Wellbeing & Resilience: Balancing work with other disputes

Law Society Gold Alliance Firm Program

Strength in Numbers

One in two law firms in South Australia are registered as a Gold Alliance firm. Of the 50% of firms that are not Gold Alliance firms, 59% are eligible to register!

A Gold Alliance firm is a firm which partners with the Society and shows a commitment to the profession and their employees by maintaining 100% membership.

The Society is the proud voice of the South Australian legal profession and symbolises the highest standard of professionalism, integrity and excellence. To indicate you are a Member of the Society highlights that you are part of an organisation which promotes and adheres to strict professional and ethical requirements, and which provides resources to Members so that such standards are maintained.

As our membership continues to grow, so does our ability to more strongly represent you and the legal profession before government, media and the community.

And, it’s not just the profession as a whole that benefits. When all of your staff are Members of the Society, you and your clients gain access to the latest information on issues and developments in the law, a network of talent and resources, as well as a gateway to education, support services, publications, savings and productivity.

Benefits include:

• The Gold Alliance Firm logo may be placed on your website and email footers • The Gold Alliance Firm logo may be published on stationery such as letterhead and business cards • Access to subscription discounts for the Standard Form Documents • Your firm will be listed on the Law

Society website and in the Bulletin once each year.

This is a unique marketing opportunity for firms, both small and large, to promote to the community and your clients that all practitioners within your firm are Members of their professional association.

To enquire if your firm is eligible to become a Gold Alliance Firm, please contact the Society on (08) 8229 0200 or email reception@lawsocietysa.asn.au.

The Gold Alliance Firm program is an effective way to practice Strength in Numbers and to demonstrate your commitment to the profession and your employees.

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A Sporting Chance: Balancing work with other pursuits

GEORGINA PORTUS, NORTHERN COMMUNITY LEGAL SERVICE INC

Gruelling hours, challenging work and high-performance expectations are the common characteristics of many legal careers. I spoke to three highly committed and exceptionally accomplished individuals who manage these demands with the additional gruelling hours, challenging work, and high-performance expectations of high-level sports.

THE ATHLETES

Mollie McKendrick was recruited to play basketball at Boston University when she was 18 years old. Following a successful college basketball career, Mollie returned to Australia and is now an Australian Government Solicitor. She has played basketball at competitive levels throughout her law degree and legal career.

Jamie Botten boasts a successful 36year legal career and is the principal of Botten Levinson Lawyers. His sporting achievements became concentrated in 1976, at the beginning of his legal career, when he was the national 800-metre champion. Jamie continued to represent Australia internationally for years.

Brittany Law is a Level 10 Rhythmic Gymnast, training 15 hours a week and has represented South Australia at the past 16 consecutive Australian Championships. Brittany has been admitted since 2017, currently works at the Legal Service Commission and recently ranked 4th in Level 10 in the National Championships.

THE BENEFITS AND DEMANDS OF SPORTS

It is common knowledge that sports, and exercise generally come with a myriad of health and wellbeing benefi ts. Mollie also found that it allowed her to have a space outside of work.

“It gives me a focus away from work and a commitment to having some ‘time out’. Playing on a team gives you a support network of people away from your career or work. I don’t play basketball with any colleagues, or to be frank, any other lawyers, and I like that. It’s a new set of people all with different careers, interests and personalities. You can show up to a practice or a game and not think about work or what tasks you need to get to. It’s a break from your career where you can just work with your team to achieve a common goal.”

Jamie learnt early on in his career that fl exibility was vital in managing demands and juggling the commitment confl icts inherent in being a lawyer/athlete.

“Your work can interfere with your fl exibility, and you have to learn to cope with that. In the depths of winter, you may decide you need a couple of 10-kilometre runs that are best done 5:30 AM, but in winter, you don’t have the fl exibility to adjust and do a midday run.”

Brittany spoke to the same confl icts and the diffi culties of coping both physically and mentally. Noting that management of this requires support and fl exibility from your teams.

“One of the struggles I fi nd is having [interstate] weekend competitions which make me feel like I need another two days to recuperate before heading back to the offi ce. However, I just remind myself (with the assistance of my coach) that I need to lower my performance expectations when that is the case.”

AN ATHLETE’S SKILLS IN THE PROFESSIONAL SETTING

Each athlete had traits, skills, and strengths that they developed through involvement in high-level sports that apply to their professional careers. Resoundingly, there was a need for keen and disciplined time management skills.

Jamie’s experience gives him an in-depth understanding of the rigours and demands of both high-level sports and career. “Something will suffer if you can’t manage, careful to make sure you are managing your time strictly. Learn to be conscious of it. Both career and serious sport demand lots of attention…. if you are going to achieve at a high level in sport, you have to be disciplined in the way you live your life, sleep, eat.”

Brittany notes the value gained from juggling these demanding fi elds throughout law school and into her legal career.

“Throughout school and University, I have always had to juggle study, work and sporting commitments. This left me with little time to procrastinate, and therefore developed my organisation, productivity and time management skills.”

Mollie found the skill of discipline was applicable both on the court and in the courts.

“No short-cuts. You have to put in the work on every single occasion. Whether it was getting a certain amount of shots up, meeting targets for fi tness, or doing 6 AM conditioning outside on the freezing cold track. You had to have the discipline to give it your all and push through the tough times. I think that also drives the work ethic and commitment. You leave ‘everything out there’ type mentality. I pride myself on my work ethic, and I think that’s something I have developed through my sporting opportunities.”

Commitments to various national and international sporting teams have also allowed Mollie to hone her interpersonal skills. She comments on the value of being able to work closely and under pressures with a small team.

“[You] learn to work with and manage different personality types. Sport brings a group of people together from all different backgrounds, and it’s about learning ways

to get the best out of the people around you. You don’t always like all of your teammates, but you have to fi nd ways to have common ground with them... I think learning to work with different people is really important in any career, but especially in law where we are often working with different people across different organisations or lines of work.”

HOW TO TRAIN YOURSELF TO STAY ON TOP OF IT ALL

Whilst we may not all achieve highlevel sporting accolades in our legal careers. Each professional has important commitments and endeavours outside of their careers. When juggling our pursuits, in whatever form they may come, we must employ self-care skills.

Mollie’s experience and perception emphasise the power in fi nding that strength and confi dence from within ourselves.

“Playing away from home and being around such a competitive and high-intensity environment is hard work. You are under so much pressure to perform and feel like the spotlight is always on you. It is about recognising that pressure and working out ways to enjoy it and thrive in that environment. On the fl ip side of that, I think it's about understanding that you are responsible for yourself. So how you handle a high-intensity environment, how you deal with tough times, how you manage competing demands, it all must come from within... It’s about working out ways to be self-motivated and relying on yourself to do the hard work or to get the job done.”

Conversely, Jamie employs his keen time management skills to achieve that crucial balance and prioritise varying interests.

“You have to make sure you have balance in your life, not all grind and discipline. Manage your time so you can have other things in your life as well. You need balance. Make sure you don’t become isolated from friends… keep in touch with friends from all fi elds, go out and have a few drinks, go watch some other sports, read…do not get completely focused on these areas of your life.”

Brittany also spoke to achieving this balance and how she uses her recovery time.

“My best tip for keeping on top of your mental wellbeing is to make sure you have adequate downtime. While sport is great to get your mind off work, it is also important to allow time to relax and do nothing.”

The words of wisdom from each athlete are broadly thematic and focus on time management, discipline, and fl exibility. The message received was that making time for yourself beyond any vast and seemingly consuming commitments is crucial for success and wellbeing. In whatever form we may apply it, we must bring the discipline that we commit to other endeavours to our own wellbeing.

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THE ‘HARMAN’ OBLIGATION AND PRIVATE INTERESTS: CONSIDERING PRACTICAL ISSUES WHEN A LIQUIDATOR ASSIGNS A CLAIM TO A LITIGATION FUNDER

MADELEINE MCCARTHY, ASSOCIATE, LIPMAN KARAS

Section 100-5 of the Insolvency Practice Schedule, which was introduced in 2017, provides that an external administrator of a company may assign his or her right to sue under the Corporations Act 2001 (Cth). The recent Federal Court decision of Stewart J in Re LCM Operations Pty Ltd, 316 Group Pty Ltd (In Liq) [2021] FCA 324 considered a number of practical issues that may arise where a right to sue has been assigned, including how the Harman obligation applies to an assignee and whether it would be an abuse of process for an assignee to obtain information by way of compulsory court processes usually relied on by external administrators.

Pursuant to section 477(2B) of the Corporations Act, the creditors of 316 Group Pty Ltd authorised the company’s liquidator to enter into an assignment deed with litigation funder LCM Operations Pty Ltd. Under the assignment deed, the liquidator sold 316 Group’s claim against another company, Rabah Enterprises Pty Ltd, to LCM for the sum of $10,000 plus 15% of the net proceeds.

In order to investigate the quantum and prospects of the claim, LCM sought orders from the Federal Court to conduct public examinations and to obtain documents. On the basis of the information obtained, LCM commenced proceedings in the Supreme Court of New South Wales against Rabah for $14.8 million. LCM sought to rely on the documents produced pursuant to the examinations and summonses.

Rabah objected, and the Supreme Court proceedings were put on hold while the Federal Court determined whether LCM was prevented from relying on the documents due to the operation of the Harman obligation. The Federal Court was also asked whether the examinations and summonses obtained by LCM were an abuse of process because they were in pursuit of LCM’s private interests, rather than the interests of 316 Group and its creditors.

OPERATION OF THE HARMAN OBLIGATION

It was not in dispute that the documents were produced under the compulsory processes of the Court or that the Harman obligation not to use the documents for a purpose other than which they were given applied. The real question was whether LCM required leave to use the documents in the Supreme Court proceeding against Rabah, and if so, whether leave should be granted.

The Federal Court held that it was necessary, in applying the Harman obligation, to consider the purpose for which the documents were produced and the purpose for which they were intended to be used in the Supreme Court proceeding. Here, the use of such documents “to get in and realise the assets of the company in liquidation” was not a collateral or ulterior purpose. There would have been little utility in authorising LCM to conduct public examinations if they were not entitled to have regard to the information or documents produced in resulting claims.

As the predominant purpose of the examinations and orders for production of documents was to investigate the claim against Rabah, the Federal Court held that no leave was required for LCM to rely on such documents in pursuing that very claim in the Supreme Court proceeding.

PURSUIT OF LCM’S PRIVATE INTERESTS

Rabah submitted that it was an abuse of process for LCM to obtain documents by way of examinations and summonses on the basis that LCM pursued such orders for private purposes, rather than for the benefi t of 316 Group and its creditors. The Federal Court rejected this submission for a number of reasons: • The liquidator and creditors retained a 15% interest in the claim pursuant to the assignment deed, which was worth approximately $2.2 million. While the initial sum of $10,000 was insignifi cant, the 15% share was a substantial interest. • The liquidator was not in a position to fund the examinations himself. The assignment to LCM was therefore a means of pursuing the interests of creditors, who authorised the assignment. • It is not an abuse of process if the party seeking the summonses is doing so for a number of purposes, one which benefi ts the party and one which benefi ts the company and its creditors.

The Federal Court therefore held that the documents were not obtained for a strictly private purpose. Rather, there was a mixed purpose, being “in part satisfaction of LCM’s own interests and in part the interests of the company and its creditors”.

OBSERVATIONS

This decision demonstrates that where an assignee under section 100-5 has obtained information or documents by way of compulsory court processes for the purpose of investigating the assigned claims, they do not require leave of the court to rely on such information or documents when pursuing those claims in subsequent proceedings.

If an assignee utilises compulsory court processes to obtain information or documents for a strictly private purpose, it is clear that this will amount to an abuse of process. However, it is not an abuse of process if an assignee is doing so for a number of purposes, one which benefi ts the assignee and one which benefi ts the creditors of the company under external administration.

The Federal Court’s reasoning raises the question as to the extent to which an assignment must benefi t the company under external administration and its creditors. It leaves open the question whether the Federal Court would have reached a different conclusion had 316 Group and its creditors only received the initial sum or a less signifi cant share of the proceeds.

KEY POINTS

• An assignee under section 100-5 does not require leave to rely on information and documents obtained through compulsory court processes in pursuing those claims in subsequent proceedings. • It is not an abuse of process if an assignee utilises compulsory court processes to obtain information and documents for various purposes, so long as there is a benefi t to the company under external administration and its creditors. • It is possible that the Federal Court would have reached a different conclusion had the company under external administration and its creditors only received an initial sum or a less signifi cant share of the proceeds. B June 2021 THE BULLETIN 27