if the Contract prescribes” means there Palmer was a shadow director – where the evidence express statement of authority is required – where must be something to which one can point, on the of Mr Mensink (another director of Queensland compliance with the requirement that the letter of face of the contract or schedules, that links the rate Nickel) and Mr Wolfe (Queensland Nickel’s chief demand be in the form of the draft letter would not to be used to the valuation to be carried out – where financial officer) considered with the background of necessitate strict adherence to the language of the it is unable to be concluded that there is such a link in Mr Palmer’s ownership of Queensland Nickel and latter; that would be inconsistent with an intelligent relation to the use of anything in section C-4, and in the facts and circumstances of the impugned application of the strict compliance principle – where particular the DIPFR schedule, that would suggest payments from its funds amply supported the finding an intelligent application of the strict compliance that the contract was prescribing any of those rates that there was a good arguable case in this respect principle did require BNP Paribas to look for a to be used in determining the value of the on-site – where the primary judge was correct to find that statement of the signatory’s authority – where, overheads under Clause 36 – where the contract what was paid was an asset of Queensland Nickel, as his Honour observed, Mr Simpson’s signature simply does not prescribe the DIPFR schedule for the albeit an asset which was subject to a trust, and coupled with his position description did not amount purpose of Clause 40.5(a) – where WICET’s appeal there was a good arguable case that the payments to a representation that he was an authorised concerned the admission into evidence of Exhibit were made in breach of the trust – where overall, representative or authorised signatory – where the 31, also referred to as the Vance Measurement – Mr Palmer’s submissions demonstrate no error by words “General Manager Development” merely where in general terms WICET complained that the primary judge in the consideration of whether indicated that he held a particular position in the Exhibit 31 was admitted into evidence over its there was a good arguable case against him to the company and said nothing as to his authority in objection, and that the document represented extent of the amount of the restraint imposed in his that role – where the letter of demand contained a radical departure from CMC’s pleaded case – case – whether the primary judge erred in finding no statement of his authority to sign on Santos where the issue between the parties was whether that there was the requisite danger that a judgment Limited’s behalf – where for BNP Paribas in the CMC had been delayed overall in completing the would be unsatisfied because assets would be absence of such a statement to resort to inference earthworks – where WICET, who engaged their dissipated – whether an applicant seeking a freezing would have been to disregard the requirement for expert, Mr Abbott, to produce a productivity analysis order must prove that the purpose of a likely strict compliance – where Santos Limited’s notice to show that CMC was not so delayed – where disposition is to put the other party’s assets beyond of demand did not comply with the requirements of Exhibit 31, the Vance Measurement, responded to the applicant’s reach – whether an inference of a risk the performance security – where the primary judge the pleaded case and to Mr Abbott’s report – where of dissipation should be determined by the standard correctly gave summary judgment in BNP Paribas’ Mr Vance simply sought to demonstrate that there of a prudent, sensible commercial person – whether favour. Appeal dismissed with costs. were antecedent delays in the period 23 November the evaluation of the existence of the risk of
PROCTOR | April 2019 45 dissipation should be conducted in a manner adduced this evidence – where the application is time is granted – where the respondent brought an analogous to the approach taken in applications refused to have it received in this court – where the originating application seeking a declaration that the for interlocutory injunctions – where for the most primary judge raised a matter of concern about Mr respondent could lawfully remove the appellants’ part, the primary judge had to assess the risk of Palmer’s testimony in the absence of Mr Palmer equipment – where the appellants argued that dissipation by a defendant without the benefit – where the primary judge provided Mr Palmer an the matter was not appropriate for determination of evidence of that defendant’s financial position – opportunity to, in effect, re-examine himself – where by originating application and should proceed where what mattered, in his Honour’s view, was Mr the primary judge refused an application to adduce by way of pleadings – where the primary judge Palmer’s ownership and control of the companies further evidence – where the primary judge disclosed found the arguments advanced by the appellants and Mr Palmer’s propensity to use that control in a conversation that concerned a communication were “clearly unarguable” – where the appellants order to cause assets to be dissipated – where between another judge of the Supreme Court and appealed against the dismissal of their application there was no error – whether the primary judge a judge of the Federal Court – where the primary to have the matter proceed by way of pleadings – properly considered the appellants’ evidence of judge granted an adjournment – where the primary whether the primary judge erred in determining that reputational damage that would be caused by the judge made unqualified findings of fact – whether the appellants’ arguments could be determined making of a freezing order – where this evidence the circumstances indicated actual or apparent summarily – where the duty to give reasons required was not overlooked by the primary judge, and bias affecting the disposition of the applications for that a concise, reasoned explanation for the the submission goes no further than a complaint freezing orders – whether the primary judge ought to rejection of the “defences”, or of a finding that that it was given insufficient weight – where the have recused himself for denying a party procedural the QN companies lacked standing to raise them, judge considered the effect upon the defendants’ fairness – where Mr Palmer did not appear at the ought to have been given – where the reasons given commercial reputations, but was unpersuaded hearing in this court, but the court agreed to receive on 20 November 2017 were deficient in that they did that “further reputational damage would be caused yet further submissions from him, described as not contain such an explanation – where that is not to by the making of the orders sought [which was] “speaking notes” and running to 33 pages, and it say that the deficiency necessarily has any practical additional to the reputational damage which must is within that document that his argument based consequences for the proposed appeal – where it is already have been caused by the insolvency of upon the 2016 judgment is developed – where it only if one, at least, of the “defences” is meritorious Queensland Nickel and associated termination of may be noted that there was no argument by the and one, at least, of the QN companies has standing employees” – whether a freezing order should not joint venturers and Queensland Nickel Sales, either to raise the defence or defences, that this ground have been made because the assets frozen were prior to the 2016 judgment or in their appeal against would avail them – where a claim for damages for more than twice the value of impugned payments it, that there was any actual or apprehended bias trespass was not before the court at either hearing and outstanding liabilities – where in rejecting that on the part of the judge – where there is no basis for in August 2017 – where perusal of the transcript argument, the judge accepted the argument in concluding that there was actual or apprehended of the hearing on 20 November 2017 and of their response for the plaintiffs, namely that orders in the bias by the judge in his consideration of the matter written outline of submissions reveals that the QN terms which were made were justified to ensure that which was the subject of the 2016 judgment – where companies did not substantively put in dispute MIM’s an eventual judgment would not be frustrated, the correctness of his opinion on the critical issue in submissions concerning trespass and its entitlement bearing in mind that ultimately the assets of a that judgment was unanimously upheld by this court to damages or challenge the relevance or accuracy defendant could not be ordered to be available to – where in the (present) judgment, his Honour set of the evidence as to quantification of damages – satisfy a judgment against another defendant in out the critical passages from the 2016 judgment, where no adjudication of competing arguments recognition of “the separate cases against the explaining their relevance in terms which made it on those issues was required – where there was, defendants” – where there was no error in that clear that his mind was not closed on the question of therefore, no obligation upon the primary judge reasoning – whether the primary judge failed to give whether Queensland Nickel had a right of indemnity to have given reasons for the award of damages adequate reasons – whether the primary judge’s or reimbursement, and that what had to be decided for trespass – where the respondent granted a amendment to a freezing order and accompanying was whether, on the evidence before him in 2018, licence for non-exclusive access to a berth at the reasons for that amendment cured the failure to Queensland Nickel had a good arguable case and an Port of Townsville (the premises) for the purposes provide reasons for certain orders in the original existence of such rights in relation to expenses and of berthing vessels, unloading and loading nickel freezing order – whether the primary judge failed to liabilities properly incurred by it on behalf of the joint ore and refined products and for the construction, provide adequate reasons by not stating whether the venturers – where there was no apparent bias from installation and maintenance of certain works – freezing order was made pursuant to the court’s the reasoning in the 2016 judgment, in his Honour’s where the licence agreement contained an essential inherent jurisdiction or the powers conferred by the consideration of the question of whether, on the term to punctually pay all harbour dues – where Uniform Civil Procedure Rules 1999 (Qld) – where his evidence led in the present matter, Queensland the respondent alleges that harbour dues were not Honour did explain his reasoning as to the basis for Nickel had a good arguable case for the existence paid – where the respondent alleges that the licence these orders – where all that matters for this ground of such rights over the joint venture property. In agreement was terminated because of failure to pay of appeal is that his Honour did reveal his reasoning CA 6561/18, the appeal be dismissed with costs. In the harbour dues – whether the licence agreement and Mr Palmer’s argument to the contrary must be CA 6047/18, the application filed on 24 July 2018 be was terminated – whether the purported termination rejected – where Mr Palmer filed an application to dismissed with costs and the appeal be dismissed of the licence was void by reason of s440B(b) of adduce further evidence as to his financial position – with costs. the Corporations Act 2001 (Cth) – whether the where Mr Palmer was self-represented – where Mr appellants can rely upon relief against forfeiture Queensland Nickel Sales Pty Ltd & Ors v Mount Isa Palmer’s companies were represented and shared of the licence – whether the right of termination Mines Limited [2019] QCA 32, 29 August 2018; 30 his personal interest on most issues – where the purportedly exercised by the respondent was void August 2018 evidence was extensive and no reason was provided as a penalty – where the clauses permit MIM to as to why it was not tendered in the primary Application for Extension of Time/General Civil terminate the licence agreement – where termination proceeding – whether the court should receive the Appeal – where the notice of appeal was not filed takes effect without prejudice to accrued rights or further evidence – where Mr Palmer’s submissions in time – where the date by which a timely notice of liabilities but without the imposition of any additional do not explain why this more detailed evidence as to appeal could have been filed was 18 December 2017 or different liability on those companies – where it his financial position was not tendered during the – where allowing for the intervening court holidays follows that these clauses are not penalty provisions hearing of these applications – where although Mr when the Registry was closed, the application and for the purpose of the penalties doctrine – where as Palmer was without legal representation, he is not the proposed notice of appeal were filed some six a matter of legal principle, it is clear that the doctrine the usual litigant in that position: not only has he the working days after that date – where the solicitor’s has no application to them – where the respondents means to afford his own lawyers but his companies evidence provides an adequate account of why were awarded damages for trespass to property are very ably represented, and on this and most there was a delay in filing – where significantly, the because of equipment belonging to the appellants issues, they have the same interest – where by this period of the delay is very short – where MIM has trespassing on the premises – whether the primary application, he seeks to have this court consider not put on evidence deposing to any prejudice judge correctly calculated an award of damages for extensive further evidence, in the form of an affidavit suffered by it in consequence of the delay – where the trespass – where from the perspective of principle, by him, without his presence at the hearing – where application for extension of time is dependent upon Barbagallo v J & F Catelan Pty Ltd [1986] 1 Qd R 245 this is after some nine days of hearing before the the prospects of success of the proposed grounds confirms that the cost of remedial action to prevent primary judge, during which Mr Palmer should have of appeal – whether the application for extension of damage threatened by a continuing nuisance is
46 PROCTOR | April 2019 On appeal
not recoverable at common law – where the harm Division. It is appropriate that Orders 1, 4 and 5 made was beyond the sentencing discretion – where for which the damages were awarded to MIM was 20 November 2017 be set aside. Parties to provide the sentencing judge was correct to consider the not harm to be incurred prospectively by it – where brief submissions on costs. (Brief) applicant’s employment as an AFP officer as an the relevant harm is the imposition on MIM of the aggravating factor – where firstly, as a policeman the burden of having to incur expenditure in removing Criminal appeals applicant swore he would uphold laws, not break the equipment in the face of the refusal of its owners, them – where the community, and the vulnerable QNR and QNM, to do so – where the burden was R v Edwards [2019] QCA 15, 12 February 2019 in the community including children, had the right imposed on MIM at, or shortly after, the termination Sentence Application – where the applicant pleaded to expect he would do so – where secondly, of the licence agreement and the imposition of it guilty to the offence of using a carriage service shortly before the offending occurred the applicant continued thereafter – where thus this harm has to access child pornography material – where he recognised that accessing child exploitation material already been incurred; its occurrence is in no sense was sentenced to 15 months’ imprisonment, to was wrong – where he put in his own integrity prospective – where the challenge to the award of be released on a $500 recognisance after serving report disclosing that he had accidentally accessed damages at common law cannot succeed – where it two months, on the condition that he be subject to some, and said he was no longer doing so – where is noted that it is questionable whether the award of probation for a period of two years – where defence thirdly, he evidently knew what he was doing was damages against QNS was appropriate, given that counsel contended that the imposition of a period wrong as he took steps to anonymise his access it has never owned any of the equipment – where, of actual custody is manifestly excessive – where to the websites, and to hide the history of internet however, in absence of any appeal by it on that the applicant was a serving federal police officer searches – where fourthly, when discovered he ground, the award of damages against it must stand – where the majority of the child pornography lied to the police about having had access to such – where the QN companies seek to raise, for the first material were graphic representations in the form material, and about taking steps to hide it – where in time, a number of arguments which are specific to of computer generated figures engaged in sexual doing all those things the applicant was in a different three large items in the list of equipment in Schedule activity or stories – where it was submitted the nature position from others because of his role as a federal 1 to the originating application – where it is accepted of the offending did not attract a period of actual policeman. Application refused. that the arguments encapsulated under this ground custody – where it has long been accepted that the R v HBV [2019] QCA 21, Date of Orders: were not developed at the hearing in August 2017; possession of child pornography material creates a 7 December 2018; Date of Publication nor were they advanced at the November 2017 market for the continued corruption and exploitation of Reasons: 19 February 2019 hearing – where there is no good reason why they of children – where the courts have long accepted could not have been raised at either hearing – where and stressed that possession of child pornography Sentence Application – where the applicant is an there is, therefore, validity in the proposition that, is not a victimless crime – where Category 6, whilst Indigenous boy who has just turned 16 years of in the interests of finality in litigation, the directions having the feature of not involving (at least directly) age – where the applicant was a juvenile – where sought under this ground ought not be made – real persons in it, is not to be treated as substantially the applicant was convicted of one count of armed where there is one countervailing consideration different from the other categories – where it is simply robbery with actual violence committed in company – where directions will be made for litigation of the different from them, just as they are different from and sentenced to nine months’ detention – whether relief against forfeiture “defence” – where there is a one another – where Category 6 material is not the trial judge erred by considering irrelevant likelihood that that litigation will involve resolution of harmless just because it is anime, cartoons or matters – where the applicant has been diagnosed the question whether the installations are fixtures at stories – where it is not harmless just because it with intellectual impairment together with Attention law or not – where it is considered that the interests does not involve real children – where the content Deficit and Hyperactivity Disorder Conduct Disorder of justice are balanced in favour of permitting the of the Category 6 material was abhorrent – where in – where it is clear that the applicant is intellectually appellants to advance the arguments in respect particular the stories of raping babies, when seen in capable of understanding the requirements of of the installations in the litigation that is to take the context of an exploration of how to have sexual the orders made by the court, and is no doubt place. Extend time to appeal until 1 March 2018 intercourse with a baby without damage, are of great intellectually capable of complying with suitable and allow the appeal to a limited extent in order to concern – where that was the sort of conduct that programs designed for his rehabilitation – where accommodate the appellants’ success with respect cries out for general deterrence, and amply justifies 1 of the Charter of Youth Justice Principles which to grounds e(ii) and l. Order that the relief against the imposition of a period of actual custody – where is Schedule 1 to the Youth Justice Act 1992 (Qld) forfeiture “defence” and the arguments raised by once it is conceded that imprisonment was an specifically makes protection of the community ground k of the appellants’ revised proposed notice appropriate sentence, it is in my view very difficult a relevant factor in sentencing a child – where of appeal be determined on pleadings in the Trial to demonstrate that a period of actual custody counsel for the applicant though, submitted that
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PROCTOR | April 2019 47 the subjective belief of a Child Safety officer as months. Requirements of conditional release order the execution of this plan required a few moments to the applicant’s risk of reoffending is irrelevant listed. A conviction is not recorded. (Brief) before it could be done, moments to move into and the sentencing judge ought not to have taken position and moments in which there was just time R v Randall [2019] QCA 25, Date of Order: that belief into account – where as the argument to reflect, if the applicant was capable of reflection, 15 February 2019; Date of Publication developed, the real complaint emerged, namely about the thing he was about to do – where during of Reasons: 22 February 2019 that the sentencing judge equated “protection of the submissions, Davis J expressed his doubt whether community” with preventative detention, and the Sentence Application – where the applicant plead this was really an explanation at all – where in our latter is an irrelevant consideration – where in Veen guilty to manslaughter – where the applicant killed respectful opinion, it does furnish an explanation – v The Queen [No.2] (1988) 164 CLR 465, the High his 10-week old son with a single punch to the where it is consistent with his shirking of culpability, Court explained that protection of the community stomach – where the applicant was sentenced with his self-pity, and his proclivity to foist blame is a relevant consideration in sentencing but a to nine years’ imprisonment with parole eligibility upon anyone or anything other than himself: the sentence should not be increased beyond what after five years – where s184(2) of the Corrective Queensland Police Service, the 000 operator’s is proportionate to the offence, in reliance upon Services Act 2006 (Qld) provides parole eligibility defective instructions and external circumstances considerations of preventative detention – where after serving half of the sentence – where the trial – where the applicant submits that a reduction of that statement of principle was repeated in Fardon judge exercised the discretion under s160C(5) penalty to take into account the plea “was to be v Attorney-General (Qld) (2004) 223 CLR 575 – of the Penalties and Sentences Act 1992 (Qld) to reflected in the reduction of the head sentence” where protection of the community as a sentencing postpone the applicant’s parole eligibility date by six and that the significance of a guilty plea is not to be consideration under the Youth Justice Act should months – whether the trial judge erred in postponing taken into account in the exercise of the discretion be understood in that way – where her Honour did the statutorily mandated halfway parole eligibility to postpone parole – where he cites two cases as not expressly say how she took into account the date – where he told his wife that he had performed authority for that proposition: R v McDougall and consideration of the protection of the community CPR incorrectly and that this was what caused Collas [2007] 2 Qd R 87 and R v Assurson [2007] – where however, actual detention of a child is a last- Kai’s injuries – where he told a social worker that QCA 273 – where those cases do not support the resort measure – where there is clear evidence of he blamed the 000 operator for giving him wrong existence of any such remarkable principle –where the applicant demonstrating insight into his conduct instructions – where from the day of the killing until the exercise of the discretion under s160C(5) of and there is evidence of rehabilitation being under the eve of his murder trial, the applicant consistently the Penalties and Sentences Act to postpone a way – where the Crown prosecutor appearing in maintained these stories and maintained his parole eligibility date must be supported by a “good the Childrens Court recognised and acknowledged innocence – where two days before the trial, the reason” – where as Davis J observed, the purpose of as much – where the inference is drawn that her applicant said that he was willing to plead guilty to the discretion to vary a parole date from the default Honour has been distracted, impermissibly, by manslaughter – where the DPP accepted this plea halfway mark that the Act otherwise imposes, is considerations of preventive detention. Leave and the applicant was re-arraigned on one count to empower a sentencing judge to achieve a just granted. Appeal allowed. Sentence of detention of manslaughter and pleaded guilty – where the sentence in all the circumstances – where that of nine months is confirmed. The detention order Crown accepted that the killing was “spontaneous” purpose is, in our view, the paramount objective be immediately suspended and that the applicant – where more accurately, in our respectful opinion, of sentencing – where the discretion to fix a parole be immediately released from detention upon the applicant’s formation of his intention to deliver eligibility date is unfettered and the significance of a a conditional release order for a period of three the punch to hurt Kai was spontaneous – where guilty plea for the exercise of that discretion will vary
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48 PROCTOR | April 2019 On appeal
from case to case – where consequently, there can complainant about their sexual history other than the the jury here was not instructed in those terms be no mathematical approach to fixing such a date. single instance of consensual sexual activity – where and the instructions which were given raise the Application refused. because the prosecutor’s argument was at least possibility that the jury, or some of them, assessed R v PBC [2019] QCA 28, 26 February 2019 potentially misleading, it warranted some intervention the circumstances as unexceptional without by the trial judge – where defence counsel at trial did considering the questions required to be answered Appeal against Conviction – where the appellant was not seek a direction about the prosecutor’s argument under s304 as it was for the purposes of this case – convicted of indecent treatment and rape – where – whether it was unfair that the appellant was not where put another way, it is possible that the jury did the complainant had consensual sexual activity able to ask the complainant about any other previous not consider at all the defence of provocation which, with a person other than the appellant – where the sexual activity – whether defence counsel made a the parties evidently agreed, they were to consider appellant at trial argued that the alleged conduct was forensic decision not to seek a direction – whether – whether “no substantial miscarriage of justice has fabricated because there were similarities between there was an unfairness as there were distinct risks to actually occurred” – whether there was a substantial the complainant’s description of the alleged conduct the appellant’s case at trial if defence counsel chose miscarriage of justice whether or not, in the court’s and the complainant’s description of the consensual to seek a direction or chose not to seek a direction. view, the appellant was guilty of the offence of which sexual activity – where the prosecutor in their closing Appeal allowed. Quash the appellant’s conviction. he was convicted – whether operation of the proviso address suggested that the similarities were the The appellant be re-tried. precluded – where in order to apply the proviso in result of the sexualisation of the complainant by R v Thompson [2019] QCA 29, 26 February 2019 the present case, this court is asked to exercise the the appellant – where the prosecutor suggested function of the jury to determine whether the defence that there was a “very plausible explanation” for Appeal against Conviction – where the appellant of provocation was established, when quite possibly the incident with E which was the conduct of the was convicted of murder – where at the trial, that function was not exercised by the jury – where appellant of which she complained – where the it was uncontested that the appellant killed Mr if provocation was not considered, the jury did prosecutor said that if there was such a similarity Knyvett by striking him several times on the head not determine whether the appellant was guilty between the intercourse with E and the alleged with a bottle – where the appellant submitted of murder, but instead considered only whether intercourse with the appellant, the jury might infer at trial that the killing was the result of sudden the prosecution had proved the facts which that she had applied her experience of sex with provocation in the form of an unwanted sexual it had to prove – where it may be said that in the appellant in choosing “the same position” this case, the application of the proviso would with E – where the effect of that argument was advance – where s304 Criminal Code (Qld) as “substitute trial by an appeal court for trial by that the incident with E was something which was amended by the Criminal Law Amendment Act 2017 jury”. Appeal allowed. Quash the appellant’s probative of the appellant’s guilt – where that was (Qld) did not apply – where the primary judge erred conviction. The appellant be re-tried. not an argument which defence counsel should have by misdirecting the jury to apply s304 Criminal Code anticipated – where the submission had the potential (Qld) as amended by the Criminal Law Amendment to make the jury think that the complainant had had Act 2017 (Qld) – where a jury would have to consider Prepared by Bruce Godfrey, research officer, no other experience, an inference that might have whether all of the circumstances, including any Queensland Court of Appeal. These notes provide a brief been fortified by the fact that she had been cross- relevant history between the accused person and overview of each case and extended summaries can examined only about the incident with E – where the deceased, could have combined to cause that be found at sclqld.org.au/caselaw/QCA. For detailed the appellant at trial was not permitted to ask the response on the part of an ordinary person – where information, please consult the reasons for judgment.
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PROCTOR | April 2019 49 Diary dates In May...
April Introduction to family law 07 Introductory | 7-8 May | 8.30am-4.30pm, Guide to trust accounting 8.30am-4.15pm | 10 CPD 30 Essentials | 12.30-1.30pm | 1 CPD Brisbane Livecast Develop your knowledge and skills in family law. Receive practical guidance on the most common processes and tasks associated Aimed at junior legal staff or those wanting to improve their with handling family law matters. fundamental knowledge of trust accounting regulation. This livecast provides access to the Society’s in-house experts and is your
essential guide to trust accounting compliance.
Negotiations and settlements 08 Essentials | 12.30-1.30pm | 1 CPD May Livecast Negotiation skills are essential for practitioners at all levels. Effective time recording Explore the fundamental skills and strategies needed to conduct 01 and billing narration legal negotiations more effectively in non-contentious matters. Essentials | 12.30-1.30pm | 1 CPD Livecast Hear practical tips to record time confi dently, effi ciently and Solicitor Advocate Course: Foundations ethically. Be guided on how to communicate the value of your 10 Solicitor Advocate Course | 10-11 May time and be compensated accordingly. 5-7pm, 8.30am-4.30pm | 9 CPD Brisbane
Delegates will increase their skill base for advocacy work in courts Practice Management Course: Sole and tribunals, and enhance their ability to deliver personalised and 02 practitioner to small practice focus effective advocacy. PMC | 2-4 May | 9am-5.30pm, 8.30am-5pm, 9am-1.30pm | 10 CPD QLS Open Day Brisbane 16 The QLS Practice Management Course (PMC), allows you Essentials Masterclass Hot topic to develop the essential managerial skills and expert knowledge 1-5.30pm | 3 CPD to manage a legal practice. Learn the art of attracting and retaining Brisbane clients in the new law environment, managing business risk, trust accounting and ethics. Law Society House opens its doors for an afternoon of complimentary professional development and showcasing of memeber benefi ts.
Young Professionals 02 Networking Evening 5.30-7.30pm ESSENTIALS Gain the fundamentals of a new Brisbane practice area or refresh your existing skillset Build your network and potential business opportunities. Join fellow young legal and accounting professionals for MASTERCLASS Develop your intermediate skills an evening of drinks and canapés. and knowledge in an area of practice
HOT TOPIC Keep up to date with the latest developments in an area of practice
SOLICITOR ADVOCATE COURSE Increase your On-demand resources skill base for advocacy work in courts and tribunals Access our popular events online, anywhere, anytime PMC Advance your career by building the skills and and on any device. knowledge to manage a legal practice
qls.com.au/on-demand INTRODUCTORY Understand key concepts and important aspects of a topic to better support your team
50 PROCTOR | April 2019 Practice management What’s your practice worth? by Graeme McFadyen
The 2017 Macquarie Bank Legal However, as they drilled deeper a different Quality and transferability of client base story emerges. Both surveys split their Benchmarking Report included The quality and transferability of the client revenue groups into better-than-average base in this context has enormous value. If an interesting commentary about and worse-than-average performers. This the client is a large corporate which uses a succession planning, noting that further analysis showed that the better-than- particular legal brand as a matter of corporate average performers in both groups achieved choice, then that brand has significant value. only 44% of the survey’s 275 an impressive average net profit of around Regrettably though, this is not the experience respondents nationwide had 40%. However, the under-performers in both of the smaller law firms whose mainly groups, the majority, scored a dismal 13%. consumer clients, believing that all lawyers a succession plan. At 13%, you are making a bare wage at best. have similar skill sets, tend to choose based largely on convenience and price. My expectation is that the majority of Coincidentally, IBISWorld founder Phil medium and small-firm principals whose Ruthven recently reviewed the profitability 1 Degree of competition turnover is less than $5M will struggle to of international service industries. His If the majority of client relationships are justify any goodwill payment on the sale research shows that the international best grounded in convenience and price, it of their practice. practice benchmark for service industry profitability was 22% after tax. The 25% is inevitable that the addition of more Goodwill arises when the value of a business profit benchmark referred to above is pre- competition and disruption must erode exceeds the value of its net assets. However, tax, so if we assume a tax rate of say 35%, the relationship over time as your clients the concept of goodwill attaching to law then to meet the international benchmark encounter other lawyers in their social and firms is a vexed and much misunderstood of 22% after tax, law firms need to achieve commercial lives, both physically and via issue. Usually goodwill is only payable if a 33% before tax. the now inevitable Google search. practice enjoys a significant and, importantly, sustainable profit. This performance measure sits comfortably Conclusion with the two surveys noted above. So for the It is little comfort to practitioners, but the purposes of this article, it is argued that to What the above analysis demonstrates reality is that, as the market becomes more qualify for any goodwill consideration, a legal is that no principal can assume that there competitive, profitability becomes less practice’s profitability needs to be 33% or is a capital windfall at the end of the road. predictable. Unless a practice enjoys a better. And it needs to be sustainable. This realisation should alert practitioners to brand which has a demonstrated history of the need to optimise profits today rather than profitability and, importantly, a reasonable Predictability of profits wait for some future windfall that is likely expectation of continued profitability, then to become less achievable over time. there is unlikely to be a queue of ready buyers. Predictability is a function of brand strength, areas of practice, quality and transferability Demonstrated profitability of clients and degree of competition.
This is the single most important variable in Brand strength the value chain. So what is the profitability With more intense competition, the required for a legal practice to notionally sustainability of profits has become more qualify for goodwill? Let’s look at both the difficult, especially with new disruptive legal ALPMA/Crowe Horwath and the Macquarie models and new technologies. Consequently, Bank legal benchmarking surveys for 2017 those practices which do not have a strong in respect of mid-sized firms (turnover brand are having to compete on price in $5-20M) and small firms (turnover less than a number of areas of practice. $5M). Both surveys provided extraordinarily similar outcomes. Areas of practice Graeme McFadyen has been a law firm GM/COO/CEO for more than 20 years. He currently provides consulting Traditionally, 25% was the median profitability George Beaton recently identified services to law firms – [email protected]. benchmark used for legal practices – that conveyancing, wills and family law as is, 25% was regarded as the targeted norm. three areas of practice which are now And just to be clear, this is 25% before tax. largely commoditised and therefore largely Notes This proposition proved to be true, as both compete on price2. Beaton concludes that 1 “It takes more than serendipity or good fortune to surveys found that the average net profit of “commoditization means competing on achieve strong profitability”, Phil Ruthven in The Australian, p27, 12 September 2018. law firms in the $5-20M and <$5M cohorts price…and competing your profits away”. 2 “All would agree that conveyancing, wills and was indeed 25%. family law, to name some, are familiar, largely commoditized forms of legal services provided to consumers” in Remaking News of the Week posted by George Beaton on 13 September 2018, remakinglawfirms.com/remaking-news-of-the- week-law-firm-partnerships-are-losing-their-lustre.
PROCTOR | April 2019 51 [email protected] | P 07 3842 5921 Accountancy Agency work continued
SYDNEY AGENTS BROADLEY REES HOGAN MCDERMOTT & ASSOCIATES Incorporating Xavier Kelly & Co 135 Macquarie Street, Sydney, 2000 Intellectual Property Lawyers • Queensland agents for over 25 years Fixed Fee Remote Tel: 07 3223 9100 • We will quote where possible Legal Trust & Offi ce Bookkeeping Email: [email protected] • Accredited Business Specialists (NSW) Trust Account Auditors • Accredited Property Specialists (NSW) From $95/wk ex GST For referral of: • Estates, Elder Law, Reverse Mortgages www.legal-bookkeeping.com.au Specialist services and advice in Intellectual • Litigation, mentions and hearings Ph: 1300 226657 Property and Information Technology Law: • Senior Arbitrator and Mediator Email:[email protected] (Law Society Panels) • patent, copyright, trade mark, design and • Commercial and Retail Leases confi dential information; • Franchises, Commercial and Business Law • technology contracts: license, transfer, • Debt Recovery, Notary Public franchise, shareholder & joint venture; • Conference Room & Facilities available • infringement procedure and practice; Phone John McDermott or Amber Hopkins • related rights under Competition and On (02) 9247 0800 Fax: (02) 9247 0947 Consumer Act; Passing Off and Unfair Email: [email protected] Competition; • IPAUSTRALIA searches, notices, applications & registrations. BRISBANE – AGENCY WORK WE SOLVE YOUR TRUST ACCOUNTING PROBLEMS Level 24, 111 Eagle Street BRUCE DULLEY FAMILY LAWYERS In your offi ce or Remote Service Brisbane, Qld 4000 Trust Accounting GPO Box 635 Brisbane 4001 Est. 1973 – Over 40 years’ Offi ce Accounting www.brhlawyers.com.au experience in Family Law Assistance with Compliance Brisbane Town Agency Appearances in Reg’d Tax Agent & Accountants Family Court & Federal Circuit Court 07 3422 1333 Level 11, 231 North Quay, Brisbane Q 4003 [email protected] SYDNEY – AGENCY WORK P.O. Box 13062, Brisbane Q 4003 www.thelegalbookkeeper.com.au Webster O’Halloran & Associates Solicitors, Attorneys & Notaries Ph: (07) 3236 1612 Fax: (07) 3236 2152 Telephone 02 9233 2688 Email: [email protected] Facsimile 02 9233 3828 DX 504 SYDNEY
Accountants and Tax Advisors NOOSA – AGENCY WORK specialising in legal fi rms. SIEMONS LAWYERS, Noosa Professional Centre, Practice management software 1 Lanyana Way, Noosa Heads or implementations and training. PO Box 870, Noosa Heads SYDNEY & GOLD COAST AGENCY WORK www.verlata.com phone 07 5474 5777, fax 07 5447 3408, Sydney Offi ce: Ph: 1300 215 108 email [email protected] - Agency Level 14, 100 William St, Sydney work in the Noosa area including conveyancing, Email: [email protected] Ph: 02 9358 5822 settlements, body corporate searches. Fax: 02 9358 5866 Offi ces in Brisbane, Sunshine Coast and Singapore Gold Coast Offi ce: BRISBANE FAMILY LAW – Level 4, 58 Riverwalk Ave, Robina ROBYN McKENZIE Ph: 07 5593 0277 Appearances in Family Court and Federal Fax: 07 5580 9446 Circuit Court including Legal Aid matters. All types of agency work accepted Referrals welcome. Contact Robyn. • CBD Court appearances GPO Box 472, BRISBANE 4001 • Mentions Agency work Telephone: 3221 5533 Fax: 3839 4649 • Filing email: [email protected] Quotes provided. Referrals welcome. ATHERTON TABLELANDS LAW Email: [email protected] of 13A Herberton Rd, Atherton, SUNSHINE COAST SETTLEMENT AGENTS Tel 07 4091 5388 Fax 07 4091 5205. From Caloundra to Gympie. NOTE TO PERSONAL INJURY ADVERTISERS We accept all types of agency work in the Price $220 (plus GST) plus disbursements Tablelands district. P: (07) 5455 6870 The Queensland Law Society advises that it can E: [email protected] not accept any advertisements which appear to be prohibited by the Personal Injuries Proceedings CAIRNS - BOTTOMS ENGLISH LAWYERS Act 2002. All advertisements in Proctor relating to personal injury practices must not include any of 63 Mulgrave Road, Cairns, PO Box 5196 statements that may reasonably be thought to be CMC Cairns, Tel 07 4051 5388 Fax 07 4051 07 3842 5921 intended or likely to encourage or induce a person 5206. We accept all types of agency work in to make a personal injuries claim, or use the [email protected] services of a particular practitioner or a named law the Cairns district. practice in making a personal injuries claim.
52 PROCTOR | April 2019 Classifieds
Agency work continued
BRISBANE, GOLD COAST, NORTHERN NSW & TOOWOOMBA AGENCY WORK Victorian agency referrals All types of agency work accepted (incl. Family Law) 2003 – Admitted NSW We are a full service commercial SYDNEY, MELBOURNE, PERTH 2006 – 2015 Barrister - law firm based in the heart of AGENCY WORK Brisbane & Sydney Melbourne’s CBD. 2015 – Present Commercial Sydney Offi ce – Angela Smith Solicitor Our state-of-the-art offices and Level 9/210 George Street E: [email protected] meeting room facilities are available Sydney NSW 2000 M: 0415-260-521 for use by visiting interstate firms. P: (02) 9264 4833 P: 07 5669-9752 F: (02) 9264 4611 We can help you with: asmith@slfl awyers.com.au GUY SARA & ASSOCIATES > Construction & Projects GUY-THEODORE SARA – Principal CPA, B.Bus LLB LLM > Corporate & Commercial Melbourne Offi ce – Rebecca Fahey > Customs & Trade Level 2/395 Collins Street > Insolvency & Reconstruction Melbourne VIC 3000 > Intellectual Property P: (03) 9600 2450 AGENCY WORK > Litigation & Dispute Resolution F: (03) 9600 2431 BRISBANE & SUNSHINE COAST > Mergers & Acquisitions rfahey@slfl awyers.com.au Family Law & Criminal > Migration > Planning & Environment Perth Offi ce – Natalie Markovski Over 30 years combined practice experience. Includes appearances in Interim Hearings > Property Level 1/99-101 Francis Street (without counsel). Mentions and Mediations > Tax & Wealth Perth WA 6003 P: (08) 6444 1960 in all family law matters including > Wills & Estates Legal Aid appearances. > Workplace Relations F: (08) 6444 1969 nmarkovski@slfl awyers.com.au • Short Adjournments/Mentions $440 Contact: Elizabeth Guerra-Stolfa • Interim Hearings $550 for half day T: 03 9321 7864 Quotes provided • Full Day $880 (for non-complex [email protected] matters). • CBD Appearances • Some Civil agency services available www.rigbycooke.com.au • Mentions • Filing T: 03 9321 7888 Email: [email protected] • Civil • Family • Conveyancing/Property Call Adrian Hawkes 0418 130 027 or BRISBANE TOWN AGENT Kelvin Pearson 0455 234 501.
BARTON FAMILY LAWYERS
Courtney Barton off ers fi xed fees for all town agency appearances in the Family & Federal Circuit Court: 07 3842 5921 +61 7 3862 2271 [email protected] Half Day (<4 hrs) - $900+GST eaglegate.com.au Full Day (>4 hrs) - $1600+GST Intellectual Property, ICT and Privacy Ph: 3465 9332; Mob: 0490 747 929 • Doyles Guide Recommended IP Lawyer [email protected] • Infringement proceedings, protection advice, Barristers PO Box 3270 WARNER QLD 4500 commercialisation and clearance to use searches; MICHAEL WILSON • Patents, Trade Marks, Designs, Copyright; BARRISTER • Australian Consumer Law and passing off ; Advice Advocacy Mediation. • Technology contracts; BUILDING & CONSTRUCTION/BCIPA • Information Security advice including Privacy Admitted to Bar in 2003. Impact Assessments, Privacy Act/GDPR Previously 15 yrs Structural/ compliance advice, breach preparation Civil Engineer & RPEQ. including crisis management planning; Also Commercial Litigation, NOTE: CLASSIFIED ADVERTISEMENTS • Mandatory Data Breach advice. Wills & Estates, P&E & Family Law. Nicole Murdoch Unless specifi cally stated, products and services Inns of Court, Level 15, Brisbane. [email protected] advertised or otherwise appearing in Proctor are (07) 3229 6444 / 0409 122 474 not endorsed by Queensland Law Society. www.15inns.com.au
PROCTOR | April 2019 53 [email protected] | P 07 3842 5921 Business opportunities For sale For sale continued
McCarthy Durie Lawyers is interested in COMMERCIAL OFFICE SPACE talking to any individuals or practices that might 55 square metres – includes one (1) car space. be interested in joining MDL. LAW PRACTICES MDL has a growth strategy, which involves increasing our level of specialisation in specifi c FOR SALE Prime position in Southport, Gold Coast. service areas our clients require. Would suit barrister or sole practitioner We are specifi cally interested in practices, and assistant. Close proximity to Southport which off er complimentary services to our Law Courts. Please direct enquiries to existing off erings. Dave on 0414 383336. We employ management and practice management systems, which enable our lawyers to focus on delivering legal solutions Townsville Boutique Practice for Sale and great customer service to clients. Established 1983, this well-known fi rm is If you are contemplating the next step for your focused on family law, criminal law, estates career or your Law Firm, please contact and wills. Centrally located in the Townsville Shane McCarthy (CEO & Director) for a confi dential discussion regarding opportunities CBD. Can be incorporated if required. at MDL. Contact is welcome by email Operates under LawMaster Practice [email protected] or phone 07 3370 5100. Management System. Seller prepared to stay on for a period of time if requried. Preferred For rent or lease Supplier for Legal Aid Queensland and Legal Aid NSW (when required). Seller is ICL and POINT LOOKOUT BEACH RESORT: Separate Representative. $150,000.00 plus Very comfortable fully furnished one bedroom apartment with a children’s Loft and 2 daybeds. WIP. Room to expand. Phone 07 4721 1581 Ocean views and pool. Linen provided. or 0412 504 307, 8.30am to 5.30pm Mon-Fri. Whale watch from balcony June to October. Weekend or holiday bookings. Ph: (07) 3415 3949 www.discoverstradbroke.com.au
POINT LOOKOUT – NTH STRADBROKE 4 bedroom family holiday house. Great ocean views and easy walking distance to beaches. Ph: 07- 3870 9694 or 0409 709 694
COMMERCIAL OFFICE SPACE 46m² to 536m² – including car spaces for lease Available at Northpoint, North Quay. FOR SALE: The practice of Andrew P Abaza Close proximity to new Law Courts. 8th Floor 231 North Quay Brisbane and Lot 47 in Also, for sale a 46m² Commercial Offi ce Unit. BUP 7688 C/T 16996105 CTS 7575 (with a view) Please direct enquiries to Don on 3008 4434. as a going concern. $437,000.00. The offi ce has an area of about 74m2 with 3 offi ce spaces and is OFFICE TO RENT in need of refurbishment (negotiable in the price) Join a network of 486 Solicitors and Barristers. and new energy. The space would suit one or two Virtual and permanent offi ce solutions practitioners. Car parking is available at Roma for 1-15 people at 239 George Street. Street or through the Building Managers. Call 1800 300 898 or email Expressions of interest can be directed to: [email protected] andrewabaza@ iinet.net.au or 0431 153 408. Legal services
Details available at: PORTA LAWYERS Spring Hill – For Rent www.lawbrokers.com.au Introduces our Commercial offi ce including fi t out. Australian Registered Italian Lawyer [email protected] Full services in ALL areas of Italian Law Suit professional practice, 150m², 2 car parks. Enquiries to Michael Byrom on 0409 156 258. Call Peter Davison Fabrizio Fiorino 07 3398 8140 or 0405 018 480 [email protected] NOTE: CLASSIFIED ADVERTISEMENTS Phone: (07) 3265 3888
Unless specifi cally stated, products and services advertised or otherwise appearing in Proctor are 07 3842 5921 not endorsed by Queensland Law Society. [email protected]
54 PROCTOR | April 2019 Classifieds
Legal services continued Legal services continued Locum tenens continued
JIM RYAN LL.B (hons.) Dip L.P. Experienced solicitor in general practice as Principal for over 30 years - available for locum services/ad hoc consultant in the South East Queensland area. South East Queensland Town Agency Phone: 0407 588 027 Email: [email protected] All State and Federal Courts in SEQ Providing legal cost solutions - the competitive alternative Most types of agency work accepted, including: Mediation • Court appearances Short form assessments | Objections • Mentions Cost Statements | Itemised Bills • Filing KARL MANNING Court Appointed Assessments • Instructing counsel LL.B Nationally Accredited Mediator. • Document compliance with Qld UCPR Mediation and facilitation services across all Luke Randell LLB, BSc | Solicitor & Court Very competitive prices from $30 + GST areas of law. Appointed Cost Assessor Excellent mediation venue and facilities Admitted 2001 Speculative Litigation Referrals available. (07) 3256 9270 | 0411 468 523 Prepared to travel. www.associateservices.com.au We welcome speculative litigation referrals Contact: Karl Manning 07 3181 5745 [email protected] (except personal injury) Email: [email protected] If your client has become impecunious, we can consider suitable arrangements with you Missing wills We also welcome new referrals MISSING WILLS Contact Queensland Law Society holds wills and other documents for clients of former law Call Spencer Wright directly: practices placed in receivership. Enquiries Phone: 0402 501 547 about missing wills and other documents Email: [email protected] should be directed to Sherry Brown or Glenn Website: gibbswrightlawyers.com.au Forster at the Society on (07) 3842 5888. STATUTORY TRUSTEES FOR SALE Our team regularly act as court-appointed statutory trustees for sale, led by: Legal software SIMON LABLACK PROPERTY LAW (QLD) ACCREDITED SPECIALIST Contact us for fees and draft orders: A gift in your Will is a lasting legacy that 07 3193 1200 | www.lablacklawyers.com.au provides hope for a cancer free future. For suggested Will wording and more information, please visit cancerqld.org.au Practice Management Software Call 1300 66 39 36 or email us on TRUST | Time | Fixed Fees | INVOICING | [email protected] Matter & Contact Management | Outlays | PRODUCTIVITY | Documents | Would any person or fi rm holding or knowing the whereabouts of an original Will dated 15 www.bstone.com.au QuickBooks Online Integration | April 2011 of the late EDNA ELLEN BUSH of Integration with SAI Global Tri Care Aged Care, 2424 Gold Coast Your Time is Precious bstone.com.au Highway, Mermaid Beach Queensland who Think Smarter, Think Wiser… died on 29 October 2018 please contact Collas Moro Ross Solicitors at PO Box 517 Brisbane 07 3062 7324 www.WiseOwlLegal.com.au Surfers Paradise Qld 4217, telephone 07 07 3106 6022 Sydney 02 9003 0990 5539 9099 or email [email protected] [email protected]. Melbourne 03 9606 0027
Sunshine Coast 07 5443 2794 Would any person or fi rm holding or knowing Locum tenens the whereabouts of a Will or other document purporting to embody the testamentary ROSS McLEOD intentions of Timothy John White late of 3 NOTE: CLASSIFIED ADVERTISEMENTS Cypress Drive EMERALD QLD and lived for Willing to travel anywhere in Qld. an extended period of time at 3 Woonooka Unless specifi cally stated, products Admitted 30 years with many years as Principal Road MOORE CREEK NSW who died on 14 and services advertised or otherwise Ph 0409 772 314 January 2018 please contact Everingham Solomons Solicitors of PO Box 524, [email protected] appearing in Proctor are not endorsed TAMWORTH NSW 2340 T: 02 6766 1066 by Queensland Law Society. www.locumlawyerqld.com.au F: 02 6766 4803 E: [email protected]
PROCTOR | April 2019 55 Classifieds [email protected] | P 07 3842 5921 Missing wills continued Medico legal
Would any person or fi rm holding or knowing the whereabouts of a Will or other document Medico-legal Speech Pathologist Reach more than purporting to embody the testamentary Heather-Ann Briker-Bell intentions of David Desmond Ross late of 5 Gore Street, Halswell, Christchurch in New Assessments of cognition and language, Zealand, who lived on the Gold Coast some speech, voice, swallow | Vocational & psycho- years ago and who died on 23 December social impact | Personal injuries & medical 2018 please contact: Garry Thompson of Fern negligence | Work with adults & children. Law Limited, 1 Musgrove Close, Wigram, National and international experience. 10Reach, 00more than0 Christchurch in New Zealand by email: Extensive court experience (since 1988). [email protected] or Tel: 00643 365 1013 To learn more visit – of Queensland’s Would any person or fi rm holding or knowing speechpathologyml.com.au of the whereabouts of a will or other legal profession Testamentary document or safe custody packet for a Wayne Greenwood aka Wayne Herald 10,000 Honeman. Wayne Herald Greenwood or any other spelling of the word “Herald” born 28/08/1961 and having an of Queensland’s address in Doonside NSW or any other Technical services NSW location, please contact Greenwood legal profession Legal (matter reference 4020) P.O. Box 8021, Norwest Business Park, Baulkham Hills, NSW Book your advertisement today 2153. Ph: 02 8814 7033, Fax: 02 8814 7866. 07 3842 5921 | [email protected] Email: [email protected]
Cheryl Anne Laurent DOB: 12 August 1967. DOD: 9 October 2018. Resided in Noosa between 2007 – 2014. Audio restoration & clean-up for poor quality Book your advertisement today Resided in Woodend New Zealand when she recordings. Do you have an audio witness 07 3842 5921 | [email protected] died. Please contact Vicky Brown, Helmore or statement that sounds unclear? For a Stewart, [email protected], or confi dential consultation - John 0411 481 735. phone 0064 3 3118008. www.audioadvantage.com.au Would any person or fi rm holding or knowing Wanted to buy the whereabouts of a Will of the late John Lewis Brady of Ipswich, QLD who worked in the Meat Works, born on 5 October 1935 who Purchasing Personal Injuries fi les died on 27 January 2019, please contact John Jonathan C. Whiting and Associates are Vance Brady on 0402 693 480 or email prepared to purchase your fi les in the areas of: [email protected]. • Motor Vehicle Accidents • WorkCover claims Would any person or fi rm holding or knowing • Public Liability claims the whereabouts of any Will or other Contact Jonathan Whiting on testamentary document of the late JOHN 07-3210 0373 or 0411-856798 HADJIS, DOB 10/10/1951 & DOD 01/10/2018, formerly of 6 Wharton Street Wellington Point Queensland, but late of 1/14 Louis Street Broome Western Australia, please contact Leeha James, Principal at James Law within 14 days of this notice. PO Box 2191 Tingalpa Queensland 4173, Phone: (07) 3890 2323 or Take a email: [email protected]. NOTE TO PERSONAL INJURY ADVERTISERS The Queensland Law Society advises proactive DAVID MICHAEL KOLLER that it can not accept any advertisements Would any person or fi rm knowing the which appear to be prohibited by the step whereabouts of a will or other document Personal Injuries Proceedings Act 2002. purporting to embody the testamentary All advertisements in Proctor relating to intentions of David Michael Koller, late of 3 personal injury practices must not include It’s yours to use Kelmscott Way, St. Clair, NSW who died any statements that may reasonably between 8 and 15 October 2018, please be thought to be intended or likely to contact Greg O’Reilly of O’Reilly & Sochacki encourage or induce a person to make a Lawyers, PO Box 84, Murwillumbah, New personal injuries claim, or use the services South Wales, 2484, Ph: (02) 6672 2878 or of a particular practitioner or a named law qls.com.au/lawcare email: [email protected]. practice in making a personal injuries claim.
56 PROCTOR | April 2019 Spirits
‘Mother’s ruin’ a Tassie treasure with Matthew Dunn
Pepperberries, saffron, sheep whey Today Bill Lark is a doyen of the finest • The Sullivans Cove Hobart No.4 Gin Tasmanian Lark whisky, but in the late adds four unique native ingredients to the and changing archaic legislation 1980s he was just a man who wanted to traditional juniper – native lemon myrtle, – Tasmania has led the rebirth of give making his own whisky a go. Sadly, the anise myrtle, wattleseed and pepperberry. craft distilling in Australia and, more Commonwealth Distillation Act 1901 prevented • The Grower’s Own Saffron Gin is flavoured small-scale distilling (to prevent moonshining with Tasmanian-grown Tas-Saff product. and the generally corrupting influence of strong recently, brought an internationally • The Hartshorn Distillery has its much liquor) and largely embodied the strictures of acclaimed approach to the gin boom. celebrated Sheep Whey Gin to the UK’s ‘Gin Act’ of 1751. complement its sheep milk cheeses. Yes, we are in a gin boom – it is hipster The UK restrictions were introduced in • The Lawrenny Highlands Gin features and fashionable, bespoke and craft. Sales response to a ‘gin epidemic’ of average the unique flavours of blue cypress from are booming and small-scale distilleries are annual consumption of spirits of over two just outside the distillery shed door. appearing everywhere. gallons per capita at its peak, leading to The New York Times recently mused about the infamous reputation of gin as ‘mother’s From prompting legislative change to riding the revolution in Tasmania, noting that at least ruin’, causing laziness and social and moral the gin boom, Tasmania continues to set 26 gin distilleries are now in operation with decay. The Australian strictures reflected this itself out as a destination for unique wine more on the way. “Most of the gins – distilled policy and remained unchanged until 1989 and spirits. due to the efforts of Bill Lark, his local MP by young, small-batch entrepreneurs – have Note: This article has been shortened. Duncan Kerr and the accordance of then popped up in the last five years,” its report said. A complete version with footnotes and Small Business and Customs Minister Barry extra tasting notes is available from The incredible rise of gin distilling is occurring Jones. Without this key legislated change, qls.com.au/wineapril2019. across the country, but where the Tasmanian gin production would still be the province of experience is different is in the unusual industrial-scale operators. flavourings being used, the symbiosis with whisky production and the determination Competition in the market in Tasmania of a man named Bill Lark, whose efforts has driven producers to look for new and meant it could all happen. interesting ways to set their products apart:
The tasting
The first was the Hartshorn The second was the Sullivans The last was the Lawrenny Distillery Sheep Whey Gin Cove Hobart No.4 Single Malt Highlands Gin, which was which neat had a nose of Gin which was pepper and grapefruit and spruce on citrus and juniper. The palate wild Australian bush mixed the nose. The neat palate was a delicate mix of lime, with an alcohol hit on the nose. had a profound attack of pith, peppermint and floral Sullivans Cove recommend the menthol moving quickly to warmth. The attack was gin not be mixed, save perhaps blue cypress needles. With relatively quiet and with the for an ice cube as if it were one tonic the character changed addition of tonic a slight of their whiskies. On the palate completely, the citrus comes creaminess appeared which it rightly came alive and was forward and the menthol would suit a rich cheese magic with an attack of the calms revealing a drive of handsomely. pepperberries and a flash on mouth-filling herb sweetness anise liquorice, dimming on the and some Scandi forest floor. long, long palate to the reprise Soda water might be a good of the wild Australian bush. alternative with a slice of This is truly gin made to be pink grapefruit. A delightful experienced like a fine whisky. transformation. Truly unique and compelling.
Verdict: The three gins were thoroughly distinct and enchanting each in its own way. It was intriguing that each would respond best to a very different accompaniment. Matthew Dunn is Queensland Law Society Policy, The preferred by far was the Hobart No.4, as it took gin to a whole new level. Public Affairs and Governance General Manager.
PROCTOR | April 2019 57 Crossword
By John-Paul Mould, barrister Mould’s maze and civil marriage celebrant jpmould.com.au
Across 1 2 3 4 5 6 1 Act .... prohibita refers to acts that are wrong only because laws have been 7 passed prohibiting them. (Latin) (4) 8 2 An ousted co-owner can bring proceedings for ..... profits. (5) 9 10 4 High Court of Australia (HCA) case 11 concerning whether a quantum meruit claim could avoid a licensing statute, Pavey & Matthews Pty Ltd v ..... (4) 8 There is a statutory presumption of equal 12 13 14 15 16 shared ...... responsibility. (8) 9 The legal authority of a court. (10) 12 ASIC, the Australia Securities and ...... 17 18 Commission. (11) 16 HCA case concerning the reasonable practicability of a parenting order, ... v GR. (3) 19 20 21 17 HCA case holding that damages for negligence are incapable of application when the comparison is between life with disabilities and non-existence. (8) 22 23 24
18 HCA case holding that there is no implied 25 26 term in contracts of employment imposing a mutual duty of trust and confidence. (6) 20 The quality of being accepted as evidence. (13) 27 22 HCA case holding that there was no separate action for a breach of any constitutional right, 28 29 ...... v Commonwealth. (6) 25 The Constitution requires that legislation 30 receives ..... assent from the Governor- 31 32 General. (5) 26 The Fair Work Act provides that an employee must not work more than thirty-..... hours a 4 HCA case which abolished the rule in 15 A writ inquiring into the lawfulness of restraint week unless reasonable to do so. (5) Rylands v Fletcher and the ignis suus of a prisoner, habeas corpus ad ...... 27 Kelsen’s theory of positive law provides that principle, Burnie .... Authority v General (Latin) (12) all laws emerge from a ...... (German) (9) Jones Pty Ltd. (4) 19 HCA case concerning a casino alleged to have 28 Term used when a court overrules a principle 5 HCA case that held child support was taken unfair advantage of a patron’s gambling in a case without specifically stating so, sub not a tax, ..... v Lessels. (5) problem, ...... v Crown Melbourne Ltd. (7) ...... (Latin) (8) 6 The first case to be decided by the HCA, 21 HCA decision relating to standing of third 30 HCA case overruling the decision in Beaudesert ...... v Hannah. (8) parties with no direct involvement, ..... About Shire Council v Smith, N.T. v ...... (6) 7 If a conditional costs agreement relates Motorways Pty Ltd v Macquarie Infrastructure 31 Drug analysis. (5) to a litigious matter, the ...... fee must not Investment Management Ltd. (5) 23 Confirms or supports, judicially. (7) 32 HCA case concerning the cruise ship exceed 25% of the legal costs, excluding MS Mikhail Lermontov, Baltic Shipping disbursements. (6) 24 HCA decision concerning double jeopardy, Company v ...... (6) 10 Entity which now provides services R v ...... (7) previously performed by the Health 29 National group previously known as the Down Insurance Commission. (8) Australian Plaintiff Lawyers Association. 1 HCA case holding that a negligent doctor 11 An order for spousal maintenance ceases (Abbr.) (3) could be held responsible for the cost of to have effect upon the death or ...... raising a healthy child, Cattanach v ...... (8) of the payor. (10) 2 Contractual defence, either unilateral, 13 The Voyager case, Commonwealth v ...... (8) mutual or common. (7) 14 HCA case concerning an accused sending 3 Instituting civil proceedings. (5) abusive letters to relatives of Australian Solution on page 60 war veterans, ..... v The Queen. (5)
58 PROCTOR | April 2019 Suburban cowboy Teen birthdays no laughing matter But I’ll be left in stitches by Shane Budden
By the time you read this, the obvious message – my friends and I are the male involved when the relationships old and decrepit dorks. Our response to that ended; such were the primitive ways of my I will have been through two would of course be to protest vehemently people (known to archaeologists as Davidus traumatic incidents. that we are neither old nor decrepit, before Bowiesapiens, or The Children of the ’80s). trailing off because we have forgotten what That is not an option for today’s youth, who These would be guaranteed to make even we were saying, and possibly what day it is. can take and post upwards of a dozen selfies great heroes from Australian history, such as In other words, despite the impression in the time it takes to exit a cab (sorry, Uber; Captain Cook, Dally Messenger and Skippy, of youthful vigour, dynamic vibrancy and today’s youth prefer a form of transport turn pale. I will have undergone surgery to wolverine abs that one must gain from inspired by Nazi Germany, apparently). repair a couple of hernias, and attended an looking at my profile photo (and I assure Also, should they consume one or two too 18-year-old’s birthday party – and I am not you, my friends all look almost – although many sherbets, and find themselves sitting sure which of these is worse. of course not quite – as amazingly youthful naked atop the clock tower of City Hall and Actually, I am – it is the birthday party. Not, as me) I am getting older. Fortunately declaiming the virtues of going on the paleo I should add, due to the horrendous music for fans of this column, the maturity that diet,1 their friends will thoughtfully record the teenagers must (apparently by law, as there usually accompanies age has never once event and upload to video-sharing sites. So is no other explanation for it) listen to, and evidenced itself in my case, so we can young people will not lack for a record of their at volumes which cause ripples in the rings safely assume that it has no intention of own ageing. of Saturn. I do not fear this, because the putting in an appearance. For my friends and me, however, even birthday boy is the child of our good friends, I digress, however, and return to the point the absence of any real forensic record of and his mother has both excellent taste in at hand, which is that I am getting older and the passage of the years can no longer music and a sound system so powerful that now that I am attending the birthday protect us, due to the curse of all lawyers – even teenagers cannot get near it. parties of my friends’ adult children, this can mathematics. Simply put, Einstein’s theory of Indeed, I fear the birthday party more than no longer be denied. People of my vintage relativity states (somewhere near the back, I falling into the clutches of modern medicine, used to be able to avoid confronting our think) that if your friend’s kids are turning 18, despite the fact that I am at the age where mortality because, when we were young, and you are the same age as your friends, a skilled health care professional can take a cameras were not ubiquitous (literally, then you are relatively old. minor bruise on my elbow and turn it into a ‘affordable’) so evidence of ageing was thin Come to think of it, having to have a three-week hospital stay dedicated to finding on the ground. hernia repaired isn’t exactly an indication out which parts of my body react the worst Indeed, another group of friends has a photo of youthfulness either. I cannot recall my to needles. of most of our group, taken – as near as I can kids, even once, coming home from kindy I mean, sure, I can present at a hospital with figure it – just after photography had been and mentioning that little Alchemy Stevens an in-grown toenail and end up forking over invented. It allegedly shows us at the dawn of (c’mon, you don’t hear of anyone calling their the cost of a six-pack of F-35 fighter planes either our legal careers or time itself, meaning kids Johnny or Mary any more, do you?) was for the privilege of having tissue samples we are supposedly in our early 20s. When I look off until Easter due to a hernia. Even at uni, taken from every internal organ I possess, at it now, however, it seems to show a group of if you had said the words ‘inguinal hernia’ to but the birthday party can do something 12-year-olds who have snuck into a restaurant one of us, we would have assumed it was the name of Iggy Pop’s new band. much worse – make me feel old. after raiding their parents’ wine cellars. Thankfully I’m not one of those really old This is because the fine young man who is So once upon a time I could avoid the guys, you know the ones, who just go on and turning 18 used to be – last month, if I recall passing of years by not looking at that on about what a drag it is getting ol-uh oh… correctly – a newborn who could fit on my photo and any like it, of which there are few. forearm when I first met him, 12 hours after The lack of a photographic record of our his birth, and incapable of communicating collective misspent youths is partly related other than in grunts, burps and unintelligible to the expense of photos back then, partly mumbles. Next time I see him, he will be 18 to the difficulty in storing them and mostly to © Shane Budden 2019. Shane Budden is years old and taller than me, although as a the fact that the responsibility for taking and a Queensland Law Society ethics solicitor. teenager his communication preferences storing photos back then fell to any girlfriends will remain largely the same. in the group. Notes To make matters worse, another of my Thus many good photos were taken, 1 Nil, unless you count the public benefit friends has a daughter who is even older, meticulously dated and described on the of notifying the rest of the world that you although she at least had the decency not back, carefully stored, and then burnt as are a gullible prat. to invite us fogies to her 18th and so rub in invocations to various goddesses to smite
PROCTOR | April 2019 59 DLA presidents QLS Senior District Law Associations (DLAs) are essential to regional QLS development of the legal profession. Please contact your Counsellors relevant DLA President with any queries you have or for contacts Senior Counsellors are available to provide confi dental information on local activities and how you can help raise advice to Queensland Law Society members on any the profi le of the profession and build your business. professional or ethical problem. They may act for a solicitor in any subsequent proceedings and are available Bundaberg Law Association Edwina Rowan Queensland Law Society to give career advice to junior practitioners. Charltons Lawyers PO Box 518, Bundaberg QLD 4670 1300 367 757 p 07 4152 2311 f 07 4152 0848 [email protected] Ethics centre Brisbane Suzanne Cleary 07 3259 7000 Central Queensland Law Association Samantha Legrady Glen Cranny 07 3361 0222 RK Law 07 3842 5843 Suite 5, 25 East Street, Rockhampton Qld 4700 Peter Eardley 07 3238 8700 p 07 4922 0146 [email protected] LawCare Downs & South West Queensland Glenn Ferguson AM 07 3035 4000 District Law Association Sarah-Jane MacDonald 1800 177 743 MacDonald Law Peter Jolly 07 3231 8888 PO Box 1639, Toowoomba QLD 4350 Lexon p 07 4638 9433 f 07 4638 9488 [email protected] Peter Kenny 07 3231 8888 Far North Queensland Law Association Dylan Carey 07 3007 1266 Dr Jeff Mann 0434 603 422 O’Connor Law PO Box 5912, Cairns Qld 4870 Room bookings Justin McDonnell 07 3244 8000 p 07 4031 1211 f 07 4031 1255 [email protected] 07 3842 5962 Wendy Miller 07 3837 5500 Fraser Coast Law Association John Willett Suthers George, Terence O'Gorman AM 07 3034 0000 PO Box 144, Maryborough Qld 4650 p 07 4121 3650 f 07 4123 1969 [email protected] Ross Perrett 07 3292 7000 Gladstone Law Association Kylie Devney V.A.J. Byrne & Co Lawyers Bill Potts 07 3221 4999 148 Auckland Street, Gladstone Qld 4680 p 07 4972 1144 f 07 4972 3205 [email protected] Interest Bill Purcell 07 3001 2999 Gold Coast Law Association Mia Behlau Elizabeth Shearer 07 3236 3000 MinterEllison – Gold Coast % PO Box 11, Varsity Lakes Qld 4227 rates Dr Matthew Turnour 07 3837 3600 p 07 5553 9400 f 07 5575 9911 [email protected] Phillip Ware 07 3228 4333 Gympie Law Association Kate Roberts CastleGate Law, 2-4 Nash Street, Gympie Qld 457 Interest rates are no longer Martin Conroy 0410 554 215 p 07 5480 6200 f 07 5480 6299 [email protected] Ipswich & District Law Association Peter Wilkinson published in Proctor. Please George Fox 07 3160 7779 McNamara & Associates, visit the QLS website to view PO Box 359, Ipswich Qld 4305 Redcliffe Gary Hutchinson 07 3284 9433 p 07 3816 9555 f 07 3816 9500 [email protected] each month’s updated rates Ross Lee 07 5518 7777 Logan and Scenic Rim Law Association Michele Davis qls.com.au/interestrates Wilson Lawyers, PO Box 1757, Coorparoo Qld 4151 Toowoomba Stephen Rees 07 4632 8484 p 07 3392 0099 f 07 3217 4679 [email protected] Direct queries can also be sent Thomas Sullivan 07 4632 9822 Mackay District Law Association Catherine Luck Taylors Solicitors, to [email protected]. Kathryn Walker 07 4632 7555 PO Box 687, Mackay Qld 4740 p 07 4957 2944 f 07 4597 2016 [email protected] Chinchilla Michele Sheehan 07 4662 8066 Moreton Bay Law Association Hayley Suthers-Crowhurst Maurice Blackburn Caboolture Kurt Fowler 07 5499 3344 PO Box 179, Caboolture Qld 4510 Sunshine Coast Pippa Colman 07 5458 9000 p 07 3014 5044 f 07 3236 1966 [email protected] Michael Beirne 07 5479 1500 North Brisbane Lawyers’ Association John (A.J.) Whitehouse Pender & Whitehouse Solicitors, Crossword Nambour Mark Bray 07 5441 1400 PO Box 138 Alderley Qld 4051 p 07 3356 6589 f 07 3356 7214 [email protected] solution Bundaberg Anthony Ryan 07 4132 8900 North Queensland Law Association Michael Murray Gladstone Bernadette Le Grand 0407 129 611 Townsville Community Legal Service Inc. PO Box 807 Townsville Qld 4810 Chris Trevor 07 4976 1800 p 07 4721 5511 f 07 4721 5499 [email protected] From page 58 North West Law Association Jennifer Jones Rockhampton Vicki Jackson 07 4936 9100 LA Evans Solicitor, PO Box 311 Mount Isa Qld 4825 Across: 1 Mala, 2 Mesne, Paula Phelan 07 4921 0389 p 07 4743 2866 f 07 4743 2076 [email protected] 4 Paul, 8 Parental, 9 Competency, South Burnett Law Association Mark Werner 12 Investments, 16 MRR, 17 Harriton, Mackay Brad Shanahan 07 4963 2000 J.A. Carroll & Son Solicitors, PO Box 17, Kingaroy Qld 4610 18 Barker, 20 Admissibility, 22 Kruger, Cannonvale John Ryan 07 4948 7000 p 07 4162 1533 f 07 4162 1787 [email protected] 25 Royal, 26 Eight, 27 Grundnorm, Townsville Chris Bowrey 07 4760 0100 Sunshine Coast Law Association Samantha Bolton 28 Silentio, 30 Mengel, 31 Assay, 32 Dillon. CNG Law, Kon-Tiki Business Centre, Tower 1, Peter Elliott 07 4772 3655 Level 2, Tenancy T1.214, Maroochydore Qld 4558 Down: 1 Melchior, 2 Mistake, 3 Suing, p 07 5406 0545 f 07 5406 0548 [email protected] 4 Port, 5 Luton, 6 Dalgarno, 7 Uplift, Lucia Taylor 07 4721 3499 Southern District Law Association Bryan Mitchell 10 Medicare, 11 Remarriage, Cairns Russell Beer 07 4030 0600 Mitchells Solicitors & Business Advisors PO Box 95 Moorooka Qld 4105 13 Verwayen, 14 Monis, 15 Subjiciendum, Jim Reaston 07 4031 1044 p 07 3373 3633 f 07 3426 5151 [email protected] 19 Kakavas, 21 Truth, 23 Upholds, Townsville District Law Association Mark Fenlon 24 Carroll, 29 Ala. Garth Smith 07 4051 5611 PO Box 1025 Townsville Qld 4810 p 07 4759 9814 f 07 4724 4363 [email protected] Mareeba Peter Apel 07 4092 2522
60 PROCTOR | April 2019 DLA presidents QLS Senior District Law Associations (DLAs) are essential to regional QLS development of the legal profession. Please contact your Counsellors relevant DLA President with any queries you have or for contacts Senior Counsellors are available to provide confi dental information on local activities and how you can help raise advice to Queensland Law Society members on any the profi le of the profession and build your business. professional or ethical problem. They may act for a solicitor in any subsequent proceedings and are available Bundaberg Law Association Edwina Rowan Queensland Law Society to give career advice to junior practitioners. Charltons Lawyers PO Box 518, Bundaberg QLD 4670 1300 367 757 p 07 4152 2311 f 07 4152 0848 [email protected] Ethics centre Brisbane Suzanne Cleary 07 3259 7000 Central Queensland Law Association Samantha Legrady Glen Cranny 07 3361 0222 RK Law 07 3842 5843 Suite 5, 25 East Street, Rockhampton Qld 4700 Peter Eardley 07 3238 8700 p 07 4922 0146 [email protected] LawCare Downs & South West Queensland Glenn Ferguson AM 07 3035 4000 District Law Association Sarah-Jane MacDonald 1800 177 743 MacDonald Law Peter Jolly 07 3231 8888 PO Box 1639, Toowoomba QLD 4350 Lexon p 07 4638 9433 f 07 4638 9488 [email protected] Peter Kenny 07 3231 8888 Far North Queensland Law Association Dylan Carey 07 3007 1266 Dr Jeff Mann 0434 603 422 O’Connor Law PO Box 5912, Cairns Qld 4870 Room bookings Justin McDonnell 07 3244 8000 p 07 4031 1211 f 07 4031 1255 [email protected] 07 3842 5962 Wendy Miller 07 3837 5500 Fraser Coast Law Association John Willett Suthers George, Terence O'Gorman AM 07 3034 0000 PO Box 144, Maryborough Qld 4650 p 07 4121 3650 f 07 4123 1969 [email protected] Ross Perrett 07 3292 7000 Gladstone Law Association Kylie Devney V.A.J. Byrne & Co Lawyers Bill Potts 07 3221 4999 148 Auckland Street, Gladstone Qld 4680 p 07 4972 1144 f 07 4972 3205 [email protected] Interest Bill Purcell 07 3001 2999 Gold Coast Law Association Mia Behlau Elizabeth Shearer 07 3236 3000 MinterEllison – Gold Coast % PO Box 11, Varsity Lakes Qld 4227 rates Dr Matthew Turnour 07 3837 3600 p 07 5553 9400 f 07 5575 9911 [email protected] Phillip Ware 07 3228 4333 Gympie Law Association Kate Roberts CastleGate Law, 2-4 Nash Street, Gympie Qld 457 Interest rates are no longer Martin Conroy 0410 554 215 p 07 5480 6200 f 07 5480 6299 [email protected] Ipswich & District Law Association Peter Wilkinson published in Proctor. Please George Fox 07 3160 7779 McNamara & Associates, visit the QLS website to view PO Box 359, Ipswich Qld 4305 Redcliffe Gary Hutchinson 07 3284 9433 p 07 3816 9555 f 07 3816 9500 [email protected] each month’s updated rates Ross Lee 07 5518 7777 Logan and Scenic Rim Law Association Michele Davis qls.com.au/interestrates Wilson Lawyers, PO Box 1757, Coorparoo Qld 4151 Toowoomba Stephen Rees 07 4632 8484 p 07 3392 0099 f 07 3217 4679 [email protected] Direct queries can also be sent Thomas Sullivan 07 4632 9822 Mackay District Law Association Catherine Luck Taylors Solicitors, to [email protected]. Kathryn Walker 07 4632 7555 PO Box 687, Mackay Qld 4740 p 07 4957 2944 f 07 4597 2016 [email protected] Chinchilla Michele Sheehan 07 4662 8066 Moreton Bay Law Association Hayley Suthers-Crowhurst Maurice Blackburn Caboolture Kurt Fowler 07 5499 3344 PO Box 179, Caboolture Qld 4510 Sunshine Coast Pippa Colman 07 5458 9000 p 07 3014 5044 f 07 3236 1966 [email protected] Michael Beirne 07 5479 1500 North Brisbane Lawyers’ Association John (A.J.) Whitehouse Pender & Whitehouse Solicitors, Crossword Nambour Mark Bray 07 5441 1400 PO Box 138 Alderley Qld 4051 p 07 3356 6589 f 07 3356 7214 [email protected] solution Bundaberg Anthony Ryan 07 4132 8900 North Queensland Law Association Michael Murray Gladstone Bernadette Le Grand 0407 129 611 Townsville Community Legal Service Inc. PO Box 807 Townsville Qld 4810 Chris Trevor 07 4976 1800 p 07 4721 5511 f 07 4721 5499 [email protected] North West Law Association Jennifer Jones Rockhampton Vicki Jackson 07 4936 9100 LA Evans Solicitor, PO Box 311 Mount Isa Qld 4825 Paula Phelan 07 4921 0389 p 07 4743 2866 f 07 4743 2076 [email protected] South Burnett Law Association Mark Werner Mackay Brad Shanahan 07 4963 2000 J.A. Carroll & Son Solicitors, PO Box 17, Kingaroy Qld 4610 Cannonvale John Ryan 07 4948 7000 p 07 4162 1533 f 07 4162 1787 [email protected] Townsville Chris Bowrey 07 4760 0100 Sunshine Coast Law Association Samantha Bolton CNG Law, Kon-Tiki Business Centre, Tower 1, Peter Elliott 07 4772 3655 Level 2, Tenancy T1.214, Maroochydore Qld 4558 p 07 5406 0545 f 07 5406 0548 [email protected] Lucia Taylor 07 4721 3499 Southern District Law Association Bryan Mitchell Cairns Russell Beer 07 4030 0600 Mitchells Solicitors & Business Advisors PO Box 95 Moorooka Qld 4105 Jim Reaston 07 4031 1044 p 07 3373 3633 f 07 3426 5151 [email protected] Townsville District Law Association Mark Fenlon Garth Smith 07 4051 5611 PO Box 1025 Townsville Qld 4810 p 07 4759 9814 f 07 4724 4363 [email protected] Mareeba Peter Apel 07 4092 2522