PROCTOR
February 2014 – Vol.34 No.1
Ian Brown,
QLS president
An interview with 2014 Queensland
Law Society president Ian Brown
Building on
a duty of care
The Owners – Strata Plan No 61288 v
Brookfield Australia Investments Ltd
Are lawyers part of the solution
or part of the problem?
Article by former South Australian
Chief Justice John Doyle
Published by the Queensland Law Society
ISSN 1321-8794 | RRP $14.30 (includes GST)
qls.com.au
PROCTOR
News and editorial
Executive reports
News
In camera
Member benefits
22
Features
Early career lawyers
3,5
6-13
14-15
16
Regular features
Advocacy: The voice of your profession
40
Workplace law: The new anti-bullying jurisdiction 42
Are lawyers part of the solution
or part of the problem?
18
Article by former South Australian
Chief Justice John Doyle
New fund aids
access to justice
22
The Owners – Strata Plan No 61288 v
Brookfield Australia Investments Ltd
A question that practitioners
often find perplexing
ASSOCIATION
OR MEMBER
ORgANISATION
MAgAZINE
OF THE YEAR
Finalist
44
46
remains firm
29
Book review: Leaping into law?
32
Professional development
Diary dates
34
Symposium 2014: Can we turn
to a ‘brain-based’ economy?
36
Symposium program highlights
38
Practice skills and management
Costs consultation: Get your clients
62
involved in setting fees!
48
Succession law: 2013 wrap-up
49
Career pathways
Back to basics: Substituted service
50
Career spotlight: Four for the family
63
Career moves
64
On appeal: 1-30 November, 1-31 December 2013 52
59
over adjourned recovery application
26
30
relevant to Australian practitioners
Ethics: Litigating like adults
Family law casenotes: Appeal allowed
An interview with 2014 Queensland
Law Society president Ian Brown
What if my client lied?
Alternative dispute resolution:
Practice and procedure: Statute bar
Investments to provide
continuing income
Ian Brown, QLS president
43
Family ways
20
Building on a duty of care
Your library: Your library is open for business
Destination Dubai: Dual court system
Hurley’s casenotes
60
Business supporters
66
Classifieds
68
In memoriam: Stephen Conimo
71
Contact directory, interest rates
76
Outside the law
Wine: Tasmania by glass and plate
72
Crossword: Mould’s maze
74
Humour: Your 2014 job-hunting guide
75
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President’s report | News and editorial
Practitioner pride
Are you ready to speak out?
Are you proud to be a lawyer?
If not, perhaps it’s time you were.
I don’t think we’re going to change
community attitudes to our noble profession
until we take pride in our achievements and
what we do for the community. And we
need to tell people about it.
The bias against our profession is such that
it will require a groundswell of positivity
from all of us before we can begin to change
public perceptions. And it will take time.
However, first of all, let me attempt to put
the perceived ‘problem’ into perspective.
In its 2012-13 annual report, the Legal
Services Commission said that it received
811 new complaints during the year,
involving 413 practitioners.
In contrast, the 2012-13 annual report of
Queensland’s Health Quality and Complaints
Commission reported more than four times
as many complaints about healthcare
professionals over the past year. It said:
“In 2012-13, 3419 people contacted us with
concerns about their healthcare, a 5% increase
on the previous year. Since we were established
in 2006, complaints have increased on average
3.6% per year. From July 2009, complaints
received increased by 52.5%.1”
And the 2012-13 annual review of the
Financial Ombudsman Service reported a
national total of 32,307 disputes, of which 20%
– more than 6450 – came from Queensland.
Yes, there may well be more healthcare
professionals and financial services providers
than lawyers, and it is difficult to determine
exactly how many, but these figures are
enough to make you wonder why the media,
and other interests in the community, go out
of their way to vilify lawyers as a profession and
with such a degree of barely concealed relish.
Are we a soft target because we aren’t
speaking out about our successes?
There are plenty of headlines about ‘groundbreaking’ research by doctors, but journalists
don’t appear to find any appeal in stories
about lawyers standing up for their clients and
back to contents
obtaining positive and fair outcomes. Doctors
are lauded for undertaking charitable work in
remote Australia and overseas. Stories about
the huge amount of pro bono work undertaken
by lawyers rarely, if ever, rate a mention.
It’s time we were more proactive in talking
about our achievements, not just to the
media but to the community at large.
Let’s start by being active in spreading our
‘good news’. We have the skills to protect client
identity and maintain confidentiality when
necessary, so let’s each carefully consider a
couple of the stories we can tell our friends,
family and the people we meet.
Our pro bono work, in particular, makes a good
starting point. In this we easily outshine every
profession in both formal programs such as
firm-based schemes and by less formal means,
from providing assistance to the local P&C or
other community groups to free legal advice
for people affected by natural disasters.
Do you have a good pro bono story to tell?
Please share it with me and your colleagues
through Proctor. There’s an inspiring piece on
page 12 of this edition to start the ball rolling.
Email me your short and simple stories about
the power of pro bono (president@qls.com.au)
and we’ll take it from there.
While you’re browsing this edition, ensure
you also read the article by the former Chief
Justice of South Australia, John Doyle, about
the real role of lawyers in the judicial process.
And be proud to be a legal practitioner. I am.
AGM outcome
Though many members will already be
aware of this, I would like to record here the
major outcome of our 85th annual general
meeting in November.
Members endorsed the proposed
governance changes, including our
registration as a company limited by
guarantee, by a significant majority.
We will now aim to progress this and
establish an appropriate timeframe. This
will include consultation with the AttorneyGeneral, as it involves amendment of a
number of pieces of legislation.
Ian Brown | Queensland Law Society president
I look forward to working on this with
stakeholders in the year ahead. To learn
more about other issues and projects for
my year as president, please see the feature
article on page 26.
My door at the QLS is always open. Feel
free to phone me or come into Law Society
House to discuss any issues or concerns
you have. I know I have huge shoes to fill.
Annette Bradfield has been an incredibly hard
working, and not to put too fine a point on
it, inspirational president in 2013. I hope with
your support I can work towards continuing
to build on Annette’s achievements.
Ian Brown
Note
Health Quality and Complaints Commission annual
report 2013, page 8.
1
February 2014 | Proctor
3
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Witnesses
nline
www.expertwitnessesonline.com.au
Where experts and lawyers meet
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Our executive report | News and editorial
Development –
professional and personal
A year that brings the profession together
With the holiday season now over,
I’d like to welcome all of our members
to 2014 with my best wishes for a
busy but happy and prosperous year.
Your Society’s professional development and
social program is ready to kick off this month
with a comprehensive range of seminars (see
page 34) and social events that include our
member New Year drinks on 6 February and
Legal Profession Dinner on 21 February.
The dinner is an annual highlight and this year
our keynote speaker is Father Frank Brennan
SJ AO who, as many members know, is adept
at providing an address which stimulates and
challenges our thinking and beliefs as much
as it entertains. Fr Brennan received his law
degree from the University of Queensland,
and was initially admitted to the Bar here.
The outspoken Jesuit priest and professor of law
at Australian Catholic University was described
by then Prime Minister Kevin Rudd as “an ethical
burr in the nation’s saddle” when Fr Brennan’s
book, Acting on Conscience, was launched.
Come along to the dinner and find out why!
You’ll have the opportunity to greet our 2014
president, Ian Brown, along with Council
members and QLS senior counsellors, catch
up with colleagues, and acknowledge the
contributions of those members who have
notched up 50 years of service.
The president will present this year’s President’s
Medal and the QLS Equity and Diversity Award.
It will be a great night at the Sofitel Brisbane
Central that captures the collegiality and
contribution of our profession. Purchase
your tickets now at qls.com.au/LPD.
Dr John Hewson (see page 36), lead a fantastic
range of more than 80 presenters covering seven
substantive law streams and a core CPD stream.
Symposium, at the Brisbane Convention
& Exhibition Centre on 21-22 March, also
offers an excellent opportunity to gain your
10 required CPD points in one hit as well as
network with colleagues in a convivial setting.
Details, including the full program, are
available at qls.com.au, and don’t forget
to take advantage of the member earlybird
pricing, which closes on 21 February. I look
forward to meeting you there!
Resilience and flexibility
There are two important elements of our
professional lives which will be in the
spotlight this year.
As in 2013, improving our members’ resilience
remains a major priority for the Society and
our resilience working group, chaired by Rolf
Moses of Norton Rose Fulbright, is already on
the job in developing strategies and solutions
for our members.
At present, we are concentrating on building
even greater awareness of the prevalence of
depression and anxiety amongst practitioners,
and seeking the best means of taking a
preventative approach as well as looking at best
practice intervention. Expect some very useful
information to be released in the near future.
This work will continue under our Love law,
live life campaign banner, and all members
are invited to check the resources available
on that page at qls.com.au. For more
information or to provide input, you can
email me – n.l’estrange@qls.com.au.
Now in its 52nd year, Symposium has always
provided members with essential learning
in their chosen fields and this year’s event
will be no exception.
The second, related focus is our flexibility
working group. We must be able to take
positive action to address the huge shift
in gender balance in the profession. The
significant female majority amongst early
career lawyers rapidly declines as careers
progress, currently leading to a profession
top-heavy in males by the time practitioners
reach the mid to late stage of their careers.
In the long term, this will be unsustainable.
This year’s keynote speakers, legal costs expert
George Beaton and corporate/political guru
While there are several factors involved here,
including an inherited male bias, we believe
Symposium 2014
Are you also ready for the biggest event
in our calendar, Symposium 2014, which
is on next month?
back to contents
Noela L’Estrange | Queensland Law Society CEO
female – and indeed, all – solicitors should
have every opportunity to lead full and
rewarding careers, and that one of the critical
ingredients in this mix is flexibility in work
hours and conditions.
Our initial approach is to look at examples
where practitioners – male or female – have
achieved flexible working arrangements and
to see if there are ways to introduce these
practices more widely. So we need your
stories – if you have a flexible arrangement
that works for you and your employer,
please tell us about it. Email your story
to flexibility@qls.com.au.
In relation to this topic, larger firms should
all be aware of the changing reporting
requirements on gender introduced by the
Workplace Gender Equality Act 2012. The next
round of changes begins on 1 April – see the
Workplace Gender Equality Agency website
at wgea.gov.au for details.
Noela L’Estrange
February 2014 | Proctor
5
QLS welcomes
Chinese Consul-General
Queensland Law Society Inc.
179 Ann Street Brisbane 4000
GPO Box 1785 Brisbane 4001
Phone 1300 FOR QLS (1300 367 757) Fax 07 3221 2279
qls.com.au
Around 40 guests welcomed
Brisbane’s Chinese Consul-General,
Dr Zhao Yongchen, at a function at
Law Society House on 21 November.
President: Ian Brown
Deputy president: Michael Fitzgerald
Vice president: Deborah Awyzio
Immediate past president: Annette Bradfield
Councillors: Christine Smyth, Bill Potts, Kara Cook,
Danielle Keyes, Kenneth Taylor, Paul Tully, Elizabeth Shearer,
Christopher Coyne, Paul Spiro (Attorney-General’s nominee)
Chief executive officer: Noela L’Estrange
Editor: John Teerds
j.teerds@qls.com.au
07 3842 5814
Design: Alisa Wortley, Clint Slogrove
Advertising: Daniela Raos d.raos@qls.com.au
07 3842 5921
Display Ads / Classifieds:
advertising@qls.com.au /classified@qls.com.au
Subscriptions: Hayden De Waal
07 3842 5812
Proctor committee: Adrian Braithwaite, Dr Jennifer Corrin,
Kylie Downes QC, Steven Grant, Suzanne Greenwood,
Vanessa Leishman, Rowena McNally, Bruce Patane,
Christine Smyth, Anne Wallace.
Printing: Print Works. Proctor is published monthly
(except January) by Queensland Law Society.
Editorial submissions: All submissions must be received
at least six weeks prior to the month of intended publication.
Submissions with legal content are subject to approval by the
Proctor editorial committee, and guidelines for contributors
are available at qls.com.au
Queensland Law Society president Annette
Bradfield introduced Dr Zhao and spoke
of the impact of the Asian Century and the
role Queensland lawyers would have to
play in shaping the relationship between
Australia and its northern neighbours.
“This means there is no better time to work
to cement positive relationships among
the legal profession, Queensland business
community and China,” she said.
Dr Zhao provided guests with his insights
into the process of judicial reform in China.
Attendees included QLS Councillors,
members of the Chinese Chamber of
Commerce, the QLS International Law
Committee and LAWASIA.
Above: Chinese Consul-General Dr Zhao Yongchen
with then QLS president Annette Bradfield.
Below, from left: Lilian Tay of King & Wood Mallesons
and Damon Lau of William Buck Chartered
Accountants and Advisors.
Emeritus Professor Mary Hiscock of Bond University
and Elizabeth Shearer of Affording Justice.
Teresa Kearney of Minter Ellison and Gerowyn Lyons.
Advertising deadline: 1st of the month prior.
Subscriptions: $110 (inc. GST) a year (A$210 overseas)
Circulation: CAB, 30 September 2013 – 9726
No person should rely on the contents of this publication. Rather, they
should obtain advice from a qualified professional person. This publication
is distributed on the basis that Queensland Law Society as its publisher,
authors, consultants and editors are not responsible for the results of
any actions taken in reliance on the information in this publication, or
for any error in or omission from this publication, including those caused
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Contributors to Proctor grant to the Society a royalty free, perpetual,
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If you do not intend to archive this magazine,
please place in an appropriate recycling bin.
Newcastle University
tops revue challenge
The University of Newcastle Law
Students Association edged out students
from Macquarie University to take both
the people’s choice and judges’ awards
in the 2013 legalsuper Law Revue of
the Year competition.
Now in its third year, the competition
saw seven Australian universities submit
short videos from their law revues, which
were hosted on a dedicated microsite for
public voting.
The University of Newcastle entry took
a light-hearted look at an online dating
site for lawyers, ‘plan B’ job options for
law students and the confusion between
baristas and barristers.
The judges were legalsuper chief executive
Andrew Proebstl, comedian and former
law student Sammy J and Corrs Chambers
Westgarth chief executive officer John
Denton. See legalsuperhub.com.au.
back to contents
News and editorial
Legal aid
fee increases
Legal Aid Queensland (LAQ) has increased
a range of fees paid to solicitors and
barristers for criminal law and child
protection matters.
As a red-tape reduction initiative, LAQ has
also introduced a flat fee for pleas of guilty
in Magistrates and Childrens Courts.
The latest fee increases follow similar increases
for duty lawyers, domestic violence and family
law introduced since July 2012.
“One of LAQ’s priorities is to reward our
preferred suppliers with further fee increases
wherever possible with available funding,”
chief executive officer Anthony Reilly said.
The following criminal law fee changes
began on 16 December 2013:
• District and Childrens Court of Queensland
stage two trial standard preparation fee
grants have doubled from $232 to $464
for solicitors and increased from $185
to $370 for counsel.
• To reduce red tape and streamline the
administration of grants of aid, LAQ has
implemented a single application process
for summary matters. Under the process,
the initial fee will be a fixed at $575.
Additional fees will be available for
matters approved for trial funding.
back to contents
• Summary trial standard preparation fees
have increased by 24% for solicitor-only
trials, by 7% for solicitors where counsel is
briefed for trial, and by 35% for counsel.
• The Magistrates and Childrens Court
pleas of guilty fixed fee has been set
at $575. Additional grants continue
to be available for:
• matters involving more than 20 charges
• interpreters
• approved travel
• approved reports.
These criminal law fee changes were
introduced in response to feedback
received on LAQ’s ‘Improving criminal law
grants of aid’ consultation paper, released
in mid-2013.
The LAQ board also approved a 5%
increase in child protection fees from
13 January 2014. Fees increased from
$120 an hour to $126 an hour, bringing
them in line with the current family
law fees.
Practitioners should contact their
LAQ grants officer with any questions
about these increases.
MacDonnells
Law partner
joins magistracy
MacDonnells Law partner Steven
Mosch, above, has been appointed as
a magistrate, effective from last month.
Mr Mosch, a former president of the
Townsville District Law Association and
the North Queensland Law Association,
said he was honoured to be appointed to
the bench in his home town of Townsville.
The appointment of Mr Mosch, Gympie
solicitor Simon Young and barrister Aaron
Simpson as magistrates was announced
on December 19 by the Attorney-General
and Minister for Justice, Jarrod Bleijie.
February 2014 | Proctor
7
News and editorial
Outsourcing: Opportunities and risks
The Queensland Law Society Practice
Development and Management Committee,
in conjunction with Lexon Insurance, is
proposing to look at the opportunities and
risks in firms outsourcing legal services.
The purpose of this article is to make
members aware of some of the
opportunities and risks involved, and it is
anticipated that the Society will prepare
formal guidelines on outsourcing.
Outsourcing of legal services has been
used by (mainly larger) firms for many years.
Initially it involved contracting out wordprocessing and more recently contracting
out preparation of precedents and research.
The committee is aware that companies
offering outsourcing are now approaching
individual practitioners and small firms
offering them the opportunity to outsource.
Opportunities
Outsourcing is used as a means of reducing
costs for the firm and thus the client, and as
a means of allowing the firm to concentrate
on core competencies.1 The opportunity to
outsource can be a win-win situation for the
firm and the client. However, a firm should
consider the possible risks before outsourcing.
Risks
Risk areas include:
1.The outsourcing is likely to involve client
confidential information and the firm needs
to obtain the client’s informed consent to
outsourcing and any possible loss of legal
professional privilege.
2.Prior to outsourcing the firm should
undertake appropriate due diligence of
the outsource provider including:
a. the security the outsource provider has
in place to maintain confidentiality
‘I chose to study the practical
legal training course at QUT
rather than through another
university institution or through
a supervised traineeship at a
law firm because I knew that I
could develop my legal skills in
a challenging and supportive
learning environment.’
Joanna Czajkowski,
QUT student
b. whether the outsource provider
can sub-contract the work
c. the provision of referees who are
using the outsource provider.
3.The outsource provider will generally
have a standard ‘terms and conditions’ form
which needs to be reviewed in detail by
the firm prior to outsourcing any work.
4.When outsourcing, the professional risk
remains with the firm and this means the
firm needs to have in place appropriately
qualified staff to check and assess the
accuracy of the work carried out by
the outsource provider.
Article courtesy of the QLS Practice Development
and Management Committee.
Note
A Guide on Practice Issues: Outsourcing – The Office
of the Legal Commissioner (NSW).
1
Practically, the only
choice for PLT is QUT
QUT is a leading provider of Practical
Legal Training in Queensland, with
an enviable reputation for its practical
approach. The program offers
problem-solving scenarios and
reflects the realities of a daily modern
legal practice. And if you need work
placement, we will provide it.
The only choice for PLT is QUT.
Full time, part time and online.
Apply now for February part-time intake.
On-time applications close
21 February, 2014.
Or talk with us on 11 March, 2014
at the Queensland Law Society’s Legal
Careers Expo about starting in June,
2014 or January, 2015.
www.qut.edu.au/practical-legal-training
35 years of excellence in
CRICOS No.00213J © QUT 2013 LAW-13-743 20132
8
Proctor | February 2014
practical legal training
1978 – 2013
back to contents
News and editorial
Appointment of
receiver for Cost
Effective Lawyers,
Kenmore
Scorecard provides
insight to truth of justice
The Queensland Law Society Access to
Justice Scorecard assesses the workings
of our legal system through the lens of the
profession, including the fairness of our
laws, dispute resolution and Queenslanders’
access to legal help.
The 2013 results found that:
On 13 December 2013, the executive
committee of the Queensland Law
Society passed resolutions to appoint
officers of the Society, jointly and
severally, as the receiver for the law
practice, Cost Effective Lawyers.
The role of the receiver is to arrange for
the orderly disposition of client files and
safe custody documents to clients and
to organise the payment of trust money
to clients or entitled beneficiaries.
Inquiries should be directed to Sherry
Brown or Glenn Forster, at the Society
on 07 3842 5888.
back to contents
• Overall laws were seen to operate fairly,
however the vast majority of respondents
who had experienced unfair laws were in
criminal or family law.
• Alternative dispute resolution services seen
as working well included youth justice
conferencing, body corporate mediation
and family dispute resolution.
• Access to justice could be improved
by reintroducing (or introducing more)
specialist or diversionary courts and services,
expanding the self-representation civil law
service into every court in Queensland
and providing more women’s legal services
for family law issues.
Note that the survey assessing the fairness
of current laws was conducted in June and
July 2013, which was before the changes
in the law relating to association, arbitrary
detention and workers’ compensation.
Results for the 2013 Access to Justice
Scorecard – an initiative of the QLS Access
to Justice and Pro Bono Committee – are
available at qls.com.au > Knowledge centre >
Access to justice > Access to Justice Scorecard.
February 2014 | Proctor
9
News and editorial
Fine fit-outs
for two firms
Gadens Lawyers and Mills Oakley are among
the law firms enjoying newly fitted-out
offices in Brisbane.
Gadens offices at 111 Eagle Street, which house
350 staff, were created by design firm HASSELL.
The focus is on flexibility with large internal
walls of glass that are movable and also allow
light into the centre of the workplace.
“Rather than have the fit-out dictate our
culture, we decided to reverse that and use
our culture to influence the design,” partner
Paul Spiro said. “Gadens prides itself on its
friendly and open culture. Our new layout,
with its glass walls and wide-open spaces,
enhances that environment perfectly.”
WORK
HARD
Mills Oakley formally opened its new premises
in King George Central in November with an
event hosted by Olympian Duncan Armstrong
and including guests such as Brisbane Lord
Mayor Graham Quirk.
The opening came as the firm announced that
its partner and staff numbers had grown by 26%
in 2013, including a 50% increase in Brisbane.
Gadens’ new offices focus on light,
culture and flexibility.
redsmembership
.com.au
10
Proctor | February 2014
back to contents
Industrial law | News and editorial
Act makes key
changes to state
industrial law
The Industrial Relations (Fair Work Act
Harmonisation No.2) and Other Legislation
Amendment Bill 2013 was introduced into
Queensland Parliament on 17 October last
year and passed on 19 November.
The Bill was referred to the parliamentary
Legal Affairs and Community Safety
Committee, which was required to report
by 14 November. The majority of the Act
commenced on 1 December 2013.
The legislation currently only affects state
public service and local government
employees as the government has previously
referred its powers in relation to private
sector employees to the Federal Government
(although it is understood the government
is still considering the resumption of powers
in relation to small business).
There are five central elements to the legislation:
• legislated minimum employment
standards (to be known as the Queensland
Employment Standards (QES))
• an award modernisation process
• simplified processes for certified agreements
• streamlined bargaining arrangements
for agreement making and for taking
protected industrial action, and
• the introduction of individual employment
contracts for highly paid senior staff.
The QES updates existing minimum
conditions under the Industrial Relations
Act 1999 (Qld) but does not mirror the
provisions contained in its namesake, the
federal National Employment Standards.
For instance, the amendments introduce
compulsory 17.5% annual leave loading
for all eligible employees and a largely
unfettered ability to cash out annual leave,
which are not features of the federal system.
However, redundancy pay is still subject to
an existing award or industrial instrument
entitlement. “High income” employees are
also not subject to the minimum notice
requirements of the Act and other NES
standards such as the ability of certain
classes of employees to request flexible
working arrangements have not been
included in the update.
back to contents
The amendments also largely remove
“high income senior employees” from the
protections of the Act and in particular the
ability to access the unfair dismissal jurisdiction
of the Queensland Industrial Relations
Commission (QIRC). A “high income senior
employee” is someone holding a position or
class of position where the person earns more
than $129,300 a year and the position:
• is prescribed by regulation as a
“high income position”, or
• is not covered by an industrial award, or
• is a senior health service employee.
The QIRC is tasked with modernising and
rationalising existing state awards and there
are new restrictions on award content.
There is also a narrowing of the allowable
content of collective agreements. Specific
timeframes have also been introduced for
collective agreement bargaining and the
conciliation and arbitration of bargaining
and industrial disputes.
The position of president of the Industrial
Court will be held on a part-time basis
by a Supreme Court judge, in a return to
arrangements which existed prior to 1999.
Justice Martin has been named as the new
president of the court. The amendments
also provide for fixed-term appointments
to the positions of deputy president and
commissioner of at least one year.
Unfortunately, the manner of passage
of the Bill left little time for its proper
consideration by the Queensland Law
Society. A little over a week was allowed for
submissions. In its submission of 28 October
2013, the Society noted that such a short
period was not conducive to the provision
of detailed and constructive submissions
on the draft, particularly where the Bill
was some 252 pages long and addressed
significant elements of the state industrial
relations system.
ON& OFF
THE FIELD!
redshospitality
.com.au
This is article appears courtesy of the chair of the
Queensland Law Society Industrial Law Committee,
Rob Stevenson, of Australian Workplace Lawyers.
February 2014 | Proctor
11
News and editorial | Pro bono
Commercial litigator overcomes residency
hurdle for domestic violence victim
Commercial litigator Abbey Richards, from
Holding Redlich, believes that corporate
life and community contribution are far
from irreconcilable.
As a result of her determination and legal
skills, a Sri Lankan woman who was subjected
to severe domestic violence has now been
granted permanent residency in Australia, a
result that Abbey describes as “truly satisfying”.
Do you have a pro bono story
for Proctor readers?
Please send your articles to
president@qls.com.au. Don’t forget
to disguise or remove client names
or details as necessary to meet any
confidentiality obligations.
The woman asked for legal assistance in 2012
while awaiting a decision on her immigration
status in Australia. During this period, she
was advised that she owed a debt to the
Commonwealth Government as a result of
being unwillingly named as a co-applicant
by her then-husband in a number of
unsuccessful court proceedings.
“She had been experiencing severe domestic
violence at the time of the relevant court
proceedings and had now found herself liable
for the costs orders made against her thenhusband,” Abbey said.
The Department of Immigration and
Citizenship (DIAC) could not proceed
with her immigration application until the
outstanding debt was addressed. However,
the woman was unable to repay the debt
due to lack of means and resources, as she
did not have access to income through
employment and was not eligible for
income support from the government.
“Her inability to pay the debt meant that
her Australian residency application was
indefinitely deferred and, as a consequence,
her life was left in a state of flux,” Abbey said.
She took on the woman’s case on a pro
bono basis, corresponding with DIAC and
the Department of Finance, and making
extensive submissions on her behalf.
“These submissions involved detailed reference
to the circumstances surrounding the
incurrence of the debt and an argument that
the woman was not an ‘active participant’ in
the unsuccessful court proceedings,” she said.
Abbey said it was a simple, yet not strictly
legal argument – that is, the relationship
between the woman and her then-husband
severely inhibited her ability to make
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Proctor | February 2014
back to contents
News and editorial
Law Council
opposes
assistance cuts
independent decisions during the course
of the relevant litigation.
“Moreover, the woman was unemployed,
surviving on donations, and living in
temporary accommodation; she simply had
no capacity to repay a debt of over $10,000.”
Despite this, Abbey successfully appealed to
the Commonwealth to have half the debt
waived, thus allowing her client to gain
permanent residency. “This is great result,”
she said. “My only hope now is that my client
is able to move forward with her life.”
The woman said that, because of Abbey
and Holding Redlich, she had now gained
permanent residency after six years of
hardship. “This means my life to me and there
is no price that can be put on this,” she said.
The woman has since completed a certificate
III in aged care and is looking forward to
obtaining a job and “being independent”.
Abbey said she would take away from the
experience an acknowledgement that, as
a lawyer, not all arguments needed to be
made in legal terms.
“I can confidently say that the success
we had in this particular case was primarily
a result of non-legal arguments,” she said.
Abbey said a commitment to pro bono
work was fundamental to her practice.
“As lawyers we are accorded certain
privileges, in return for which, I believe,
we have a responsibility to ensure that
those less fortunate than ourselves are
treated with justice. It’s about having an
appreciation for the circumstances of
vulnerable and disenfranchised persons
within our society and recognising that
you have the ability to help.”
The Law Council of Australia has called
on the Federal Government to guarantee
that proposed cuts to the legal assistance
sector will not affect the provision of
frontline legal services.
Council president Michael Colbran QC
also sought an assurance from the AttorneyGeneral that he would do all in his power
“to resist any further cuts to legal assistance
services in the forthcoming federal budget,
and in subsequent budget processes”.
The call came after the release of the Mid-Year
Economic and Fiscal Outlook in December,
under which the Federal Government
announced reductions in legal assistance
sector funding of $43.1 million.
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back to contents
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February 2014 | Proctor
13
News and editorial | In camera
1
Proudly supported by
Supreme Court Breakfast
White Ribbon Day
A fine finale for 2013
2
3
14
4
Proctor | February 2014
5
6
back to contents
In camera | News and editorial
10
11
7
12
8
9
2013 ended with a host of both festive
and serious events, including graduations,
dinners, Christmas parties and more.
Among them were:
The Government Lawyers Christmas Party
on 4 December at Law Society House attracted
around 30 guests who enjoyed drinks and
canapés along with lively music.
The QLS Early Career Lawyers Christmas
Party on 27 November at Super WhatNot in
the Brisbane CBD. With around 100 attendees,
this sold-out event was a roaring success.
The Specialist Accreditation Christmas Breakfast
with the Chief Justice on 6 December drew
more attendees than ever before, with some
260 guests gathering at the Hilton Brisbane
Hotel to congratulate the 34 graduates of the
2013 specialist accreditation program. As usual,
the Chief Justice’s remarks were a highlight.
The Law Council of Australia celebrated
its 80th anniversary at its annual dinner
held at the National Gallery of Australia’s
Gandel Hall on 29 November. Other features
included the presentation of the President’s
Medal to Elizabeth Heenan of Western
Australia for her contribution to progressing
the work of women in the law and the
launch of The Law Council of Australia – the
people, the profession and the institutions,
a new book by leading lawyer Dr Gordon
Hughes exploring the growth the Law
Council from its inception in 1933.
White Ribbon Day Supreme Court Breakfast
1. Guests at the White Ribbon Day Supreme Court
Breakfast were addressed by Queensland Woman
Lawyer of the Year Dr Rachael Field.
Specialist Accreditation Christmas Breakfast
with the Chief Justice
2. Chief Justice Paul de Jersey AC and then QLS
president Annette Bradfield with graduates
of the 2013 specialist accreditation program.
3. Ian Brown, Chris Coyne, Noela L’Estrange,
Genevieve Dee, Michael Fitzgerald
4. Gemma Bowers, Cassandra Pullos, Kara Best
5. Kym Mitchell, Bryan Mitchell
6. Tony McCormack, Scheryl McCormack,
Clare McCormack, Josh Philips
The Law Council of Australia 80th anniversary dinner
7. F emale attendees at the dinner – a notable
contrast to the all-male composition of the
Law Council 80 years ago.
back to contents
13
The sold-out White Ribbon Day Supreme
Court Breakfast, held in the Gallery of the
Queen Elizabeth II Courts of Law on
25 November brought some 360 attendees
together to mark the national day aimed at
ending violence against women and children.
It attracted senior representatives from all
sides of the profession who heard from
speakers including Steve Davies MP, QUT
deputy vice-chancellor Professor Peter Little
and QUT Associate Professor Rachael Field.
8. N
T Law Society president Peggy Cheong
and author Dr Gordon Hughes.
9. Q
LS CEO Noela L’Estrange and Liz Bugg,
wife of past LCA president Tim Bugg
The Government Lawyers Christmas Party
10. Kristie Heywood, Shane Budden
11. Emily Roberts, Renè Zwart, Brooke Gilbey
12. Brendan Cole, Jodie Stroud, James Allen
13. Theresa Johnson, Keith Millman,
Grace van Baarle, Kim Jubb
14
15
16
17
The QLS Early Career Lawyers Christmas Party
14. Charmaine Panickar, Matthew Hollings
15. C
amille Tewari, Gabby Honey,
Miranda Bird, Emma Allatt
16. Sian McGee, Elise Adams, Anita Clifford
17. J oel Akhurst, Sam Quinney, Asha Egan,
Daniel Johnston
February 2014 | Proctor
15
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Features | The profession
Are lawyers part of the
Lawyers are often the butt of jokes.
There are thousands of lawyer jokes.
The jokes depict them as selfserving and money hungry.
Legislative proposals, new government policies,
proposed inquiries are often attacked as
involving a ‘lawyers’ picnic’. Who goes picnicking
with lawyers? What does the expression really
mean anyhow? It is not easy to understand
how one can describe a lawyer, providing
professional assistance at the request of a client,
as engaged in some kind of remunerative
picnic. Is a flu epidemic a doctors’ picnic?
Former South Australian Chief
Justice John Doyle discusses the
role of lawyers and their role in the
judicial process. Though aimed at
readers in South Australia, his words
are just as relevant here.
Unfortunately, public debate about the role
of the profession often fails to rise above the
level of lawyer jokes and lawyers’ picnics.
It is probably best to enjoy the jokes, and to
let pass the allusion to lawyers’ picnics. The
legal profession can safely leave its work to
speak for itself. Day in day out people resort
to lawyers because our society needs them,
needs their skills, and regards their use as a
sound investment.
Let us look briefly at the facts.
Parliament enacts substantial amounts of
legislation each year, virtually all of it at the
instigation of the government of the day.
The legislation is often complex. It is usually
expressed in general terms that have to be
interpreted on their application to specific
situations. This is the task of the courts,
assisted by lawyers.
A good example is the provision of the
Trade Practices Act relating to misleading and
deceptive conduct. With those brief words the
Commonwealth Parliament left it to the courts
and to lawyers to sort out the application of the
general provision, to make the general specific,
and to do all of this in a coherent fashion.
If a skilled legal profession was not available
to the public to interpret legislation and to
advise on it, our style of legislation would
have to change. Parliament can make laws
expressed in generalities, as it does, only
because there is a skilled legal profession
available to the public to interpret these laws.
In short, our system for the making of
legislation depends on the availability of
a skilled legal profession to make it work.
18
Proctor | February 2014
The executive government employs many
lawyers, mainly through the Crown Solicitor’s
Office and the Office of the Director of
Public Prosecutions. The government does
not hesitate to obtain the best legal advice
available when its interests are at stake.
The substantial use that the government
makes of the legal profession contradicts
any suggestion on its part that lawyers have
nothing of value to contribute to the efficient
and lawful conduct of government.
The state and the Commonwealth prosecute
serious crimes in the District Court and in
the Supreme Court. They rely on specialist
prosecutors, drawn from the legal profession,
to conduct these cases in the public interest.
All involved in the criminal jurisdiction know
how difficult it is to achieve a just and efficient
outcome if the accused is not represented.
It is not just a problem attributable to the
imbalance between the representation of the
prosecution and the unrepresented accused.
The problem would become more acute
if the imbalance were to be eliminated by
requiring that the DPP not be represented by
a prosecutor but by an unqualified person.
Our system of criminal justice relies on skilled
legal representation on each side to enable a
court to conduct an efficient and fair hearing,
and to achieve a just and reliable result. The
involvement of skilled lawyers on each side
makes our system of criminal justice work better.
The same applies in civil cases. If one of the
parties is unrepresented, or even worse if both
are unrepresented, a civil case is likely to take
longer than it would otherwise, and to occupy
more judge time and court time. It is likely to
be more difficult to bring it to a just conclusion.
In short, lawyers ‘value add’ to the exercise of the
criminal and civil jurisdiction. Their participation
improves the quality of justice and the efficiency
of the process. Their participation reduces the
cost to the state by shortening hearings.
In addition to this, lawyers provide legal advice
and guidance to thousands of South Australians
on a daily basis. If lawyers were not available to
advise individuals and corporations, commerce
would be seriously impeded. Individuals and
corporations would not know how to navigate
their personal and commercial issues through
the legislation made by Parliament.
back to contents
The profession | Features
solution or part of the problem?
Then there is the work done by the legal
profession, mainly through the Law Society,
commenting on legislative proposals and
issues of law reform. Most of this is done
for no remuneration.
I mention these matters to emphasise that
lawyers make a major contribution to the
quality of justice and to the efficiency of the
administration of justice.
This contribution comes at a cost. Lawyers
must be paid. Their fees can be substantial.
Sometimes they will outweigh what is at
stake. But this does not demonstrate that
the involvement of lawyers is not beneficial
to the administration of justice.
The work of lawyers is not a picnic. Usually it
means hard work and substantial responsibility.
Lawyers become involved because their clients
want them to be involved, and accept that they
do ‘value add’ to the litigation process.
The recent increase in the scope of the small
claims jurisdiction of the Magistrates Court
has attracted a good deal of comment. In
that jurisdiction parties cannot have legal
representation unless permission is granted.
My understanding is that it is rarely granted.
Some commentators treat the exclusion of legal
representation as avoiding unwarranted legal
costs, and as averting the proverbial lawyers’
picnic. This shallow approach ignores the real
issues that arise. There are a number of them.
back to contents
First, is it in the public interest to require a
magistrate to resolve a dispute, unassisted
by the professional presentation of the rival
cases? An answer to that question involves
considering the following matters. If the claim
is a modest one, are the costs of representation
likely to be disproportionate to the amount at
stake? If costs are likely to be disproportionate,
is this a good reason to refuse to allow parties
to make the choice to be represented, if they
wish and if they can afford it? Does the benefit
to the public outweigh the risk of error by the
magistrate, error attributable to the magistrate
having to sort out a dispute unaided by legal
representation? At what point in terms of
amount at stake does it become unreasonable
to deny a party the right to legal representation?
to accept that there is likely to be a higher error
rate if the parties are not represented. To say
this is not to criticise the presiding magistrates,
simply to recognise the consequence of
depriving the parties of representation.
The point I want to emphasise is that the
exclusion of lawyers and legal representation
requires a solid justification. It cannot rationally
be based on the notion that lawyers do not add
anything of value to criminal and civil litigation,
or to the administration of justice. Quite the
contrary. The issue is, when it is justifiable to
deny reliance on legal representation, even
though the availability of legal representation
will improve the quality of justice, and the
efficiency of the proceedings.
I support the concept of a small claims
jurisdiction. I do so not because it is undesirable
to have lawyers involved in civil litigation, even
civil litigation involving modest amounts. It
is because of the unfortunate circumstance
that when claims are for modest amounts,
legal costs tend to be disproportionate to the
amount involved, and there is an argument
for avoiding that problem by requiring a
magistrate to decide a case unaided.
Proposals to exclude lawyers from criminal
and civil proceedings will always require
careful consideration. It may be justifiable
to do so, in particular circumstances. But the
starting point must be that to exclude legal
representation will be to deny an important
right normally accorded to litigants, and to
deny the court the valuable contribution
which legal representation is likely to make
to the efficiency of court proceedings and
to the quality of justice administered.
But there are two important caveats. First,
the greater the amount at stake, the more
difficult it is to justify excluding legal
representation. Second, it is only realistic
This article first appeared in the November 2013
edition of the Law Society of South Australia’s Bulletin
magazine. It is reproduced with permission.
February 2014 | Proctor
19
Features | Access to justice
New fund aids access to justice
Investments to provide continuing income
The fund is a registered sub-fund of the
Queensland Community Foundation.
Donations and bequests made to the fund
are to be invested in perpetuity and the
income earned each year applied to meet
the fund’s charitable objectives.
It was founded by the Queensland Public
Interest Law Clearing House Incorporated
(QPILCH) with seed funding provided by the
Public Trustee of Queensland and Legal Aid
Queensland. The fund is managed by the
Public Trustee of Queensland and invested by
Queensland Investment Corporation (QIC).
Its primary objectives are:
• to provide equal access to the civil justice
system to disadvantaged Queenslanders
• to foster partnerships between
community legal centres
• to provide funds for practical legal
projects and civil casework
• to satisfy unmet legal need in Queensland
• to support research to assist in
formulating practical legal services.
QPILCH director Tony Woodyatt, who is the
primary contact person for the Civil Justice
Fund, said: “All Queenslanders should have
equal access to the civil justice system and
the fact that this is not the case is an issue
of grave concern.
“Currently, when they need assistance
with a civil law matter, many low-income
Queenslanders cannot afford to pay. Often
these legal problems are caused by, or
exacerbated by, homelessness, poverty,
health issues, age, mental health problems,
social disadvantage and/or disability.
“If we are committed to the rule of law
and equality before the law, then we need
to ensure that all citizens have access
to it. In principle, the rule of law has no
meaning if access to justice is not a pillar
of our legal system.”
20
Proctor | February 2014
Will clauses
for a bequest
to the Civil
Justice Fund
Mr Woodyatt said there were serious social
and economic implications that resulted from
the lack of access to the civil justice system.
“Legal representation for some Queenslanders
can mean the difference between having
shelter and being out on the street,” he said.
“In different ways, access to civil justice can
mean freedom from hardship for many people
and enable them to return to being productive
and contributing members of society.”
The Civil Justice Fund will provide direct legal
assistance to families, the elderly, disadvantaged
people and anyone with established need, in
areas such as housing, employment, consumer
protection, health, financial abuse, property
disputes, guardianship, credit and debt and
child protection.
The fund is administered by a voluntary
committee made up of lawyers, business
leaders, a marketing specialist, an accountant
and Mr Woodyatt. There are no administration
costs as all work is done on a voluntary basis.
Potential supporters can include a
bequest to the Civil Justice Fund in their
will. Once realised, their bequest will be
invested and remain in perpetuity, and the
interest earned will be directed to the work
of the fund. The recommended will clauses
are shown here and are also available at
qpilch.org.au/Civil-Justice-Fund.
CIVIL JUSTICE FUND
providing equal access to justice for all Queenslanders
Donations
A new Civil Justice Fund will help
to provide access to justice for
disadvantaged Queenslanders.
Donations can also be made by direct
deposit as follows:
Bank:
Commonwealth Bank
of Australia
A/C name:
PTQ Common Fund No 1
BSB:
064 006
A/C no:
00090244
Reference: QCF20664496
For more information, contact QPILCH
or the Queensland Community Foundation.
qpilch.org.au
p 3846 6317
fundraiser@qpilch.org.au
qcf.org.au
p 3360 3854
enquires@qcf.org.au
back to contents
Access to justice | Features
I GIVE:
1.
(whole of my estate/$) TO the Public
Trustee of Queensland as Trustee of the
Queensland Community Foundation
(the “Foundation”) established by
Declaration of Trust dated 4 February
1997 to be held UPON PERPETUAL
TRUST called Civil Justice Fund – Fund
number QCF20664496 (the “Trust Fund”)
to apply the income of the Trust Fund
to Queensland Public Interest Law
Clearing House Incorporated (QPILCH)
in such shares as the Trustee shall in
its discretion determine.
2.
If the gift pursuant to subclause 01
hereof cannot for any reason take
effect then the Trustee shall in its
absolute discretion select the charitable
organisation or organisations in
Australia which the Trustee considers
most nearly fulfils the objects I intend
to benefit PROVIDED ALWAYS that the
Trustee shall not be bound to make
a selection under this clause.
3.
The receipts of the person authorised to
receive money on behalf of the charity/
charities named in the above clause(s)
shall be a full and sufficient discharge
and will absolve my Trustee from seeing
to the application of the gifts.
Queensland Law Society would like to recognise
legalsuper’s continued support of the Society’s
valued professional development program.
legalsuper’s sponsorship of the new QLS Practice
Management Course and annual regional Intensives
help QLS deliver timely and relevant ongoing
professional development for our members.
back to contents
February 2014 | Proctor
21
Features
Building on a
duty of care
The Owners – Strata Plan
No 61288 v Brookfield
Australia Investments Ltd
[2013] NSWCA 317
The NSW Court of Appeal has found that commercial strata schemes are owed a duty of care by
builders, a decision which may well have implications in Queensland. Report by Chris Kerin.
In New South Wales, solicitors acting
for owners corporations (known as
body corporates in Queensland)
in building defect disputes once
made a practice of pleading both
negligence and breach of statutory
warranties in claims against builders.
That practice was called into question last
year by two decisions of the Supreme Court
of NSW handed down by McDougall J,1
where owners corporations had brought two
unrelated claims against Brookfield Multiplex.
In those cases, his Honour held that builders
did not owe a duty of care to residential
strata schemes and commercial strata
schemes, thereby removing a key avenue
22
Proctor | February 2014
of recourse used by owners corporations in
claims against builders. In September 2013,
the NSW Court of Appeal overturned the
latter of those decisions on several grounds.2
Both the reasoning and the decision itself are
particularly relevant for Queensland solicitors.
The facts
This case was an appeal from the latter of
McDougall J’s decisions in which the owners
corporation of The Mantra Chatswood
Hotel (the Owners Corporation), a serviced
apartment business managing units in Strata
Plan No.61288, brought a claim for negligence
against Brookfield Australia Investments Ltd
(the builder) seeking compensation for pure
economic loss arising from the cost required to
repair building defects. The Owners Corporation
lost that case, with his Honour holding that the
builder did not owe it a duty of care.
That decision left the Owners Corporation
with no redress, as the statutory warranties
contained in Part 2C of the Home Building Act
were not available to it. Those warranties are
implied into contracts for ‘residential building
work’ only, whereas The Mantra Chatswood
Hotel, being constituted solely by serviced
apartments, did not fall within its protection.
Appealing the judgment was therefore the
only remaining legal recourse for the Owners
Corporation, and the success or failure of
the case was clearly to have significant
repercussions on thousands of other strata
schemes who might find themselves similarly
out of luck with Home Building Act warranties.
Equally, the scope for builders to carry on their
business protected from certain avenues of
legal action was hanging in the balance.
back to contents
Torts | Features
The appeal
The NSW Court of Appeal considered three
bases on which the trial judge had refused
to find a duty of care, overturning all three.
First, McDougall J had held that there was no
room for a tortious duty of care, purporting
to follow High Court authority that where
parties have negotiated contractual rights
comprehensively, “there is no reason for the
law to intervene by imposing some general
law duty of care” (Astley v Austrust).3
On appeal, Basten JA held that this authority
was wrongly applied, as the passage was
premised on an assumption inconsistent
with that conclusion of the trial judge, and
in any case, Astley accepted that there could
be concurrent duties in tort and contract
(although a contract between the parties
can exclude or limit the tortious duty). The
contract in this case had no express term
which referred to, regulated or excluded the
tortious duty.
The Court of Appeal considered that there
was in fact room for a tortious duty to be
owed to the Owners Corporation, but only
if “there was a general law duty owed to
the original owner with whom the builder
contracted to construct the building”.4
The court reached this view by exploring
afresh the doctrine of vulnerability and
how it applies to successive title holders:
“The fact that successive owners (and in
particular the appellant) may be vulnerable
is relevant in circumstances where the
original owner is not”.5
The second basis on which McDougall J had
declined to uphold a duty of care was that the
Owners Corporation was “inviting the courts
to go where the legislature did not”. Again, the
Court of Appeal held his Honour’s reasoning
to be erroneous, as it was predicated
on an illegitimate method of statutory
interpretation, namely, using delegated
legislation (the Home Building Regulation) to
construe its own constitutive statute (the
Home Building Act). Since it is the Act that
gives rise to the Regulation in the first place,
and not vice versa, generally the Regulation
cannot be used to interpret the Act.
By contrast, the Court of Appeal made – by
way of obiter dictum – the observation that
“whether general law principles in tort are in
any way affected by the operation of Part 2C
[of the Home Building Act] may be doubted”,6
a proposition strengthened by the fact that
Leeming and Macfarlan JJA both felt the need
to make the point in their separate judgments.
Where we are left by this reasoning is that it is
doubtful that the statutory warranties implied
into building contracts for residential building
work by dint of Part 2C of the Home Building
back to contents
Act have any effect on the general law duty
of care. Although the consequences of this
were not fully spelt out in the decision, it
would appear that residential strata schemes
(as well as commercial strata schemes) are
owed a general law duty of care, and can sue
a builder in negligence (although it should
be noted that the Court of Appeal did not
directly address Justice McDougall’s reasoning
in the first Brookfield case,7 and in particular,
the question as to whether an owners
corporation which has the benefit of statutory
warranties may be considered as vulnerable).
The third basis on which McDougall J had
held against the Owners Corporation was
that it would require “a novel duty of care”8
more appropriately laid down in a higher
jurisdiction. The Court of Appeal demurred
at this suggestion, holding that his Honour
had overstated “the expansion for which the
appellant was contending” – and as the court
noted, similar claims have been upheld in
Canada, New Zealand, Singapore and Victoria.9
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A question of vulnerability
The Brookfield appeal is just as interesting
for what it has to say about the duty of care
owed by builders to owners corporations as
it does about the doctrine of vulnerability,
as indeed, a central deciding factor in this
case was how a commercial entity, such as
serviced apartments, could be vulnerable.
It was the Owners Corporation’s submission
that “it was vulnerable because of the
manner of its creation and because it had
no ability to control the work undertaken
by the builder, nor carry out any appropriate
inspection or investigation before acquiring
the common property.”10
Brookfield’s response was that the Owners
Corporation was, rather, “the alter ego of the
beneficial owners of the lots which were,
at the point of registration of the strata
plan, vested in the developer. Accordingly
the appellant on that view, was no more
vulnerable than the developer”.11
In the leading authority on the issue, Woolcock
Street Investments,12 McHugh J – while
excluding the operation of seminal case Bryan
v Maloney from commercial premises – had
made the following observation:
“The reasoning in Bryan v Maloney – or by
analogy its material facts – may not lead to the
conclusion that the common law recognises
an identical or similar duty in respect of the
builder of commercial premises. That requires
further analysis. But it does not mean that the
ratio decidendi of Bryan v Maloney does not
automatically determine the result of this
appeal.”13 [emphasis added]
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February 2014 | Proctor
23
Features | Torts
Here we see the Court of Appeal undertaking
that “further analysis”.14 Their question was,
did the builder owe a duty with respect
to pure economic loss to the developer?
Yes, according to the joint judgment. While
the developer took steps to protect itself, it
was nevertheless relying on the exercise of
responsibility by the builder, and there was
no reason to treat the developer as otherwise
than vulnerable.
So what then of the Owners Corporation,
as the successor in title to the developer?
In keeping with the theme, the builder’s
argument that the Owners Corporation
was the alter ego of the developer did not
assist them in persuading the court that the
Owners Corporation was not vulnerable. The
logical leap required here is a small one as the
position of the Owners Corporation was no
better than the (vulnerable) developer who
had “realistic opportunities to protect itself
in a physical sense”.15
Further, the proposition that investors “who
bought the respective lots from the developer
could have protected themselves under the
contracts of purchase by insisting on a clause
covering liability for latent defects”16 was
not a practical one. By “protection”, the court
observed that this probably refers to taking
out insurance (if such is reasonably available),
although there is no authority which identifies
this as a significant element required to
establish vulnerability. Further, it is probably
more appropriate for the builder to obtain
such insurance, given it is liable for such loss.17
Extent of loss
Having held that the Owners Corporation
was vulnerable, and that the builder did owe
it a duty of care, we are left only with a
question of degree: what is the extent of the
liability of the builder? The most important
aspect of this decision is Justice of Appeal
Basten’s formulation of the form of the duty:
“Accepting that the general law does not
impose a general duty of care to avoid
economic loss, and that the decision in
Bryan v Maloney does not in terms dictate
the outcome in the present case, there are
significant features which militate in favour
of the existence of a duty of care covering loss
resulting from latent defects which (a) were
structural, (b) constituted a danger to persons
or property in, or in the vicinity of, the serviced
apartments, or (c) made them uninhabitable.
The existence of a duty expressed in those
terms should be accepted.”18
The question of how far this duty extends
and when it applies will be the major new
battleground in the law of building defects.
Based on the formulation above, while
24
Proctor | February 2014
of Part 2C [of the Home Building Act 1989
(NSW)] may be doubted” also applies in
Queensland (as it does in all states and
territories) such that even body corporates
which are duplexes can probably
successfully sue builders for negligent
building work.
the liability of a builder to a later owners
corporation is not to be equivalent to the
contractual obligations of the builder to the
developer, the liability for pure economic
loss at least extends to “the cost of steps
reasonably taken to mitigate the risk of
physical damage or personal injury”, and
would cover the expense of rectifying
defects which could cause property damage,
including lot property. Thus, the ubiquitous
leaking balcony or window giving rise to
water damage within the property would
fall within the scope of this liability.
It should be noted that the above analysis
applies only to building defects arising
from the original construction of residential
apartment buildings as opposed to the
renovation of residential apartment
buildings following construction (see the
reference to “home” rather than “detached
dwelling” in section 8(1)(b) of the DBC Act).
Conclusion
In short, there are three implications arising
from this judgment:
1.Retail, industrial and commercial strata
schemes may have a cause of action
against builders in negligence.
2.Although this case is not binding in
other states and territories, it is certainly
persuasive. As there is a single common
law of Australia, the authority is likely
to be followed elsewhere unless it is
distinguished on a ground peculiar
to a particular state.
3.Beyond this, the decision has special
relevance in Queensland on account of the
different regime in Queensland relating to
statutory warranties. Under Queensland’s
Domestic Building Contracts Act 2000 (the DBC
Act), statutory or implied warranties are only
available to detached dwellings (which are
defined as a single detached dwelling or a
duplex) (implied warranties). Section 49 of
the DBC Act provides that implied warranties
“run with” the building and section 49(3)
probably has the effect of providing body
corporates of duplexes with the protection
offered by implied warranties.
As a result, in Queensland, neither residential
body corporates (with the probable
exception of duplexes), nor retail, industrial
or commercial bodies corporate have the
protection offered by implied warranties.
In NSW, statutory warranties apply to
all residential apartment buildings no
matter how large. Consequently, Justice of
Appeal Basten’s reasoning on vulnerability
is therefore all the more pertinent in
Queensland as the rationale for imposing a
duty of care on builders to body corporates
of buildings without the protection of
implied warranties is all the more defensible.
Therefore, this decision assists not only retail,
commercial and industrial body corporates
in Queensland but also body corporates of
residential apartment buildings.
Finally, the observation by Basten JA that
“whether general law principles in tort
are in any way affected by the operation
The builder has filed an application for special
leave to appeal to the High Court which will
be unlikely to be heard until early March 2014
at the earliest. If special leave is granted, the
High Court will be in a position to have the
last say on the issue and hopefully clarify the
question once and for all – until then, builders
and owners corporations alike will wait with
bated breath.
Chris Kerin is a partner (building defects) at TEYS
Lawyers in Pyrmont, NSW.
The Owners – Strata Plan No 72535 v Brookfield
Australia Investments Ltd [2012] NSWSC 712 and
The Owners – Strata Plan 61288 v Brookfield Australia
Investments Ltd [2012] NSWSC 1219.
1
The Owners – Strata Plan No 61288 v Brookfield
Australia Investments Ltd [2013] NSWCA 317.
2
Astley v Austrust Ltd [1999] HCA 6.
3
The Owners – Strata Plan No 61288 v Brookfield
Australia Investments Ltd [2013] NSWCA 317, [100]
per Basten JA.
4
Ibid.
5
The Owners – Strata Plan No 61288 v Brookfield
Australia Investments Ltd [2013] NSWCA 317,
[106] per Basten JA.
6
The Owners – Strata Plan No 72535 v Brookfield
Australia Investments Ltd [2012] NSWSC 712.
7
The Owners – Strata Plan 61288 v Brookfield Multiplex
[2012] NSWSC 1219, [91] per McDougall J.
8
The Owners – Strata Plan No 61288 v Brookfield
Australia Investments Ltd [2013] NSWCA 317, [108][113] per Basten JA.
9
Ibid at [76].
10
Ibid.
11
Woolcock Street Investments Pty Ltd v CDG Pty Ltd
[2004] HCA 16.
12
The Owners – Strata Plan No 61288 v Brookfield
Australia Investments Ltd [2013] NSWCA 317, [114]
per Basten JA citing Bryan v Maloney [1995] HCA 17,
[71] per McHugh J.
13
Ibid at [115].
14
Ibid at [122].
15
Ibid at [123].
16
Ibid at [126].
17
Ibid at [129].
18
back to contents
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back to contents
February 2014 | Proctor
25
Features
Ian Brown,
QLS president
Queensland Law Society president Ian
Brown talks with John Teerds about his
goals for the Society in 2014.
26
Proctor | February 2014
back to contents
Profile | Features
What will be your priorities as QLS president?
My major aim is to ensure we continue with
the implementation of our strategic plan.
After a great deal of consideration, discussion
and hard work by the Council and the QLS
team, we have a five-year strategic plan that
is dynamic and responsive. It is designed to
ensure that the Society remains relevant to
our members and to the community at large.
In terms of key outcomes for 2014, we must
continue to provide a strong membership
organisation that represents and supports
members. We must also continue to have a
very active voice in the community, and with
key stakeholders in ensuring that we have
good laws.
Importantly, as explained in this month’s
president’s column, I want to ensure that we
communicate the important role that our
profession plays in our community and in
society more broadly. The Society’s key role in
actively advocating for, and promoting, good
laws is to the benefit of all.
This is also the year of G20 and Queensland,
particularly the south-east corner, will be in
the world’s spotlight. The G20 year will afford
us many opportunities and it’s important to
remember that it isn’t just focused on when
world leaders travel to Brisbane in November.
It is a series of events throughout the year
that the Society aims to play an active role
in, events that will provide opportunities for
our members to engage and pursue business
openings and opportunities.
It’s not often that an opportunity like this comes
along and it’s almost as if the world is our oyster
this year. There is great scope for business
and business opportunities, for not only large
and mid-tier firms but for smaller firms too.
The Society will work to assist members by
connecting them with these opportunities.
What do you consider the main issues now
facing the profession in Queensland?
The greatest challenge is the continuing
sluggish nature of the economy. While there
is some strong activity in patches, particularly
in regional and rural areas and largely centred
around mining and resources, activity is
slowing there as well. In some areas that rely
on, for example, tourism, business activity is
extremely sluggish. Having said this, there
are promising signs of employment growth
and it is hoped this will continue.
The consequence is that the financial
challenges facing the profession are
considerable and varied.
back to contents
In many ways the profession and its activity
is a barometer for the economy. Economic
downturns are reflected by increased insolvency
law activity and even in family law, when the
financial stresses and strains on families lead
to significant pressures and, unfortunately in
some cases, to marriage breakdowns.
Can the Society help its members
weather this period?
Yes, the Society provides practitioners with,
for example, practice support and continuing
legal education, which assist members in
providing strategies to better manage and
diversify their practices and to upskill or
reskill into new areas of law.
Again, in the G20 year we can provide a
conduit for the profession to connect with
business opportunities they might not have
considered or been able to pursue themselves.
The Society is here for our
members, for the profession, and
for the community more broadly.
What about other issues?
One which 2013 president Annette Bradfield
has been extremely strong on is resilience and
mental health issues. The slow economy and
financial pressures on the profession can cause
enormous stress, particularly on practitioners
who may be isolated either geographically
or because they are sole practitioners.
A continuing emphasis for the Society will be
in providing services that support members
who may require psychological assistance
to cope with the pressures of practice.
Another significant issue is the difficulty
faced by many new law graduates in finding
positions within the profession. Anecdotally,
regional and rural practices previously found it
difficult to recruit new graduates, but we hear
that there are often now too many graduates
seeking positions, even in these areas.
In fact, we know that some regional and rural
members are finding it increasingly difficult
to recruit more experienced practitioners,
rather than seeking new graduates.
I think we need long-term engagement with
tertiary institutions to examine more closely
the numbers of law school students, with
the opportunities for new graduates, and to
ensure that those graduates have a realistic
understanding of their employment prospects.
Do you have a key message for members?
The Society is here for our members,
for the profession, and for the community
more broadly.
I know that members may perceive the
Society as some distant and detached body
that either represents other segments of the
profession, or engages in activities that are
not relevant to their day-to-day practice.
Before I actively engaged with the Society,
I too had many of these perceptions.
It’s critical therefore that we get the message
through – we are here for members and for
our profession – and in so many ways, right
through the gamut of our services, whether
it be professional development, practice
support, our ethics centre, our insurance
subsidiary Lexon with its outstanding
insurance and risk management products
and services, our many committees,
LawCare, our library service and so on.
The Society provides an enormous range
of support services for practitioners and we
must ensure that practitioners understand
what these services are, how they can access
them, and the benefits those services provide
to their practices.
It is part of our strategic plan to be the
leading legal professional membership
organisation. We are taking concrete steps
to achieve that, including the corporate
governance changes recently approved
by members.
The Legal Services Commissioner has
made a number of statements in the past
about costs issues. Do you think the current
regulation of costs is appropriate?
The vast majority of Queensland solicitors
act in an entirely ethical and honourable
way, and in the very best interests of their
clients and of the profession more generally.
There will of course be occasional episodes
or instances where behaviours are less than
appropriate and the existing legislative
framework and regulation that we have is
quite adequate to deal with those occasions.
In the genuinely co-regulatory environment
we have in Queensland, we will continue to
work in a co-operative and open manner
with the Legal Services Commissioner for the
benefit of our members and the community.
Having said this, our profession is already highly
regulated and I would not wish to see any
further impositions on Queensland solicitors.
February 2014 | Proctor
27
Features
Ian Brown
the person
Briefly, what is your background?
I was raised on the Gold Coast where
my parents still live in the same house
they built 40 years ago.
I undertook five-year articles of clerkship
and eventually became a partner in a
city law firm.
What do you see as the role of our committees?
The Society’s committees are the lifeblood of
our policy work. Together with our fantastic
policy team headed by Matt Dunn, the work
they do is critical to the Society and our
members, and to the role we play in the broader
community through our engagement with
government and key stakeholders. This vital
work undertaken by our committees is central
to our commitment to ensuring good laws.
Over the last 12 months, Annette Bradfield has
done a terrific job in harmonising the work
of the committees with the broader strategic
plan and goals of the Society. The committees
now play an integral role in achieving the
strategic outcomes that we are aiming for.
Do you believe women in the profession have
finally broken through the ‘glass ceiling’?
Not yet. We need only look at the statistics
to see the number of women who engage
in practice early in their careers and then see
that alarmingly change for women at 30 and
over at which point in time their engagement
in the profession radically alters. Obviously
there are reasons for this, but it is startling,
and very concerning, that women outnumber
men in the early career phase and then the
trend almost completely reverses.
I strongly believe we must ensure that
workplaces are as flexible as they can be.
28
Proctor | February 2014
It is a key task for the Society to promote
appropriate work/life balances and flexible
working places, particularly for females
but also for males. All practitioners need
to understand the absolute necessity of
balancing their work and life appropriately.
Above all, as a profession we need to be doing
more to ensure that women are provided with
the support that enables them to achieve
both a career and a family. We need to strive to
achieve an outcome whereby career sacrifices
to raise a family are no longer expected of
women, but rather we have a genuinely
equitable approach to balancing career and life.
What will be your approach to government?
We have long enjoyed a strong working
relationship with government and
government departments. Historically
we have worked closely with the state’s
Attorneys-General, including our current
Attorney, Jarrod Bleijie, and I look forward to
continuing that relationship into the future.
The G20 year obviously presents the
government with enormous opportunities
by placing Queensland front and centre
on the world’s stage. We hope to have the
opportunity of working with government
to achieve the best possible outcomes for
business and the profession in 2014.
Practising predominantly as an injuries
compensation lawyer, I successfully
undertook specialist accreditation in
personal injuries law, the first year it
was offered. Throughout my career,
my focus has been on protecting the
rights of individuals, and promoting
access to justice.
Why did you choose law?
It was an opportunity to assist people,
and I get enormous satisfaction from
helping people. I suppose that’s why
I have so enjoyed my role as an injuries
lawyer; surely there’s nothing quite so
rewarding as being able to achieve an
outcome that gives a person – and in
many cases their family – another chance
at a fulfilling and rewarding life after
suffering a serious injury.
Interests
I would have to say my focus is my
family, my wonderful wife, Kylie, who
is a paediatric occupational therapist,
and who must have seen at least some
potential in me when she agreed to be
my date at our high-school formal, and
our two amazing children, Peter who is
13 and Lily who is nine.
John Teerds is the editor of Proctor.
back to contents
Ethics | Features
What if my client lied?
QLS senior ethics solicitor Stafford Shepherd confronts a question that practitioners often find perplexing.
I have learned that my client has
lied when giving evidence before
a court. What are my duties?
We are ethically obliged to deliver legal services
competently and diligently, and not to disclose any
information which is confidential to a client and
acquired by us during the client’s engagement
unless permitted by the conduct rules.1
We are also officers of the court. We have not
only a legal duty but an ethical obligation to
the administration of justice – this duty and
ethical obligation is paramount and prevails to
the extent of consistency with any other duty.2
As officers of the court we cannot assist out
client in perpetrating a fraud on a tribunal.
Rule 20.1 ASCR requires that if we, as a result of
information provided by the client or a witness
called on behalf of the client, learn during a
hearing or after judgment or the decision is
reserved and while it remains pending, that the
client or a witness called on behalf of the client:
• has lied in a material particular to the
court or has procured another person
to lie to the court
• has falsified or procured another person
to falsify in any way a document which
has been tendered, or
• has suppressed or procured another to
suppress material evidence on a topic
where there was a positive duty to make
disclosure to the court,
We must:
• advise the client that the court should
be informed of the lie, falsification, or
suppression and request authority so
to inform the court, and
• refuse to take any further part in the case
unless the client authorises the solicitor to
inform the court of the lie, falsification, or
suppression. We must promptly inform the
court of the lie, falsification, or suppression
upon the client authorising us to do so, but
otherwise we may not inform the court of
the lie, falsification, or suppression.
What rules 20.1.4 and 20.1.5 require of us are:
• to inform the client that the court must be
told of the client’s or witness’s perjury, and
that we must seek the client’s instructions
to inform the court of the perjury, and
• if our client refuses, or just fails to give
instructions to permit us to inform the
court of the perjury, we must terminate our
retainer with the client and withdraw from
representing the client before the court. We
are, in those circumstances, not permitted
to inform the court of the lie, falsification
or suppression when withdrawing.3
Notes
1
Rules 4.1.3 and 9, Australian Solicitors Conduct Rules
2012 (ASCR).
2
The legal duty is referred to in Giannarelli v Wraith
(1988) 165 CLR 543 at 555-6 (Mason CJ) and at 572
(Wilson J). The ethical obligation is Rule 3.1 ASCR.
3
Perpetual Trustee Co Ltd v Cowley [2010] QSC 65 at para
[130]. It should be noted that this case also dealt with
the issue of when a solicitor is under a duty to correct
a misleading or false statement made by a solicitor to
a court. In that context see para [132].
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program content is specific to Queensland and
is taught by prominent Queensland practitioners.
You can undertake our programs as single
subjects, at Graduate Diploma or at Masters levels.
Our next semester commences 3 March 2014.
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Bell legal group
Current Masters student –
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back to contents
February 2014 | Proctor
29
Early career lawyers
Destination Dubai
Dual court system relevant
to Australian practitioners
This article is brought to you by the QLS Early Career Lawyers Committee. The committee’s
Proctor working group is chaired by Sarah Jones (sarah.jones@jhklegal.com.au) and
Greer Oliver (GXO@cbp.com.au).
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Proctor | February 2014
back to contents
International practice | Early career lawyers
With a dual court system, including one based on English civil procedure, Dubai is a potential forum for litigation,
especially given the desire to grow its direct links with Australian courts. Report by Shane Jury.
It comes as a surprise to many to
learn that Dubai is home to a dual
court system.
This article provides an overview of the DIFC
Court and the nature of litigation in the DIFC
Court and briefly considers the implications
of the memorandum.
Local Dubai courts administer the laws of
Dubai and the United Arab Emirates (UAE),
and there is a separate court system in
the Dubai International Financial Centre
(DIFC), modelled on English civil procedure
and presided over by a combination of
international and local judges.
What is the DIFC?
As the DIFC Court and the New South Wales
Supreme Court have recently signed a
memorandum of guidance on the mutual
enforcement of monetary judgments between
the two courts (the memorandum), it is useful
for Australian litigation practitioners to be
aware of the existence of the DIFC Court.
It may also be helpful for front-end
practitioners to know of this potential
common law forum for transactions involving
the Middle East. Given that proceedings in
the DIFC Court are conducted in English
and it operates as a common law court,
it may be a suitable forum for dispute
resolution in cross-border transactions.
The DIFC is a small geographic area in
Dubai that is financially and administratively
independent from the rest of Dubai.1 It was
established to facilitate the international
financial services industry and to promote
Dubai as a leading international financial
centre. It endeavours to achieve this by
providing a stable regulatory environment
modelled on the English legal system.2
The DIFC is therefore subject to its own legal
framework. In particular:
• Special laws apply within the DIFC, which
are essentially modelled on English common
law. These laws are developed by the DIFC
Authority, the legislative organ of the DIFC, and
proposed to the Ruler of Dubai for enactment.3
• Compliance with DIFC laws is supervised
by the DIFC’s own regulator, the Dubai
Financial Services Authority.4
• The DIFC has its own forum for the
resolution of disputes, the DIFC Court,
which is the focus of this article.
Overview of the DIFC Court
The DIFC Court consists of a trial court (the
DIFC Court of First Instance) and an appellate
court (the DIFC Court of Appeal).5 The rules of
the DIFC Court are based on the English Civil
Procedure Rules 1998 which, in terms of content
and structure, are not too dissimilar from
Queensland’s Uniform Civil Procedure Rules 1999.
The judges of the DIFC Court are appointed
by the Ruler of Dubai for a specified period not
exceeding three years and are only eligible to
be appointed if they are younger than 75.6 The
current composition of the DIFC Court includes
three former judges of the English High Court
of Justice,7 a former justice of the High Court
of New Zealand,8 a former judicial commissioner
of the Supreme Court of Singapore,9 a former
Chief Judge of Malaya10 and two UAE judges.11
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31
Early career lawyers | International practice
Jurisdiction of the DIFC Court
The jurisdiction of the DIFC Court is limited
to certain types of disputes12 (in the same way
that the Federal Court of Australia is a court of
limited statutory jurisdiction). These disputes
include (by way of example):
• civil or commercial actions and claims
involving any of the DIFC bodies (for
example, the DIFC Authority) or entities
licensed to operate in the DIFC
• civil or commercial actions and claims
arising from or in connection with a
contract made, concluded or executed in
whole or in part in the DIFC, or intended
to be executed in the DIFC
• civil or commercial actions or claims arising
from or in connection with a transaction or
dealing concluded, in whole or in part, in the
DIFC and related to its activities
• any claim or action over which the DIFC
Courts are conferred specific jurisdiction
under DIFC laws
• any claim or action in relation to which
the parties have agreed to ‘opt in’ to the
jurisdiction of the DIFC Court.
• the court that made the judgment
had jurisdiction to do so
• the same parties to the judgment are the
parties to the enforcement proceedings.
In the event that these preconditions are
satisfied, the memorandum provides only
limited grounds for challenging enforcement.
Notably, this precludes the enforcing court
from re-examining the merits of the judgment
and/or entertaining challenges based on
errors of law or fact.
As the DIFC Court has been actively seeking
to enter into memorandums of guidance with
superior courts in other jurisdictions,15 it may
be that further memorandums will be entered
into with superior courts in other Australian
jurisdictions in due course.
Conclusion
The DIFC Court is a successful model of a
common law court established in a jurisdiction
that does not have a common law tradition.
It has been successful in promoting business
certainty and facilitating the emergence of
the DIFC as a financial hub in Dubai.
If one of these heads of jurisdiction is
engaged, the DIFC Court has ruled13 that the
claim must be brought in the DIFC Court and
cannot be brought in the local UAE courts
unless there is an express agreement to the
contrary (irrespective of whether or not the
local UAE courts are a more appropriate forum
for the hearing of the dispute). That is, there is
no doctrine of forum non conveniens between
the DIFC Court and the local UAE courts.
For the reasons outlined above, litigation
in the DIFC Court is not dissimilar to the
experience of litigation in Australian
superior courts. The DIFC Court is likely to
have growing international significance in
future years, as evidenced by the entry into
the memorandum, and it is therefore of
importance to practitioners with cross-border
transactions involving the Middle East.
However, if there is an alternative
international forum (for instance, the
Supreme Court of Queensland) that is clearly
and distinctly the more appropriate forum for
the hearing of the dispute, then it is possible
to apply to have the proceedings stayed on
the basis of forum non conveniens.14
Shane Jury is an associate in the litigation and
dispute resolution team at Clifford Chance in Dubai.
He was formerly a solicitor in the corporate and
financial litigation and insolvency team at Minter
Ellison in Brisbane. (Shane.Jury@CliffordChance.com)
Implications of the memorandum
The memorandum was signed by NSW Chief
Justice Bathurst and DIFC Court Chief Justice
Hwang on 9 September 2013. Its purpose is
to provide guidance on the circumstances
in which each court will enforce monetary
judgments of the other. As there is no treaty
for the enforcement of judgments that applies
between Australia and the UAE, this is a
significant development.
According to the memorandum, a monetary
judgment of either the NSW Supreme Court
or the DIFC Court will be enforced by the
other court if:
• it is final and conclusive, albeit it may
still be subject to appeal
• it is not a judgment that is penal in nature
(for example, judgments for the payment
of taxes, fines or penalties)
32
Proctor | February 2014
Notes
Dubai Law No.9 of 2004, Article 3.
1
Ibid, Article 4.
2
Ibid, Article 6(4).
3
Ibid, Article 7.
4
DIFC Law No.10 of 2004, Article 7.
5
Ibid, Article 9.
6
Deputy Chief Justice Sir Anthony Colman and Justices
Sir John Chadwick and Sir David Steel.
7
Justice David Williams QC.
8
Chief Justice Michael Hwang SC.
9
Justice Tan Yakoob.
10
HE Justice Ali Shamis Al Madhani and HE Justice
Omar Juma Al Muhairi.
11
Prescribed by Article 5(A) Dubai Law No.12 of 2004.
12
In a decision in which the author appeared
as assisting counsel: CFI 008/2013 (difccourts.
complinet.com/en/display/display_main.
html?rbid=2725&element_id=9325).
13
CFI 012/2012 (difccourts.complinet.com/en/display/
display_main.html?rbid=2725&element_id=9264).
14
A memorandum of guidance on identical terms to
the memorandum was recently signed by the DIFC
Court and the English Commercial Court.
Book review
Leaping
into law?
Title:
Author:
Look Before You Leap –
A Guide for Aspiring Lawyers
Chris Hargreaves
Publisher:
Self-published
Amazon ID: B00F5OPKBA
Format:
ebook
RRP:
US$4.99 (A$5.43)
If you are looking for a flowery
and philosophical account of
what it is like to be a lawyer, then
Look Before You Leap – A Guide for
Aspiring Lawyers is not for you.
Heavily reliant on Brisbane author Chris
Hargreaves’s own perspective, the book
takes you on a refreshingly honest and
informative journey (in the first person)
debunking the myths of what it is like to
actually practise law on a day-to-day basis.
While the book does not profess to lift the
lid on any ‘industry secrets’, it does provide
the reader with invaluable information
that would only otherwise be available
to those who have trodden the same
path before them.
What sets this book apart from others
is that there is simply nothing else like it
on the market. Pulling on his own palette
of experience, the author examines the
motivation behind becoming a lawyer,
the characteristics of a good lawyer, the
differences between possible career paths
in the legal fraternity and the positives
and negatives of a career in law.
The book is highly recommended for
students trying to decide whether to embark
on a law degree, for university students
studying law and for those graduates in
the early stages of their legal career trying
to make sense of what is an esteemed
and historically mysterious profession.
Kate Whalan
15
Kate Whalan is a senior associate
at Cooper Grace Ward.
back to contents
First Title and Bransgroves Lawyers
are pleased to present a breakfast seminar on
Avoiding Mortgage Fraud in Australia
Date: Tuesday 4 March 2014
Time: Arrive 8.00am registration, commencement at 8.30am - 1.00pm
Venue: Hilton, 190 Elizabeth Street Brisbane
RSVP by email: fschwab@firsttitle.com.au
PLEASE PROVIDE THE FOLLOWING INFORMATION:
Attendee Name: ................................................................................ Firm Name: .......................................................................................
Position: .......................................... Telephone Number: ................................ Email Address: ..................................................................

1
Seats are limited!  $180 to QLD Solicitors and Conveyancers
 Breakfast & refreshments provided
Types of Fraud and how to spot them:
Matthew Bransgrove, Principal of Bransgroves Lawyers,
a firm that specialises in acting for lenders. He is a coauthor of the 2013 LexisNexis textbook - “The Essential
Guide to Mortgage Law in Australia”, author of 15 papers
on different aspects of Mortgage Law published by the
College of Law and multiple articles in the NSW Law
Society Journal and Australian Law Journal. His articles
and textbooks have been cited with approval by the NSW
Supreme Court
Avoiding Fraud in the age of e-conveyancing:
Geoffrey Adam, Solicitor and Chief Executive Office of the Australian Institute of Conveyancers,
(SA Division)
2
Imposter fraud, unjustness fraud, value fraud,
serviceability fraud, extrication fraud. Learn what they
are and how to spot them. Hear the latest and most
devious schemes being used by fraudsters wielding the
latest technology.
3
How Title Insurance can protect the practitioner,
the consumer and the lender against fraud:
Peter Cutajar, National Manager - Legal and
Conveyancing Solutions, First Title
First Title protects the property owners, conveyancers
and lenders against fraud and forgery. Peter Cutajar
will discuss this and other practitioner benefits of using
title insurance.
What are the precautions being made against fraud
in the new age of e-conveyancing? How will Verification
of Identity (VOI) work? What are client authorisations,
priority notices and certifications? What are the
other requirements? What does this mean for you
and your clients?
Precautions against Fraud:
Matthew Bransgrove, Principal of Bransgroves Lawyers
4
How to avoid fraud, you know what it is, now how do
you make sure it does not happen to you? Matthew
Bransgrove will discuss the precautions that brokers,
lenders, conveyancers, solicitors for borrowers and
solicitors for lenders should take to protect themselves
against mortgage fraud.
First Title ABN 64 075 279 908 AFS licence 263876 | P.O. Box Q1465 QVB Post Office, NSW 1230 | DX 139 Sydney p: +61 2 8235 4433 f: +61 2 9299 3388 e: info@firsttitle.com.au w: firsttitle.com.au
Professional development | Diary dates
This month …
Practice Management Course:
Sole Practitioner to Small Practice
Law Society House, Brisbane | 8am–5pm
Develop transferable practical skills and test your strategies
for law practice management. Apply concepts and theories
to your local environment.
The Queensland Law Society Practice Management Course:
• isfacilitatedbyqualifiedandcurrentlypractising
internal and external faculty
• isthemostauthoritativesourceofguidanceintrust
accounting, legal ethics and risk management
• offersextensivesupportduringandafterthecourse.
FRI-SAT
7
8
14
&
Essentials: Personal Productivity
and Client Skills
Law Society House, Brisbane | 8.30am –12.30pm
Emphasising that legal practice is a business as well as a
profession, this workshop focuses on the commercial skills
required to maximise the contribution junior solicitors can
make to practice success.
By the end of the session you will be able to:
FRI
• explainbasiclawfirmeconomicsandthefinancial
impact of an individual’s activities
FEB
• explainhowtoimproveyourpersonalproductivity
and time management
• describethekeyelementsofmattereconomics,including
the importance of personal productivity, accurate time
recording, estimating, costs communication and billing
THU
13
FEB
• demonstratehowtobuildclientappreciation
of the value of your work
10 CPD POINTS
• identifywaystoenhanceclientservice.
Workers’ Compensation Scheme
Changes: Practical Implications
3.5 CPD POINTS
Law Society House, Brisbane | 8am–12pm
This interactive workshop session provides a detailed
overview of the changes introduced by the Workers’
Compensation and Rehabilitation and Other Legislation
Amendment Act 2013, with an emphasis on the practical
implications. Case scenarios will be discussed from the
perspective of both the claimant and insurer client. You will
also benefit from the views of an experienced panel and
discussion of possible solutions that you can implement in
your practice, including from a risk management perspective.
TUE
11
FEB
Masterclass:
Managing People and Teams
Law Society House, Brisbane | 8.30am–12.30pm
This masterclass provides legal practice principals,
supervisors and anyone managing other people with
the skills and techniques to effectively supervise work,
manage performance and lead teams. On completion
of this workshop, you will be able to:
• explainwhypeoplemanagementisimportant
3.5 CPD POINTS
• describehowtosuperviseeffi
cientlyandeffectively
• describewhatittakestobeaneffectivedelegator
• describehowtogiveandreceivefeedback
Core CPD Webinar: Where Did
They Go Wrong? Managing
Misconduct Risks
Online | 12.30 –1.30pm
This core CPD webinar gives you access to Queensland Law
Society’s leading ethics experts. Presented in a Q&A format,
our presenters will provide an update on recent significant
decisions involving solicitor professional misconduct both in
Queensland and in other jurisdictions. You will also receive
practical tips for managing ethical dilemmas in your practice
and minimising your risk of professional misconduct.
1 CPD POINT
34
Proctor | February 2014
• identifythekeyelementsoftheperformance
management process
WED
19
FEB
• explainbasicaspectsofteamdynamics
WED
12
• explainthelinkbetweenpeoplemanagement
and wellbeing.
3.5 CPD POINTS
FEB
Earlybird prices and
registration available at
>> qls.com.au/events
back to contents
Diary dates | Professional development
In Focus: International
Commercial Arbitration in
Theory and Practice
Masterclass: Contracts Law
Law Society House, Brisbane | 8.30am–12.30pm
Law Society House, Brisbane | 8–10am
Allowing you to tap into three experts’ international
experience, this seminar provides key knowledge and skills
in the complex area of international commercial arbitration.
Presenters will explore:
• thelegalframeworkwithinwhichinternational
commercial arbitration takes place
• thedifferencesbetweenarbitrationandlitigation
THU
20
FEB
What is the latest case law on consequential loss? Will
your clause be considered a penalty? How can you best
protect your client’s interest in drafting indemnity clauses?
Giving you the latest in contract law developments, this
masterclass provides the most up-to-date developments
and challenges in commercial contract law. Focusing
on recent case law and practical drafting solutions, this
masterclass gives access to the experts and allows you
to ask the tough questions.
THU
27
FEB
• currenttrendsininternationalcommercialarbitration
• theissuesthatmayariseinpractice.
3.5 CPD POINTS
Regional: Kingaroy Intensive
2 CPD POINTS
Booie Bella Vista, Kingaroy | 8.30am–5pm
Core CPD Webinar: Build Your
Legal Career Through Networking
Online | 12.30–1.30pm
Presented in a Q&A format, this core CPD webinar explores
how to develop your networking skills and apply them to
advance your career in legal practice. Our guest presenter,
Anne Gately, will discuss three golden rules of networking,
share practical tips on how to expand your network and
explore how networking can assist you when searching
for your next career opportunity.
WED
26
FEB
1 CPD POINT
THU
27
FEB
7 CPD POINTS
Specialist Accreditation
Information Evening
Save the date
Law Society House, Brisbane | 5.30–7pm
Are you interested in becoming a Queensland Law
Society accredited specialist in business law, criminal
law, commercial litigation, workplace relations or
immigration law? Don’t miss this information evening!
Gain valuable information on the application and
assessment process, insight on preparatory and exam
techniques from current accredited specialists and
have the chance to speak directly with members of
the specialist accreditation advisory committees prior
to applications closing in April 2014. A complimentary
DVD of the evening will be available for regional
members unable to attend this event.
The 2014 intensive series is specifically designed to provide
regional practitioners with relevant updates in substantive
law as well as practical skills development. The Kingaroy
Intensive offers practitioners the opportunity to gain points in
the core CPD areas of practical legal ethics, professional skills,
and practice management and business skills. Substantive
law sessions include discussions on the application of
domestic violence legislation to family law matters, ethical
risks in succession law, the practical application of provisions
of the Personal Property Securities Act 2009, and an update on
property law issues including the national econveyancing
system, the split of PAMDA, and the government’s wider
ongoing review of property legislation.
QLS Symposium 2014
WED
26
FEB
21-22 March
Early Career Lawyers Conference
18 July
A Century Strong –
100 years of Family Provision
25 July
Family Law Residential
Government Lawyers Conference
8-9 August
15 August
Criminal Law Conference
5 September
Property Law Conference
11-12 September
Personal Injuries Conference
17 October
Succession and Elder Law Residential 31 October – 1 November
back to contents
February 2014 | Proctor
35
Professional development
Can we turn to a
‘brain-based’ economy?
The economic and business outlook
is something of a conundrum.
At a broad macro level, the economy is doing
very well, both absolutely, and by comparison
with our peers in the developed world. Growth is
still strong, unemployment and inflation are low,
and government monetary and fiscal policies
are accommodating, with budgets in deficit, but
not alarmingly so, and our official interest rates
are at historic lows. The country continues to
enjoy a AAA credit rating, a strong and profitable
banking system, and the stock market has made
a strong recovery from the depths of the GFC.
Yet, many SMEs are finding the business
environment pretty tough, facing subdued
demand, with bank interest rates and loan
conditions obstructive, capital markets still
very cautious with many investors still sitting
on cash and mounting pressures/constraints
from the Australian Tax Office and other
regulatory authorities. All this is against the
background of high costs of production,
weak productivity, and strong international
competition, if they are importers/exporters,
due to our still very strong dollar.
One of the most important factors has been
poor business and consumer confidence, which
has been buffeted by the GFC, continuing
global uncertainties, and considerable domestic
political uncertainty. The generally poor, but
volatile, performance of the Rudd/Gillard
Governments, especially in the context of a
hung Parliament, were an important source
of this uncertainty. Many seemed to expect the
arrival of the Abbott Government would give
a significant, immediate boost to confidence,
but any lift has been short-lived.
Considerable uncertainty still exists as to the
nature of the transition that our economy/
society will make as the resources boom
continues to fade. What sectors will drive our
economy? Where do the opportunities lie?
These are difficult questions against a global
recovery that promises to continue to be
weak for several years to come. The developed
economies/societies, in particular, are exhibiting
enormous difficulty coping with the essential
transition to a low-debt, low-carbon world.
Although the United States economy is
looking somewhat better, US politics is
dominated by ‘gridlock’ between the Obama
Administration and Congress, promising
sustained uncertainty and the possibility that
its recovery may falter, especially as the Fed
winds back its monetary stimulus.
2014 Legal Profession Dinner
7–11pm | Friday 21 February 2014 | Sofitel Brisbane Central | $140 | Business attire
Join fellow colleagues, members of the judiciary, politicians
and other key legal professionals at the Queensland Law Society
Legal Profession Dinner to welcome incoming President, Ian Brown.
A highlight of the legal corporate calendar, this is an event not to be missed.
Keynote presenter Father Frank Brennan SJ AO
36
Proctor | February 2014
Register online
>> qls.com.au/LPD
back to contents
Professional development
Dr John Hewson will present the final plenary
session of Symposium 2014 on Saturday
22 March, addressing the topic, ‘Surviving
the perfect storm – where to from here?’.
Stay ahead >> 2014
Europe is still likely to limp on from minor
crisis to crisis, with weak growth and socially
unacceptable levels of unemployment,
with the additional risk that pressures in the
European majors, Germany and France, may
possibly come to the fore.
Japan is once again struggling to sustain
its recent performance, as it has done now
for the last couple of decades. The jury is
still out on just how much Chinese growth
has slowed, and how they will handle their
property bubbles, their over-exposed banks,
and their significant structural weaknesses due
to significant over-investment, and the evermounting gap between the rich and the poor.
Finally, the gloss has come off the
performance and prospects of many of the
emerging nations in recent months, again
especially as the US Fed begins to taper its
monetary stimulus, producing a reversal of the
previous, speculative flow of funds into these
economies, thereby putting considerable
downward pressure on their stock markets,
exchange rates and growth prospects.
However, for ‘Uncertainty’ read ‘Opportunity’.
Many are, of course, looking for a lead from the
Abbott Government to spell out a deliverable
scenario for Australian business, as we make
21– 22 March | Brisbane
the transition from an economy driven by
the resources boom, and especially given
the recent high-profile failures such as Ford,
Holden, many food processors, and other
manufacturers.
But, we should only expect government
to do so much. It is incumbent on all of
us to recognise the significance of the
changes that are under way, and in many
cases irreversible, and to realistically assess
where our comparative advantages lie
moving forward.
While we obviously can’t compete in
high-volume, commoditised manufacturing,
for example, there are a host of business
opportunities in more specialised, ‘brainbased’ industries, and services, where we
could, as a nation, develop a significant
and sustainable industrial base.
This, in turn, will represent a very
significant challenge to whoever
is in government, to restructure
government priorities and policies,
virtually across the board, in support.
Dr Hewson is well placed to deliver this
insight into the likely future for the Queensland
legal industry, given his broad experience as
an academic and economist, businessman,
political advisor and politician, and in the
media as a columnist and commentator.
In economics, he has worked for the Treasury,
Reserve Bank, International Monetary Fund
and United Nations, as a professor and head
of school at the University of New South
Wales, and as dean of the Macquarie Graduate
School of Management.
In business he is best known as a founder
of Macquarie Bank, chair of ABN AMRO
Australia and as chair/director of a host of
public/private companies and charities.
In politics, he was chief of staff and advisor
to the Prime Minister and Treasurer in the
Fraser Government, and as a member of
Federal Parliament he became Leader of the
Liberal Party and the Federal Opposition.
In the media, he has written regularly for
Business Review Weekly and the Australian
Financial Review, and comments regularly
on radio and television.
A significant focus of Dr Hewson’s career
has been in Asia, including China, and he
was recently special advisor on infrastructure
finance to the executive director of the
United Nations Economic and Social
Commission for Asia and Pacific.
back to basics
Your essential guide for day-to-day legal tasks.
Order now
>> qls.com.au/backtobasics
$10 from each copy sold goes to the QLS Back to Basics legal career assistance fund
back to contents
February 2014 | Proctor
37
Major sponsor
21– 22 March 2014
Brisbane Convention
& Exhibition Centre
Stay ahead >> 2014
Friday 21 March 2014
8.30am
Welcome
8.40am
Chief Justice Address
9am
10am
10.30am
11.15am
12pm
1pm
Opening plenary: Riding the storm – perspectives on taking a legal practice through tough times
Morning tea
FAMILY
PROPERTY
PERSONAL INJURIES
BUSINESS
CORE CPD
What’s new in family
law: recent case law
update (10.30 –11.30am)
Commercial contracts
– interpretation and
practical knowledge
Rehabilitation
obligations under
the statutory regimes
and duty of care in
nervous shock claims
(10.30 –11.30am)
Case law update
Professional standards:
insights from across
the professions
Recent case update
(11.30am –12pm)
REIQ Business
Sale Contract:
tricks and traps
Civility and professional
courtesy
Snapshot view of tax
pitfalls when drafting
(11.30am–12pm)
Lunch
FAMILY
PROPERTY
PERSONAL INJURIES
BUSINESS
CORE CPD
One size doesn’t fit
all – age group specific
approaches to parenting
arrangements
Case law, legislation
and policy update
Quantum issues
in personal injury
matters – ethical and
practical perspectives
Privacy law reform
Work small, look big:
an introduction to
outsourcing
Tips for advising
company directors
Cloud computing:
should you head
into the clouds?
1.45pm
Family law claims
waiting to happen –
PPSA
2.30pm
Afternoon tea
FAMILY
PROPERTY
PERSONAL INJURIES
BUSINESS
CORE CPD
3pm
Masterclass: how to
get the interim orders
you want
Workshop: statutory
right of user – its
impact in practice?
Disclosure
requirements –
PIPA, MAIA, WCRA
and UCPR
The landscape
of business
restructures
Best of both worlds:
how to thrive as a
lawyer and still have
a life
4pm
Debate: ‘A case without a barrister is never a winner’
5–7pm
Symposium by Night
Featured presenters
Dr George Beaton
Beaton Research + Consulting
Dr John Hewson**
Saturday 22 March 2014
8.30am
Welcome
8.40am
Attorney General’s Address
COMMERCIAL
LITIGATION/ ADR
BUSINESS
CORE CPD
Recent legislative
reform: what you
need to know
Update on
noteworthy cases
and practice
directions
Personal Property
Securities Act 2009 –
practical insights for
business lawyers
Grow your practice
with LinkedIn: practical
tips and how to’s
Cybercrime:
sex, hacks and trolls
Discovery: an
essential toolkit
Consumer and
competition law
update
Social networking sins:
how business and careers
can be put at risk
SUCCESSION
CRIMINAL
COMMERCIAL
LITIGATION/ ADR
BUSINESS
CORE CPD
10.45am
Estate planning
for the disabled
Practice and
procedure update
(10.45–11.45am)
Franchising code
review – the third
review in
5 years
Launch of new QLS Costs
Guide: costs workshop
11.30am
Masterclass:
advanced tips for
assessing capacity
Coercive hearings
(11.45am–12.15pm)
Case update:
franchising
Tools and techniques
for discussing costs
with clients
12.15pm
Lunch
COMMERCIAL
LITIGATION/ ADR
BUSINESS
CORE CPD
Crossing the line:
when to step up and
when to step back
Employment law –
a closer look at
current issues
Managing for wellbeing,
productivity and
performance
SUCCESSION
CRIMINAL
9am
Enduring Powers
of Attorney – not as
simple as they seem
9.45am
Powers of Attorney –
remedying losses in
estates
10.30am
Morning tea
Strategies for
resolving disputes
SUCCESSION
CRIMINAL
1pm
Know your duties
when you’re on
the spot
Ethical dilemmas
for criminal lawyers
2pm
Closing plenary: Surviving the perfect storm – where to from here?
3pm
Close
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Regular features
The voice
of your
profession
With just 36 hours allowed for public
debate, Queensland Law Society
was still able to provide useful
comments on the second instalment
of Queensland’s ‘anti-bikie’ legislation.
We also spoke out in support of
access to justice as a fundamental
right and made suggestions for a
more consistent approach to access
to land under the state’s resources
Acts. Details of this and other recent
advocacy are available here and at
qls.com.au/submissions. A member
log-in is required to view some
of the submissions listed.
Queensland’s resource Acts
A modern
approach
to land
access
The Department of Natural Resources
and Mines sought Queensland Law
Society feedback on the discussion paper,
‘Modernising Queensland’s resource
tenure legislation: Entry to public land,
access to cross land to reach a resource
permit, notifiable road use’.
We wrote to the department supporting
the objective to make the legislative scheme
on entry to land consistent in application.
Namely, we supported a consistent entry
to public land framework and consistent
framework for provision of notices for public
lands, suggesting a 10 or 15-day period
across all types of land, rather than increase
all time periods up to 30 days.
We also noted that there appeared
to be no reason to make a distinction
between public and reserve land.
Patrese McVeigh is a member of the QLS advocacy team.
40
Proctor | February 2014
VLAD tidings part 2
On Tuesday 19 November 2013,
Attorney-General Jarrod Bleijie introduced
the Criminal Law (Criminal Organisations
Disruption) and Other Legislation
Amendment Bill 2013.
It was referred to the Legal Affairs and
Community Safety Committee, with the
committee to report to the House by 10am
on Thursday 21 November 2013. This gave the
parliamentary committee roughly 36 hours to
call for submissions and report on the omnibus
legislation amending 23 Acts of Parliament.
Queensland Law Society managed to provide
two submissions to the parliamentary
committee in this short period.
The legislation was passed on 21 November
2013 and received assent on 27 November
2013. Some provisions are to commence
by proclamation.
This article focuses on some of the main
amendments introduced by the Criminal
Law (Criminal Organisations Disruption) and
Other Legislation Amendment Act 2013, and
the advocacy work of the Society to the
parliamentary committee.
What the Act does
In summary, the following key amendments
were introduced:
Bail Act 1980
• An amendment was made to section 16(3A)
of the Act to provide that a refusal of bail
provision will apply “If the defendant is
charged with an offence and it is alleged
the defendant is, or has at any time been,
a participant in a criminal organisation.”
[amendment emphasised]
• Amendment was made to s16(3C)
to provide that it does not matter:
(a) whether the offence with which
the defendant is charged is an indictable
offence, a simple offence or a regulatory
offence; or
(b) whether the defendant is alleged
to have been a participant in a criminal
organisation when the offence was
committed; or
(c) that there is no link between the
defendant’s alleged participation in the
criminal organisation and the offence
with which the defendant is charged.
[amendments emphasised]
The Society expressed concern at the broad
nature of the change to s16(3A), which would
mean that once a person is established as a
participant, the presumption against bail will
always apply against the person. We were also
concerned with s16(3C) in that no link is needed
between a person’s alleged participation and the
commission of offence. Criminal organisation
behaviour should be defined by activity that
would likely result in benefit by the group or
by the persons who constitute the group.
Crime and Misconduct Act 2001
• A number of amendments were made
to clarify the powers of the Crime and
Misconduct Commission. These were
provided for in the Criminal Law (Criminal
Organisations Disruption) Amendment Act 2013.
• New s237A provides for acting part-time
commissioners to be appointed by the
Governor in Council, and that the consultation
process normally required (which includes
asking the Bar Association of Queensland
and the Queensland Law Society to each
nominate two persons having appropriate
qualifications for appointment as the civil
liberties commissioner) does not apply.
We noted the importance of consultation
with the legal fraternity on acting part-time civil
liberties commissioner appointments. This is
particularly relevant given there is no time limit
on how long a person can serve as an acting
part-time commissioner. Similarly, there is no
requirement to consult with the parliamentary
Crime and Misconduct Committee (or even the
chair of the committee), and no requirement
for bipartisan support.
Licensing Acts regime
The amendments provide a scheme to introduce
consideration of whether an applicant or holder
of certain occupational licences is a criminal
organisation or an identified participant in a
criminal organisation under the following Acts:
1. Electrical Safety Act 2002
2. Liquor Act 1992
3. Queensland Building Services
Authority Act 1991
4. Racing Act 2002
5. Second-hand Dealers and
Pawnbrokers Act 2003
6. Security Providers Act 1993
7. Tow Truck Act 1973
8. Weapons Act 1990
9. Work Health and Safety Act 2011.
back to contents
Advocacy | Regular features
Criminal Law (Criminal Organisations Disruption)
and Other Legislation Amendment Act 2013
The Society noted that the critical definition
of ‘participant’ is taken from s60A(3) of the
Criminal Code and is to be considered in
light of information supplied by the Police
Commissioner. We suggested that the
Attorney-General should ensure that affected
licensing authorities only considered issues of
current participation in a criminal organisation
and no other irrelevant considerations. We
noted the significant possibility of injustices
occurring where the information supplied by
the Police Commissioner is either inaccurate
or out of date.
Police Service Administration Act 1990
• The amendments introduced a new
subdivision to allow the Police Commissioner
to disclose to an entity the criminal history
of a current or former participant in a criminal
organisation if the commissioner is satisfied
it is in the public interest.
The Society expressed significant concern
with disclosing criminal histories of individuals
to entities such as news media, particularly
highlighting the impact this may have on a
person’s right to a fair trial and that it may lead
a news media outlet committing a contempt
of court by its reporting of ongoing criminal
proceedings. It could also have a significant
negative impact if the criminal history of a child
under the Youth Justice Act 1992 is released.
Use of video link facilities and audio link
facilities in criminal proceedings
• Amendments were made to the following
Acts to enhance the ability of the courts
to use video and audio links in criminal
proceedings:
• Bail Act 1980
• Criminal Code 1899
• Justices Act 1886
• Penalties and Sentences Act 1992
• Evidence Act 1977
• District Court of Queensland Act 1967
• Supreme Court of Queensland Act 1991.
The Society expressed concern at the
removal of the requirement for consent of the
prosecution and defence for the use of video
and audio links, noting that there still remains
practical issues that need to be addressed (such
as the ability for a legal practitioner to obtain
signed instructions, and the impact video link
processes will have on duty lawyers).
We also noted that a prisoner must be
physically present in court for trials and
sentencing. There is significant value in
ensuring a person is able to interact with
his or her lawyer in these two circumstances.
Additionally, the community would expect
that the defendant be present, particularly
for their sentencing, as that is the point in time
when the accused person is receiving the
court’s decision on behalf of the community
and through the judge, the community’s
denunciation of the conduct. At the very least,
we suggested that the defendant should have
the ability to elect to be at court in person for
sentencing in District Court and Supreme
Court matters.
Corrective Services Act 1980
• New Division 6A mandates the chief
executive to make a criminal organisation
segregation order if the commissioner
advises that a prisoner is an identified
participant in a criminal organisation.
• New s267A also allows directions to be given
to a person who is an identified participant
in a criminal organisation and is subject to
a parole order or community-based order.
These directions relate to wearing
a monitoring device, allowing installation
of devices or equipment and remaining
at a stated place for a stated period.
Parliamentary committee response
and debate in Parliament
The Society was quoted heavily in the
parliamentary committee’s report. The
committee also made a number of
recommendations for the Attorney-General
to clarify the intended operation of various
provisions. During the parliamentary
debate, the Attorney clarified issues
relating to the Society’s advocacy:
• Licensing authorities will be informed about
participants in a criminal organisation by the
Police Commissioner, and
• The Police Commissioner has the power
under the Police Service Administration
Act 1990 to release criminal histories of
current or former participants in a criminal
organisation to entities including the media.
These decisions are subject to the Judicial
Review Act 1991.
Prepared by the QLS advocacy team.
back to contents
Access to justice inquiry
Supporting
‘a fundamental
right’
On 21 June 2013 the then Assistant
Treasurer requested that the Productivity
Commission inquire into Australia’s civil
justice system, with a focus on examining
costs and promoting access to justice.
Queensland Law Society wrote to
the commissioner, setting out our
philosophy that everyone, without
exception, should have access to legal
services and that access to justice is a
fundamental right for all.
We then detailed the areas in which
we believed the commission could add
most value, observing that there should
be a significant focus on examining the
adequacy of legal assistance funding,
with more guidance on the scope of the
government’s responsibility to provide
legal assistance (or funding for legal
assistance) to individuals.
To that end we highlighted that
Queensland legal practitioners provide
a significant amount of pro bono and
reduced fee services. As there is no
mandatory reporting for providing
these services, the numbers are
difficult to quantify. Nonetheless they
are an important and under-reported
feature of the justice system.
We also said that it was important to
note that the capacity of the private
profession to provide pro bono services
is not finite and can never be a substitute
for the legal assistance sector.
We concluded that there were many
factors which impact on access to
justice, and that they should be
examined in close detail.
The commission is expected to table its
final report before 21 September 2014.
Louise Pennisi is a QLS policy solicitor.
February 2014 | Proctor
41
Regular features | Workplace law
The new anti-bullying
jurisdiction
FWC releases benchbook and case management model
With the Fair Work Commission’s anti-bullying jurisdiction commencing from 1 January, practitioners also have access
to a benchbook and other guidance prepared by the commission. Report by Clayton Payne and Dominique Mayo.
The new anti-bullying jurisdiction
of the Fair Work Commission (FWC)
is expected to produce some 3500
complaint applications annually.1
The FWC appointed Commissioner Peter
Hampton as the head of its anti-bullying
panel and released its Anti-bullying Benchbook
and anti-bullying case management model
in November 2013 in anticipation of the
introduction of the commission’s anti-bullying
jurisdiction from 1 January.
The benchbook was prepared by the
commission as a draft for public consultation
to assist parties lodging or responding to antibullying applications under the Fair Work Act.
The consultation period closed at the end of
December last year, which formed part of the
commission’s engagement strategy.
At the anti-bullying jurisdiction model launch
on 20 November 2013, Justice Ian Ross AO
emphasised that:
• Applications can only be made by a worker
who reasonably believes that he or she has
been bullied.
• A worker is “bullied at work” if, while at work,
an individual or group repeatedly behaves
unreasonably towards the worker and that
behaviour creates a risk to health and safety.
• The purpose of the anti-bullying jurisdiction
is to restore working relationships and not
provide financial compensation. Indeed,
the commission does not have the power
to make an order for the payment of any
monetary amount.
• Monetary settlements will not be
recommended or promoted by the
commission.
• There are no express limits on workers
making multiple applications under the
Fair Work Act or under other statutory
processes. The Fair Work Act also expressly
permits applications to be made under
the Workplace Health and Safety Act and
corresponding state laws.
• There is no express obligation on the
commission to attempt to mediate
or conciliate anti-bullying applications,
however the commissioner has the
power to do so.
Justice Ross said that the FWC could only
make orders about the prevention of workplace
bullying. In other words, the commission can
only make an order in circumstances where
there is a risk that the worker will continue
to be bullied at work. This will be likely to
exclude a former employee seeking to make
an application as the relevant employment/
contractual relationship has ceased.
Some possible orders likely to be made
include those:
• to cease the specified behaviour
• for the employer to monitor future behaviours
• for the employer to comply with its policy
• for the employer to provide information,
support or training, and
• for the employer to review its policies
and practices.
However, it must be remembered that
reasonable management action conducted
in a reasonable manner does not constitute
bullying. Interestingly, the benchbook
identifies that the Fair Work Act’s reasonable
management action exemption “might be
broader than its Comcare counterpart and
extend to everyday operational instructions”.2
It has been proposed that a review of the
anti-bullying jurisdiction be undertaken
in July this year and again in early 2015.
Anti-bullying measures –
some tips for lawyers
Early intervention is the key to the avoidance
of workplace bullying claims for law firms, and
their clients. Early reporting by an employee is
a preventative measure aimed at reducing the
worsening and reoccurrence of the causative
factors that, in turn, will likely require less formal
procedures to be invoked. Of course, this is
dependent on the severity of the bullying
behaviour. An obvious benefit of early reporting
is the timeliness of any remedial solutions that
may be sought by an employee.
Any of your staff who hold supervisory roles
should engage in an investigative process when
allegations of workplace bullying are made.
This sends a clear message to both the alleged
wrongdoer and victim: that their employer does
not tolerate inappropriate behaviour and will
reprimand staff where allegations are proven.
The investigative process can, however,
lead to the significant challenge of achieving
the balance between transparency and
confidentiality. Those involved in the
investigative process must be seen to be vigilant
in combatting bullying allegations to reduce
the incidence of workplace bullying; however,
a cautionary approach is to be adopted during
the investigative stage to ensure, amongst
other things, confidentiality. Though, when
the bullying behaviour under investigation has
been openly observed by employees, then the
need for confidentiality is largely obsolete.
Clayton Payne is a special counsel and Dominique
Mayo is a lawyer at Sparke Helmore Lawyers.
Notes
FWC general manager Bernadette O’Neill told the
Senate Education, Employment and Workplace
Relations Committee that “our working hypothesis
was that in the order of 3500 applications would
be lodged per year” under the bullying provisions,
though she noted that an accurate prediction was
difficult for what was a “unique” jurisdiction.
1
Fair Work Commission anti-bullying jurisdiction –
summary of the case management model available
at fwc.gov.au.
2
42
Proctor | February 2014
back to contents
Your library | Regular features
Your library
is open for
business
As we begin 2014, the Supreme
Court Library, Queensland is looking
forward to a year of improved
service delivery and access to
our legal collections.
Your library is open and we welcome
your business.
We have a number of important projects
planned for the year, including the launch
of a new-look website and an associated site
for the Sir Harry Gibbs Legal Heritage Centre.
We are also carefully planning the
redevelopment of our online judgments
service, which already includes more than
30,000 full-text decisions from Queensland
courts, tribunals and commissions (ranging
from the Queensland Court of Appeal
to Queensland Civil and Administrative
Tribunal). The new service will offer
an improved search facility and other
enhancements, as well as continuing to be
free and fast (most decisions are posted on
our website within 20 minutes of release).
In the meantime, Queensland Law Society
members across Queensland can register
with us to take advantage of their member
entitlements, including:
• free document delivery
(up to 10 documents a day)
• free research assistance
(up to 30 minutes a day)
• free onsite photocopying and printing
(up to 50 pages a day)
• remote access to a range of online
titles and resources.
LOUISE ATHERTON
TEP ADFS(FP) – Principal
with Supreme Court librarian
David Bratchford
Members in or visiting the Brisbane CBD will
find that the new library in the QEII Courts
of Law is well worth an inspection, offering
modern facilities and services including:
• an extensive print and online
research collection
• public PCs with access to the internet
and a range of legal databases not
available offsite
• free wi-fi access
• private study rooms
• photocopying and printing facilities
• staff assistance and guidance in the
use of resources.
QLS members in or around Cairns can also
enjoy a range of modern onsite facilities and
services following the recent renovation and
upgrade of the Cairns courthouse library.
Internet kiosks in other regional centres
provide access to our online collections,
which are continually being developed and
expanded with new content. Reference
librarian Brendon Copley and our friendly and
efficient information services staff in Brisbane
are available during business hours to respond
to your inquiries by phone or email.
Library staff will also be on hand at QLS
Symposium next month to answer your
questions about our services and programs,
and will be showcasing new products such
as the Queensland Sentencing Information
Service (QSIS). See sclqld.org.au for more
information.
QLS members will also have the opportunity
to attend specialised research training sessions,
including QSIS training events, very soon.
Registration details are available on the website
and other training is available on request.
For those who have not yet registered, please
do so to enjoy the full range of benefits that
your QLS members’ library has to offer.
Visit the website, call 07 3247 4373 or email
librarian@sclqld.org.au for more information.
ALEX HAMS
– Probate Consultant,
has extensive experience as the
former Queensland Probate Registrar
PAUL WILLIAMSON
– Titles Office Consultant,
has unique experience as Senior
Titles Officer for over 20 years
Do You Have Problem
Estate Files Which:
• Put you at risk of being sued
for delay or negligence;
• Take you outside your legal
comfort zone;
• Wastes too much of your precious time;
• Cause you embarrassment with
clients or colleagues.
ALEX will advise you on:
• Supreme Court Procedures;
• Unusual or complex Grants;
• Complex Court Requisitions
• The drafting of Affidavits and
Court Applications.
PAUL will advise you in all areas
of titling including:
• Transmission Applications;
• Complex land transfers;
• Complex Trusts;
• Plans of Survey;
• Caveats, Leasing and Easements;
• Community Titles Schemes.
WE WILL COME TO
YOUR OFFICES,
audit your troublesome files
and provide solutions.
MOST OF OUR WORK
COMES FROM
OTHER LAW FIRMS
T 07 3720 9777 • M 0413 860 050
F 07 3871 1126
louise.atherton@athertonlawyers.com.au
PO Box 4172, St Lucia South, Brisbane Q 4067
www.athertonlawyers.com.au
back to contents
February 2014 | Proctor
43
Regular features | Alternative dispute resolution
Family ways
Common dilemmas for family
dispute resolution practitioners
The role of the family dispute
resolution practitioner (FDRP)
brings a variety of challenges.
And if you spend more time with the selfrepresented party – which is almost inevitable
– this can be seen by the represented party
as bias.
One positive – and I think all FDRPs will agree
– is that it is never boring!
Non-child-focused agreements
The variety of personalities, problems,
possible resolutions and scenarios are endless
and most FDRPs could, I suspect, write a book
about their experiences.
However, this article attempts to address
some of the most challenging issues
facing FDRPs. There is not always a right
or wrong answer to the problems we face,
but awareness and strategy are the keys to
appropriate resolutions.
Self-represented participants
A common scenario in family dispute
resolution mediations is for the FDRP to find
himself/herself in a situation where one party
is legally represented and the other is not.
This is particularly challenging for FDRPs
who are family lawyers, as the role of the FDRP
must not include giving advice or acting in
any sort of judgmental role. When one party
arrives with unrealistic expectations or seeks
orders that the FDRP knows the court is not
likely to make (although there are always
exceptions!), it is extremely difficult to not
cross the line into giving advice. (For example,
while it might seem ‘fair’ to split siblings so
that each lives with a different parent, it is
not a child-focused outcome.)
That is not to say that a reality check is out
of bounds. Reality checking is often just
pointing out common sense.
The other difficulty with self-represented
parties is that they may feel ‘out-numbered’
and become defensive or aggressive. It is
difficult for the FDRP to support them while
being balanced in their approach.
Undoubtedly, the best way of dealing with
any ‘runaway’ of emotions is to split into separate
rooms and ‘shuttle’ between the two parties.
Of course, this then makes it even more difficult
to not give the unrepresented party advice.
44
Proctor | February 2014
What should FDRPs do when the parents put
forward proposals, that the other party almost
immediately agrees to, but which you know are
not child-focused (for example, an equal-time,
week-about arrangement for a new baby)?
The Institute of Family Studies has researched
the amendments to the Family Law Act (the
Family Law Amendment (Shared Parental
Responsibility) Act 2006) providing for the court
to consider equal-time arrangements, and has
concluded that, particularly for very young
children, this arrangement can be damaging.
The baby or very young child moving from
one home to another on a weekly basis finds
it difficult to form a real bond with anyone,
which can result in psychological issues.1
Difficult situations are hardly uncommon
for ADR practitioners, but can become
particularly testing in family dispute
resolution, as Diane Turner explains.
of the High Conflict Institute based in San
Diego, California (only in the United States
would you find a High Conflict Institute!).
However, Bill Eddy talks a lot of common
sense that works. He says that the process of
decision-making in mediation can bring out
defensive traits in people and the successful
mediator must do as much as possible to
defuse this defensiveness in order to help
the parties make their own decisions.
In my experience the worst possible
scenario is an unrepresented, high-conflict
male personality (HCP) with a female lawyer
representing the other party. In other words,
a room full of women with the exception
of the HCP!
Bill Eddy has four tips that, I promise you
from experience, work:
Bonding: Empathy, attention and respect.
Structuring: More structure to avoid slipping
into distracting emotions.
Some judicial officers refuse to make orders
for equal time for very young children.
Reality testing: HCPs constantly distort
information without knowing it.
So, when a parenting plan or court order is
proposed providing for equal time for a new
baby, what should the FDRP do?
Consequences: HCPS are surprisingly naïve
about the self-defeating consequences of
their behavior. Bill says: “You will be shocked!
Just try not to show it. Instead educate
them by focusing on indirect confrontations.
These are non-threatening pointers which
do not criticise the person or threaten your
relationship with them.”
In my view, the role is simply to assist the
parents to come to an agreement and not to
put one’s own views and values forward. As
hard as it can be to withhold the evidence that
equal time is damaging for young children, that
is what the FDRP should do. This is a decision
for the parents, and despite the research, it
does work for some children. That is not to say
that, if the parents insist on a court order rather
than a parenting plan, their decision may not
be challenged by the court.
It is the duty of the FDRP to ensure that any nonchild-focused agreement is not being made out
of duress or misinformation (for example, they
may have been told that equal time is the norm
and is expected). This is a common mistake
because of the wording in the Act that the
court “must consider equal time”.
Despite the challenges, the rewards for FDRPs
are huge. When an agreement is reached,
the reality is that these parents have saved
themselves a huge cost both emotionally
and financially, which in turn improves
the situation for the children. That is a very
rewarding feeling for the FDRP.
The article appears courtesy of the Queensland Law
Society Alternative Dispute Resolution Committee.
Diane Turner is the director of Diane Turner Mediations
and, until recently, a sessional member of the
Queensland Civil and Administrative Tribunal.
High-conflict personalities
The authority on dealing with high-conflict
personalities is Bill Eddy, an attorney,
therapist, mediator and the president
Note
See Family Matters 2011 No.86, article by J McIntosh,
B Smyth, M Kelaher, Y Wells and C Long.
1
back to contents
Regular features | Practice and procedure
Statute bar remains firm
Hall v Don Faulkner Motors Pty Ltd [2013] QSC 331
Limitation of Actions Act 1974 s11 –
dependency claim brought 16 years
after deceased’s death – whether
claim statute-barred as a result
of operation of s11(1) – whether
abolition of limitation period for right
of action relating to personal injury
resulting from dust-related condition
applies to dependency claim
In Hall v Don Faulkner Motors Pty Ltd [2013]
QSC 331 Mullins J considered some significant
questions relating to the construction of s11
of the Limitation of Actions Act 1974 (Qld) as
that provision relates to dependency claims.
Facts
The plaintiff brought a dependency claim
on her own behalf and on behalf of her
children. The claim related to the death of
her late husband, Gregory Hall, on 28 May
1995. The proceeding was filed in July 2011.
Mr Hall had not brought an action during his
lifetime for his condition of mesothelioma.
The condition was at an advanced stage
and terminal when it was first diagnosed in
August 1994. The plaintiff pleaded that Mr
Hall had developed the condition as a result
of exposure to asbestos dust and fibre during
his employment with the first defendant
between 1966 and 1971 and with the second
defendant between 1976 and 1978. It was
alleged that Mr Hall’s death was caused by
mesothelioma as a result of the negligence,
breach of contract or breach of statutory
duty of the first and second defendants. The
proceeding was being litigated against the
third defendant as the relevant insurer of the
first and second defendants.
The court was asked to determine as a
separate question before trial whether the
plaintiff’s claim for damages was barred by
reason of s11(1) of the Limitation of Actions
Act 1974 (Qld), as pleaded by the defendants
in their defence.
Legislation
The plaintiff‘s dependency claim was brought
under s64 of the Civil Proceedings Act 2011
(CPA). That provision enables the bringing
of a dependency claim for a wrongful
death in circumstances where, if death had
not resulted, the wrongful act or omission
would have entitled the deceased to recover
damages in a proceeding for personal injury.
Section 11 of the Limitation of Actions Act
1974 (Qld) (the Act) provides:
(1) Notwithstanding any other Act
or law or rule of law, an action for
damages for negligence, trespass,
nuisance or breach of duty (whether
the duty exists by virtue of a contract or
a provision made by or under a statute
or independently of a contract or such
provision) in which damages claimed
by the plaintiff consist of or include
damages in respect of personal injury
to any person or damages in respect of
injury resulting from the death of any
person shall not be brought after the
expiration of 3 years from the date on
which the cause of action arose.
(2) However, a right of action relating
to personal injury resulting from a
dust-related condition is not subject to
a limitation period under an Act or law
or rule of law.
(3) To remove any doubt, it is declared
that personal injury resulting from a
dust-related condition does not include
personal injury resulting from smoking
or other use of tobacco products or
exposure to tobacco smoke.
(4) In this section—
dust-related condition see the Civil
Liability Act 2003, schedule 2.
Subsections (2), (3) and (4) were inserted into
s11 by the Civil Liability and Other Legislation
Amendment Act 2010 (the Amendment Act),
commencing on 1 July 2010. The Amendment
46
Proctor | February 2014
Act also inserted a new s47 into the Act.
This is a transitional provision arising from
the enactment of s11(2) of the Act. Subject to
exceptions not applicable here, it applies s11(2)
of the Act to a right of action relating to personal
injury resulting from a dust-related condition
whether the right of action accrued before or
after the commencement of s47 of the Act.
Issues
It was not in issue that mesothelioma is a
dust-related condition within the meaning
of s11(2) of the Act.
The defendants alleged that the cause of
action relating to the dependency losses
accrued no later than the date of Mr Hall’s
death and that accordingly the limitation
period expired on 28 May 1998.
The plaintiff contended there had been no
limitation period applying to dependency
claims since 1981, and formulated the issues
to be addressed in order to answer the
question expressed in the application as:
(a)Does s11(1) of the Act apply
to a dependency claim?
(b)If s11(1) of the Act applies to a
dependency claim, does s11(2)
of the Act apply to such a claim?
(c)If s11(2) of the Act does not apply, is
the dependency claim statute-barred?
Analysis
Application of s11(1) of the Act
to a dependency claim
Mullins J regarded the threshold issue for
all of the questions to be determined as being
whether any limitation period applies to a
dependency claim since the Common Law
Practice and Limitations Act Amendment Act
1981 (the 1981 Act).
In addressing that issue, her Honour first
examined the changes effected by s6 of the
1981 Act which, as her Honour noted, were
intended to include the limitation period for
a dependency claim in s11 of the Act. This
was in lieu of the separate provision that
had been contained in the Common Law
Practice Act 1867, which was the Act which
at the time conferred on dependents the right
to compensation for the death of another.
Those changes were also intended to make
provisions of the Act relating to extension
of the limitation period (that is, sections 29
and 31) also apply to a dependency claim.
back to contents
Practice and procedure | Regular features
This recent case confirms that dependency claims, including
those linked to death from a dust-related condition, must be
commenced within three years, apart from those specifically
permitted under the legislation. Report by Sheryl Jackson.
In 1995, the provisions from the Common
Law Practice Act 1867 (Qld) were relocated
to the Supreme Court Act 1995 (Qld). That Act
was repealed by the CPA, with effect from
1 September 2012. The relevant provisions
from the Supreme Court Act 1995 were
modernised and relocated to the CPA.
It was submitted for the plaintiff that s11(1)
of the Act did not apply to a dependency claim.
The plaintiff’s argument was that a dependency
claim was not “an action for damages for
negligence, trespass, nuisance or breach of
duty” and therefore not within the introductory
words of s11, despite the insertion of the words
“damages in respect of injury resulting from
the death of any person” by the 1981 Act.
Mullins J said the opening words referred to
must be construed within the context of the
balance of the provisions of the Act, and that the
insertion of the words “or damages in respect of
injury resulting from the death of any person”
was consistent only with the opening words
extending to a dependency claim. Her Honour
also found it to be clear from the terms of the
1981 Act that the amendments effected by
that Act were intended to preserve a limitation
period of three years for a dependency claim,
but to relocate it to the Act where the extension
provisions could also be made to apply to a
dependency claim. Her Honour concluded that
s11(1) of the Act applies to a dependency claim.
Application of s11(2) to a dependency claim
Mullins J then considered whether “a right of
action relating to personal injury” found in s11(2)
of the Act was limited to a plaintiff’s claim for
damages in respect of personal injury or whether
it also extended to a dependency claim.
On this issue, Mullins J emphasised the
distinction drawn by s11(1) itself between a
proceeding that includes damages in respect
of personal injury and one that includes
damages in respect of injury resulting from
the death of any person. In her Honour’s view
this gave significance to the lack of reference
to ‘death’ in s11(2) of the Act.
Her Honour also considered the purpose of the
enactment of s11(2). The judgment included
consideration of the amendment to the Act
effected by the Civil Liability (Dust Diseases) and
Other Legislation Amendment Act 2005 (Qld),
which inserted s30A into the Act to enhance the
application of s30 in respect of an action relating
to personal injury resulting from a dust-related
condition. That provision was omitted by the
back to contents
Civil Liability and other Legislation Amendment
Act 2010 (Qld), which also introduced s11(2)
into the Act, as s11(2) provided a greater benefit
in relation to personal injury resulting from a
dust-related condition than that which had
been provided under s30A.
In her Honour’s view, the hardship that was
intended to be alleviated by the enactment
of this subsection did not apply to a
dependency claim that accrued on the death
of the deceased. She concluded that s11(2)
should be construed as having no application
to a dependency claim.
Is a dependency claim otherwise statute barred?
On the third issue, Mullins J concluded that the
limitation period for the plaintiff’s dependency
claim expired in May 1998, as any dependency
claim accrued on the death of Mr Hall.
In light of the determination on these issues,
it was concluded that the effect of s11(1) of the
Act was that the plaintiff’s dependency claim
that accrued on Mr Hall’s death expired three
years after his death, and so the plaintiff’s claim
for damages was statute-barred.
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Comment
The judgment in this case incorporates a
thorough review of the legislative history
of dependency claims in Queensland.
However the conclusions are unsurprising,
and consistent with the construction of
the Act as commonly understood.
The decision confirms that a dependency
claim, including a claim flowing from a death
as a result of a dust-related condition, must
be commenced within three years from the
date of the death of the deceased. This is
subject to the qualification provided by s29
of the Act that a claim by or on behalf of a
child of the deceased may be brought up to
three years from the date on which the child
attains the age of majority, and that in certain
circumstances the time for commencing an
action may be extended under s31 of the Act.
Sheryl Jackson is an associate professor at the QUT
School of Law. The Queensland Law Society Litigation
Rules Committee welcomes contributions from
members. Email details or a copy of decisions of general
importance to s.jackson@qut.edu.au. The committee is
interested in decisions from all jurisdictions, especially
the District Court and Supreme Court.
February 2014 | Proctor
47
Regular features | Ethics
Litigating like adults
Robustly representing the interests of our clients must never include being discourteous or
offensive, as a number of practitioners have discovered the hard way. Article by Stafford Shepherd.
In Ren Nominees Pty Ltd v MS Cognosis
Pty Ltd (No.1)1 (Ren Nominees) Perran
J has reminded us that it is important
when engaged by the client in
litigation that litigation should “be
conducted by officers of the court
in an adult fashion”.2
company in his own interests rather than in
the interests of the members as a whole.5
Ren Nominees was concerned with an
application to wind up the first defendant,
MS Cognosis Pty Ltd (MS Cognosis), on
grounds relating to the manner in which the
company’s affairs were being conducted. The
application was commenced in February 2013.
It was opposed until June 2013 when both
MS Cognosis and its sole director, Mr Kennedy,
dropped their opposition to the winding up
but continued to oppose the appointment
of the liquidator nominated by the plaintiff.
The court, however, made an order that the
plaintiff should be entitled to party-party costs
for the period in which the second defendant
refused to accept the nominated liquidators
by the plaintiff.8
In July 2013 the parties agreed that the court
could appoint the liquidator and in that
month the first defendant was wound up.
• First, the first paragraph of your letter
is a false assertion.
• Secondly, such a ground of defence to the
winding-up application would be absurd.
• Fourthly, the attack on Mr Jones’
independence is equally absurd.
The plaintiff sought recovery of its costs
of the proceedings, in part on an indemnity
basis from the second defendant (Mr Kennedy).
MS Cognosis had two equal shareholders,
the plaintiff and the first defendant.
Perran J described the litigation as being
approached by the litigants “vigorously”.3 The
litigation concerned “a fall out between two
men involved in efforts commercially to exploit
a cancer diagnostic system”.4 A significant
disagreement arose between the shareholders.
The basic contention was that the principal
asset of MS Cognosis had been disposed
of without first consulting with its 50%
shareholder Ren Nominees and that Mr
Kennedy had conducted the affairs of the
This article is brought to you by the Queensland
Law Society ethics centre. It is also available at
qls.com.au/ethics along with extensive resources
on professional legal ethics.
48
Proctor | February 2014
Perran J concluded that:6
1.It was not almost certain that Ren Nominees
would obtain the winding up order it sought.
2.The second defendant’s defence of
proceeding was reasonable.
In the circumstances, no order as to costs in
principle could be made.7
The solicitors for Ren Nominees sent a letter to
the second defendant’s solicitors which Perran
J said was “written in language best described
as intemperate”.9
The letter included statements such as:10
The court noted that while “the general thrust
of … this letter was correct … the manner
and tone of this letter are wholly inappropriate
for the conduct of civil litigation…”11
Perran J made reference to the relevant rules
of the New South Wales Revised Professional
Conduct and Practice Rules 1995. Similar
principles that were referred to in the judgment
of the court can be found in the Australian
Solicitors Conduct Rules 2012 (ASCR). In particular:
• A solicitor must be honest and courteous in
all dealings in the course of legal practice.12
• A solicitor who has given an undertaking
in the course of legal practice must honour
that undertaking and ensure the timely and
effective performance of the undertaking,
unless released by the recipient or by a court
of competent jurisdiction.13
• A solicitor must avoid any compromise to their
integrity and professional independence.14
• A solicitor must not in action or
communication associated with representing
a client use tactics that go beyond legitimate
advocacy and which are primarily designed
to embarrass or frustrate another person.15
The court then observed:
“These professional conduct rules reflect
the need for litigation to be conducted by
officers of the Court in an adult fashion.
It is not adult for grown lawyers to accuse
each other of lying in correspondence
and it is not edifying for anyone involved.
Correspondence of this kind ought not
to be tolerated.”16
In 2011 a solicitor was found guilty of
unsatisfactory professional conduct in
sending two letters which were described
as discourteous, offensive, or provocative.17
The solicitor was not publically reprimanded
but was ordered to pay the Legal Services
Commissioner’s costs fixed in the sum
of $2500. The Queensland Civil and
Administrative Tribunal noted that it was
“a very minor breach committed in private
circumstances by a practitioner of 30 years
standing who has never previously required
discipline or admonishments in any way”.18
We need to serve our client’s best interests
and robustly represent those interests – but
in doing so we must not lose sight that to be
robust does not mean that we must conduct
ourselves with discourtesy or be offensive.
We must conduct ourselves always in the
manner suggested by Perran J.
Reflect and consider before sending
in the heat of the moment.
Stafford Shepherd is Queensland Law Society
senior ethics solicitor.
Notes
3
4
5
6
7
8
9
[2013] FCA 916.
At para [55].
At para [5].
At para [12].
At para [20].
At para [45].
At para [46].
At para [61].
At para [52].
10
Ibid.
11
At para [53].
1
2
Rule 4.1.2 Australian
Solicitors Conduct
Rules 2012 (ASCR).
13
Rule 6.1 ASCR.
14
Rule 4.1.1 ASCR.
15
Rule 34.13 ASCR.
16
Ren Nominees at [55].
17
Legal Services
Commission v Cooper
[2011] QCAT 209.
18
At [23].
12
back to contents
Succession law | Regular features
What’s new in succession law
2013 wrap-up
Legislative reviews
Births, Deaths and Marriages
Registration Act 2003 (Qld)
The Department of Justice and AttorneyGeneral is undertaking a review of the Birth,
Death and Marriage Registration Act 2003
and associated regulations.
The terms of reference were published
late last year and the Attorney-General
invited Queensland Law Society (QLS)
and other stakeholders to provide feedback.
This will lead to a consultation paper due
for public comment early this year. See
justice.qld.gov.au > Community consultation
> Community consultation activities and
reviews > Review of Births, Deaths and
Marriages Registration Act 2003.
Guardianship and Administration Act 2000
(Qld) & Disability Services Act 2006 (Qld)
Estate planners whose practice involves
advising clients with disabilities should
note that, as part of the National Disability
Insurance Scheme, amendments are proposed
to the Guardianship and Administration Act
2000 and the Disability Service Act 2006 to
allow family members to be more involved
in the decision-making process with regard
to restrictive practices. On 17 December,
the QLS participated in a public hearing to
discuss amendments to the Disability Services
Act 2006. The Society prepared submissions
on the amendments and the parliamentary
committee is due to table its report on
3 February. See parliament.qld.gov.au >
Work of Committees > Committees >
Health and Community Services Committee >
Disability Services (Restrictive Practices)
and Other Legislation Amendment Bill 2013.
Case law – end-of-year snapshot
Gundy v Eatts [2013] QSC 297
This decision gives judicial recognition of
Aboriginal and Torres Strait Islander childrearing traditions with the court finding a
person who was informally adopted under
Aboriginal custom may be a child and issue
for the purposes of family provision claims
and intestacy.
On an application to strike out an originating
application, the question for determination
was whether the applicant was a child for the
purposes of s41 of the Succession Act 1983 and
thereby an eligible applicant for provision out
of the estate. The deceased and the applicant
are of Aboriginal descent, with the deceased
having informally adopted the applicant
under Aboriginal custom.
The word ‘child’ is defined in s40. In relation to
Part 4, it means “any child, stepchild or adopted
child of that person”. The word ‘child’ is not
otherwise defined in the Succession Act. It is
defined in the Acts Interpretation Act to include
“descendent”, which is defined to include, in
relation to Aboriginal people, “a descendant
under Aboriginal tradition”. Aboriginal tradition
is defined to mean traditions, observances and
customs in relation to, inter alia, relationships.
On the material before the court, it was
arguable that the applicant would be able to
establish at a trial that he was the “child” of the
deceased. If so, under the rules of intestacy he
would be entitled to the whole of the estate.
The decision is important because it identifies a
wider class of child than previously recognised
and it adds another dimension to the definition
of issue. The decision has been appealed with
the administrator, Joslin Eatts, having filed a
notice of appeal on 28 November.
Yu, Re [2013] QSC 322 and Mellino v Wnuk
& Ors [2013] QSC 336 are both decisions
involving successful applications under s18
of the Succession Act to probate informal
wills. They are interesting in that the s18
principles were applied to electronic
documents. Yu’s case involved a will written
on an iPhone and Mellino’s case involved
a will recorded on a DVD.
with Christine Smyth
The issue arose as a result of the will drafter
amending a precedent clause in an attempt to
fit the instructions to the clause. The question
turned on a consideration of the totality of
the rights given to the beneficiaries and their
relationship with the rights given to other
beneficiaries, with the court finding that it
was a personal right.
Sargent & Anor v Brangwin [2013] QSC 306
involved a challenge to the deceased’s will
(dated 11 February, 2011) on the basis he
lacked testamentary capacity. The challenger
was the deceased’s daughter, who propounded
a home-made will dated 25 July, 2010. She was
a residuary beneficiary in both wills.
The testator was in poor health at the time
of making both wills. As is with many capacity
cases, the court had to balance between
the lay evidence and the medical evidence,
ultimately finding in favour of the 2011 will.
Relevantly for will drafters, the decision
contained some criticism of the solicitor
who drew the will. The court’s comments
related to advising a testator on appointing
a solicitor as executor in regard to the
cost of the solicitor acting. The court also
questioned the propriety of creating a
testamentary trust in circumstances where
the amount held on trust might not warrant
the cost of administering the trust.
Haggarty v Wood [2013] QSC 327 involved
a successful application to strike out the
plaintiff’s statement of claim which, inter
alia, pleaded claims for breach of mutual
will and testamentary undue influence.
In an upcoming edition we will publish an
article by Charlie Young on the Yu decision.
McElligott v Public Trustee of Queensland &
Ors [2013] QSC 314 involved an application
on the construction of the deceased’s will.
The key question was whether a gift to infants
“to have full use of the property for a period
of five years”1 amounted to “an equitable
estate … or a personal right”.2
Christine Smyth is a Queensland Law Society
accredited specialist (succession law) and partner at
Robbins Watson Solicitors. She is a member of the QLS
Council, QLS Succession Law Committee, STEP (Qld)
committee and the Proctor editorial committee.
Notes
At [8].
1
Ibid.
2
back to contents
February 2014 | Proctor
49
Regular features | Back to basics
Substituted service
Chapter 4 of the Uniform Civil
Procedure Rules 1999 (UCPR)
governs service of documents in
connection with civil proceedings
in the state courts. Part 10 of the
Federal Court Rules 2011 (FCR)
governs service in connection
with Federal Court proceedings.
If, for any reason, it is impracticable to serve
a document within Australia in a way required
under the rules of court, an application may
be brought for an order substituting another
way of serving the document.
Form of order
The application is brought under rule 116
UCPR (state courts) and rule 10.24 FCR (Federal
Court). For obvious reasons, the application is
brought in the absence of the party on whom
it is sought to serve the document.
The form of order sought in the state courts
should be an order pursuant to which the
court substitutes another identified way of
serving the document. The order sought
does not need to, but may:
• identify the steps to be taken, instead
of service, for bringing the document to
the attention of the person to be served,1
50
Proctor | February 2014
Applying under the UCPR and FCR
• specify that the document is to be taken
to have been served on the happening
of a specified event or at the end of a
specified time.2
In the Federal Court, the form of order
sought is either an order by which:
• the court substitutes another identified
way of serving the document, or
• the court specifies that, instead of being
served, certain steps be taken to bring the
document to the attention of the person, or
• the court specifies that the document
is taken to have been served on the
happening of a specified event or at
the end of a specified time.
Evidence should be adduced by you by way
of affidavit to demonstrate that the threshold
has been met. The usual means of doing this
is to show that you have attempted to serve
the document in the way required under the
rules of court and that service has not been
able to be effected or has failed for identified
reasons, such as that the person to be served
is evading service (with evidence of the
relevant facts to enable the court to form
the view that service is being evaded).
There should also be evidence to support an
inference to be made by the court that further
attempts to serve the document in the way
required under the rules of court would be futile.
When drafting the form of order sought,
ensure that the steps you identify can be
performed as a matter of fact, especially
within any nominated timeframes.
In rare cases, it may be possible to obtain an
order for substituted service by demonstrating
that service in the manner required by the
rules would be so obviously futile as not to
warrant an attempt at service.5
Threshold issue
Proposed alternative method
For rule 116 UCPR or rule 10.24 FCR to
be invoked, it must be shown that it is
impracticable to serve a document in the
way required by the rules of court.3
Evidence will also need to be adduced to
demonstrate that the proposed method of
substituted service or the carrying out of the
steps identified in the order is the most likely
way to bring the document to the attention
of the person to be served.6
It is not enough to show that the proposed
method of substituted service would be
effective in bringing the proceeding to the
attention of the respondent – rather, it must
first be shown that it is impracticable to serve
in the way required by the rules.4
Depending on the form of the order sought,
you may also need to adduce evidence to
show that the happening of the nominated
event or date nominated in the order is likely
back to contents
Back to basics | Regular features
When serving a document as required by the court is
impractical, you can apply for an order which allows you
to use a different method for service. Kylie Downes QC
and Steven Forrest explain the process.
to be the point at which the document will
have been brought to the attention of the
person to be served.
Each case will depend on its own facts and
will involve consideration of matters such as:
• the likelihood that the person to be served is
aware of the proceedings already by reason
of, for example, previous attempts at service
• the quality of the evidence relating to the
location of the person to be served, their
residence or work address, the identity of
the people who live with them and their
relationship with those people, other contact
information about them such as their email
address or post office box address.
The quality of the evidence will be affected
by matters such as the basis on which the
deponent of the affidavit is able to swear to the
facts relating to the person to be served. How
do they know the address or post office box or
email address? Is there any evidence which can
be adduced which corroborates the deponent’s
evidence such as an email from the person to be
served or a document in which the person to be
served has identified their residential address?
The difficulty of that task should not
be underestimated.
In Permanent Custodians Limited v Massey
[2009] QSC 4, a paralegal in the employ of
the plaintiff’s solicitors called a mobile phone
number believed to be that of the defendant
on 10 September 2008 and spoke to a person
who identified himself as the defendant. The
defendant gave the paralegal an email address,
which the paralegal used to send an email
later that day. He received a response from
the defendant on 12 September 2008. On
15 September 2008, he received an email
from a solicitor acting for the defendant. The
next day he received another email from the
solicitor acting for the defendant at a different
email address. The statement of claim was filed
on 18 September 2008 and an application for
substituted service heard on 29 January 2009.
Wilson J declined to make the order sought,
noting that there was no evidence of any
email communications from the defendant
or his solicitor after the filing of the claim.
Her Honour stated that she was not satisfied
that the defendant could still be contacted,
in January 2009, at the email address used
in September 2008, or that the solicitor
was still acting for the defendant.
back to contents
To increase the prospects of obtaining the
order, you should consider seeking an order
which nominates multiple forms of substituted
service or a number of different steps to be
taken to bring the document to the person’s
attention. For example, you might seek an
order specifying that the document be posted
to the person’s post office box address and
also emailed to that person’s email address.
Key points
In order to apply successfully for an order
for substituted service:
• Establish the impracticability of service
under the rules. This is usually achieved by
adducing evidence of previous unsuccessful
attempts at service in the manner required
under the rules of court, and particularly by
evidence which supports an inference of
evasion of service by the person to be served.
Remember, it is not enough to show that
service under the rules is somewhat difficult
or that you have devised another method
of service which you consider will bring the
document to the person’s attention but is
not allowed under the rules of court.
• Establish that the proposed method of
substituted service or the steps to be taken
as identified in the application are the
best or most likely means of bringing the
document to the attention of the person
to be served. The court will not act on
historical or outdated contact information,
guesswork or speculation;
• Include different forms of types of service or
steps to be taken to bring the document to
the attention of the person to be served, and
allow sufficient time in the proposed order
for the steps to be physically carried out.
Kylie Downes QC is a Brisbane barrister and member
of the Proctor editorial committee. Steven Forrest
is a Brisbane barrister.
Notes
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As permitted by rule 116(2) UCPR.
1
As permitted by rule 116(3) UCPR.
2
This represents a change in the approach of the
Federal Court Rules. The former rule Order 7 Rule 9
specified that the court may order substituted service
where it was impractical to serve in the manner set
out in the rules.
3
Kendell v Sweeney [2002] QSC 404.
4
Ricegrowers Co-operative Ltd v ABC Container Line NV
(1996) 138 ALR 480 at 482.
5
Australian Civil Procedure, Cairns, 9th ed., Thomson
Reuters, at [4.140].
6
Brisbane
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Serious about Success®
February 2014 | Proctor
51
Regular features | On appeal
Court of Appeal judgments
1 – 30 November 2013
with Bruce Godfrey
Civil appeals
The Queen v Brown [2013] QCA 337,
8 November 2013
General Civil Appeal – Bail – where the respondent
was granted bail on his own undertaking on
a charge of riot – where the Director of Public
Prosecutions filed an application in the Supreme
Court for review of the magistrate’s decision
under s19B of the Bail Act – where the primary
judge raised concerns over remarks attributed
to the Premier in media reports to the effect
that the court should follow community wishes
in deciding the matter – where the primary
judge, in adjourning the matter, requested senior
counsel for the appellant to ascertain whether the
reports were substantively accurate; whether the
Premier had withdrawn what was said in terms
of the outcome of the case; and if he had not,
whether the court ought to proceed to hear the
matter – where on resumption of the hearing
counsel for the appellant made no comment
with respect to those inquiries but submitted
that the comments were irrelevant and that his
Honour should proceed to hear the application
– where the primary judge found that there
was a risk that members of the public would
perceive a result in the Crown’s favour as having
been influenced by the Premier’s statements,
damaging the independence and the integrity of
the court – where the primary judge concluded
that, exercising the court’s inherent jurisdiction,
he should order a temporary stay – where the
Crown appealed the stay – whether the court’s
inherent power to stay proceedings extended
to the circumstances – whether the premises on
which the primary judge’s determination was
based, as to the risk of public perception and
damage to the independence and integrity of the
court, were sound – where the real issue in the
present case is as to the soundness of the premises
on which the primary judge’s determination was
based, namely that there was “a very real risk that
members of the public would perceive a result in
favour of the Crown as having been influenced by
the Premier’s statements” and that, in consequence,
the “independence of the judicial arm [would
be] damaged” thereby affecting “the institutional
integrity of [the] Court” – where members of the
public to whom regard should be had for present
purposes are persons who are reasonable and
fair-minded and who are “neither complacent
nor unduly sensitive or suspicious” – where such
persons would apprehend that Queensland judicial
officers would dispose of their busy workloads
in accordance with their oaths or affirmations
of office: to do equal justice to all persons and
discharge the duties and responsibilities of
the office according to law to the best of their
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knowledge and ability without fear, favour or
affection – where it is improbable that members
of the public would perceive the Supreme Court
to have the institutional fragility implicit in the
primary judge’s findings or that judges of that
court would be pressured or influenced in their
decision-making processes by statements of the
nature of those under consideration – where
we are confident that judges and magistrates
would continue to make independent decisions
in the face of sustained criticism, we are not
so sanguine that consistent disparagement
cannot have any tendency to weaken public
confidence in the courts – where recognising
such considerations, members of the executive
and other members of Parliament generally, and
observing a convention in that regard, exercise
restraint in voicing such criticisms – where the
reputation of an institution gained by the conduct
of its officers over decades is most unlikely to be
affected adversely by occasional criticisms – where
assuming that the Premier’s remarks were made
as reported, they were not such as would lead a
reasonable member of the Queensland public to
think that any Queensland judicial officer would
fail to be true to his or her oath or affirmation of
office in consequence of them – where for that
reason the contention that it was appropriate to
stay the proceeding until the appellant met the
primary judge’s demands in relation to the subject
statements should be rejected.
Appeal allowed and the order of the primary
judge of 31 October 2013 is set aside.
Bunnings Group Ltd v Asden Developments Pty Ltd
& Ors [2013] QCA 347, 22 November 2013
General Civil Appeal – Real Property – effect
on rights of co-owners – effect on rights of
encumbrancee of the share of a tenant in
common – where the second respondent was
the registered owner of a one-third share as
tenant in common in five lots of land – where
the first respondent entered into a credit
agreement with the appellant – where the second
respondent guaranteed the performance of the
first respondent’s obligations under the credit
agreement – where the second respondent
granted the appellant an equitable charge over “all
the guarantor’s land” – where the first respondent
failed to pay the appellant moneys owing pursuant
to the credit agreement – where the second and
third respondents, in separate proceedings and
without the knowledge of the appellant, obtained
an order appointing a statutory trustee for sale of
the five lots – where the order vested the land in
the statutory trustee subject to encumbrances
affecting the entirety, but free from encumbrances
affecting any undivided shares, and provided for
the distribution of the proceeds of sale to the coowners excluding the second respondent – where
the appellant claimed the money owing plus
interest, and sought declaratory relief in relation to
the charge – where the primary judge determined
that the order appointing the statutory trustee
had put paid to any interest the appellant could
have claimed in any of the five lots or in turn in
the proceeds of sale of any of those lots – whether
the primary judge erred in so finding – whether
the appellants had an equitable interest prior
to the appointment of the statutory trustee for
sale – where the third respondents alleged that
the land in which the second respondent held
a one-third share was partnership property, and
could not be subject to the appellant’s equitable
charge – whether primary judge unable to resolve
whether the land was partnership property –
where on the appointment of statutory trustees
for sale of land held in co-ownership, the legal
and beneficial ownership of the land is vested
in the statutory trustees, and the co-owners’
interests in the land are converted into interests
in the proceeds of its sale – where by s38 Property
Law Act 1974 (Qld) the land vests in the statutory
trustees “subject to encumbrances affecting the
entirety, but free from encumbrances affecting
any undivided shares” – where there is nothing
to suggest that the legislature intended that the
interests of an encumbrancee of an undivided
share should be defeated by the appointment
of statutory trustees for sale – where such an
encumbrancee’s position is expressly protected
by the definition of ‘co-owner’ in s37: a co-owner
includes an encumbrancee of the interest of a
tenant in common – where the statutory trustees
are to hold the net proceeds of sale not only to
give effect to the rights of a former tenant-incommon, but also to give effect to the rights of
an encumbrancee of that tenant-in-common’s
undivided share in the land – where the second
respondent charged “as beneficial owner and as
trustee of every trust all [her] land (including land
acquired in the future)” – where the charge was
a fixed charge over land the second respondent
then held, and it attached to any land she
subsequently acquired as soon as she acquired
it – where the charge extended to a proportionate
share in the proceeds of its sale – where if second
respondent held a beneficial interest in the land
before the appointment of a statutory trustee for
sale, that interest was charged in favour of the
appellant – where on the appointment of the
statutory trustee, the second respondent’s interest
in the land was converted to an interest in the
proceeds of its sale, and the appellant’s charge
attached to the second respondent’s interest in
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On appeal | Regular features
those proceeds of sale – where the appellant’s
charge was not defeated by the order of the
deputy registrar as to the disposition of the
sale proceeds.
Appeal allowed. Orders 2, 5 and 6 made on
9 April 2013 set aside with leave to make written
submissions on costs.
Famestock Pty Ltd v The Body Corporate for No.9
Port Douglas Road Community Title Scheme
24368 [2013] QCA 354, 29 November 2013
General Civil Appeal – Contracts – where
appellant held a restricted real estate licence as
letting agent for the respondent – where that
licence lapsed as a result of the appellant not
renewing it – where appellant also breached
agreements requiring it to hold such a licence
– whether the implied duty to cooperate
compelled the respondent to assist the appellant
in seeking a new licence – whether the implied
duty to cooperate compelled the respondent
to assist the appellant in seeking a new licence
regardless of the appellant’s breaches – where
the appellant continued to act as letting agent for
the respondent – where the appellant applied to
the Office of Fair Trading to renew the restricted
real estate licence so as to continue as letting
agent – where the appellant sought assistance
from the respondent in renewing the licence in
the form of a letter to the Office of Fair Trading
that asserted the agreement remained on foot –
where the respondent did not assist in the terms
requested by the appellant – whether the duty to
cooperate was a continuing obligation – wether
the respondent breached the implied duty to
cooperate in not assisting the appellant to renew
the licence – the body corporate’s attitude to
the breaches by the appellant such an approval
was not forthcoming nor should it have been
required to provide it – where therefore his
Honour’s conclusion that it was unsurprising that
the respondent did not provide a letter, whether
requested to or not, saying the agreement was
still in existence, in the circumstances where the
appellant was in breach of the agreement, is
clearly correct – where his Honour did not decide
that the duty to cooperate was not a continuing
obligation but said that it did not apply here
where the appellant was itself in breach of
the agreement – where a committee of the
respondent body corporate purported to resolve
to terminate a management agreement – where
the committee was not authorised to make such
a resolution – whether the action resolving to
terminate the agreement was ultra vires – whether
such unauthorised action of a committee could
be attributed to a body corporate – whether
such action could amount to a repudiation of a
contract by a body corporate – where the normal
rule is that a disclosed principal is not bound by
its agent’s act which is outside the scope of the
agent’s actual, implied or apparent authority
unless the principal in fact authorised the agent
to do the particular act or ratified it – where here
the purported termination notices were issued by
the committee rather than by the body corporate
which alone had the power to do that – where
there had been no attempt at delegation by
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the body corporate – where it is difficult to
see why the consequences of the committee’s
independent, unauthorised behaviour should
be sheeted home to the body corporate so
as to make it liable in damages – whether it
was incorrect to attribute the behaviour of the
committee in issuing unauthorised termination
notices to the respondent body corporate.
Appeal dismissed. Cross-appeal allowed with
costs. Set aside the orders made on 26 October
2012, in lieu, order that judgment be entered for
the defendant with costs.
Australian Retirement Homes Ltd v Ash [2013]
QCA 355, 29 November 2013
Application for Leave Queensland Civil and
Administrative Tribunal Act – where the applicant
is a retirement village – where the respondent is a
former resident in the retirement village – where
the respondent filed an application in QCAT
putting into question the validity of charges for
general services by the applicant – where the
application was dismissed at first instance and the
respondent appealed to the Appeal Tribunal on
a question of statutory construction – where that
appeal was allowed and the member’s decision
was set aside – where the applicant appeals
against that decision on a question of statutory
construction – whether leave should be granted
– where s106(1) Retirement Villages Act 1999 (Qld)
(the RV Act) operates to place a cap on the total
of general services charges – where it does so
by providing that the scheme operator must not
increase the total of general services charges for
a retirement village for a financial year by more
than the CPI percentage increase for the financial
year – where the issue between the parties for
this application for leave to appeal concerns the
precise meaning of the term “total of general
services charges” – where there are definitions
of ‘services charge’ and ‘general services’ in the
Dictionary Schedule, there are no definitions for
that expression, or the variant form ‘general services
charge’ in the RV Act, nor for the word ‘charge’ –
where there are several features of this legislation
which suggest with some force that in the
composite term the expression ‘general services
charges’ is intended to have the meaning of
amounts demanded by a scheme operator for the
provision of general services – where the definition
of ‘services charge’ in the Dictionary Schedule
means a charge payable by a resident for a general
or personal service under a residence contract
– where it precludes any meaning referable to
expenditure incurred by the scheme operator –
where s106(1) is concerned with a category of
charges which lie within the power of the scheme
operator to increase – where clearly the amount
that it demands be paid to it for the provision of a
general service is within that category – where the
operation of s106 requires that the charge levied
on residents individually for each general service
be specifically identified – whether the applicant
has demonstrated a persuasive case of error on
the part of the judicial member.
Leave granted. Appeal allowed. Set aside the
decision of the Appeal Tribunal. Affirm the
decision of the tribunal. Specific cost orders.
Criminal appeals
R v O’Carrigan [2013] QCA 327, 1 November 2013
Sentence Application – where the applicant
pleaded guilty to fraudulently falsifying a record
(count 1) and two counts of fraud as an employee
to the value of $30,000 or more (counts 2 and 3) –
where the conduct was constituted by defrauding
his employer, Leighton Contractors Pty Ltd, of
more than $20.7 million over 12 years – where the
applicant was sentenced to 12 years’ imprisonment
on count 3, 10 years’ concurrent imprisonment on
count 2 and three years’ imprisonment on count
1, cumulative on count 3, with parole eligibility set
at 17 November 2018, six years from sentence –
where the applicant contends that the sentence
was manifestly excessive – whether sentencing
judge erred – where over 12 years between
1999 and 2012, he defrauded Leightons of more
than $20.7 million, most of which has not been
recovered – where the applicant’s offending was
unquestionably one of the largest and most serious
examples of fraud to come before Queensland
courts – where applicant’s sole mitigating
feature was his extraordinary cooperation with
the administration of justice – where once
confronted, he made immediate admissions –
where he assisted Leightons to recover its funds,
albeit ultimately with limited success – where he
communicated his intention to plead guilty within
days of being charged and did so to an ex officio
indictment – where had this case proceeded to
trial, it is likely that it would have taken several
weeks of court time and caused inconvenience
and financial loss to many prosecution witnesses
– where the otherwise much more costly
investigation, both by the police and Leightons,
and the court process was commendably and
extensively reduced through this cooperation –
where had he proceeded to trial, he would have
been sentenced to an effective global term of
imprisonment in the range of 15 to 16 years with
parole eligibility at the half way point – where it
follows that the sentencing judge, in setting an
effective global head sentence of 15 years, did
not significantly discount the head sentence to
recognise these critical mitigating factors – where
unless sentencing judges give proper weight to
such cooperation, offenders will have no incentive
to do so and the criminal justice system will
require additional and expensive resources to
remain efficient.
Application granted. Appeal allowed. Parole
eligibility date fixed at 7 November 2018 set
aside, and instead fix the parole eligibility date
at 7 November 2017.
R v BCO [2013] QCA 328, 1 November 2013
Sentence Application – where applicant pleaded
guilty to one count of rape and one count of
indecent treatment of a child under 16 with
a circumstance of aggravation – where the
applicant was 15 years 11 months’ old at the
time of offending – where the applicant was
sentenced to two years’ probation pursuant to
s176(1) of the Youth Justice Act 1992 (Qld) – where
a conviction was recorded for the count of rape,
but not the other count – where the sentencing
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judge assumed the recording of the conviction
would not adversely impact the applicant or his
employment prospects – whether the sentencing
judge erred in acting on that assumption – where
discretion to record or not record a conviction to
be exercised afresh – whether the balance of the
factors favours recording a conviction – where
s184(1) of the Act mandates that in considering
whether or not to record a conviction the court
must have regard to all the circumstances of the
case and one of the specific circumstances is the
impact the recording of a conviction will have
on the child’s chances of rehabilitation generally
or finding or retaining employment – where the
authorities strongly support as the starting point
for a youth of the applicant’s age being sentenced
under the Act the inference that the recording of
a conviction would have an adverse impact on
the youth in respect of prospects for rehabilitation
and employment – where there was nothing in
the circumstances applying to the applicant that
justified the assumption that was made by the
sentencing judge that the applicant would not
be so affected by the recording of a conviction
– where there has been error made with the
discretion to be exercised afresh by this Court –
where factors in favour of the recording of the
conviction include the age of the complainant, the
nature of the offence (though not penile/vaginal
rape) and that the applicant had committed
property offences prior to the subject offences
and committed further property offences while
on bail for the subject offences – where it counts
against recording a conviction that it would make
the applicant a reportable offender under the
Child Protection (Offender Reporting) Act 2004 for
7½ years which is at odds with the applicant’s
risk assessment as a low to moderate risk of
sexual recidivism – where other factors against
the recording of the conviction also include the
age of the applicant, that the offending was
opportunistic rather than a manifestation of sexual
deviance and that the applicant was suitable
for offence-specific treatment – where it is also
relevant that no convictions were recorded for
the property offences for which the applicant was
sentenced in March 2013.
Application for leave granted. Appeal allowed.
Sentence varied to the extent only of setting aside
the order recording a conviction and substituting
the order that no conviction is recorded.
R v Reynolds [2013] QCA 338, 12 November 2013
Appeal against Conviction – where the appellant
was convicted of entering a dwelling with intent to
commit an indictable offence, where the entry was
by means of break, the offence was committed
at night, actual violence was threatened, and the
appellant was armed with an offensive weapon –
where the appellant was convicted on the basis
of s7 of the Criminal Code (Qld), in that he went by
car to the complainant’s house with the person
who actually committed the offence – where the
appellant appeals against his conviction – where
the appellant contends a miscarriage of justice
resulted from admission of inadmissible evidence
– where the appellant submits a miscarriage of
justice resulted from the failure of the primary
judge to give proper directions to the jury in
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Proctor | February 2014
relation to the use they may make of particular
evidence – where the appellant contends the
primary judge failed to give proper direction to
the jury as to drawing of inferences – whether
the appeal should be allowed – whether, if the
appeal is allowed, a retrial should be ordered or
a verdict of acquittal entered – where the Crown
case was put squarely and solely on the basis that
the appellant was culpable as an aider under s7(b)
of the Criminal Code – where it was essential that
the prosecution prove beyond reasonable doubt
that the appellant knew that Hansen meant to
burgle a dwelling and aided him in doing so –
where although the jury might not, as a general
proposition, regard the appellant as a witness
of credit, they had still to consider whether the
Crown had excluded all reasonable hypotheses
consistent with innocence – where it is entirely
possible, perhaps probable, that the appellant
was sitting in the driver’s seat of the car waiting to
drive the primary offender (Hansen) away at speed
because he knew that Hansen had walked away
with the intent of committing burglary – where
nothing makes that inference inevitable – where
it is also rationally possible that he was in that
position under the impression that Hansen had
gone to buy drugs or, alternatively, that he was
simply not sufficiently alert to consider the matter
– where the Crown could not, on the limited
evidence it had, exclude hypotheses in which
the appellant would be innocent; or, at any rate,
innocent of aiding a burglary.
Appeal allowed. Conviction quashed. Enter a
verdict of acquittal.
R v Cormack [2013] QCA 342, 15 November 2013
Appeal against Conviction – where the appellant
was convicted of arson of a St Vincent de Paul
Society store – where the appellant had been
working as a volunteer at the store during the
day – where the appellant left at about 4.30pm
and came back at around 11pm, purportedly to
collect some electrical goods he had left at the
store – where the appellant called 000 to report
a fire in the store – where fire fighters arrived to
find the shop engulfed in smoke and the righthand-side front door of the store broken – where
the appellant identified himself, spoke to police
and provided a key to the store – where police
seized a metal bar from the appellant’s car and
the appellant’s clothes – where the appellant
told police that the metal bar had been used for,
inter alia, carrying bulk bags used to transport
recyclable material including glass – where the
appellant’s trial counsel did not make admissions
under s644 Criminal Code 1899 (Qld) in respect of
the continuity of the handling of the metal bar and
the appellant’s clothing – where glass fragments
with the same refractive index as the broken front
door of the store were found on the appellant’s
metal bar and the appellant’s clothing – where no
evidence was led as to the incidence of the type
of glass used in the front door of the store – where
the police did not investigate the appellant’s claim
to have used the metal bar in handling bulk bags
which may have contained broken glass – where
nearby CCTV footage showed an unidentified
male who was not the appellant in the vicinity
of the store about 50 minutes prior to the store’s
alarm activating – where the appellant contends
that the verdict was unsafe and unsatisfactory in
that it was not reasonably open on the evidence
– whether verdict unreasonable or cannot be
supported having regard to the evidence in terms
of s668E(1) Criminal Code 1899 (Qld) – where a
forensic scientist from the Queensland Police
fire and explosion unit gave evidence that the
fire was the result of human involvement, either
accidental or deliberate – where the appellant
contends that this raised the issue of the fire being
caused unintentionally – where the appellant
contends that the trial judge erred in failing to
direct the jury as to s23 Criminal Code or at least,
when directing the jury as to the elements of
arson, in failing to convey that a critical issue was
whether the appellant deliberately set fire to the
premises – whether trial judge erred – where
the directions sufficiently highlighted for the
jury the real issues in the case, namely, that they
had to be satisfied not only that the appellant
lit the fire but also that he did so wilfully, that
is, deliberately – where there was no doubt
that the evidence against the appellant made
him a prime suspect – where Megan Richards,
a forensic scientist with the Queensland Police
Service, gave evidence of her experience in glass
analysis – where she did not examine and had
never seen the metal bar, the control samples of
glass fragments from the broken door panel or
the appellant’s t-shirt, denim shorts and fabric
belt – where Celeste Huraki, another forensic
scientist, conducted those examinations – where
she gave evidence from another forensic scientist’s
(Ms Huraki) notes and statement – where it is
common ground that defence counsel agreed
to this course as Ms Huraki was unavailable at
trial – where with hindsight, this seems to have
been an unsatisfactory course – where not only
did Ms Richards give hearsay evidence from Ms
Huraki’s notes and statement, but, as members of
this court noted at the hearing, she added some
surprising and highly prejudicial details about an
unnamed study comparing glass fragments found
on clothing of members of the general public and
on those charged with criminal offences involving
the breaking of glass – where after review of the
evidence at trial, the court is not persuaded that
the prosecution evidence established, to the
criminal standard of proof, that the glass fragments
in his clothing and on his metal bar were from
the glass in the store front door – where it follows,
consistent with the respondent’s concession, that
it was not open to the jury to be satisfied beyond
reasonable doubt that the glass came to be on the
appellant’s clothing and metal bar by smashing
the glass front door of the store rather than in
some innocent way.
Appeal allowed. Guilty verdict set aside. Verdict
of acquittal is entered.
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On appeal | Regular features
1 – 31 December 2013
Civil appeals
White v Australian Securities and Investments
Commission & Ors [2013] QCA 357, orders
delivered ex tempore 14 November 2013; reasons
delivered 3 December 2013
General Civil Appeal – Criminal Law – Stay of Civil
Proceedings Pending Criminal Proceedings –
where, in October 2009, the Australian Securities
and Investments Commission (ASIC) commenced
proceedings for breach of s601FC of the
Corporations Act 2001 (Cth) against the second
respondent, a company in liquidation, as well
as the appellant and the third, fourth, fifth and
sixth respondents, as directors or senior officers
of the company – where, following numerous
interlocutory proceedings, the six-week trial
commenced on 4 November 2013 – where, on 31
October 2013, the New Zealand Financial Markets
Authority filed two criminal charges against
the appellant and the fifth respondent – where
the New Zealand proceedings are substantially
different in nature from the present proceedings
– where, on 4 November 2013 in reliance on the
privileges against self-incrimination and exposure
to penalty, the appellant and the fifth respondent
sought a stay of the proceedings until the
determination of the New Zealand prosecution
– where the primary judge found that the New
Zealand criminal trial would not be concluded
until mid-2015 at the earliest – where the primary
judge applied the principles in McMahon v Gould
(1982) 7 ACLR 202 and refused to grant a stay of
the proceedings – where the appellant submits,
in reliance on the primary judge’s finding that
there were substantial areas of overlap between
the present proceeding and the New Zealand
prosecution, that his privileges against selfincrimination and exposure to a civil penalty
were so fundamental that they outweighed
competing considerations – where the appellant
characterised the present circumstances as a form
of practical compulsion – where the third, fourth
and sixth respondents are anxious to have the
proceedings, which involve serious allegations of
dishonesty, resolved and have expressed concern
that further delay will render it difficult to secure
the attendance at trial of 47 witnesses, “inevitably
degrade memories”, create duplication and waste
and deplete their litigation fund – where the
appellant has no absolute right to a stay – whether
the principles in McMahon v Gould should be
reconsidered in the light of Re AWB Ltd (No.1)
(2008) 21 VR 252 – whether the primary judge,
in refusing a stay, elevated case management
principles above the appellant’s fundamental
common law right to the preservation of his
privilege against self-incrimination – where once
it is accepted, as it must be, that the appellant
has no absolute right to a stay of the proceedings
in the circumstances under consideration and
that the rights and interests of ASIC, the other
respondents and also the public interest must
be taken into account, it becomes apparent
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that the considerations in favour of staying the
proceedings are outweighed by the considerations
against – where the strain litigation imposes on
litigants is a factor to be taken into account in
the exercise of a discretion which bears on the
expedition or delay of the litigation – where the
public interest is engaged – where the purpose of
the proceedings is to enforce the law and there is
a strong public interest in the resolution of claims
such as those under consideration in a timely
way – where failure to conclude the proceedings
without further delay would tend to erode public
confidence in the administration of justice – where,
given the state of the evidence before him, the
primary judge was not satisfied that the evidence
of the appellant and the fifth respondent would
tend to incriminate them in the New Zealand
prosecution – where the primary judge held that
the appellant and the fifth respondent had not
demonstrated that there was a real risk that they
would face the dilemma of having to decide
whether to give evidence or cross-examine
witnesses so as to reveal their instructions – where
the primary judge held that the injustice to the
other respondents and the detriment to the public
interest outweighed any injustice that may be
suffered by the appellant and the fifth respondent
– where the appellant submits that the primary
judge erred in imposing a requirement that the
appellant go into evidence and thus waive his
privilege against self-incrimination – where the
appellant submits that the primary judge erred in
failing to infer prejudice to the appellant – where
the primary judge concluded that the appellant
and the fifth respondent would lose an advantage
if they chose to give evidence and put questions to
ASIC’s witnesses as the New Zealand prosecution
would have advance notice and additional time to
prepare – whether the primary judge characterised
the appellant’s prejudice as nothing more than
the loss of a “mere tactical advantage” – whether
the primary judge erred in failing to infer prejudice
to the appellant – where the continuation of the
Queensland proceedings need not necessarily
disadvantage the appellant – where the appellant
would have the opportunity to cross‑examine
ASIC’s witnesses, many of whom are likely to be
material witnesses in the New Zealand proceedings
– where the appellant submits that s1317N of the
Corporations Act 2001 (Cth) evinces a legislative
intent that criminal offences arising out of the
same factual matrix be heard ahead of civil penalty
proceedings – where the primary judge found
that the elements of the New Zealand offence
are quite different from the conduct constituting
the contravention – where s1317N of the Act is
not applicable to foreign criminal proceedings –
whether the primary judge erred in failing to find
that s1317N of the Act applied.
Appeal dismissed with costs.
Attorney-General (Qld) v Lawrence [2013] QCA
364, 6 December 2013
Case Stated – Constitutional Law – Legislation
and Legislative Powers – Examination of Validity
of Legislation by Courts – where the AttorneyGeneral made an application in the Trial Division
pursuant to s27 of the Dangerous Prisoners (Sexual
Offenders) Act 2003 (Qld) (the DPSOA) to review the
continuing detention of the respondent – where
the primary judge stated a case for the opinion
of the Court of Appeal as to the constitutional
validity of both the DPSOA and the Criminal
Law Amendment (Public Interest Declarations)
Amendment Act 2013 (Qld) (the Declarations
Act) – where sections 3 and 6 of the Declarations
Act amended the Criminal Law Amendment Act
1945 (Qld) (the CLAA), including by inserting new
Parts 4 and 4A into the CLAA (the amendments)
– where the amendments apply only to persons
subject to a continuing detention order or a
supervision order under the DPSOA – where the
amendments empower the executive to declare
that a relevant person be detained if it is satisfied
that detention of that person is in the public
interest – where the respondent argued that
the amendments infringed the Kable doctrine –
where the Attorney‑General contended that the
court should not exercise jurisdiction to decide
the questions stated as the answers would not
quell any controversy about any “immediate right,
duty or liability” of the respondent – whether
the respondent has a “sufficient material interest”
which would be prejudiced by the operation of the
Declarations Act – where Mr Lawrence’s interest in
the administration of justice, particularly in an order
being made which would quell the controversy
between him and the state in the proceedings in
the Supreme Court in which he is a party, gives
him “a sufficient material interest, which would be
prejudiced by the operation of the [Declarations
Act]” to challenge the validity of that Act on the
ground that it is repugnant to the institutional
integrity of the Supreme Court – where, in the
alternative, the Attorney-General argued that,
if the court found it necessary to address the
validity of the Declarations Act or the DPSOA, none
of the legislation in issue is invalid – where the
respondent submitted that the second question
stated to the Court of Appeal should be answered
in the affirmative, in that the amendments made
by the Declarations Act have the consequence that
the DPSOA now requires the Supreme Court to
exercise powers repugnant to or incompatible with
the institutional integrity of the Supreme Court –
where the Attorney-General contended that the
Kable doctrine is limited to the legislative conferral
of powers or functions on state courts and that the
amendments made by the Declarations Act do not
confer any function or power on the Court – where
the effect of the Declarations Act is to allow the
executive to undermine the authority of orders of
the Supreme Court under the DPSOA otherwise
than by appeal to the Court of Appeal or the High
Court – where the respondent did not otherwise
present arguments in favour of an affirmative
answer to the first question stated, that the DPSOA
or parts thereof are invalid as a consequence of
the enactment of the Declarations Act – whether
the enactment of the Declarations Act invalidated
the DPSOA or parts thereof – whether the
Declarations Act effects the fact and appearance
of the independence and impartiality of the
Supreme Court – whether the Declarations Act is
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repugnant to or incompatible with the institutional
integrity of the Supreme Court as a repository of
federal judicial power – where the effects of the
amendments made by the Declarations Act which
are described in [35] and [41] of these reasons
distinguish it from legislation which merely alters
rights or obligations which are in issue in litigation
or which merely creates rules to be applied by the
courts in a way which may affect the finality of
previous court orders – where these amendments
are within that exceptional category of legislation
which is invalid on the ground that it is repugnant
to that institutional integrity of the Supreme Court
which is entrenched under the Commonwealth as
“the highest court for the time being in the judicial
hierarchy of the State” – where the AttorneyGeneral’s argument that the Kable doctrine applies
only in relation to the legislative conferral of powers
and functions on state courts does not deny that
powers or functions conferred on a state court
may only become repugnant to or incompatible
with the court’s exercise of the judicial power of
the Commonwealth as a result of subsequent
legislation which alters the effect of the exercise
of the court’s powers or functions – where it
is a sufficient reason for rejecting the Attorney
General’s argument based on the quoted passage
in Lay v Employers Mutual Ltd that the quotation on
which the Attorney-General relied is incomplete –
where the paragraph concludes with the following
sentence: “Unless a limitation on legislative power
is found to arise from Ch III of the Commonwealth
Constitution in accordance with the Kable doctrine,
there is no such limitation.” – where sections
3 and 6 of the Declarations Act, the provisions
which purport to amend the CLAA in the relevant
respects, are beyond state legislative power and
invalid – where the purported amendments are
“no law” at all – where they have no effect in law
on the DPSOA or anything done under it.
Dangerous Prisoners (Sexual Offenders) Act 2003
is not invalid. Sections 3 and 6 of the Criminal
Law Amendment (Public Interest Declarations)
Amendment Act 2013 are invalid.
Flegg v Crime and Misconduct Commission and
Anor [2013] QCA 376, 13 December 2013
Application for Leave Queensland Civil and
Administrative Tribunal Act – where the applicant
failed to take appropriate and required action in
his role as search and rescue mission coordinator
in relation to a vessel that sank in the Torres
Strait – where disciplinary proceedings were
brought against the applicant – where the second
respondent conducted disciplinary proceedings
and determined sanction – where applicant was
demoted from Sergeant 3.5 to Senior Constable
2.9 – where second respondent ordered that the
sanction be suspended subject to the applicant
completing training programs on proper
professional practice – where the first respondent
filed an application for review in the Queensland
Civil and Administrative Tribunal (QCAT) of the
reviewable decision and the second respondent’s
decision was upheld – where the first respondent
successfully appealed that decision to the QCAT
appellate tribunal on a question of law only on
56
Proctor | February 2014
the basis that the sanction was unreasonably or
plainly unjust – where the applicant contends that
the appellate tribunal contradicted the findings of
fact made by QCAT at first instance – whether the
applicant has demonstrated an error of law which
may have tainted the QCAT appellate tribunal’s
ultimate conclusion that no reasonable tribunal
could have upheld the Assistant Commissioner’s
sanction – where, ordinarily, a statute confers a
right of appeal on a question of law, the ambit of
the appeal is confined to a determination of the
question – where the ambit is not a broader one in
the nature of a full rehearing of the matter with the
demonstrated error of law being merely an entry
pass to it – where significantly the ambit does not
extend to the finding of facts anew – where the
appellate body may not engage in fact finding on
the merits of the case – where it is apparent that
the appeal tribunal proceeded on the footing that
the factual conclusions of the second respondent
referred to in paragraphs 18 and 20 respectively
were facts against which the reasonableness of
the decision of the senior member was to be
assessed – where in so doing it failed to have
regard to factual findings made by the senior
member on those matters, specifically in regard
to the reasonableness of the applicant’s belief
that the Malu Sara was seaworthy, it failed to have
regard to the finding of the senior member “that it
was reasonable for [the applicant] to assume the
vessel would be seaworthy” – where in regard to
the convenience of the vessel’s crew, the appeal
tribunal did not have regard to the rejection by the
senior member of the invitation to infer that the
applicant considered that as having motivated the
calls for assistance – where in failing to have regard
to these findings of fact by the senior member,
the appeal tribunal failed to have regard to the
underlying principle – where given the relevance
of the ground of appeal to appellate tribunal
procedure generally, there is strong reason to
grant leave to appeal.
Leave granted. Appeal allowed. Set aside the
decisions of the appeal tribunal. Direct that written
submissions be provided in accordance with these
reasons as to the appropriate final orders.
Singh v Legal Services Commissioner [2013] QCA
384, 17 December 2013
General Civil Appeal – where the appellant has
practised as a lawyer in New Zealand, Fiji and
Australia – where the appellant, while representing
a client in Fiji on a charge of corruptly seeking
a payment from a witness, attempted to bribe
the witness to change his evidence – where the
appellant was subsequently convicted in Fiji
of attempting to pervert the course of justice
– where the appellant was, inter alia, removed
from the Fijian roll of local practitioners for six
years – where the appellant failed to give notice
of his conviction to the Queensland Law Society
– where the appellant failed to disclose his
conviction to the Queensland Law Society when
applying for a renewal of his 2007-08 practising
certificate – where the appellant subsequently
disclosed the conviction to the Queensland Law
Society who declined to issue him with a 2008-09
practising certificate and referred the matter
to the Legal Services Commissioner – where
the Legal Services Commissioner commenced
disciplinary proceedings in the Queensland Civil
and Administrative Tribunal (QCAT) – where QCAT
ordered that the appellant’s name be removed
from the local roll – where the appellant contends
that the penalty imposed was excessive and
unnecessary to achieve the objectives of the Legal
Profession Act 2007 (Qld) – where the appellant
points to the long period of time which has
elapsed since the original offence, his remorse
and insight into his offending, the period of five
years that he has effectively been suspended
from practising in Queensland and supportive
references attesting to his good character –
where the appellant sought to adduce further
affidavit evidence providing further details of
his professional experience, the commission of
the offence and his remorse and insight into his
offending – whether further evidence ought be
admitted – whether penalty excessive – where
there is now no dispute that the appellant’s
conduct amounted to professional misconduct
– where the offence of attempting to pervert the
course of justice is a serious offence in any sense of
that concept – where it is true that the offending
at the root of this appeal occurred 10 years ago,
but on any view it was gravely reprehensible
conduct, the more so when committed by a
legal practitioner – where the offending plainly
demonstrated he is not a fit and proper person
to be a legal practitioner – where the appellant’s
commission of the offence of attempting to
pervert the course of justice, standing alone,
required nothing less than his removal from the
roll of legal practitioners for a substantial period –
where he then compounded his 2003 offending
by failing to disclose it to the Queensland
admitting authorities and by conducting himself
in a way which demonstrated neither the insight
nor remorse expected of a competent and ethical
legal practitioner – where his new-found insight
and remorse can be given only limited weight –
where only by a prolonged period of exemplary
conduct following his recent discovery of remorse
and insight will he be able to demonstrate that he
is a fit and proper person to be a legal practitioner
and that the public is no longer in need of
protection from him.
Appeal dismissed with costs.
BM Alliance Coal Operations Pty Ltd v BGC
Contracting Pty Ltd & Ors [2013] QCA 394, 20
December 2013
General Civil Appeal – Building, Engineering and
Related Contracts – Remuneration – Statutory
Regulation of Entitlement to and Recovery of
Progress Payments – Adjudication of Payment
Claims – where the appellant (BMA) entered into
a contract with the first respondent (BGC) for
the construction of a dam – where BGC served a
payment claim on BMA pursuant to the Building
and Construction Industry Payments Act 2004 (Qld)
(the Act) which included claims for alleged latent
conditions and termination costs – where the
payment claim was referred to adjudication and
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On appeal | Regular features
BGC was awarded a progress payment which
included sums on account of latent conditions
and termination costs – where BMA sought a
declaration that the adjudication decision was
void as a result of three jurisdictional errors – where
the primary judge held that the adjudicator had
made a jurisdictional error in the determination
of the termination costs claim – where, on
13 November 2012, the primary judge declared
the decision of the adjudicator void – where, on
22 March 2013, the primary judge revoked the
declaration and dismissed BMA’s application upon
BGC undertaking to repay to BMA the portion of
the adjudicated amount affected by jurisdictional
error – where BMA submits that the primary
judge’s conclusion that a decision affected by
jurisdictional error was not necessarily invalid for
all purposes and has some residual effect was an
error of law – whether the primary judge erred in
finding that the adjudication decision, which he
held to be affected by jurisdictional error, retained
effect until he exercised his discretion to grant a
declaration or make an order quashing or setting
aside the decision – whether the primary judge
erred in law in withholding the relief sought by
BMA – whether the matter should be remitted
to the adjudicator for determination according
to law – where whatever the position might be if
the parties to an adjudication make no complaint
about the adjudication decision, the decisions
of the High Court relied on by BMA make it plain
that once a court determines that a decision of
the type in question is affected by jurisdictional
error, the decision cannot give rise to legal
consequences – where there was no suggestion
at first instance or on appeal that BMA did not
have a legally enforceable right to the repayment
of the sum of $26,135,709.37 – where there is
nothing in the Act which would support the
denial to a respondent to a payment claim of its
rights and entitlements under the Act except to
the extent that the Act expressly or implicitly so
provided – where the primary judge erred in law
in withholding the relief sought by BMA – where
his Honour also erred in finding in his 22 March
2013 reasons that the adjudication decision, which
he held to be affected by jurisdictional error,
retained effect until he exercised his discretion to
grant a declaration or make an order quashing
or setting aside the decision – where cl 26.3(b) of
the contract requires BGC to give written notice
to BMA of the encountering of latent conditions –
where, within 10 business days of notification, the
parties must “negotiate in good faith any changes
to the Price and/or time for completion of the
Services as a result of Latent Conditions” and, in the
absence of agreement, must refer the matter to
an independent expert for determination – where
the primary judge held that cl 26.3 was predicated
on the existence of latent conditions and any
dispute as to their existence was to be resolved by
the general dispute resolution provision, cl 37 –
where, contrary to BMA’s contentions, the primary
judge held that the fact that the machinery for
assessment of value under the clause had not been
advanced did not alter BGC’s entitlement under the
contract to be paid in respect of a latent condition
– where the primary judge held that the award by
the adjudicator in respect of latent conditions did
not constitute a jurisdictional error – where BMA
contends that cl 26.3 was intended to deal with all
aspects of a dispute concerning latent conditions,
including the determination of the existence of a
latent condition – whether cl 26.3 operates subject
to the determination of the existence of latent
conditions under cl 37 – whether the adjudicator
committed a jurisdictional error in awarding BGC
a progress payment which included a sum in
respect of latent conditions – where plainly there
are considerations which support the respective
constructions of cl 26.3 urged by the parties –
where there is no cogent reason why the parties
could not have contemplated the appointment of
an expert who could inform himself or herself of
matters involving particular expertise by obtaining
appropriate expert opinions – where the operation
of cl 26.3 is triggered by BGC’s notice even if it is
subsequently determined that the alleged latent
conditions do not exist – where the cl 26.3(b)
notice must describe the latent conditions and
“their anticipated impact (if any) on Price and
time for completion” – where BMA, having been
so informed, must consider its position and,
within 10 business days of notification, “negotiate
in good faith any changes to the Price and/or
time for completion … as a result of the Latent
Conditions” – where it is implicit in the words “any
changes” that the latent conditions notified need
not necessarily result in a change to either price
or time for completion – where BGC does not
have the right to determine the latent conditions
issues unilaterally – where it would have been
apparent to the parties that agreement on the
latent conditions issues was likely to be significantly
more difficult to arrive at than agreement on
the price and time implications of the latent
conditions issues once determined – where this
is a significant consideration, as is the objective
unlikelihood that the parties, having chosen to
address the issue of changes in price and time
for completion in a specific clause dealing only
with that topic, would have intended that specific
clause to operate subject to a general dispute
resolution provision, the terms of which were
inconsistent with the terms of the specific clause
and the application of which would tend to defeat
the specific clause’s aim of ensuring prompt expert
determination – where BMA sought interest on
the sums repayable to it at the rate prescribed in
practice directions for default judgments – where
the primary judge accepted BGC’s contentions
that the appropriate rate was that payable on term
deposits with financial institutions – where BGC’s
evidence of commercial rates of interest awarded
on investments was uncontested – whether the
primary judge erred in accepting and acting
on evidence of commercial interest rates when
awarding interest on the sum repayable to BMA
– where s58(3) of the Civil Proceedings Act 2011
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February 2014 | Proctor
57
Regular features | On appeal
(Qld) provides for the payment of pre-judgment
interest “at the rate the court considers appropriate”
– where it was not contended that the primary
judge was not entitled to award interest nor was it
submitted that the primary judge was bereft of a
discretion in that regard – where the object of the
award of interest was to compensate BMA for the
loss of the use of the subject monies – where the
approach adopted by the primary judge, having
regard to the limited evidence before him, was
apt to serve that end.
Draft minutes of orders reflecting these reasons
to be provided within 28 days of today’s date.
Criminal appeals
R v Charles [2013] QCA 362, 6 December 2013
Appeal against Conviction & Sentence –
where the appellant, in the course of driving,
became involved in an altercation with another
driver – where the complainant’s spectacles
were damaged – where the complainant’s
left ring finger was bent backwards by the
appellant causing ligament damage that had
to be repaired by a surgical procedure – where
the appellant was convicted after trial of
one count of wilful damage and one count
of doing grievous bodily harm – where the
appellant challenges the conviction on the
ground of miscarriage of justice – where the
appellant contends the evidence against her is
inconsistent and insufficient – where the primary
judge was perplexed as to why an injury as
minor as this one was the subject of a charge
of grievous bodily harm rather than a lesser
charge – where the primary judge contrasted
the present case with recent cases where the
victim had teeth knocked out or suffered a
subdural haematoma, and grievous bodily harm
was not the charge – where the primary judge
questioned “where the consistency lies in the
approach that the Crown is taking” – where
those concerns were shared – whether there
was a miscarriage of justice – where there is no
merit in the appellant’s contentions insofar as her
convictions are concerned – where the appellant
was sentenced to nine months’ imprisonment
on each count to be served concurrently and
as an intensive correction order – where the
appellant contends that the sentence imposed is
manifestly excessive – where the appellant was
35½ years old at the time of the offences and
had no criminal history – where the appellant
has an eating disorder, depression and anxiety
(a post traumatic stress disorder) – where the
appellant is a commercial pilot required to
hold an Aviation Security Identity card under
the Aviation Transport Security Regulations
2005 (Cth), which the appellant would not be
entitled to if given a sentence of imprisonment
for an offence of violence and/or an offence
involving intentional damage to property –
where the offending was at the “very low end”
of the range of grievous bodily harm – where
the complainant retaliated by assaulting the
appellant – where notwithstanding the primary
58
Proctor | February 2014
judge’s careful attention to various matters
concerning the question of sentence, it is clear
that she did not have regard to the impact
of that sentence on the appellant’s eligibility
to obtain an ASI Card – where the appellant’s
counsel failed to adequately inform the primary
judge of the detail of the Aviation Transport
Security Regulations so that she was properly
equipped to weigh them on the question of
sentencing – where the primary judge did not
take the effect of the Aviation Transport Security
Regulations into account in considering the
appropriate sentence – where the importance
to the appellant is that without such a card
the appellant would not be permitted into
the secure areas of any airport, with the
consequence that she would not be able to
continue in her occupation as a commercial
pilot – where the fact that appellant sustained
injuries, at the hands of Ms Krause, as a result of
her offending actions, was a relevant sentencing
consideration, as recognised in R v Noble and
Verheyden – whether in all the circumstances the
sentence was manifestly excessive.
Dismiss the appeal against conviction. Grant
leave to appeal against sentence. Allow the
appeal against sentence. Vacate the sentence
imposed by the primary judge, in lieu, sentence
the applicant for unlawful grievous bodily harm
to 240 hours of community service. Declare that
time to be served by the community service
orders has been satisfied. (Brief )
R v WAY; Ex parte Attorney-General (Qld) [2013]
QCA 398, 20 December 2013
Sentence Appeal by Attorney-General
(Qld) – where the 16-year-old respondent
attempted to murder a 14-year-old schoolgirl,
stabbing her about 12 times with a knife in
her neck, head, shoulders, upper back and,
when she was trying to protect herself, her
arms and hands – where the respondent and
complainant were not known to each other
prior to the attack but did attend the same
school – where the respondent chose the
complainant because she was female and his
physical inferior and the attack took place in
the girls’ toilets – where the respondent had
fantasised about harming others and then
killing himself – where the respondent had
no diagnosable mental illness – where the
respondent surrendered to the police after
the attack and subsequently pleaded guilty
to attempted murder 13 months after arrest –
where the respondent was sentenced under
the Youth Justice Act 1992 (Qld) (YJ Act) to four
years’ detention to be released after serving
50% – where the appellant contends that the
sentence was manifestly inadequate – where
the appellant also seeks leave to amend the
notice of appeal to add the ground that the
sentencing judge erred in failing to determine
that the offence was a “particularly heinous
offence” within the meaning of s176(3)(b)(ii)
of the YJ Act, the effect of which would be
to increase the maximum penalty from 10
years’ detention to life – where the appellant
contends that, merely because the prosecutor
did not submit that the respondent should
have been sentenced under s176(3)(b)(ii) at
first instance does not absolve the sentencing
judge from the responsibility of imposing
a proper sentence – where the respondent
contends that the matter in s176(3)(b)(ii) is
a “circumstance of aggravation” within the
meaning of s1 Criminal Code 1899 (Qld) and, as
the prosecutor did not plead the circumstance
of aggravation in the indictment, the appellant
is precluded from now relying on it – whether
the sentencing judge erred in failing to
determine that the offence was a “particularly
heinous offence” within the meaning of s176(3)
(b)(ii) – whether the matter in s176(3)(b)(ii)
is a “circumstance of aggravation” within the
meaning of s1 Criminal Code – whether the
sentence was manifestly inadequate – when in
addressing the issue of manifest inadequacy, as
there were no comparable decisions involving
juvenile offenders, the appellant referred to
sentences involving adult offenders, submitting
they were comparable – where in support of
that surprising submission, counsel referred to
comments of the Chief Justice in R v AS; ex parte
A-G (Qld) as to the “marginal relevance” of adult
sentences when determining that a sentence
imposed on a juvenile was not excessive –
when the court pointed out the very different
statutory sentencing regimes applicable to
children on the one hand and adults on the
other, this contention was not pursued – where
the sentence proceeding took place on 22 July
2013 – where prosecutor specifically adverted
to s176(3)(b)(i) and stated in terms that the
maximum period of detention to which the
respondent could be sentenced was 10 years
– where defence counsel and the sentencing
judge proceeded on that basis – where the
first time there was any attempt to depart from
that approach was when the appellant filed
his outline of submissions in this appeal on
31 October 2013, more than three months
after the respondent was sentenced – where
to allow the appellant to amend his grounds of
appeal at this point and to make submissions
on appeal which were not put by the
prosecutor at sentence, would be inconsistent
with principle 7 and would effectively place
the respondent child in a position of double
jeopardy – where the sentencing judge rightly
concluded that in this case detention was the
only sentencing option and a conviction must
be recorded – where in determining the period
of detention to be imposed, the YJ Act requires
that the period of detention imposed be for
the shortest possible period.
Appeal dismissed.
Prepared by Bruce Godfrey, research officer, Queensland
Court of Appeal. These notes provide a brief overview
of each case and extended summaries can be found at
sclqld.org.au/qjudgment/summary-notes. For detailed
information, please consult the reasons for judgment.
back to contents
Family law casenotes | Regular features
Appeal allowed over
adjourned recovery
application
Children – Full Court allows appeal where
recovery order application was adjourned
without being addressed
In Ghorbani & Saeed [2013] FamCAFC 167
(4 October 2013) the father applied for a
recovery order when the mother removed a
child from his care. The matter was adjourned
“for possible interim hearing” (para 12) at which
time orders were made as to counselling and
an Independent Children’s Lawyer (ICL) and the
case further adjourned for mention. The father
appealed on procedural fairness grounds to the
Full Court (Bryant CJ, Finn and Loughnan JJ).
In allowing the appeal and ordering that the
application be heard as a matter of urgency,
the Full Court said (para 16):
“The orders for counselling and appointing
an ICL were entirely proper. However, the trial
judge was nevertheless obliged to engage
with the application made on behalf of the
father in this case, being that before those
things could be put in place, the child should
be returned to the father. The trial judge
refused to deal with that application and gave
no adequate reasons for doing so. He did so
in circumstances where representatives for
both parties urged him to give the application
a hearing as a matter of urgency.”
Property – husband, a director (but not
a shareholder) of a corporate trustee and
a beneficiary but not an appointor of the
trust found to be in control of the trust –
Kennon v Spry applied
In Romano & June [2013] FamCA 344
(17 May 2013) Forrest J held that the assets
of a discretionary trust, for which the husband
was a director but not a shareholder of the
corporate trustee and a named beneficiary
but not an appointor of the trust, was
property for the purpose of s79 Family Law
Act. After citing Kennon & Spry (2009) 251 ALR
257 Forrest J said (paras 88-89):
“There is no doubt … that the assets of
the A Trust have been acquired by … the
efforts of the husband … It is difficult to
see … how anyone could argue that he has
not always regarded and treated the trust
and its assets as his, to be utilised to his
own benefit and the benefit of those others
upon whom he wished to bestow generosity,
back to contents
such as his family members and friends. ( … )
I am satisfied that, if the husband wanted to,
he could cause the trustee to be replaced,
even though his mother and sister are lawful
holders of that power to replace the trustee.
I am satisfied that the husband’s mother and
sister would act according to the husband’s
direction … and that they would not have
been made appointors if the husband was
not satisfied of that himself.”
Property – parties lived with husband’s
parents rent-free for 13 years of 18-year
marriage – husband’s defined benefit
superannuation had accrued over 28 years –
HECS debt
In Panagakos [2013] FamCA 463 (18 June 2013)
the husband initially contributed real estate
worth $430,000 and the wife real estate worth
$315,000. During their 18-year marriage both
worked. There were two children (19 and 16). The
non-superannuation pool was $1.4m. The wife’s
HECS debt was included as the parties’ liability
(paras 109-112). Loughnan J said (paras 140-141):
“The parties lived with the husband’s parents
for nearly 14 years, rent free and without the
cost of utilities. They had use of the husband’s
father’s car at no cost. ( … ) The contribution
… by the husband’s parents represents a very
substantial indirect, financial contribution …
on behalf of the husband.”
Loughnan J assessed the initial and parental
contributions of the husband to the nonsuper at 55% and to the pool comprising the
husband’s defined benefit superannuation
worth $800,233 at 65%. An adjustment of
5% was made for the wife in each pool for
s75(2) factors, including her need for housing
and her primary care of a child (16), and the
husband’s continued free accommodation
from his parents.
Property – granddaughter as litigation
guardian for husband (a nursing home
resident) – prior agreement between
husband and wife – Stanford applied –
held that the existing property
arrangements had not been ‘brought to
an end’ – application summarily dismissed
In Shearer & Defazio [2013] FCCA 1596
(11 October 2013) Judge Lapthorn heard an
application by a granddaughter as litigation
with Robert Glade-Wright
guardian for the husband (resident in a nursing
home) filed a month before his death. The wife,
who lived in the former matrimonial home
registered in her name, applied for summary
dismissal of the application. The husband and
wife had agreed to but not signed a document
(prepared by a neighbour) acknowledging the
wife’s entitlement to ownership of the property.
In summarily dismissing the application, Judge
Lapthorn cited Stanford [2012] HCA 52, saying
at para 43:
“In light of the agreement and Mr Defazio’s
financial commitments being met while he
was in the hospital and nursing home, I accept
the respondent’s submission that there was
no basis for concluding that with Mr Defazio’s
admission to the nursing home ‘the express
and implicit assumptions that underpinned
the existing property arrangements have
been brought to an end’ [para 42 of Stanford]”.
Property – geographical and other
requirements for a de facto financial cause
In Harriott & Arena [2013] FCCA 1604
(16 October 2013) Judge Scarlett dismissed an
application by a de facto wife for not meeting
the geographical thresholds of s90SK of the
Family Law Act. The applicant (de facto wife)
deposed that she met the respondent in 1999
in Sydney, moving in 2000 overseas where
they lived together; that she sold her property
in Australia, taking leave of absence from her
employer and foregoing shared care of her
child of a previous relationship. She deposed
to contributing $30,000 towards the purchase
of the parties’ business and $30,000 towards
the purchase of the parties’ home overseas.
The parties separated in December 2011 and
the applicant returned to live in Australia.
The respondent sought an order that the
application be dismissed as there had been no
“substantial contributions” in New South Wales
under s90SK(1)(b)(ii) and that any substantial
contributions by her either pre-dated the de
facto relationship or took place overseas, not in
a participating jurisdiction. Judge Scarlett agreed.
Robert Glade-Wright is the founder and senior editor
of The Family Law Book, a one-volume looseleaf and
online family law service (thefamilylawbook.com.au).
He is assisted by Queensland family lawyer Craig Nicol.
February 2014 | Proctor
59
Regular features | Hurley’s casenotes
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Proctor | February 2014
Administrative law – certiorari – decision
having legal effect – medical panel –
opinion of panel given in statutory benefit
proceedings not binding in common law
proceedings – requirements of statement
of reasons
In Wingfoot Australia Partners Pty Ltd v Kocak
[2013] HCA 43 (30 October 2013) K claimed to
have suffered an injury in 2006 in the course
of employment. In May 2009 K made a claim
for statutory benefits provided in Part IV of the
Accident Compensation Act 1985 (Vic) (the Act).
This was referred to the Magistrates Court.
In November 2009 K applied to the County
Court for a finding that he had a serious
injury which would enable him to sue at
common law. The Magistrates Court referred
medical questions to a medical panel under
the Act. The panel provided an opinion that
the injuries were not compensable and the
claim for statutory benefits was dismissed
by consent orders made in the Magistrates
Court. The employer foreshadowed it would
rely on the opinion of the medical panel in
the serious injury application. This prompted
K to seek certiorari in the Supreme Court to
quash the opinion of the panel. Certiorari was
refused by the primary judge but granted
by the Court of Appeal (Vic). The Court of
Appeal concluded that s68(4) of the Act
required the panel’s opinion (obtained in the
statutory benefit proceedings) be applicable
in the serious injury application. The Court of
Appeal found the reasons of the panel were
inadequate and issued certiorari to quash
it. The High Court allowed an appeal by the
employer: French CJ, Crennan, Bell, Gageler,
Keane JJ jointly. The High Court concluded
s68(4) only required the opinion be applied
in the statutory benefits proceedings and
as the opinion had no legal effect certiorari,
the court erred in finding the reasons the
panel gave did not satisfy the requirements
for reasons set out in s68(2) of the Act.
Requirements for proper reasons considered.
Appeal allowed. Orders of the primary
Supreme Court judge restored.
Crime – duty of prosecutor
to call relevant witnesses
In Diehm v Director of Public Prosecutions
(Nauru) [2013] HCA 42 (30 October 2013) a
bench of three (French CJ, Kiefel, Bell JJ jointly)
concluded that failure of the prosecution to
call a Nauruan police officer present at the
search of the accused’s house was not
a breach of any duty of the prosecutor
or the court to ensure there was no
miscarriage of justice. Appeal dismissed.
Motor accidents (NSW) – damages –
economic loss – value of services
provided gratuitously
In Daly v Thiering [2013] HCA 45 (6 November
2013) Mr T was seriously injured in a motor
vehicle accident involving D in NSW in
2007. Many of Mr T’s needs were provided
by his mother Mrs T under an arrangement
between the mother and the Lifetime Care
and Support Agency NSW. In an action for
damages Mr T included a claim for the value
of the care provided by Mrs T. In answer to
a preliminary question the primary judge
concluded that s130A of the Motor Accidents
Compensation Act 1999 (NSW) did not
preclude Mr T’s claim for the value of services
provided by his mother. On appeal by D this
was reversed by the Court of Appeal (NSW).
The High Court in a joint judgment allowed
an appeal by D to reach the same result
as the Court of Appeal but by providing a
different answer to the question: Crennan,
Kiefel, Bell, Gageler, Keane JJ jointly.
Native title – right to take fish – relationship
between state laws regulating activity and
native title rights
In Karpany v Dietman [2013] HCA 47
(6 November 2013) K and others were
Aboriginal people charged with taking
undersize fish contrary the Fisheries
Management Act 2007 (SA). The Magistrates
Court at Kadina accepted they had fished
according to traditional custom and
acquitted them. This was reversed by the
Full Court of the Supreme Court of SA. Their
appeal to the High Court was allowed. The
High Court concluded that state legislation
did not extinguish native title to take fish but
only regulated it: French CJ, Hayne, Crennan,
Kiefel, Bell, Gageler, Keane JJ jointly. Appeal
allowed. Orders of Full Court set aside.
back to contents
Hurley’s casenotes | Regular features
Court notes
with Thomas Hurley
Practice – privileged documents
inadvertently discovered
Comcare – validity of Comcare’s guide
to permanent impairment
In Expense Reduction Analysts Group Pty
Ltd v Armstrong Strategic Management
and Marketing Pty Limited [2013] HCA 46
(6 November 2013) in 2011 solicitors acting
for the appellants inadvertently disclosed
about 13 privileged documents in discovery
of 60,000 in proceedings in the Supreme
Court of NSW. In answer to a request that
the inadvertently released documents be
returned, the solicitors for the respondents
claimed privilege had been waived. The
appellants commenced proceedings in the
equitable jurisdiction seeking injunctive relief.
The primary judge found the disclosure of
nine documents was inadvertent and ordered
their return. The Court of Appeal (NSW)
allowed the respondent’s appeal on the basis
the mistake would not have been obvious.
The High Court in a joint judgment restated
the matters raised in AON Risk Services Australia
Ltd v Australian National University (2009) CLR
175 as to the need after the commencement
of the Civil Procedure Act 2005 (NSW) and the
Uniform Civil Procedure Rules 2005 (NSW) to
conduct litigation to achieve just, quick and
cheap results: French CJ, Kiefel, Bell, Gageler,
Keane JJ. The court considered the dispute
should not have been raised in proceedings
in equity and the inadvertently released
documents should have been ordered to
be returned. Appeal allowed.
In Comcare v Lilley [2013] FCAFC 121
(1 November 2013) a Full Court considered
the operation of Table 9.7 of Comcare’s
‘Guide to the Assessment of the Degree
of Permanent Impairment’. The Full Court
did not agree with the primary judge’s
conclusion that aspects of Table 9.7
were invalid.
Federal Court
Administrative law – extension of time
under the Administrative Decisions
(Judicial Review) Act
In Mentink v Minister for Home Affairs [2013]
FCAFC 113 (21 October 2013) the trial judge
refused M an extension of time under s11(1)
(c) of the Administrative Decisions (Judicial
Review ) Act 1977 (Cth) that M sought to
review the decision of June 2012 under
the Law Enforcement Integrity Commissioner
Act 2006 (Cth) to terminate the inquiry into
M’s complaints dating back to 2003 of AFP
involvement and cover-up in the theft of
M’s boat in Indonesia in 2003. The majority
allowed the appeal concluding the primary
judge had erred by overly scrutinising M’s
prospect of success in the matter.
back to contents
Federal Court Act 1976 (Cth) – Allowing
appeal by consent
In Bradken Ltd v Norcast S.ar.L [2013] FCAFC
(8 November 2013) a Full Court reviewed
authority as to the circumstances in which
an appeal by consent will be allowed under
s25(2B) of the Federal Court Act 1976 (Cth).
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Tax Assessment Act 1936 (Cth)
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In Commissioner of Taxation v Resource
Capital Fund IV LP [2013] FCAFC 118
(22 October 2013) a Full Court allowed an
appeal from the primary judge concluding
that s255 of the Income Tax Assessment Act
1936 (Cth) did not operate in the same way
as s218. The court also concluded there was
nothing in s255 to find the term “money”
referred only to Australian currency.
www.mlfl.com.au
Income tax – administration – role of
commissioner’s practice statement
In Macquarie Bank Ltd v Commissioner of
Taxation [2013] FCAFC 119 (24 October 2013)
a Full Court dismissed an appeal against
the finding of the primary judge that in
assessing tax for past years following an
audit, the commissioner was required by its
Law Administration Practice Statement PS
LA2011/27 to apply the same view of the
law as had been held at the relevant time.
The Full Court considered the role of the
practice statement and observed it cannot
affect the duty of the commissioner to apply
the law as it is understood. Role of summary
dismissal procedure in s11A of the Federal
Court of Australia Act 1976 (Cth) for want of
“reasonable prospects of success” considered.
A bequest to Blue Care helps people in
your community remain independent
(description)
“I bequeath ________________________
to the Uniting Church in Australia Property
Trust (Q.) for the general purposes of
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declare the signature of the Secretary
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sufficient discharge for my trustees.”
Thomas Hurley is a Victorian barrister, 03 9225 7034,
email tvhurley@vicbar.com.au. The full version of these
judgments can be found at austlii.edu.au.
1800 001 953
www.bluecare.org.au
Queensland
February 2014 | Proctor
61
Practice skills and management | Fees and pricing
Costs consultation
Get your clients involved in setting fees!
Giles Watson discusses the need to involve your
client directly in the costs-setting process.
In the November edition,
Dr George Beaton discussed how
client sensitivity to costs may
depend as much on how costs
are communicated and controlled
as on the costs themselves.
(Proctor, November 2013, ‘Costs
consciousness’, pp54-55).
For too many solicitors, however, the
communication and management of costs
is dominated by both the specific regulatory
obligations outlined in the Legal Profession Act
2007 (LPA), and the terminology used.
Disclosure
Two of the main purposes of part 3.4 of
the LPA are to “provide for law practices
to make disclosures to clients regarding
legal costs” and to “regulate the making of
costs agreements”. ‘Disclosure’ is, of course,
very different from ‘agreement’ – and
this difference goes to the heart of many
solicitors’ problems with costs.
Alternative terms for ‘disclosure’ in The Little
Oxford Thesaurus include “divulge, expose,
let out, make known, reveal” – it is as if the
discloser has some big secret and is about
to ‘let the cat out of the bag’.
Surely the process of agreeing costs with
the client shouldn’t be like this. If solicitors
want to avoid disputes and build client value
recognition, it makes sense to involve the client
in setting costs and gain genuine agreement
upfront rather than graciously telling the client
how much it is all going to cost. Unfortunately,
the term ‘disclosure’ in the LPA encourages
many solicitors to assume all the responsibility
for setting costs, reducing client control and
raising the risk of client dissatisfaction.
Even with costs agreements, there is often
very little real agreement because there is
little real understanding – it is simply another
poorly understood ‘take it or leave it’ offer.
62
Proctor | February 2014
While clients might reluctantly agree to pay the
figure mentioned in the costs agreement, they
are rarely agreeing that this represents good
value (that might or might not come later).
Legal practices which truly care about
client relationships recognise that such
nominal costs agreements are inadequate;
true agreement requires a much fuller
understanding and acceptance of related
costs and benefits.
Collaboration, partnering
and control
Clients want to feel that they are not at risk of
costs running beyond the budget or what they
are willing to pay, or of costs being incurred on
activities of limited value or relevance. Anxiety
over costs can stifle communication and lead
to a lack of trust, and a client who feels they
have lost control over costs can be resentful
and argumentative about fees.
Solicitors can give clients greater control
over costs by:
• discussing costs in as much detail
as possible at the outset of the matter
• asking the client what their budget is
and what they can and cannot afford –
explaining what can be done for them
within their budget
• explaining cost variables and how
different developments might affect costs
• asking if the client would like to do
some work themselves instead of
paying solicitors to do it
• explaining the rates and experience
of team members and asking if the client
has preferences as to who does the work
• providing an example of what the bill
might look like at the end of the matter –
and asking the client if they would be
happy with such a bill.
Collaborating on costs means that the
solicitor also has to collaborate with the client
on scoping the work. The aim here would be
to only do work that the client values – which
requires educating the client about the value
QLS Costs Guide available next month
The new QLS Costs Guide has been developed
as a practical, comprehensive resource for
members to use in managing their costs
communication with clients. It will be
launched at Symposium on 21-22 March
with a workshop dedicated to using the guide
as a basis for discussing cost disclosure, the
duty of ongoing disclosure, recovery of costs
and the overriding principle that costs must
be fair and reasonable. See qls.com.au for
Symposium details.
Ultimate value
$12,000
Higher client value
$8,000
Basic value
$8,000
Figure 1: Scope the work with your client with
reference to potential cost and value.
of different tasks or activities that they don’t
initially understand or appreciate.
Currently, too many solicitors fail to fully
collaborate with clients on scoping and costs
discussions with the result that either:
• unnecessary work is undertaken – leading to
poor value recognition and costs resentment
• all the work undertaken is necessary and
of value to the client but the client doesn’t
understand or recognise this – leading to
similar costs resentment
• the solicitor fails to identify and undertake
either necessary work (negligence risk) or
fails to identify potential additional work
that would be both profitable and highly
valued by the client.
Collaboration and partnering on both
costs and the scoping of work builds value
recognition, boosts costs consciousness
and ultimately leads to happier clients
and higher profits.
Giles Watson is Queensland Law Society practice
support manager.
back to contents
Career pathways
Four for the family
Michael Lynch Family Lawyers
Michael Lynch Family Lawyers now
boasts seven accredited specialists
(family law) and claims the title of
the firm with the most family law
accredited specialists in Queensland.
Why did you become a family lawyer?
Elizabeth: When I first started out I was
in a small general practice law firm with
a lean towards family law. I left to join
a commercial law practice and quickly
realised that I was a family lawyer. It is a
really interesting and challenging area of
law – no person’s story is exactly the same.
Amy C: During my articles, I did a lot of
commercial litigation and commercial
property law, however, I realised that
I preferred the personal interaction of
family law and the opportunity to help
people in a personally difficult time.
What motivated you while preparing for
the specialist accreditation assessment?
Amy C: Being all from the one firm it was
great to have the moral support of the
other girls to keep on top of our study.
Clare: Being able to hold myself out
as an expert was definitely a key
motivation. Everything that is covered in
the accreditation curriculum is content
that family lawyers should already know
on a day-to-day basis and I saw it as the
natural progression as a family lawyer.
It is closely followed by Barry Nilsson Lawyers
with six family law accredited specialists, Hartley
Healy with five and Jones Mitchell with four.
Four of Michael Lynch’s leading family law
practitioners – Amy Campbell, Amy Honan,
Clare McCormack and Elizabeth Millar –
successfully completed the Queensland Law
Society’s family law specialist accreditation
back to contents
Congratulations to these practitioners
and all our new accredited specialists
on their fantastic achievement.
What is the greatest satisfaction
you get from your work?
What family law issues
are you most concerned about?
Elizabeth: Knowing that I’ve helped
someone navigate through a really
difficult time in their life and hopefully
made the experience less painful.
Elizabeth: I’m always concerned about
disputes involving children, particularly
‘relocation’ cases or cases where there
is a high degree of acrimony between
the parties. The kids are inevitably the
ones who miss out or suffer the most,
and while the family law legislation tries
to protect them, unfortunately there are
still holes in the system.
Amy H: In my office I have notes and
emails from clients stuck on my wall as
a daily reminder that you’ve helped
them through something that’s been
a big part of their life and you’ve been
on that journey with them.
How did you manage
the work/life/study balance?
Elizabeth: I’m not sure that it actually
exists – you do your best and hope
that is enough.
Clare: Our job can be stressful at times
and I think the process opened our eyes
to how challenging it can be to do fulltime study and full-time work. Structure
was very important so I tried to make sure
I made the time on weekends and before
and after work to dedicate to study.
What does specialist
accreditation mean to you?
Elizabeth: Official recognition by the
wider profession that I have attained a
certain standard of competency in my
chosen area of practice.
Speak to us about becoming an
accredited specialist (family law)
in 2015. Call 07 3842 5929 or email
specaccred@qls.com.au.
assessment program last year and were
presented with their accreditation by Chief
Justice de Jersey at the Specialist Accreditation
Christmas Breakfast with the Chief Justice
on 6 December.
Amy C: Studying the program content in
depth, which you don’t always get to do
in day-to-day practice, really enhances
your knowledge and by successfully
completing the program I confirmed to
myself, my clients and other practitioners
that I know what I’m doing.
Clare: Funding is a real issue, particularly
if the new government has proposed
cuts. We already feel the Family Courts
are severely under-resourced, which
causes delays that can be really
disappointing for our clients.
How does the volunteer work at Caxton
Legal Centre and Womens Legal Centre
impact on the work you do?
Amy H: It definitely makes you a more
compassionate and balanced lawyer
when dealing with all types of different
clients from a variety of socio-economic
backgrounds.
Clare: The people that you see are really
appreciative of your time and that makes
it feel so worthwhile. Sometimes it is hard
to get motivated at the end of a long day
at work. But then you volunteer and the
clients are so grateful for your advice that
you feel that the three or four hours were
the most satisfying of the day.
Proctor career spotlight: If you are a lawyer with a story
to tell and would like to be featured in Career spotlight,
send an email to proctor@qls.com.au.
February 2014 | Proctor
63
Barry.Nilsson. Lawyers
Barry.Nilsson. Lawyers has congratulated two
practitioners on achieving Queensland Law
Society specialist accreditation.
Partner Scott Wedgwood, who returned to
family law after a period working in planning
and environment, was successful in regaining
his accreditation in family law, which he first
achieved in 1997.
Senior associate James Steel, who has worked
exclusively in family law for more than eight
years, was congratulated as the highest
achiever of the 19 lawyers who successfully
completed last year’s family law specialist
accreditation program.
Colin Biggers & Paisley
The Brisbane office of Colin Biggers & Paisley
has acquired 16 new staff, including planning,
government, infrastructure and environment
team members from Herbert Geer, who joined
the firm on 2 December.
The firm, which moved to Queensland by
merging with Brisbane firm Hemming+Hart
in early November, also announced a new
partner for its construction and engineering
team, Paul Muscat, who joined the firm from
23 December.
64
Proctor | February 2014
Paul is an experienced construction and
engineering practitioner, with additional
experience in mining and infrastructure
projects. He has particular expertise in
advising all levels of government as a
probity and procurement practitioner on
infrastructure asset development projects.
The contingent from Herbert Geer is made up
two support staff and 13 fee earners, including
partners Ian Wright, Samantha Hall and Ben
Caldwell, along with senior associate Ronald
Yuen. Ian will lead the firm’s planning and
environment team nationally.
Cooper Grace Ward
Cooper Grace Ward has announced the
addition of several new team members across
the firm’s practice areas.
Jeff Hollindale joined as special counsel in
the commercial practice, following a period
at QSuper and five years at Clayton Utz. Jeff
brings substantial experience in mergers
and acquisitions, as well as a range of other
general corporate and commercial matters.
He previously spent more than five years in
the United Kingdom working at Londonbased commercial firm Marriott Harrison.
Leanne O’Neill joined the property, planning
and environment team as senior associate,
bringing 14 years’ experience in government,
including nine as a solicitor representing
Queensland in negotiations and litigation
in several forums. Leanne has held senior
legal roles in government and provided
Paul Muscat
James Steel
Rosemary Gibson
Kate Whalan
Career
moves
Kimberley Villis
Scott Wedgwood
Career pathways | Career moves
high-level advice and representation in land
and resources sector law, including matters
related to native title, land tenure, resources
management, planning, environment and
administrative law.
Senior associate Kate Whalan joined the
insurance team, bringing experience in
commercial areas including contractual
disputes, negligence, property matters and
insolvency. Kate joins the team following
12 years at Mullins Lawyers.
Senior associate Kimberley Villis will assist
the insurance team with its portfolio of claims
for WorkCover Queensland. Kimberley has
made the switch from Crown Law, where
she acted for WorkCover for more than five
years, and brings experience in insurance,
employment and industrial relations issues.
Kimberley’s experience also includes a period
at WorkCover itself, instructing panel solicitors
on claims made against employers.
The insurance team has also welcomed
lawyer Rosemary Gibson, who will work
in the transport and marine subgroup.
Rosemary brings two years’ experience
in litigation and dispute resolution gained
at Herbert Smith Freehills.
Lawyer Natasha Millington joined the
litigation team following almost three
years at Moray & Agnew Lawyers, where
she specialised in professional indemnity
insurance. In her new role, Natasha will advise
and act for professional indemnity, directors
and officers, and financial lines insurers.
back to contents
Maurice Blackburn Lawyers congratulated
four of its Queensland lawyers who
attained Queensland Law Society specialist
accreditation in personal injuries.
They were Alison Barrett, a senior associate
who leads the firm’s Southport office and was
the highest achiever of the seven lawyers who
successfully completed the personal injuries
specialist accreditation program; Sugath
Wijedoru, a senior associate and leader of a
Brisbane team; Sarah Vallance, an associate
in Brisbane, and Kara Thomson, an associate
who leads the firm’s Townsville office.
Jeff Hollindale
Leanne O’Neill
Tim Quirk
Ronald Yuen
Sarah Vallance
Thynne & Macartney
Kara Thomson
Ben Caldwell
Samantha Hall
Alison Barrett
Maurice Blackburn Lawyers
Sugath Wijedoru
Ian Wright
Natasha Millington
Career moves | Career pathways
Thynne & Macartney welcomed Tim Quirk
to partnership from 1 January. Tim, who
leads the planning, environment and local
government group, is a key member of the
property team with more than 16 years’
experience in the area.
Tim also has expertise in drafting and
negotiating infrastructure agreements,
responding to compulsory acquisition,
negotiating compensation and s15
agreements, and advising in relation
to approvals and compliance with
environmental authorities.
He focuses on planning and environment
law with expertise in advice and
litigation on the development approval
processes. Tim has a particular interest in
enforcement and prosecution proceedings
for development and environmental
offences, acting for both councils and those
responding to such proceedings.
Proctor career moves: For inclusion in this section,
please email details and a photo to proctor@qls.com.au
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.
Preparing you for success
as a law practice principal
Prospectus out now >> qls.com.au/pmc
back to contents
February 2014 | Proctor
65
Business supporters
Accounting
The Queensland Law Society Business Supporters Scheme links
members with products and services from select companies and
organisations. Visit the websites of these supporters to see what they
can do for you. Don’t forget to mention that you are a Queensland
Law Society member to receive any negotiated member discounts!
Broadcast hire
Rohan Youngman
Rohan.Youngman@svp.com.au
David Williams
David.Williams@svp.com.au
Independent provider of
valuation, litigation & forensic
accounting services.
GPO Box 5300
Brisbane Qld 4001
P (07) 3310 2000
F (07) 3329 7285
brisbane@svp.com.au
Pro-Cam Broadcast Hire has been
servicing the broadcast, production
and staging industries for over
13 years. We specialise in the hire of
broadcast cameras, VTRs, AVID suites,
tape stock and display products.
www.svpartners.com.au
Accounting
Ian Bates
Address: 22 Gore St, Albion,
Brisbane Qld 4010
P (07) 3262 2400
F (07) 3262 7052
hire@pro-cam.com.au
www.pro-cam.com.au
Information services
Onus Maynes
P (07) 3237 5614
Level 10, 12 Creek Street
Brisbane Qld 4000
F (07) 3221 9227
Forensic accounting,
litigation support &
business valuations.
www.bdo.com.au
Accounting
Offering fast, reliable access
to more than 500 different
information services to help
QLS members streamline
business processes.
GPO Box 279
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P 1800 773 773
confirm@citec.com.au
www.confirm.com.au
Investigators/process serving
The Lawyers’ Accountant
Specialising in accounting
services and strategic advisory
for law firms and lawyers.
Matt Schlyder
Ground Floor, Green Square
North Tower, 515 St Paul’s Terrace,
Fortitude Valley QLD 4006
GPO Box 81, Brisbane QLD 4001
P 07 3833 3999
F 07 3833 3900
Matt@FWO.net.au
www.financiallywellorganised.com
Incorporating IDS Group
Services in Process Serving,
Skip Locations,Repossessions
and Field Services.
Head Office: 50 Theodore Street,
Eagle Farm QLD 4009
CBD Office: Level 3, 33 Queen Street
(Cnr George Street), Brisbane QLD 4000
Postal: PO BOX 1572, Eagle Farm
QLD 4009 – DX 40931 Hamilton QLD
T: 1300 712 978 | F: 07 3868 4003
E: info@advancenational.com.au
www.advancenational.com.au
For information on becoming a
Queensland Law Society
business supporter,
please contact:
Cate Gazal
Sponsorship Manager
P 07 3842 5931| c.gazal@qls.com.au
Legal software
Investigators/process serving
Process Serving, Location
Enquiries, Occupancy Checks
and Repossessions.
National and International
Service Provider
PO Box 566,
Toowong BC Qld 4066
T 07 3371 7330
F 07 3371 7335
enquiries@sharmans.net.au
Cloud based legal practice management
software which includes; highly automated
forms, document management, legally
drafted precedents and one place to store
all your matter and client information.
www.sharmans.net.au
PO Box 10314 Brisbane
Adelaide Street QLD 4000
P (07) 3831 2488
sales@leap.com.au
www.leap.com.au
Printing services
Legal publishing
Smokeball is an online legal publisher
that provides practical and affordable
online resources including Step-by-Step
Legal Practice Guides and Precedents,
in depth Legal Practice Manuals,
Agreement Suites and over 5,000
free legal forms.
PO Box 10314 Brisbane
Adelaide St, QLD 4000
P 1300 607 625
alexandra.steadman@leap.com.au
Copy, print, e-discovery &
consulting. 24 /7 – free pickup/
delivery in Brisbane CBD.
Geoff Davey – General Manager
Level 5, 116 Adelaide Street
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P (07) 3220 1655
F (07) 3220 1677
brisbane@lawinorder.com.au
www.lawinorder.com.au
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Property advisors
Legal software
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Kelly Mills
Level 3/447 Upper Edward St
Brisbane Qld 4000
P 07 3040 3036
kelly@lawsupport.com.au
www.lawsupport.com.au
Australia’s largest independent
property advisors.
Greg Coman
Level 6, 167 Eagle St
Brisbane Qld 4000
P (07) 3002 0900
F (07) 3002 0930
greg.coman@htw.com.au
www.htw.com.au
Classifieds
classified@qls.com.au
Agency work
XAVIER KELLY & CO
INTELLECTUAL PROPERTY LAWYERS
Tel: 07 3229 5440
Email: ip@xavierklaw.com.au
For referral of:
Specialist services and advice in Intellectual
Property and Information Technology Law:
• patent, copyright, trade mark, design and
• confidential information;
• technology contracts: license, transfer,
franchise, shareholder & joint venture;
• infringement procedure and practice;
• related rights under Competition and
Consumer Act; Passing Off and Unfair
Competition;
• IPAUSTRALIA searches, notices,
applications & registrations.
Level 13, 97 Creek Street
Brisbane, Qld 4000
GPO Box 2022 Brisbane 4001
www.xavierklaw.com.au
ATHERTON TABLELANDS LAW
of Suite 3, Level 17 Herberton Rd, Atherton,
Tel 07 4091 5388 Fax 07 4091 5205.
We accept all types of agency work in the
Tablelands district.
CAIRNS - BOTTOMS ENGLISH LAWYERS
of 63 Mulgrave Road, Cairns, PO Box 5196
CMC Cairns, Tel 07 4051 5388 Fax 07 4051
5206. We accept all types of agency work in
the Cairns district.
NOOSA – AGENCY WORK
SIEMONS LAWYERS,
Noosa Professional Centre,
1 Lanyana Way, Noosa Heads or
PO Box 870, Noosa Heads
phone 07 5474 5777, fax 07 5447 3408,
email info@siemonslawyers.com.au - Agency
work in the Noosa area including conveyancing,
settlements, body corporate searches.
Victorian Agency Referrals
Litigation
Uncertain of litigation procedures in Victoria?
• We are a medium-sized Melbourne CBD Law firm.
• We act as agents for interstate practitioners in
all Victorian Courts and for Federal Court matters.
BRISBANE FAMILY LAW –
ROBYN McKENZIE
Our offices are also available for use by visiting
Queensland firms.
Appearances in Family Court and Federal
Magistrates Court including Legal Aid matters.
Referrals welcome. Contact Robyn.
Ben Wyatt
T: 03 9321 7823
bwyatt@rigbycooke.com.au
GPO Box 472, BRISBANE 4001
Rob Oxley
T: 03 9321 7818
roxley@rigbycooke.com.au
Telephone: 3221 5533 Fax: 3839 4649
email: robynmck@powerup.com.au
SYDNEY AGENTS
MCDERMOTT & ASSOCIATES
135 Macquarie Street, Sydney, 2000
•
•
•
•
•
•
•
•
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•
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Queensland agents for over 20 years
We will quote where possible
Accredited Business Specialists (NSW)
Accredited Property Specialists (NSW)
Estates, Elder Law, Reverse Mortgages
Litigation, mentions and hearings;
Senior Arbitrator and Mediator
(Law Society Panels)
Commercial and Retail Leases
Franchises, Commercial and Business Law
Debt Recovery, Notary Public.
Conference Room & Facilities available
Probate & Estate Administration
We can assist with obtaining Grants of Probate,
Reseal applications, and Testamentary Family
Maintenance claims.
Rachael Grabovic T: 03 9321 7826
rgrabovic@rigbycooke.com.au
Rigby Cooke Lawyers
Level 13, 469 LaTrobe Street Melbourne VIC 3000
www.rigbycooke.com.au
Phone John McDermott or Amber Hopkins
On (02) 9247 0800 Fax: (02) 9247 0947
DX 200 SYDNEY
Email: info@mcdermottandassociates.com.au
SYDNEY – AGENCY WORK
Webster O’Halloran & Associates
Solicitors, Attorneys & Notaries
Telephone 02 9233 2688
Facsimile 02 9233 3828
DX 504 SYDNEY
TWEED COAST AND NORTHERN NSW
O’Reilly & Sochacki Lawyers
(Murwillumbah Lawyers Pty)
(Greg O’Reilly)
for matters in Northern New South Wales
including Conveyancing, Family Law,
Personal Injury – Workers’ Compensation
and Motor Vehicle law.
Accredited Specialists Family Law
We listen and focus on your needs.
FREECALL 1800 811 599
PO Box 84 Murwillumbah NSW 2484
Fax 02 6672 4990 A/H 02 6672 4545
email: enquiries@oslawyers.com.au
68
Proctor | February 2014
TOOWOOMBA
Dean Kath Kohler Solicitors
Tel: 07 4698 9600 Fax: 07 4698 9644
enquiries@dkklaw.com.au
ACCEPT all types of agency work including
court appearances in family, civil or criminal
matters and conveyancing settlements.
TOWN AGENTS
BRISBANE – AGENCY WORK
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BRUCE DULLEY FAMILY LAWYERS
•
Est. 1973 - Over 40 years
of experience in Family Law
Brisbane Town Agency Appearances in
Family Court & Federal Circuit Court
Contact our solicitors:
Bruce Dulley, Yasmin Dulley
or Emario Welgampola
Lvl 11, 231 North Quay, Brisbane Q 4003
PO Box 13062, Brisbane Q 4003
Ph: (07) 3236 1612 Fax: (07) 3236 2152
Email: bruce@dulleylawyers.com.au
•
•
The team at Able Law have the knowledge
and experience to ensure your matters are
handled professionally, ethically and cost
effectively, giving the best chance for a
successful outcome. Benefits of using Able
Law as your town agents are:
No charge for travelling time or costs.
One point of contact for all your matters.
One firm to handle all matters in any
jurisdiction.
Pre-negotiated or fixed fees for ongoing
instructions.
Written submission / draft orders prepared
where required.
Accepting instructions in all areas of
Litigation and Insolvency Law.
BRISBANE. IPSWICH. GOLD COAST.
BEAUDESERT. SUNSHINE COAST.
VISIT OUR WEBSITE AT
WWW.ABLELAW.COM.AU
E: ADMIN@ABLELAW.COM.AU or
CALL US ON 1300.665.612
back to contents
Classifieds
P 07 3842 5921
Agency work continued
Gold Coast and Beenleigh Agency Work
Brooke Winter Solicitors
Flat fee for appearances in the Magistrates
Court and District Courts at Southport and
Beenleigh. For competent, professional and
reliable appearances. Ph: (07) 5554 6622 or
email: brooke@brookewintersolicitors.com.au
For sale continued
LAW PRACTICES
FOR SALE
Northside Bris: Work
is Lit, Wills & Estates,
Conveyancing, Commercial. Est. 7 yrs. Good location.
Gross fees $250-$350k pa. Price $65k + WIP
For sale continued
FOR SALE
Jimboomba practice for sale
This general practice in a growth area was
established in 1988 and deals with a wide
variety of work.
$78K plus WIP.
Contact Dr Craig Jensen 3711 6722
………………………………….
For rent or lease
POINT LOOKOUT BEACH RESORT:
Very comfortable modern fully furnished two
bedroom unit ocean views and pool. Linen
TV video CD stereo and dishwasher. Unit 13.
Closest freehold to Main Beach. Whale watch
from balcony July – April. Weekend or holiday
bookings. Ph: (07) 3409 8213.
POINT LOOKOUT – NTH STRADBROKE
4 bedroom family holiday house. Great ocean
views and easy walking distance to beaches.
Ph: 07- 38709694 or 0409 709 694
Casuarina Beach - Modern Beach House
New architect designed holiday beach house
available for rent. 4 bedrooms + 3 bathrooms
right on the beach and within walking distance
of Salt at Kingscliff and Cabarita Beach. Huge
private deck facing the ocean with BBQ.
Phone: 0419 707 327
Tropical North:
Estab. 23 yrs. Principal retiring.
Work is Property, Succession & Family. Gross 2013 of
$300k. The freehold is also available. Price $50k + WIP
………………………………….
Tree Change?
Gold Coast Hinterland. What a
great location and lifestyle! General practice. 2013
Gross $447k Profit $177k (PEBIT). Price $229k + WIP
………………………………….
Qld Coastal City: Est. 32 yrs. Work is Conv,
Wills & Est, POA, Family. Gross fees 2013 OF $448k.
Profit (PEBIT) of $85k. Great staff. Price $70k + WIP
………………………………….
Work From Home:
Unique, specialised
Commercial Litigation practice. 3 yr ave Profit of
$213k (PEBIT). Gross $500k. Price $165k + WIP
………………………………….
Moreton Bay Shire: General practice est. 7
years. Great location, low rent, ample parking
available. Gross $180k for 2013. Sell $95k + WIP
Cal l me to di scuss a Conf i d enti al
Free Appr ai sal of yo ur practi c e
Peter D avi son - Law Brok ers
07 3398 8140 or 0405 018 480
peter@lawbrokers.com.au
BUNDABERG LAW PRACTICE FOR SALE
LEGAL OFFICE FOR RENT
Family Law, Criminal Law, Conveyancing, Wills
and Estates, Leasing.
SUB LEASE BRISBANE CBD
Level 2A Xile House, 181 Elizabeth St NSF
Solicitors/Mediations opposite Hilton Hotel
entry.125m2 includes 3 professional rooms
“14m2 PA room boardroom reception and
amenities. Signage to Elizabeth St and
internally. Outgoings shared.
To receive layout plan photos & inspect
ph: Alex 0412 722 681
Current Areas of Law
Conveyancing, Wills and Estates and
Criminal
Solicitor wishing to move South for the
Grandchildren
$40,000.00 WIWO
Ph: 0447 004 257
Legal services
A.C.C. TOWN AGENTS est 1989
BODY CORPORATE SEARCHES
From $80.00
*Settlements: $15.00 *Stampings: $12.00
*Registrations: $12.00
ALL LEGAL SERVICES & LODGINGS
FOR FAST PROFESSIONAL &
COMPETITIVE RATES CONTACT
SAM BUSSA
Full Professional Indemnity Insurance
COMMERCIAL OFFICE SPACE 46m² to 235m²
Available at Northpoint, North Quay.
Close proximity to new Law Courts.
Please direct enquiries to Don on 3008 4434.
Brisbane CBD office available for lease. Currently
fitted out as a legal office with reception, library,
boardroom, 3 carparks etc. Suit 1 - 3 partner firm
seeking presence in CBD. Ph: 0414 373 850.
North Queensland Law Practice
Well established since 2005 law firm in the heart
of Bundaberg CBD.
Well promoted in the local area, great location,
low rent.
Strong turn over and growth during last financial
year. Price $70,000 + WIP.
Contact the office manager on 0411 735 381.
NOTE: CLASSIFIED ADVERTISEMENTS
Unless specifically stated, products and services
advertised or otherwise appearing in Proctor
are not endorsed by Queensland Law Society.
e astratfunk@nsfsolicitors.com.au
TEL 0414 804080 FAX 07 3353 6933
PO BOX 511, LUTWYCHE, QLD, 4030
Locum tenens
TOM BENCE experienced Solicitor
(admitted 1975) available for locums
anywhere in Queensland. Many years
experience as principal.
Phone 0407 773 632
Email: tombence@bigpond.com
PETER WILLEY
Experienced solicitor, admitted in 1981
with 20 years as a principal in general
practice, available for locum or overload
work in South East Queensland.
Phone 0407 631 719
or email at peterwilley@hotmail.com
For sale
ROSS McLEOD
Gold Coast Law Practice for Sale
Dynamic practice in the heart of Bundall, right
near the Gold Coast City Council. Commercial,
Litigation, Estates, Conveyancing. Would suit
couple. About $70,000 ONO. Freehold available.
Bundall.Legal@gmail.com
back to contents
07 3842 5921
advertising@qls.com.au
Willing to travel anywhere in Qld.
Admitted 30 years with many years as Principal
Ph 0409772314
ross@locumlawyerqld.com.au
www.locumlawyerqld.com.au
February 2014 | Proctor
69
Classifieds
classified@qls.com.au
Locum tenens continued
Bruce Sockhill Experienced
commercial lawyer
Admitted 1986 available for
locums south east Queensland
Many years as principal
Phone: 0425327513
Email: Itseasy001@gmail.com
Penelope Stevens Family Law
Accredited Specialist
Available from March 2014
0448 856 730 or pst31111@bigpond.net.au
CARMEL T. DAVIES
Sound experience in all civil law areas as
shown on website, available for
locum/consultancy/overload work in SE
and Cent. Q. 0409 872 996;
carmel@ctdavieslaw.com
Mediation
KARL MANNING
LL.B Nationally Accredited Mediator.
Mediation and facilitation services across all
areas of law.
Mediation continued
MEDIATION
Dr Craig Jensen
35 years in practice both as Counsel
and Solicitor
Accredited Mediator and Case Appraiser
Professional Certificate in Arbitration
(with High Distinction)
Mediation in Commercial, Property, Family
Law and Personal Injury Claims.
Reasonable fees.
Ph: 3711 6722 Fax: 37116733
Missing wills
EUNICE BREALEY
Any person or firm holding or knowing the
whereabouts of any will or other document
purporting to embody the testamentary
intentions of EUNICE BREALEY late of
Beenleigh Nursing Home, 45 York Street,
Beenleigh formerly of 8 Everest Street Daisy
Hill and Meadowbrook in Queensland; Mt
Martha and Chirnside Park in Victoria, please
contact McLaughlin & Associates, PO Box 2080
Springwood Qld 4127 Tel: 07 3808 7777 or
sylvia@mclaughlinlawyers.com.au
Email: info@manningconsultants.com.au
Would any firm knowing the whereabouts of
a will of the late Jill Williams who died on
03/04/2013 please contact Fitz-Walter Lawyers
of Le Boulevard Building, First Floor, 2 Elkhorn
Avenue, Surfers Paradise QLD 4217 telephone
no (07) 5538 2488 fax No (07) 5538 3844
email: admin@fitzwalterlawyers.com.
MEDIATION AND ARBITRATION
DARRYN IAN ASTON
Stephen E Jones
Would any person or firm holding or knowing
the whereabouts of the original Will or
other document purporting to embody the
testamentary intentions of Darryn Ian Aston late
of 5 Porter Street, Gwelup, Western Australia
who died on or about 15 February 2013, please
contact Mills Hebbard Moore Solicitors of 135
End Street, Deniliquin, New South Wales 2710,
DX 5562 Deniliquin,
Excellent mediation venue and facilities
available.
Prepared to travel.
Contact: Karl Manning 07 3181 5745
MCIArb (London) Prof. Cert. Arb.(Adel.)
Arbitration or Mediation of Commercial or
Personal Disputes (ex. Family Law)
stephen@stephenejones.com
Phone: 0422018247
NOTE TO PERSONAL INJURY ADVERTISERS
The Queensland Law Society advises that
it can not accept any advertisements which
appear to be prohibited by the Personal Injuries
Proceedings Act 2002. All advertisements in
Proctor relating to personal injury practices
must not include any statements that may
reasonably be thought to be intended or likely
to encourage or induce a person to make a
personal injuries claim, or use the services of a
particular practitioner or a named law practice
in making a personal injuries claim.
70
Proctor | February 2014
Wanted to buy
PRACTICE
HEALTH
CHECK
Time to shape
up your practice
T: 03 5881 1955 F: 03 5881 3457
Online now
>> qls.com.au/phc
back to contents
Stephen Conimo | In memorium
In the cause
of conservation
Stephen Comino was born in Laidley
in 1928. His parents arranged for
him to be taught Greek by a native
Greek teacher.
Stephen Arthur
Comino AM
His father paid for him to enter into articles
in the Catholic firm of Bergin Papi & Finn and
concurrently he completed the Solicitors’ Board
course, being admitted as a solicitor in 1953.
29 May 1928 –
28 September 2013
As Queensland’s first Greek-speaking solicitor,
his clientele initially comprised many Greek
clients, but it became a broad-based clientele.
He introduced CPI reviews into his leases when
that was not done. He developed a standard
lease which was roneoed and the blanks in the
precedents of names etc were typed in.
As a member of the Kytherian Association
of Queensland, he assisted the association
in its litigation to uphold in the High Court
a charitable gift “for the erection and/or
benefit of a Sanatorium and/or Hospital
in the Island of Cerigo”.1
As the honorary solicitor of the Twelfth Night
Theatre, his firm successfully defended as far as
the High Court the actor Norm Staines who was
charged with using obscene language, namely
the words, “f***in’ boong”, in a stage play.2
He pioneered the use of the legal system
to defend the environment and wildlife.
Notes
Kytherian Association of Queensland and another
v Sklavos (1958) 101 CLR 56.
1
2
Bradbury v Staines ex parte Staines (1970) QR 76.
3
Leisuremark (Aust) Pty Ltd v Noosa Shire Council
and others 1988 QPLR 137.
4
Sinclair v Maryborough Mining Warden (1975)
132 CLR 473. This decision overturned the
decision of a mining warden to grant mining
leases on Fraser Island.
5
Sinclair v Bjelke-Petersen (1984) 1 QR 485. Mr Sinclair
unsuccessfully sued the Queensland Premier for
defamation.
6
Central Queensland Speleological Society Incorporated
v Central Queensland Cement (No.1) (1989) 2 QR 512
and Central Queensland Cement (No.2) 1989 2 QR 537.
7
Gould v Vaggelas (1985) 157 CLR 271.
8
Anthony & Comino v Sanderson 1994 QCA 527.
back to contents
Stephen’s initiation into conservation causes
started in the 1960s with him joining the
Cooloola Committee, which was successful
in pressuring the State Government to stop
sandmining. Together with his good friend,
Llew Wyvill QC, he continued with many other
causes along the Queensland coast, including
advising the Queensland Conservation
Council, the Moreton Island Protection
Committee and the Friends of Hinchinbrook
as well as branches of Wildlife Preservation
Society of Queensland (WPSQ) in their fights
against ill-conceived development.
The Leisuremark case overturned a
proposed massive development on the
Noosa North Shore that would have
destroyed its pristine waters.3
Cases went to the High Court,4 the Local
Government Court and to the Supreme Court
in an effort to protect Sinclair’s reputation
against Premier Joh Bjelke-Petersen.5
In 1989 Stephen acted for the Central
Queensland Speleological Society in its
High Court and Supreme Court litigation
instigated to protect endangered ghost
bats and fended off heavy criticism from
other law firms for doing so.6 This was
not new for Stephen as the conservation
cases were always unpopular amongst the
profession and work was done on a pro
bono basis. Although the legal case was
unsuccessful, the negative publicity led
to conservation of neighbouring lands
to protect some of the caves.
In 1991 he assisted the Aboriginal Kuku
Djungan tribe to obtain a transfer of a
pastoral lease containing its traditional
lands and he was honoured by being
made an honorary elder of the tribe.
In 1994 Stephen received an Australia Medal
for service to conservation and to the law,
particularly as it affects the environment.
From 1992 to 1994 Stephen was president
of the WPSQ and helped carry it through a
difficult period after the 1992 Mabo native
title decision when there was heated
debate over conservation and Aboriginal
custodianship of the land. He travelled
extensively around the state to meet and
discuss the issues with society members.
His legacy also includes a High Court
misrepresentation case7 and a Court of Appeal
case successfully overturning a will.8
In the law, as in life, he chose to do the
right thing rather than take the easy path,
no matter what the price.
As a lawyer he said that the most important
thing you have is your integrity and your
professional independence.
Stephen practised law for more than 60 years.
Arthur Comino (son),
Maria Comino (daughter)
Stephen acted for John Sinclair over many
years in the 1970s and 1980s in his battles
to protect Fraser Island as world heritage.
February 2014 | Proctor
71
Outside the law | Wine
Tasmania by glass and plate
Head south for the best of the north with Matthew Dunn
The food and wine scene in
northern Tasmania is engaging.
Artisan fare, craft beer and fine wine
proliferate, along with truffle farms, river trout
and dairy wizardry, all of which shine brightly
in the face of the usual troubles of small
regional economies.
The highest quality sparkling wine is now
flowing like a river from northern vineyards;
shiraz is regularly produced (one Tasmanian
example winning the Jimmy Watson Trophy)
and the locale has firmly established itself
as producing some of the best chardonnay,
riesling, pinot noir and pinot gris around.
Forays have even been made into some very
convincing sauvignon blanc to equal that of
Marlborough (although I have difficulty with
the concept of the commercial imperative in
aping something of mass market appeal while
playing to Tasmania’s strengths and producing
a unique take on a classic from elsewhere).
The tasting
Much gets written about the rebirth of
Tasmanian wine, which began in the ’50s
when an emigrant Frenchman established
a new vineyard in the lush hills near Lilydale
and called it after his home, La Provence.
Hot producers came to the northern
vineyards to build on the work or take a
new and daring direction. Currently, leading
names include Holyman, reborn Delamere
and Dalrymple, my sentimental favourite
Holm Oak, anything that sparkles from Bay
of Fires, interesting shiraz from Velo and the
venue to top all venues, Chromy Wines in
Relbia, just out of Launceston.
These names stand with a multitude of new
wine ventures populating the eastern banks
of the Tamar River and within easy day-trip
distance of the city. Tamar Ridge and Ninth
Island have particularly attractive cellar doors
with sweeping views of the river.
The Pipers River/Brook region originally
chosen by Dr Andrew Pirie to best reflect the
great European vineyards is also coming back.
About an hour from Launceston, this is the
heart of high-class sparkling in Tasmania, with
Bay of Fires, Jansz and Kreglinger all within a
stone’s throw.
The northern Tasmanian wine trail, the produce
and artisan producers have something which
is well worth the investment to get there.
The difficulty of the assignment and the nature of the season
were reflected in a full bag of tastings during a visit to northern Tasmania.
The Van Dieman Brewing
Ragged Jack Pale Ale was a
tour de force of flavour. From
a craft brewery just outside
Launceston amongst the
vineyards of Reliba, the überhopped style was refreshingly
bitter, just like the English
cricket press. Undercurrents of
citrus lay below the floral palate
that cut back mercilessly under
the hoppy influence. Enjoy very
cold in places that are very hot.
Matthew Dunn is QLS principal policy lawyer.
72
One very sensible development by the
Tasmanian Government is to support the
local wine industry by allowing the sale of
Tasmanian wine, without a liquor licence, in
delis, gift shops, galleries, coffee shops and
trendy providores. This initiative achieves
two goals – raising the profile of Tasmanian
wine for the local market and tourists alike,
and increasing the size of the sales market
for Tasmanian wine and particularly for smallscale producers who would otherwise find
it hard to get into traditional bottle shops. It
would be excellent if this came to Queensland
to support our local, sometimes unfairly
under-rated, wine industry.
Proctor | February 2014
The Arras Tasmania Methode
Traditionelle Brut Elite NV
was a symphony of flavours and
a super-refined tipple. The bead
was small, tight and persistent,
the colour was palest straw. The
mouthfeel was rich, complex
and alluring. Hints of toast
blended perfectly with racy
acids and rich tones. Not aping
champagne, but just as worthy
for sophisticates.
The Devil’s Corner Pinot
Noir Chardonnay NV was
bright, engaging, the colour
of light gold with a medium
persistent bead. The palate
was frisky and fruitful, citrus
and apple, forward and
approachable. A delightful
tipple well matched to
Tasmanian scallops and
steamed mussels just foraged
from the bay.
The Tigress NV from Bay
of Fires was the colour of ripe
straw and had a persistent, yet
medium-size bead. The palate
was a harmonious combination
of ripe fruit flavours, cutting
citrusy acidity and supporting,
but not dominant, toasty
complexity. The younger sibling
of the Arras was more open and
straightforward, by design, but
a good quaff none the less.
The Jansz Premium Cuvee
Tasmania NV was pale mellow
gold with exuberant yet
medium-sized persistent bead.
The palate was a mix of nougat
and citrus fruits, including
pink grapefruit, providing that
familiar Jansz acid tinge. Tight
and balanced, just right to
accompany St Helen’s crayfish.
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in 2014
Outside the law | Crossword
Mould’s maze
Across
1 Unilateral mistake as to the terms of a written
contract renders the contract ........ . (8)
5 ‘It seems’, chiefly used to denote the use
of obiter in judgments (Fr.). (6)
9 A warrant of .......... is enforceable throughout
the state notwithstanding the territorial
jurisdiction of the magistrate who made it. (10)
11 Assert formally as a fact. (4)
1
2
with Sunshine Coast barrister
John-Paul Mould.
3
4
5
6
7
8
9
10
11
14
12
13
15
14 ‘Care and consideration’, ...... fees. (6)
15 Convicted cyber-terrorist who unsuccessfully
sued the Bar Association of Queensland for
$10m last year, Peter ....... (6)
16
17
16 Updated legislation, ............ Acts. (12)
19 Category of laws Laws proscribing association
with particular persons. (10)
24 High Court of Australia case that abolished
the rule in Rylands v Fletcher, ...... Port Authority v
General Jones Pty Ltd. (6)
18
22
19
20
21
23
24
25
26
26 Legislation concerning earmarking of cattle,
...... Act (Qld). (6)
28 Unique, ... generis (Lat.). (3)
27
30 Brisbane occupational therapist often utilised
in personal injuries litigation, Stephen .... . (4)
31 A distrainor executes the right to levy
statutory ........ . (8)
28
30
31
32
32 Pecuniary penalty. (4)
34 Section 25A of the ....... Offences Act (Qld) makes
it unlawful to offer a reward for the return of
stolen property. (7)
29
33
34
35
36
36 Disclosure. (9)
37 High Court case concerning unconscionability
of serving pathological gamblers, ...... v Crown
Melbourne Limited. (7)
38 High Court case concerning the constitutionality
of legislation allowing preventative detention,
NSW v ..... . (5)
Down
2 Robbery (Hindi). (7)
3 Master of Laws (abbr.). (3)
4 First female president of the Queensland
Court of Appeal. (7)
6 A trustee cannot be compelled to exercise
a ‘.... power’. (4)
7 Legislation proscribing listening devices, ........
of Privacy Act (Qld). (8)
8 Government body protecting the interests
of impaired persons, the ..... Guardian. (5)
10 English Lord whose judgment in Miller v Jackson
began: “In summertime village cricket is the
delight of everyone.” (7)
12 Australian state where it is an offence to carry
out rain-making operations, punishable by
imprisonment of up to 12 months. (8)
13 Brisbane District Court judge. (4)
74
Proctor | February 2014
37
17 Guilty act, ..... reus (Lat.). (5)
18 Dishonesty. (9)
20 Outline of argument. (10)
21 Insurance policies for lawyers,
professional ........ . (9)
22 Licence enabling an entity to use a business’
intellectual property in order to allow the entity
to sell products under the business’ name. (9)
23 Doctrine by which a law is rendered
obsolete for disuse. (9)
25 In Henry VI, the character Dick said: “The
first thing we do, let’s kill all the ....... .” (7)
27 Leasing of a machine without
its operator, ... hire. (3)
29 Charter whereby the shipowner leases its
vessel for a period during which the whole
use of the vessel passes to the charterer. (6)
33 Defamatory defence rejected by the
High Court in Chakravarti v Advertiser
Newspapers Ltd, Polly .... . (4)
35 Legislation regulating the reckoning
of time (abbr.). (3)
38
Solution on page 76
back to contents
Humour | Outside the Law
Your 2014 job-hunting guide
Even if you are as sharp as a pet rock
Well, here we are in 2014, a
brand new year and a brand
new set of young legal minds
to warp irreparably.
Actually, if you are anything like me, your
mind may already be warped by attempting
to decipher the assembly and operating
instructions for the toys your children received
for Christmas. These instructions generally read
like they have been translated by someone
whose first language is something other than
English, like Klingon, and go something like:
“Operation will be fulmost when battery facility is
perforated. But never this button! Once. For results
of serenity, never place fluid together.”
The beginning of the year is, of course, a time
to take stock of your career and try to work
out why you don’t actually have one; chances
are the reason is lack of clients – or an early
career mistake like falling asleep unclothed
in the senior partner’s fish pond at the endof-year Christmas party or taking a job as a
lawyer in the public service.
Both of these will limit your career horizons in
the same way as Lance Armstrong’s reasonably
ambivalent relationship with the rules of cycling
limited his career, albeit whilst not attracting
as much public ire (sleeping in the fish pond,
I mean – joining the public service carries
a lifelong stigma, so if you have made that
mistake, when you meet people at parties you
should claim to do something less offensive to
the general public, such as claiming to be one
of the hunters who shot Bambi’s mother).
In any event, you may have decided that
changing jobs would improve your career, and
they say that a change is as good as a holiday.
They are, of course, wrong – for example,
I changed my socks this morning, and it was
nowhere near as good as the four weeks my wife
and I spent in Canada; it wasn’t even as good
as spending Tuesday morning at Bribie Island.
(Note to any offended residents off Bribie Island:
I did not mean to suggest that there is anything
wrong with Bribie, just that it isn’t exactly Canada
in the same sense that Dubbo isn’t exactly New
York. Note to any offended residents of Dubbo:
you live in Dubbo, deal with it).
The first thing to remember when changing
jobs is that you should have one to go to
before you leave your current one. Employers
always assume that anyone who doesn’t have a
back to contents
job probably left their last job involuntarily
in an unfortunate situation involving theft,
sexual harassment or a police siege, and so
they tend not to employ anyone who doesn’t
already have a job.
This means that employers never employ
any bright young people, but many employers
aren’t exactly the sharpest overall tools in the
shed, plus according to all the leading lunatics
who write op-ed columns in newspapers,
there aren’t any bright young people.
… my grade-point average was
about what you would expect
from a reasonably sharp pet rock
Anyway, the fact that employers are
intellectually unremarkable is actually good
for you, because it allows you to exaggerate
a little on your résumé (and by ‘exaggerate’,
I mean lie like Kevin Rudd denying rumours
of a leadership challenge). Let’s face it, if your
résumé was truly any good, big city law firms
with names like ‘Coca Cola Amatil Global
Legal Strategies & Regime Change’ would
be beating a path to your door and using
celebrities to try to convince you to work for
them (“Hi, I’m Barry Williams who played Greg
Brady on TV; let me take just a few minutes
to explain why you should come to work for
Fleecem Family Lawyers...”).
Of course, exaggeration in this regard is a
subtle art – you need to claim to have done
plausible but hard-to-verify things that are
still impressive. For example, you should avoid
saying things like ‘Crewed Apollo 13 mission
to the moon, but not the guy played by Tom
Hanks in the movie, I’m one of the other ones’,
because this is too easily checked.
On the other hand, it would be easy right now
to claim to have played Test cricket for England
in the recent Ashes series because nobody
remembers any of the English players, and if
you had to provide proof all you would need
to do is pick up a cricket bat by the wrong end
and get bowled out for a duck; the only danger
would be if you accidentally hit the ball.
by Shane Budden
Once you have suitably updated your résumé,
you need to decide on a firm. In my day,
things were pretty simple: you got the address
of every law firm you could possibly find, sent
résumés out to all of them and sat back and
waited for the rejection letters.
At one stage – this is the truth here – I believe
I had around 200 rejection letters, but this
needs to be put in context – for a start, this
was when Paul Keating was PM, and he had
decided that the only good small business
was a dead small business, meaning that there
weren’t many jobs around; also, my grade-point
average was about what you would expect
from a reasonably sharp pet rock. In view of
my academic results, many employers may
have decided there was no point granting me
an interview because I would be unable to
locate the office to attend it anyway.
That shouldn’t bother today’s graduates,
who have the benefit of internet research,
take home exams and lecturers who – in view
of the fact that they have paying customers
expecting results, rather than students –
actually make ‘choo-choo’ noises as they
spoon-feed their young charges. I am sure
that enterprising law schools from the US
are probably offering ‘partner’ packages to
rich students, which come with a guaranteed
number of high distinctions and probably
allow a butler to take the exam anyway.
So you will need to select a law firm which
best suits your strengths, and in my view the
best bet is to aim for law firms so large that
nobody will actually notice that you are there
(for the record, this strategy also works well
in government employment).
Thankfully this will be easy to do, because
there has been a change in the way law firms
operate. In the old days, law firms were small
businesses with a handful of people working
very hard to ensure that, at the end of the day,
the partners went broke; modern law firms
tend to operate more like black holes, sucking
up other firms, businesses and clients to
ensure that, at the end of the day, the partners
own everything in the world.
In the future there will only be two firms
in the entire world, locked in a battle for
global supremacy, but one thing will remain
constant: England still won’t have the Ashes.
© Shane Budden 2014.
Shane Budden is manager of legal services for the
Queensland Building Services Authority.
February 2014 | Proctor
75
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For up-to-date information and more historical rates see the QLS website >> qls.com.au
under ‘For the Profession’ and ‘Resources for Practitioners’
Interest rates
Rate
Effective
Rate %
Standard default contract rate
from Oct 1, 2013
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Family Court – Interest on money ordered to be paid other
than maintenance of a periodic sum for half year
to Jun 30, 2014
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Federal Court – Interest on judgment debt for half year
to Jun 30, 2014
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Supreme, District and Magistrates Courts –
Interest on default judgments before a registrar
to Jun 30, 2014
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Mar 2013
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June 2013
Jul 2013
Aug 2013
Sep 2013
Oct 2013
Nov 2013
Dec 2013
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10.45
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Practising resources > Interest rates for any changes in rates since publication. See the Reserve Bank website – rba.gov.au – for historical rates.
QLS senior counsellors
Redcliffe 4020
James Byrne
07 3221 5722
Bundaberg 4670
Anthony Ryan
07 4132 8900
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Bill Potts
76
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Gladstone 4680
Gary Hutchinson
Proctor | February 2014
Downs & South-West Law Association
Mr Darren Lewis
Legal Aid Queensland
DLA address: PO Box 924 Toowoomba 4350
p 07 4615 3654
dlewis@legalaid.qld.gov.au
Far North Queensland Law Association
Mr Julian Brown
MacDonnells Law, PO Box 5046 Cairns 4870
p 07 4030 0600 f 07 4030 0699
jbrown@macdonnells.com.au
Fraser Coast Law Association
Mr Murray Nielsen
Lewis & McNamara, PO Box 563 Hervey Bay 4655
p 07 4128 1177 f 07 4124 1710
murray@lmlaw.com.au
Mr Rohan Tate
rohant@hallpayne.com.au
Ipswich & District Law Association
Mr Richard Zande
Richard Zande & Associates, PO Box 42 Ipswich 4305
p 07 3281 1633 f 07 3202 1659
office@richardzande.com.au
Mackay District Law Association
Ms Jane Deguara
Kelly Legal, PO Box 1035 Mackay 4740
p 07 4911 0500 f 07 4911 0599
jane.deguara@kellylegal.com.au
Moreton Bay Law Association
Mr Daniel Hutchinson
Cooke & Hutchinson, PO Box 130 Redcliffe 4020
p 07 3284 9433 f 07 3883 1314
daniel.hutchinson@cookehutchinson.com.au
Senior counsellors are available to provide confidental advice to Queensland Law Society members
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and are available to give career advice to junior practitioners.
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Central Queensland Law Association
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Rees R & Sydney Jones Solicitors, PO Box 83 Rockhampton 4700
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Gympie Law Association
Ms Yvette Palmer
Connolly Dore Lawyers, PO Box 1610 Gympie 4570
p 07 5481 2111 f 07 5481 2211
ymp@cdlaw.com.au
Feb 2012
Bill Loughnan
Bundaberg Law Association
Mr Chris Parker
Charlton Lawyers, PO Box 518 Bundaberg 4670
p 07 4152 4555 f 07 4152 1589 chparker@charltonlawyers.com.au
Gold Coast Law Association
Mr Cameron Browne
Potts Lawyers, PO Box 2552 Southport QLD 4215
p 07 5532 3133 f 07 5591 4066
cbrowne@pottslawyers.com.au
Dec 2012
Maroochydore 4558
District Law Associations (DLAs) are essential to regional
development of the legal profession. Please contact your
relevant DLA President with any queries you have or for
information on local activities and how you can help raise
the profile of the profession and build your business.
Gladstone Law Association
Hall Payne Lawyers,
p 07 4972 7857 f 07 3017 2499
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Kurt Fowler
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Anne English
07 4051 5388
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Jim Reaston
07 4031 7133
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Garth Smith
07 4051 5611
North Brisbane Lawyers’ Association
Michael Coe, PO Box 3255 Stafford DC 4053
p 07 3857 8682 f 07 3857 7076
Mr Michael Coe
mcoe@tpg.com.au
North Queensland Law Association
Mr Thomas Cameron
Williams Graham Carman, PO Box 947 Cairns 4870
p 07 4046 1111 f 07 4031 3146
tcameron@wgc.com.au
North West Law Association
Mr Mark Boreham
Legal Aid Queensland - Mount Isa office
PO Box 1692 Mount Isa 4825
p 07 4747 2390 f 07 4747 2394
mboreham@legalaid.qld.gov.au
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Mr Mark Werner
Woods Murdoch Solicitors, PO Box 980, Kingaroy, 4610
p 07 4162 1144 f 07 4162 4779
law@woodsmurdoch.com.au
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Mr John Watson
Maurice Blackburn Lawyers,
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Mr Bryan Mitchell
Mitchells Solicitors & Business Advisors,
PO Box 95, Moorooka 4105
p 07 3373 3633 f 07 3426 5151
bmitchell@mitchellsol.com.au
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Mr Michael Brennan
Offermans Partners, PO Box 2424 Townsville 4800
p 07 4724 0000 f 07 4724 0060
mbrennan@offermans.com.au
back to contents
Congratulations
to the Accredited
Specialists of 2013
Queensland Law Society congratulates and acknowledges
the outstanding achievement of the following practitioners
who successfully completed the Specialist Accreditation
assessment program in 2013.
Family law
Affirm your
expertise and apply
for Specialist
Accreditation in 2014
Criminal law
Business law
Commercial litigation
Workplace relations
Immigration law
Applications close 11 April
>> qls.com.au/specaccred
Lynn Armstrong, Dean Kath Kohler Solicitors, Toowoomba
Amy Campbell, Michael Lynch Family Lawyers, Brisbane
Evette Clark, Quinn & Scattini Lawyers, Brisbane
Tamara de Kretser
Alice Drummond, Cassandra Pullos Lawyers, Southport
Ian Field, Aylward Game Solicitors, Brisbane
Rebecca Harding
Jerome Hey, Wiltshire Lawyers, Gold Coast
Damira Hidic, Charles Cooper Lawyers, Southport
Amy Honan, Michael Lynch Family Lawyers, Brisbane
Cathy Krieg, McKays Solicitors, Mackay
Andrew McCormack, Best Wilson Family Law, Toowoomba
Clare McCormack, Michael Lynch Family Lawyers, Brisbane
Elizabeth Millar, Michael Lynch Family Lawyers, Brisbane
Amy Sanders-Robbins, Hillhouse Burrough McKeown, Brisbane
Samantha Sticklan, McKays Solicitors, Mackay
James Steel, Barry.Nilsson. Lawyers, Brisbane – Highest Achiever
Scott Wedgwood, Barry.Nilsson. Lawyers, Brisbane
Succession law
Robert Cumming, McInnes Wilson Lawyers, Brisbane
Naomi de Costa, Miller Harris Lawyers, Cairns
Karen Gaston, de Groots Wills and Estates Lawyers, Brisbane – Joint Highest Achiever
Anne Janssen, Estate First Lawyers, Brisbane
Bryan Mitchell, Mitchell Solicitors & Business Advisors, Moorooka – Joint Highest Achiever
Jarrad Mobbs, National Australia Trustees Limited, Brisbane
Property law
Leone Costigan, Herbert Smith Freehills, Brisbane
Aaron Webb, Thynne & Macartney, Brisbane – Highest Achiever
Personal injuries
Alison Barrett, Maurice Blackburn Lawyers, Southport – Highest Achiever
Shane Crew, Schultz Toomey O’Brien Lawyers, North Lakes
Gregory Lauritsen-Damm, Smiths Lawyers, Varsity Lakes
Kara Thomson, Maurice Blackburn Lawyers, Aitkenvale
Sarah Vallance, Maurice Blackburn Lawyers, Brisbane
Tina Veivers, McCowans Solicitors, Surfers Paradise
Sugath Wijedoru, Maurice Blackburn Lawyers, Brisbane
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