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9 2 .0 5 L a W in St Itut E Jo U R N a L M Ay 2018 RRP $20 LAW INSTITUTE JOURNAL MAY 2018 LITIGATION | WILLS AND ESTATES | MENTAL HEALTH www.liv.asn.au/LIJ PP100007900 ISSN 0023-9267 92.05 LAW INSTITUTE JOURNAL INSTITUTE LAW LITIGATION | WILLS AND ESTATES | MENTAL HEALTH | TRANSPORT ACCIDENT COMMISSION LAW INSTITUTE MAY 2018 JOURNAL MAY 2018 LITIGATION | WILLS AND ESTATES | MENTAL HEALTH www.liv.asn.au/LIJ LEGAL NEW MEDICAL PP100007900 ISSN 0023-9267 AWARDS TREATMENT LAW’S RISING STARS RRP $20 THE INNOVATORS ACT Q&A A WALK IN THE WOODS 92.05 470 BOURKE ST SOLD JUDGE MARK DEAN Your firm is famous for connecting evidence across cases. Our Discovery services let you connect it across the world. Where discovery work flows. www.lawinorder.com • 1300 096 216 Sydney • Brisbane • Melbourne • Perth • Singapore • Hong Kong • India Contents May 2018 RISING STARS At the 14th Victorian Legal Awards 11 emerging stars will be recognised in the Lex Medicus Rising Star Award. PAGE 16 The innovators Nominees for the Victorian Legal Awards PEXA Innovation Award are shaking things up. By Karin Derkley PAGE 13 Preferences for future medical treatment A new act to consolidate medical treatment laws and ensure a person’s values and preferences are followed came into force in Victoria on 12 March 2018. By Bill O’Shea and Rebecca Park PAGE 26 PHOTO: DAVID JOHNS Rising stars Katie Minogue, Scott McKenzie, Phoebe Blank, Katerina Patras, Nicki Lees, Emma Newnham, Bridie Walsh, Demetrio Zema and Merys Williams MAY 2018 LAW INSTITUTE JOURNAL 1 Contents May 2018 BRIEFS EVERY ISSUE 10 Court on camera 4 Contributors 6 From the LIV 8 Letters NEWS COURTS & PARLIAMENT 46 High Court judgments VICTORIAN LEGAL AWARDS 48 Federal Court judgments 13 The innovators 50 Family law judgments 52 Supreme Court judgments The nominees for the Victorian 54 Legislation Legal Awards PEXA Innovation FEATURES 55 Practice notes Award are shaking things up. MEDICAL TREATMENT PLANNING AND DECISIONS ACT By Karin Derkley 26 Values and preferences for future REVIEWS medical treatment 16 Rising stars 57 Online A new act to consolidate medical treatment At the 14th Victorian Legal 58 Books 60 LIV Library laws and ensure a person’s values and Awards 11 emerging stars will be preferences are followed came into force in recognised in the Lex Medicus PRACTICE Victoria on 12 March 2018. Rising Star Award. By Bill O’Shea and Rebecca Park 62 Victorian law reform LIV COMMITTEES 63 LPLC LITIGATION 18 Have your say 64 Property 65 Technology 30 A breach of trust LIV members can make a difference in 66 ADR The proliferation of the trust as a vehicle their practice areas and communities 67 According to merit?/Diversity for commercial activity presents issues in by joining an LIV committee. litigation – principally, whether a beneficiary By Sophie Suelzle CAREER can step around an impecunious or assetless PROPERTY SALE trustee and recover against other beneficiaries 69 Legal action or third parties. By Michael Wise SC 19 LIV sells 470 Bourke Street 70 Your career The search is underway for a new WILLS AND ESTATES LIV home for the 159-year-old Law 34 Informal wills Institute of Victoria. 72 Advocacy Since 1997 it has been possible for informal 73 Council PAPERLESS COURTS 74 Associations wills to be admitted to probate in Victoria on the basis that the deceased intended 20 Courts at a turning point CLASSIFIEDS that a document or documents recording It’s taken longer than expected, but testamentary intentions be his or her will. the planets are finally aligning to 82 Crossword By Philip Barton bring courts closer to a paperless environment. MENTAL HEALTH By Karin Derkley 38 A wellness KPI: implications for Australian law OPINION Two prominent firms have advocated 22 Reputation in the digital era for wellness and wellbeing to become a With the number of digital mainstream issue for management. defamation cases rising dramatically By Andrew Clarke the cost to parties involved in proceedings is concerning. TRANSPORT ACCIDENT COMMISSION By Christien Corns LIVING LAW 42 Highly serious WELCOME 83 Inside stories The High Court’s examination of 85 Food/Wine/Coffee “serious injury” in TAC v Katanas will 23 Justice John Champion 86 With all due respect guide future decisions. 87 Health and wellbeing OBITUARY By Michael Lombard and Giorgina 88 Beyond the law McCormack 24 Bob Baxt AO ADOBE STOCK 2 LAW INSTITUTE JOURNAL MAY 2018 Contributors LAW INSTITUTE JOURNAL EDITORIAL LIJ WORKING GROUP Managing editor Gerry Bean Carolyn Ford Carolyn Ford 03 9607 9319 Geoff Gronow [email protected] Melissa Macken www.liv.asn.au/lij Chris Molnar Cameron Ross Production editor James Turnbull Mary Kerley Journalist EDITORIAL POLICY Karin Derkley Views expressed by Sub-editor and proofreader contributors are not Bill O’Shea Rebecca Park Michael Wise SC Libby Brown necessarily en dorsed by the Law Institute of Victoria Ltd. Art director No responsibility is accepted Chloe McMahon Past president of Lawyer to the LIV’s Commercial barrister by the LIV, the editor or the the LIV and chair of Elder Law, Succession and nationally SUBMISSIONS printers for the accuracy of inform ation contained in the College of Law Victoria. Law and Workplace accredited mediator Submissions for legal text and advertisements. features, opinion pieces and He was Alfred Health’s Relations Law of 25 years’ other articles should go to Neither the LIV nor the LIJ in any way endorses or takes PAGE 26 PAGE 30 [email protected] first general counsel Sections. experience. any responsibility whatsoever and is chair of the LIV’s ADVERTISING INQUIRIES for any material contained on external websites referred to Elder Law Section. Advertising sales executive by the LIJ. Greg Pryer PAGE 26 The LIJ is a peer reviewed 03 9607 9337 publication. [email protected] www.liv.asn.au/lij Small sums of money from the Copyright Agency Limited SUBSCRIPTION INQUIRIES (CAL) are periodically payable Subscriptions coordinator to authors when works are Jenn McCormack copied by CAL licensees (including government 03 9607 9365 departments, tertiary [email protected] institutions etc). http://tinyurl.com/b9suvbr As it is not financially viable Annual subscription: for the LIJ to collect and Domestic: distribute these royalties • Hard copy plus 1 online user to individual authors, $211.75 (inc. GST) contributors undertake to • Hard copy plus 2-20 online become a member of CAL Philip Barton Andrew Clarke Michael Lombard users $605 (inc. GST) and receive any payments • Hard copy plus 101 – 200 directly (see copyright.com. online users $1210 (inc. GST) au) or they waive all claims Practises at the Professor at the College Partner at Adviceline Overseas: to moneys payable by CAL Victorian Bar of Law & Justice, Victoria Injury Lawyers and • Hard copy plus 1 online user for works published in LIV AU$363 publications. It is a condition in commercial, University. Previously he head of the firm’s of submission of an article that property, probate was Head of School and traffic accident division. contributors agree to either of these options. and land valuation Inaugural Dean from He is an LIV Council DISTRIBUTION law and publishes 2012 to 2016. PAGE 38 member, an LIV The LIJ is printed by Southern caveatsvictoria. accredited specialist Colour. blog. PAGE 34 in personal injury This issue of the LIJ is cited as law and a qualified (2018) 92(05) LIJ. THANK YOU TO OUR ISSN 0023-9267 mediator. PAGE 42 REGULAR CONTRIBUTORS PP 100007900 FOR MAY: © 2018 Law Institute of Russell Cocks Victoria Ltd. Robert Glade-Wright ABN 32 075 475 731. Thomas Hobbs Professor Greg Reinhardt RENEW YOUR Dan Star QC Andrew Yuile September 2017: 12,610 MEMBERSHIP LAW INSTITUTE OF VICTORIA Giorgina McCormack 470 Bourke Street, Melbourne 3000 www.liv.asn.au/Membership GPO Box 263, Melbourne 3001 Lawyer at Adviceline DX 350 Melbourne Injury Lawyers. She 03 9607 9311 works predominantly [email protected] www.liv.asn.au assisting people @lij injured in industrial @livpresident accidents or those @livyounglawyers blog www.liv.asn.au/ diagnosed with Staying-Informed/ asbestos related Presidents-Blog blog www.liv.asn.au/ diseases. PAGE 42 YoungLawyersBlog Sach Fernando, Principal, Axiom Injury Lawyers Accredited Specialist, Personal Injury Law 4 LAW INSTITUTE JOURNAL MAY 2018 RENEW YOUR MEMBERSHIP www.liv.asn.au/Membership Sach Fernando, Principal, Axiom Injury Lawyers Accredited Specialist, Personal Injury Law From the LIV Members our future focus OVER 75 Get involved by joining one of our committees. The requirements of our members and the legal profession are always ever’s front and centre of the LIV’s strategic planning and future focus. We need D YEARS to constantly evolve to be ahead of the game, supporting you on your professional journey. CAPACITY | SKILLS & SUITABILITY | AVAILABILITY | AREAS OF EXPERTISE The LIV is committed to supporting our members, the legal profession ist Throughout 2018 and beyond, we’ll be advocating and the community, which includes being the voice of the profession, doing L COMBINED for more funding for our courts, plus more funding advocacy to influence change and improving access to justice. to address mental health and wellbeing issues. More This month the LIV’s membership renewal process gets underway and We welcome the latest Readers to the List needs to be done to address court backlogs and we want to welcome back our 19,000 members but also welcome as many court services. Legal Aid needs significant funding, new members as possible and build a stronger legal community. and greater investment in the Court Integrated CLERKING For me, being an LIV member gives me access to a world of knowledge, Services Program (CISP) and CISP Remand Outreach connections and friendship. It is a family of like minded colleagues who program will see increased monitoring, treatment and are supportive and passionate about ensuring that our profession and laws supervision of people on bail and remand.
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