Lawyers Weekly April 29, 2011

LEGAL LEADERS

CAREER COUNSEL

CARTER’S CONTRACTS

UNBILLABLE HOURS

Thirty years on and still loving contract law

One lawyer’s ride with Tony Abbott

INDEPTH

RISING FEES

ETHICS REPORT

LIVING THE GOOD LIFE

Law students Danny Gilbert fight the on ethical call to leadership pay more

www.lawyersweekly.com.au

Friday 29 April 2011

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LISTEN UP! In-house lawyers give relationship advice to private practice

Plus How clients prefer to pay the bills

Private Practice

Private Practice

Private Practice

Brisbane | Corporate Finance

Sydney / Banking and Finance

Melbourne | Banking and Finance

One of Australia’s premier law firms has an exciting opportunity open for a talented Senior Associate to join their Energy, Resources & Projects practice.

Previous experience working for the mining, oil & gas or electricity industries and knowledge of the legislation, standards and policies is essential. High quality work on offer with exposure to a range of practice areas within the project finance area, including tax, property, purchase and sale of assets and shares; JV and shareholder agreements. BRI/4080/GG

This highly regarded top-tier law firm is seeking a talented banking and finance lawyer. The Banking & Finance practice is known as one of the most preeminent practices in the Australian market; acting for domestic and international banks, and a diverse range of major financial institutions. They are seeking a lawyer with a minimum of two years experience to work on a range of banking & finance areas including acquisition/leveraged finance, project/infrastructure finance, and corporate financing. Strong academics and a commercial approach are essential. SYD 4054 RL

This top tier firm has a new opportunity for an Associate to join their highly regarded banking and finance team.

You will work on a range of complex cross boarder corporate finance, property finance and project finance matters for big four banks and major financial institutions. This team are hard working and sociable and the partners are down to earth and known for their dedication to mentorship. Great opportunity to work with a firm known for it’s culture of reward and recognition. Ref: MEL/4066/RL

Senior Associate

Private Practice

2 – 4years

2 – 4years

Sydney | Commercial Property

Sydney | Energy / M&A

Perth | Employment

This premier group acts for multi-national corporates, major investment banks and others in the acquisition and financing of infrastructure and property projects.

A rare opportunity exists for a talented SA with project management ability to join this respected firm.

Applicants from top tier and highly regarded mid tier law firms are encouraged to apply. SYD/4202/RL

We currently represent a client searching for a lawyer with a background in mergers and acquisitions gained from a top or highly regarded mid tier firm to join its Energy & Resources team. A background in energy & resources in not necessary but candidates should have an interest in gaining practical experience in this sector. This is a unique opportunity to broaden the scope of your experience to include advising on a mix of corporate work involving energy, resources and infrastructure. Ref: SYD/4181/RL

Opportunity for an experienced senior employment lawyer to join this top tier team in Perth focusing on the full spectrum of IR, employment, discrimination and OH&S matters. You will be acting for the some the world’s largest multinationals and blue chip clients across a range of industry sectors from transport and logistics, finance, telco and resources through to retail and local, state and federal government bodies.

Excellent salary and career prospects.

Ref: PER/4206/RL

Senior Associate

Sydney | TMT 1 – 4 years

Prestigious firm’s telecom & technology practice continues to expand creating new opportunities for aspiring technology lawyers. This position will develop your expertise in all aspects of technology related transactions including drafting terms and conditions for complex software and services products, outsourcing and distribution agreements, offshoring and information management compliance and data protection matters. Solid academics required. Multiple roles. Ref: SYD/4182/RL

2 years +

Sydney | Finance 3 – 5 years

This dynamic national firm has an opening for a talented and experienced commercial/Banking & Finance lawyer. You will have a solid background working on a range of finance matters including credit law, asset finance, and consumer and equipment finance matters. You will be involved in high quality work with genuine career progression opportunities available for those talented and ambitious lawyers. Great culture and collegiate work environment. Ref: SYD/4042/GG

Sydney | Employment

Sydney | Corporate / M&A

Excellent opportunity for a senior associate to join this international firm and take a lead role on first rate matters. You will work on a diverse range of contentious and non-contentious matters including industrial/ employment disputes, drafting a variety of employment agreements, and advising on equal opportunity and OH&S matters for blue chip clients. High level client exposure and autonomy on matters together with a clear pathway for progression. Ref: SYD/4022/RL

This well respected large mid-tier firm has an opening for a savvy corporate lawyer with at least 4 years of post admission experience from a premier law firm. You will have a solid background in a range of corporate work with an emphasis on mergers and acquisitions.

Your strong drafting and technical skills must be of the highest standard. If you are looking for a challenging role working with a Blue chip client base and supportive, friendly team environment then this could be the opportunity for you. Ref: SYD/3794/GG

Senior Associate

In-house

Sydney | Funds 3 years + Major player in the financial services sector have a new role for a dynamic funds management lawyer from a major firm or respected in-house team. High level experience required in advising on complex wholesale & retail Funds & Investment products (Australian & International) and related legislation including Corps Act (Ch 7). Ref: SYD/4205/DS

International

4 years +

Perth | Property 2 – 3 years

Our client’s Commercial Property team has a leading practice with a strong reputation for it’s first rate services. Working with some of the firm’s most key property clients an opportunity exists for a 2-3 year PQE lawyer to join this highly regarded top tier team. Great exposure and hands on mentorship from Partners and senior lawyers together with real opportunities for career advancement. Work on a wide range of matters including leasing, property development, sales & acquisitions, and complex commercial matters.

Ref: PER/4164/RL

Melbourne | Construction SC or Senior Associate

Opportunity for a senior lawyer to join this first rate construction team and be part of an award winning practice. You will enjoy a mixed role including gaining exposure to front end work on major projects, including PPPs, and back end disputes including some International Arbitrations. Genuine path for progression available for the right candidate. Ref: MEL/4204/RL

Sydney | IT

Sydney | Wealth Management

This major technology group is currently seeking a dynamic and commercially focused lawyer with strong IT Law experience. High-level work will involve drafting & negotiation of complex agreements relating to outsourcing (IT and BPO), systems integration and consulting transactions as well as provision of strategic legal advice to senior management. Major law firm and/or blue-chip technology company background required. Ref: SYD/4183/DS

New role for a commercially focussed lawyer with financial services experience to support the private wealth division of this major financial institution. You will play a key role advising senior management on legal issues relating to their broad range of products and services (including Super, Managed Investments and Life). Major firm background as well as in-house experience preferred. Great prospects and an enjoyable culture on offer! Ref: SYD/4179/DS

5 years +

London | Derivatives

Singapore | M & A / PE

The lawyers in the capital markets group of this international firm specialise in structured finance, debt and equity offerings and derivatives. Growth has created a role for an experienced derivatives lawyer to join the team. The ideal candidate will have experience gained from a top or mid tier law firm or an investment bank. Sponsorship, career progression and competitive remuneration is on offer. Ref: LON/4192/RL

Junior partner or senior associate who has partnership aspirations and M&A and Private Equity experience is needed by an international law firm to advise investment banks and blue chip corporates in Asia on complex cross border acquisitions, disposals and joint ventures . Strong technical skills are essential to manage intellectually challenging deals. Ability to travel is also necessary. Ref: SIN/4167/RL

3 years +

Senior Associate

Junior Partner

For a full list of active roles that Dolman is working on throughout Australia and worldwide visit www.dolman.com.au For further information please contact one of our consultants for a confidential discussion: Daniel Stirling, Gail Greener and Ralph Laughton.

Call (02) 9231 3022 or email: dolman@dolman.com.au

4 years +

London | Energy & Resources 5 – 8 years Highly regarded international firm requires a projects lawyer with a background in construction contracts to take a leadership role advising sponsors of large scale energy, mining and infrastructure development projects.

Must be capable of leading negotiations and project managing transactions. Ref: LON/4194.RL

Contents

“Wealthy people have responsibilities not only to assist in raising living standards and opportunities for everyone, but to contribute to the wellbeing of our communities and to civil society more generally” Danny Gilbert on living an ethical life.

Regulars

6 10 12 14 21 22

THIS WEEK: A round-up of the latest legal news IN-DEPTH: Australia’s top universities have proposed that law students pay higher fees to alleviate funding gaps in tertiary education – and they’re not happy about it. Claire Chaffey reports ETHICS REPORT: It’s in the workplace that our commitment to ethics is truly tested. Be guided by your moral compass, advises Danny Gilbert.

LEGAL LEADERS: For three decades, Professor John Carter has maintained a tenacious passion for contract law. He tells Angela Priestley why he believes everyone should have a soft spot for the subject CAREER COUNSEL: Achieving a balance between work and other life passions is all about efficiency, says triathlete, iron man and lawyer Paul McQueen.

Briana Everett reports FOLKLAW: The lighter side of the law

16 14

COVER STORY: With the number of in-house lawyers on the rise, are firms finally ready to fulfil their professional wishes? Justin Whealing investigates

L AW Y E R S W E E K LY 2 9 A P R I L 2 0 11

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Editor’sNote Guess what? Solid relationships are critical for the success of any law firm.

But you probably didn’t need the Macquarie Relationship Banking’s 2011 Legal Best Practice Benchmarking Survey to tell you that. Still, a number of in-house lawyers have felt the need to emphasise in Lawyers Weekly just how much relationships matter.

As the Macquarie survey of 100 legal practices Australia-wide revealed, healthy client relationships are what will ultimately build a practice: 66 per cent of new business enquiries come via word-of-mouth referrals or existing client repeat work (see story on page 6).

We know relationships matter, but how can we best position ourselves to enhance them?

Firstly, we have to consider the fact that the “black letter law” lawyer is fast going out of fashion as the ideal for clients. In their place is the lawyer with the “X factor” – a development Lion Nathan general counsel Richard Amos relayed to deputy editor Justin Whealing in this week’s cover story, which sought to uncover what in-house lawyers really want from private practice relationships (see page 16).

According to Amos, the X factor is the ability to “deliver outcomes, which usually involves taking sensible risk, and that holds true whether it is in the context of litigation or big M&A deals”. In other words, those lawyers who can identify the risks, while also offering assistance in the decision-making process, will trump all others in the competition for client work.

One who possesses such talents could also be labelled the “trusted adviser” – a throwback to the days when personalised counsel was sought from local lawyers. These days, personalised legal service has become more difficult with cross-border deals.

Nonetheless, being a trusted adviser should be the ultimate goal for any ambitious lawyer, regardless of the area of law they practise in. As the author of The Trusted Advisor, American Charles H. Green, recently told me, it’s an ambition that takes some considerable practice, expertise and attention to selfbehaviour (such as not overselling one’s own credentials).

Back to that Macquarie report... It seems law firms have something to smile about. Last year, 70 per cent of law firms grew their profits despite the fact clients have been more focused on reducing expenses following the GFC. Could it be that the call for stronger client relationships is finally being heard, and that clients are responding?

Editor, Angela Priestley

ON THE WEB

TOP 10 STORIES ONLINE THIS WEEK

NEXT WEEK

Renewable energy was back on the agenda for Allens Arthur Robinson this week, having acted on the joint venture involving two of China’s largest state-owned renewable energy businesses. Allens also handled a major tech services deal for Vodafone Australia, while Clayton Utz and Minter Ellison acted on a Pacific Brands deal. For more details and to keep up-to-date with all the latest deals, visit www.lawyersweekly.com.au.

1 Bold moves: the boutique law firms taking on big law 2 Lawyer takes Twitter tumble 3 Top unis want law students to pay more 4 M&A bounces back, but will it last?

5 Short skirts and high heels earn grads a warning 6 My Next Move: is working in-house actually all it’s cracked up to be?

7 MasterChef winner puts law on hold 8 Australian judge on PNG bench arrested 9 G+T partner jumps ship to Blakes 10 New head for Trilby Misso

Next week, Lawyers Weekly speaks with leading lawyer and Human Rights Commissioner Catherine Branson QC about the impact of gender on her career, the heroes who have shaped her personal and professional development, and her hopes for the future of human rights in Australia.

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L AW Y E R S W E E K LY 2 9 A P R I L 2 0 11

EDITORIAL BOARD Lawyers Weekly is delighted to have the following industry leaders on its editorial board Andrew Grech Managing director, Slater & Gordon

Nick Abrahams Partner and Sydney chairman, Norton Rose

Will Irving Group general counsel, Telstra Corporation

Helen McKenzie Deputy managing partner, Blake Dawson

Sharon Cook Managing partner, Henry Davis York

Joe Catanzariti Partner, Clayton Utz

David Cowling Partner, Clayton Utz

Robert Milliner Chief executive partner, Mallesons Stephen Jaques

Ewen Crouch Chairman of partners, Allens Arthur Robinson

Megan Pitt Director, Australian Government Solicitor

Sue Gilchrist Partner and practice leader (intellectual property group), Freehills

Lucinda Smith Partner, Thomson Lawyers

ABOUT US Editor: Angela Priestley Deputy Editor: Justin Whealing Contributors: Claire Chaffey, Briana Everett, Sarah O’Carroll, Ben Nice Design Manager: Anthony Vandenberg Production Editor: Vanessa Fazzino Group Production Manager: Kirsten Wissel Group Sales Manager Adrian Fellowes SUBSCRIBE TODAY Lawyers Weekly is published weekly and is available by subscription. Please email subscriptions@lawyersweekly.com.au All subscription payments should be sent to: Locked Bag 2333, Chatswood D/C, Chatswood NSW 2067 ADVERTISING ENQUIRIES: Adrian Fellowes adrian.fellowes@lexisnexis.com.au (02) 9422 2134 (mob) 0407 489 060 Vic, SA, WA: Stephen Richards (02) 9422 2891 EDITORIAL ENQUIRIES: Angela Priestley angela.priestley@lexisnexis.com.au (02) 9422 2875 All mail for the editorial department should be sent to: Lawyers Weekly, Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067

CAB MEMBER SINCE SEPTEMBER 2000 Copyright is reserved throughout. No part of this publication may be reproduced without the express written permission of the publisher.

Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Officer, LexisNexis Australia or email privacy@lexisnexis.com.au. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

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thisweek

The Web

Tax convictions decrease by almost half Tax convictions fell from nearly 500 in the first three months of 2010 to 276 for Q1 2011. According to figures released by the Australian Tax Office, the vast majority of these offences (234) were committed by individuals, while 42 companies were convicted of tax offences.

During this period, 13 people received custodial sentences, including two resulting from Project Wickenby investigations.

New solicitorgeneral for Vic Bar Barrister Stephen McLeish SC has been appointed Victoria’s new Solicitor-General, replacing Pamela Tate SC, who is now a Court of Appeal judge of the Supreme Court of Victoria.

Formerly an associate to Chief Justice Mason of the High Court and a solicitor for Arthur Robinson & Hedderwicks, McLeish has published works in the areas of public and corporate law and has served on numerous Victorian Bar committees, including the Human Rights Committee. australia finds Brockovich-style crusader Brisbane’s Carolyn Cipp has been crowned Australia’s “Erin Brockovich” after beating four other finalists to take out the Environmental Justice Society’s Environmental Crusader Competition. Her winning film entry, The Future of the Channel Country, highlighted her concerns about the threat of water contamination in and around her family’s grazing property in Eromanga in south-west Queensland. As the competition winner, Cipp will fly to LA later this year to meet the real Erin Brockovich.

Junior counsel to be mentored A new program aimed at bettering the conduct of criminal trials in Victoria has been launched by Victoria Legal Aid. The Talented Junior Counsel Program will enable selected junior counsel to work alongside senior trial advocates.

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l aw y e r s w e e k ly 2 9 a p r i l 2 0 11

Firms seek new horizons CLOSE TO half of all legal practices are considering expanding into new areas of law, according to a new report, while more than one-third believe the outlook for the next 12 months is gloomy.

Macquarie Relationship Banking’s 2011 Legal Best Practice Benchmarking Survey found that 45 per cent of law firms are considering diversification of legal practice, with employment law topping the list of possible avenues.

Terry Lyons, head of legal segment at Macquarie Relationship Banking, said it was encouraging to see firms were not remaining static.

“Firms are looking at other avenues of revenue and the focus on employment law seems to suggest that they recognise its economic resilience, with constant legislative change bolstering this practice area through the economic uncertainty of the past few years,” said Lyons.

The survey, which included more than 100 legal practices around Australia, also found that 37 per cent of firms believe the outlook for this year is worse than last financial year.

“Cautious optimism certainly seems to be the name of the game for legal firms this year. While caution can be a good trait, firms should remember that 70 per cent grew their profit in the past year,” he said.

“Given that legal clients have been less active post-GFC and more focused on reducing expenses, this is a great result and something that the industry should be proud of.”

The report also identified an apparent gap between the service qualities firms believe are

important to their clients and their own service strengths.

Firms ranked reliability as the primary service quality of law firms demanded by clients, but are considering less than half felt it was one diversification of of their strengths. legal practice Firms also rated speed (47 per cent) and being proactive (45 per cent) as being important to clients, yet only 25 per cent felt they were good at being proactive.

Lyons said these discrepancies offered innovative firms an opportunity to move ahead: “Solid client relationships are critical for legal practices, particularly as our survey revealed that 66 per cent of new business enquiries come through existing client repeat business or word-of-mouth referrals.”

“Practices looking to differentiate themselves should survey their clients to determine what is really important to them, and make sure that staff prioritise these qualities through all their dealings with clients,” he said.

The report also revealed that 67 per cent of firms are hoping to strengthen their team through recruitment in the next 12 months, with a focus on solicitors (67 per cent) and graduates (34 per cent). Only 23 per cent of firms reported being happy with their current team structure.

Improving team culture was identified as most likely to have a positive impact on a firm over the next 12 months.

45%

R E W IND The NSW Government announced it would consider establishing a fund that mirrors the Queensland Investment Corporation in order to renew the way it handles assets and liabilities.

The Business Council of Australia accepted the base objective of the Federal Government’s proposed price on carbon, though warned against outcomes that may harm exporters.

Opposition leader Tony Abbott said he would pledge $290 million for mental health projects while encouraging the states to contribute an additional $150 million to that sum.

Almost one-quarter of homes inspected following the Labor Government’s disastrous insulation program were found to be hazardous and non-compliant with building standards.

Mining giant BHP Billiton shocked industry analysts by revealing that Queensland’s summer drenching is likely to impede the company’s coal production for the remainder of the year.

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thisweek

Allens helps create energy giant Deal name: Establishment of AusChina Energy Group Key players: Allens Arthur Robinson

ALLENS ARTHUR Robinson has acted on the establishment of AusChina Energy Group, a renewable energy joint venture between two of China’s largest stateowned renewable energy businesses – China Datang Renewable Power Co and Tianwei Baobian Electric Co – and the Australian company CBD Energy Ltd. Datang has a 63.75 per cent stake in AusChina Energy Group, while Tianwei and CBD have 12.5 and 23.75 per cent respectively.

The AusChina Energy Group, which is a stapled investment joint venture group, is reported as having a development target of approximately $6 billion worth of renewable energy projects over eight years, which would represent one-third of Australia’s wind energy market.

Datang and Tianwei are both subsidiaries of ultimate parent companies ranked in the Fortune Global 500. Datang, which is listed on the Hong Kong Stock Exchange, focuses on the development, construction and operation of wind-power projects including the world’s largest wind farm, Mongolia’s Saihanba, which has a capacity of 1000 megawatts.

Tianwei, which is listed on the Shanghai Stock Exchange, is the main operating company of the Baoding Tianwei Group, the largest electrical supplier in China. It is also a producer of wind turbines and has been involved in the development of solar-grade

silicon, solar PV, solar thin film and solar thermal equipment.

CBD is an ASX-listed Australian renewable energy company. Under the agreement, CBD, Datang and Tianwei have each agreed to develop any Australian wind energy opportunities through AusChina Energy Group.

As Datang and Tianwei consider further global expansion, it is possible that AusChina Energy Group may be a vehicle for undertaking overseas projects.

Allens Sydney partner Jeremy Low led a team of lawyers from the firm’s Sydney, Beijing, Shanghai and Hong Kong offices.

“This joint venture represents not only an investment in renewable energy as part of the solution to climate change, but also the further development of closer economic ties between Australia and China,” said Low.

Clutz and Minters act on Pac Brands deal Deal name: Sleepyhead on acquisition of brands from Pacific Brands Key players: Clayton Utz, Minter Ellison

CLAYTON UTZ has advised privately owned mattress manufacturer Sleepyhead on its acquisition of two signature brands from Pacific Brands, advised by Minter Ellison.

The deal, which completed on 31 March, saw Sleepyhead acquire Pacific Brands’ Dunlop Foams and Sleepmaker businesses for about $55 million. The deal also involved Pacific Brands acquiring Sleepyhead’s Wonderlay carpet underlay business in Australia.

Sleepyhead has been family owned for three generations and is the leading bed-maker in New Zealand. According to Clayton Utz, this transaction provides it with a solid platform for future growth in Australia.

Clayton Utz Melbourne corporate senior associate Sam Cottell, with support from partner Nick Miller, was the key legal adviser to Sleepyhead on the transaction. Simpson Grierson, Clayton Utz’s affiliate firm in New Zealand, led the legal work on Sleepyhead’s financing for the transaction.

Commenting on the transaction, Miller said: “We have advised on a number of M&A transactions in the manufacturing sector over the years, and our understanding of the key issues and drivers were invaluable in helping us to achieve Sleepyhead’s commercial objectives.”

Movers & Shakers

D E A L O F T HE W E E K

Hynes appoints tech partner Bill Singleton has been appointed as a partner in Hynes Lawyers’ intellectual property, communications and technology practice group. Singleton specialises in information and communications technologies.

Partner to head IT firm’s new singapore office Webb Henderson has opened a new office in Singapore to be led by partner Anisha Travis (pictured) and consultant Vivianne Jabbour. Travis joined Webb Henderson, which was formed in 2009, from Gilbert + Tobin, where she spent nine years as a telecoms and IT lawyer.

New leader for Trilby Misso Trilby Misso principal lawyer and executive director Lisa Rennie has taken over the firm’s leadership from CEO Graeme McFadyen, following his appointment as a general manager at Slater & Gordon, effective 1 July. Prior to her appointment as general manager, Rennie was the firm’s best practice adviser. She was appointed as an executive director of the firm in August 2010.

HopgoodGanim partner joins urban development group HopgoodGanim partner David Nicholls has been appointed to the position of secretary of the Urban Development Institute of Australia (UDIA). Nicholls joins the executive management committee and will work with the chief executive officer and president of the UDIA. He currently leads a team working exclusively in the areas of planning, development and environmental law.

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thisweek xlaw reviewx

xbanks appealx

Human rights charter goes under the microscope

Bell tolls for Freehills and Blakes over $1.6bn

THE VICTORIAN Government’s upcoming review of the state’s human rights charter is a significant opportunity to improve the promotion and protection of human rights in Victoria, say law groups.

Announced last week by Victorian Attorney-General Robert Clark, the review will report on the first four years of the Charter of Human Rights and Responsibilities Act 2006.

Phil Lynch, the executive director of the Human Rights Law Centre (HRLC), said the review is an opportunity for the new Baillieu Government to strengthen the law in this area and to make Victoria a fairer, stronger and more inclusive community.

“There is strong evidence that comprehensive and effective legal protection of human rights is an important factor contributing to their practical realisation,” said Lynch.

According to the HRLC, the charter has not been a silver bullet or prevented every human rights breach, but there is, it said, strong evidence to suggest that it has had a positive impact, particularly in relation to legislative and policy development and public service delivery and outcomes.

The Law Institute of Victoria (LIV) has also welcomed the review and has called for an expanded coverage of rights to include all human rights in treaties to which Australia is a party, as well as the introduction of complaints procedures and remedies.

LIV president Caroline Counsel said the inquiry will be “crucial” due to the overarching concept of the charter, which is to ensure that law and policymakers consider human rights in their decisions.

Counsel said the charter has been an important first step towards better protection and promotion of human rights and has generated greater public awareness of the issue.

The report, which will be prepared by the Scrutiny of Acts and Regulations Committee, is due to be completed on 1 October 2011.

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AFTER NEARLY five years, Australia’s longestrunning legal action is back in court, with a consortium of banks appealing against a 2006 decision in which they were ordered to pay more than $1.6 billion to liquidators.

Freehills is acting for the consortium, which comprises 20 banks including Westpac, NAB, HSBC and the CBA, and Blake Dawson is acting for 28 of the 30 Bell Group companies and their liquidators.

The original proceedings, which are now subject to the appeal, involved a main action and numerous subsidiary actions heard in the Supreme Court of Western Australia from July 2003 to September 2006.

In the main action, the companies sought to have numerous refinancing transactions set aside. These transactions were undertaken in 1990 as part of the Bell Group’s strategy to

counter losses incurred as a result of the 1987 stock market crash.

The companies also sought repayment from the banks for all monies received by them, and costs incurred by the companies, as a result of the refinancing. In total, the companies sought to recover $350 million.

The original trial, which ran for close to three years, was heard before Justice Neville Owen.

It involved 404 sitting days, 37,105 pages of transcript, two separate sittings in London, the testimony of over 150 witnesses, 85,000 tendered documents and $300 million in legal costs.

In a 2600-page judgment, Justice Owen found that the directors of Bell Group had breached their fiduciary duties to the companies and the banks were liable as recipients of property from companies whose solvency was in doubt.

Three retired justices of the Supreme Court – Malcolm Lee, Douglas Drummond and Christopher Carr – will hear the appeal, which began last week and is expected to conclude at the end of June.

Freehills and Blake Dawson declined to comment when contacted by Lawyers Weekly.

xcompensation claimsx

ADF sex scandal deepens SLATER & GORDON’S military compensation team has received a significant increase in enquiries from past and former Australian Defence Force members claiming to be victims of alleged abuse while serving in the military.

Brian Briggs, the leader of Slater & Gordon’s military compensation practice, said the widespread media coverage over the ADF Skype sex incident has helped individuals to feel more confident in coming forward.

“There has been a significant increase in new client enquiries,” said Briggs. “The enquiries are coming out of the woodwork and some are ones that we wouldn’t normally see coming through.

Certainly, they’re probably not as hesitant to come forward and make claims.”

The flood of enquiries led Defence Minister Stephen Smith to admit that the Commonwealth Government may be liable for incidences of

abuse and sexual assault.

Speaking on Sky TV on 19 April, Smith said that DLA Phillips Fox Canberra-based partners Gary Rumble and Melanie McKean would join special counsel Dennis Pearce in investigating allegations of abuse and harassment within the armed services.

“The first task is to accumulate them all and make sure we haven’t missed any [complaints or allegations], and then secondly to do an assessment of how many we have in a range of areas,” Smith said on Sky. “I mean, I have received hundreds of emails. Some will provide - some do provide - what appear to be details of very serious allegations.”

Defence Minister Smith had previously commissioned Sex Discrimination Commissioner Elizabeth Broderick to look at attitudes towards women within the ADF.

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thisweek xdiversity projectx

US/UK Update

Hidden gender biases a barrier to partnership Workplace ‘game-changers’ are required for women to attain senior legal positions – including an overhaul of rewards associated with long hours.

Angela Priestley reports TERMS SUCH as “maternity leave”, and the badge of honour applied to those who “pull an all-nighter” to get a task done, may be symptoms of hidden gender biases preventing women from reaching law firm partnerships.

That’s the opinion of Professor Bob Wood, who, with the help of Corrs Chambers Westgarth, Westpac, ANZ, Santos and NSW Police, hopes to provide solutions to longstanding challenges preventing women from reaching leadership positions via The Gender Equality Project.

Researching the issue with the Melbourne Business School’s Centre for Ethical Leadership, Wood hopes his data will uncover subconscious “gender biases” associated with workplace language and behaviour.

From there, participants will aim to explore “game-changers” that may promote more long-lasting change. “People are saying there are some inherent mindsets that make it very difficult to make progress,” Wood told Lawyers Weekly.

“While we believe you’ve got to change individuals, unless we change the fundamental context – like the meaning of work and the meaning of success – we won’t get anywhere.”

Project participants attended a two-day planning workshop earlier this month and heard from Sex Discrimination Commissioner Elizabeth Broderick on the extent of gender inequity in senior managerial positions.

Participant Christine Covington, a partner at Corrs and chair of the firm’s Diversity Council, said she hopes the project can deliver some significant and sustainable workplace change.

“Some leaders in the field are beginning to say, ‘It’s been 20 years, we’ve been trying, we’ve

been beating the drum, we’ve been developing programs but we’re just not getting there’,” she said. “We’re not getting the sustained improvement that we’re looking for so we need to do something else, something different.”

Wood said the project may look at whether terms like maternity leave contribute to hidden biases in the workplace, with women on leave often returning to diminished work roles.

“Why can’t it simply be called a sabbatical?” he asked, suggesting that individuals who go on sabbaticals do not return to find their responsibilities drastically altered.

Wood also pointed to certain behaviours in the workplace, such as lawyers “pulling an all-nighter” to get work completed, as potentially stimulating bias against women and those who choose flexible work.

“They seem to think that working all night is something to be proud of, rather then evidence of a total lack of ability to organise oneself,” said Wood. “When you’re caught up in it, it’s a bit like being in a club; it defines who you are. It’s romantic that there’s a sense of challenge, but it is misguided.”

Wood added that billable hours and client allocation may also be underlying structural factors preventing women reaching senior positions and law firm partnerships.

He questioned whether lawyers and their firms would be willing to think radically about how their billing structures and work practices impact gender diversity at the senior level.

“The point is that there are probably some fairly basic things like that where people have to think differently. Lawyers might believe that’s the most effective billing or incentive structure, but that’s a contestable view.”

investigate lawyers from Hell, says judge The British High Court has told the UK Law Society and Bar Council they should investigate defamatory comments posted on the Solicitors from Hell website and find an effective form of redress for those firms named on the site, reports The Lawyer.

“Many conscientious and highly reputable firms and individuals have found themselves objects of offensive abuse and defamatory publication at the behest of disappointed litigants,” said Justice Henriques.

Dla piper promotes 53 DLA Piper has promoted 53 lawyers to the firm’s global partnership, reports Legal Week. The firm’s London base has five lawyers joining the partnership within the restructuring, litigation and regulation, and finance and projects practices. Two lawyers will join the Leeds and Manchester offices, along with one in Liverpool. DLA’s US practice will take on 17 new partners, with seven more in Asia and 18 in continental Europe.

CC employee jailed A former Clifford Chance employee has been sent to prison for fraud, reports The Lawyer. Former chief cashier Emma Rowsell admitted taking $97,800 from the firm and was jailed for 18 months after pleading guilty. Rowsell said she stole the money due to frustration at being paid less than others working at the firm. Earlier this year, former secretary Jodie Groom was sentenced to 15 months in jail for fraud.

Banco to review panel Banco Santander has started a review of its UK external legal advisers as news emerged that Barclays is preparing to question its global panel firms on corporate hospitality spending, reports Legal Week.

Company secretary and corporate services head Karen Fortunato is leading the roster review, which currently includes firms such as Ashurst, Slaughter and May, Clifford Chance and Allen & Overy. squires adds to slovakian team US firm Squire Sanders & Dempsey is repopulating its Slovakia office following the departure of three partners this year, reports The Lawyer. Squire Sanders, which merged with Hammonds in 2010, has hired Tatiana Prokopová as a European partner focusing on real estate for the Bratislava office.

Corporate partners Adrian Barger and Roman Prekop left in January to begin their own practice, Barger Prekop Attorneys.

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indepth

The fight for funding Australia’s top universities have proposed that law students pay higher fees to alleviate funding gaps in tertiary education – and they’re not happy about it. Claire Chaffey reports

I

n what is shaping up to be a heated debate about the quality and cost of higher education, universities and student groups are at odds about how chronic underfunding, which threatens to jeopardise the quality of education, can be remedied.

Several proposals have been submitted to the Higher Education Base Funding Review, run by Minister for Tertiary Education Chris Evans, in an attempt to establish principles for public investment in higher education, ascertain the funding levels required for Australia to remain internationally competitive, and gauge the appropriate level of public and private contribution.

One proposal submitted to the review is that of the Group of Eight (Go8) – comprising the University of Western Australia, University of Adelaide, University of Melbourne, Monash University, Australian National University, University of Sydney, University of NSW and University of Queensland.

The Go8 suggested that fees for domestic students, starting with fees related to the “cluster one” disciplines of business, economics and law, be deregulated to allow students to contribute more. “There is a significant gap between funding and costs. This gap will widen as the system grows to meet government participation targets,” says Go8 chair Professor Paul Greenfield.

“The Go8 believes that past government forecasts have underestimated growth in demand for higher education in the next 15 years. In order to maintain the student-staff ratio, total funding would have to increase by $4.5 billion per year. To improve, the studentstaff ratio would require an increase of $7.5 billion per year.

“Student contributions should be partially deregulated to allow students to invest more.

This will create more diversity in the sector. A more diverse sector will better meet the needs of a broader cohort of students.”

If accepted, this move could potentially allow universities to increase the maximum amount students pay for a law or business degree from $9080 to $13,600 – a jump of 50 per cent.

The Australian Law Students Association (ALSA) has responded to the Go8’s proposal by making its own submission. One of the primary

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The perception that law graduates go on to become society’s elite, with the most lined pockets, is actually wrong” concerns, says ALSA vice-president education Melissa Coade, is that the Go8 proposal undermines the aims of the review. “The objective of the review is to try to have a more rational approach to funding in tertiary education,” says Coade.

“While all the different factors that must be considered … are very complex, and while more money needs to be put into tertiary institutions to ensure quality education, simply hitting students up isn’t the best way to go about it.”

According to Coade, part of the rationale behind the Go8’s proposal is that cluster one students should be targeted first because, even though fees would likely increase, there would still be a significant demand for those areas of study.

Another rationale, says Coade, is an erroneous perception that graduates from cluster one groups of study go on to earn more money than other graduates. “More and more we are finding that fewer graduates actually go on to practise law, and of the small amount that are retained within the legal profession, not all of them go on to well-paying jobs in big corporate firms,” she says.

“There are statistics in place to indicate that the perception that law graduates go on to become society’s elite, with the most lined pockets, is actually quite wrong.”

Law students already cover more than 80 per cent of their tuition costs, while the government only contributes around 20 per cent of that cost.

The Council of Australian Law Deans (CALD) has also made a submission to the review, in which it argues that this ratio is already too high. “CALD is of the view that there should be a balance between the government and student contributions to the funding of undergraduate

law education,” it reads. “Under the current funding arrangement our view is that the government contribution is too low and the student contribution is too high and that there is a clear imbalance between those two main sources of funding. The current arrangement has the discipline of law at the very bottom end of Commonwealth contribution (a position which, until recently, it occupied alone) and the student contribution ... at the highest percentage end.”

Another issue raised by ALSA is that increasing fees would only serve to widen existing equity gaps between students. “One of the objectives of the review is to ensure that equity is met within the student demographic, and the point should be made that if cluster one is targeted and deregulated in the way the Go8 proposes, you won’t just be alienating people in lower socioeconomic groups, but you’ll be further pushing the divide between the middle class and the elite class as well,” she says.

“It doesn’t just undermine equity in terms of people from a [low socioeconomic] background, but a huge proportion of what is our current student demographic.”

ALSA also wants to see curriculums grow and evolve in an innovative way so as to keep up with international competition. lw

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08-146 | Hudson Global Resources (Aust) Pty Limited ABN 21 002 888 762

OUR BRIEF IS YOUR CAREER It’s no secret, accessing a wide variety of job opportunities enables you to accelerate your development at every stage of your legal career. And at Hudson Legal, opportunities abound.

We work with diverse local and international clients to offer you the widest range of public sector, private practice and in-house roles available. As specialist legal recruiters, we work closely with you to understand your goals and advise how you can best achieve your career objectives. Backed up by more than 20 years’ experience at the forefront of Australian legal recruitment, you can be sure that we can find the ideal role for you every time.

AU . H U D S O N . C O M / LEGAL J O B S

INTERNATIONAL SYDNEY JUNIOR LEGAL COUNSEL

MELBOURNE PART-TIME IN-HOUSE – INDUSTRIAL • $160-$180K Pro Rata • South Eastern Suburbs Our client is a US listed international industrial automation company with global revenues of $4.8 billion. Its Australian operations now seek a senior part-time legal counsel (2 ½ days) for their Melbourne office, reporting through to the CFO in Australia and Regional GC in Singapore. Ref. No. 3B/55706.

LEGAL COUNSEL – RENEWABLE ENERGY • Retailer • Suit Mid-Level Lawyer Our client provides renewable energy solutions for Australia’s commercial and residential sectors and has turnovers approaching $200m p.a.

They are now seeking a mid-level commercial lawyer to advise on all day-to-day operational matters.

Ref. No. 3B/55421.

IN-HOUSE LEGAL COUNSEL – SPORT • Amazing 12 Month Commercial Opportunity • Renowned Organisation Our client seeks a senior commercial lawyer to draft, negotiate and advise on sponsorship, licensing and marketing agreements. You will have top-tier and/or solid in-house experience with strong business acumen and interpersonal skills to deliver a wide-range of priority projects. Ref. No. 3B/53986.

For further information, please call Greg Monks on 03 9623 6746, or Stuart Ablethorpe on 03 9623 6777, quoting the relevant reference number.

BRISBANE SENIOR ASSOCIATE – INSURANCE • Top-Tier Firm • Part-Time Considered Our client is a leading top-tier law firm with a strong insurance practice.

An exciting opportunity now exists for a senior insurance lawyer with a minimum of 5 years PQE from either private practice or an in-house environment to join the team.

To be successful, you will have defendant insurance experience, Queensland workers compensation experience and exposure to public liability, with professional negligence highly regarded. Ref. No. BX/3201.

MANAGER – LEGAL SERVICES • Queensland’s Insurance Authority • Key Leadership Role This leading insurance authority is currently seeking to appoint a Manager – Legal Services to head its corporate services legal team. You will lead a team that provides operational support to the organisation’s business units. As the head of the in-house legal team, you will engage with internal and external stakeholders on complex legal, policy and business process issues. You will have 5+ years PQE, ideally in insurance (however other relevant backgrounds may be considered), combined with excellent leadership and management skills.

Ref. No. BX/32276.

For further information, please call Nick Robertson on 07 3258 8374 or Katie Rogers on 07 3258 8302, quoting the relevant reference number.

• 1-3 Years PQE • Leading Australian Financial Institution Exciting opportunity to build your legal expertise and develop your career in-house by providing high quality corporate/commercial advice to the business. Mid/top-tier firm experience required. Ref. No. GC/08378.

LEGAL COUNSEL – IT • 6 Month Contract Role • Global IT Solutions Company Work closely with the commercial and sales teams to draft, advise, review and negotiate the terms and conditions of software licenses, services agreements, reseller agreements and a variety of customer documentation. Immediate start. Ref. No. 2B/48694.

CORPORATE COUNSEL • 5-10 Years PQE • Part-Time Role Leading Financial Institution. A broad mix of corporate, transactional and advisory work including M&A, restructures and corporate governance. Mid/top-tier firm experience in a corporate group, or similar experience in-house is required.

Ref. No. GC/08379.

PROFESSIONAL INDEMNITY LAWYER • 5-7 Years PQE • Blue Chip Clients International law firm. Leading practice where you will be involved in a range of challenging and interesting insurance matters focusing on professional indemnity directors’ and officers’ and financial services. Excellent remuneration and career progression on offer. Ref. No. BX/31061.

For further information, please call Yvonne Tucker on 02 8233 2402 or Janina McMahon-Loch on 02 8233 2387, quoting the relevant reference number.

CORPORATE M&A SOLICITOR • 3-5 Years PQE • London International, market leading law firm. Exceptional opportunity for a Corporate/M&A/ECM lawyer with top-tier experience and exemplary academics to work with global clients on major deals within a Tier One Corporate team. Possible secondments throughout Europe. Ref. No. 3B/54113.

DERIVATIVES LAWYER • 2+ Years PQE • Hong Kong European Bank. Advise on OTC hedging and trading derivatives products, including equity derivatives, credit derivatives, commodity derivatives, foreign exchange derivatives, and interest rate derivatives. Chinese language skills are an advantage, although not required. Ref. No. BX/32006.

INTERNATIONAL ARBITRATION LAWYER • 3-6 Years PQE • Central London Location Leading Magic Circle firm. Join a recognised team at the forefront of international arbitration practices who are consistently successful with high value and often complex arbitrations.

International arbitration experience is preferred. Ref. No. BX/31615.

For further information please call our consultants below, quoting the relevant reference number.

Sydney: Dan Hogan on 02 8233 2649 Melbourne: Greg Monks on 03 9623 6746 Brisbane: Nick Robertson on 07 3258 8374

ethicsreport

Hazards ahead It’s in the workplace that our commitment to ethics is truly tested.

On tough issues such as salary and termination, be guided by your moral compass, advises Danny Gilbert

D

anny Gilbert readily admits that he is no expert on the philosophy of ethics and morals.

However, the managing partner of Gilbert + Tobin is one of the legal profession’s most high-profile leaders – one who has demonstrated a commitment to pro bono work and community service throughout his career.

This perhaps explains why he was chosen by the Vincent Fairfax Family Foundation to speak on the topic of “Leading an Ethical Life”, with particular reference to ethical and moral hazards in the workplace.

Delivering the speech at G+T’s Sydney office last week, Gilbert said our moral and ethical duty to treat others with decency can be easily met in our transactions with family and friends, but that such a duty becomes more demanding in the workplace.

“One should always start with the principle that we treat people as an end in themselves and not as a means to an end,” he said. “This reasoning informs the obligation to be open and honest with people about where they stand in the organisation and how they are progressing.”

This reasoning, added Gilbert, also reflects how people should be paid – which is always a particularly difficult ethical question.

“There is no perfect answer, of course, but I have long thought that the better approach is to try as far as possible to pay people at the top of the market in which your business operates,” he said.

“This is a good approach beyond the question of what is the right thing to do. It creates positive relationships between employer and employee, including – very importantly – trust and respect.”

Gilbert said leaders also see their ethics tested in the way they handle the termination of an individual’s employment. “At this point the relationship is ending. It is very easy to act peremptorily and tell someone to pack their bags,” said Gilbert.

“It is much more difficult, more time consuming and more expensive to engage in a conversation and process which is respectful of the person’s own sense of identity, integrity and self-belief.”

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Philanthropy: to give or not to give?

According to Australian ethicist Peter Singer, Australians should give a minimum of five per cent of their annual income to those in need. While Danny Gilbert does not believe philanthropy should be prescriptive, he suggests three ideas for what those with money can do with it.

“First, it must not be like welfare; that is to say, like a handout. At its worst, welfare is destructive of personal initiative and self-worth. Philanthropy must empower and enable people to improve their lives. This is not easily achieved and realistic, and sometimes hard-nosed thinking is required. In other words, a thoughtful and critical approach is needed, weighing up the pros and cons and taking care in relation to unintended consequences.

“Second, I always think it not just about the giving of money. What is additionally important is giving of one’s own time and offering to others – the human face of friendship.

“Third, the tone and spirit of the act of giving is profoundly meaningful. Impatient, paternalistic or patronising philanthropy is of little worth. It can be alienating and it can compound the very problem it seeks to remedy.”

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ethicsreport

The better approach is to try as far as possible to pay people at the top of the market in which your business operates.

It creates positive relationships between employer and employee, including – very importantly – trust and respect”

Gilbert also used his speech to express concern about politicians who do not have “a deep and abiding respect for truth and authenticity in public debate”.

He said that following last year’s federal election, Australians have been left with a political system focused on “short-termism” and populist and opportunistic rhetoric that fails to recognise the serious issues at hand.

“The risk here is that we do damage to our capacity to distinguish between and to choose between what is right and what is merely popular,” he said. “Ultimately, we run the risk of doing damage to our national conscience and heart as well as to the fragile processes that allow us to discuss public matters democratically.”

On wealth, Gilbert noted that he’s not concerned about the question of “how much money is too much”. He believes we need to have rich people in our communities, as well as opportunities for people to become rich, but warned that wealth does carry certain responsibilities.

“It’s not as if the wealthy have made their money on their own,” said Gilbert. “The briefest examination of how an individual’s wealth has been built will reveal the contribution of many people and very often fertile social, political and economic conditions to which there have been many contributions.

“Wealthy people have responsibilities not only to assist in raising living standards and

opportunities for everyone, but to contribute to the wellbeing of our communities and to civil society more generally.”

Gilbert delivered his speech to an audience that included his employees and colleagues, judges, NSW Governor Professor Marie Bashir, Sir Nicholas Shehadie, members of the Fairfax family as well as his own parents and family.

He suggested that humanity is devalued if we fail to reference long-valued ethical and moral standards in our lives. “Now that may be putting it too strongly, but I would say that at a minimum we fall short of ‘the labour to be beautiful’,” said Gilbert, referring to the W. B. Yeats poem Adam’s Curse. LW

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legalleaders

Carter’s love of contracts in context For three decades, Professor John Carter has maintained a tenacious passion for contract law. He tells Angela Priestley why he believes everyone should have a soft spot for the subject

P

ut a call through to Professor John Carter’s office and there’s a good chance he’ll have to turn the music down.

The self-confessed Beatles obsessive readily admits that anyone who sees him in person can automatically assume he was a “child of the ’60s” – and his music tastes reflect the look.

But subscribing to the free-love philosophies perpetuated by the likes of Lennon and McCartney only extends so far for Carter.

His other love is much more structured and constrained. And, aside from declaring his undivided attention for his wife over the decades, it’s an affair that has lasted 30 years through numerous ups and own.

Carter’s love of contract law has led him to become Australia’s pre-eminent expert in the area: a writer, thinker, teacher and business consultant on the ins and outs of binding agreements.

Since graduating with a PhD on breach of contract from Cambridge University in 1981, Carter has dedicated his professional life to demystifying contract law to students, lawyers, businesspeople and the general public.

For some, a love of contract law might be difficult to comprehend. But Carter sees no reason not to get so deeply involved. “People ask me, ‘Why? You’ve written book after book – what keeps you going?’

But, really, it’s about writing and explaining something for different audiences. It’s a real challenge,” he says.

Discovering contracts Carter never wanted to be a lawyer. As the son of a printer and a brother to three siblings – a printing apprentice, hairdresser and veterinarian – Carter had few connections to the legal profession when he decided to study law at the University of Sydney.

“I didn’t have any imagination,” he says. “I really didn’t know what to expect when I studied law, so I took a bit of an insurance policy at the time – by studying an arts degree, too.”

It was during his last year of law school that Carter penned an article on breach of contract that first spurred his interest in contract law. After a year spent as an associate to Justice Franki of the Federal Court, followed by the completion of his PhD, he was well and truly hooked.

“Contract is such a large and relevant subject that there’s always something new, and there’s

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always something relevant on so many levels,” says Carter. “When we go shopping we’re entering into different contracts. Then there are the big transactions, developments, joint ventures and so on. Contract law has got an enormous range of context and applications.”

The thrill for Carter is in helping people to understand contracts. “From day one, I appreciated the need to present things in a way that was relevant and meaningful,” he says.

It’s a necessary and important pursuit. As Carter notes, although the Australian Government might like to believe that everybody owns a copy of Australian Consumer Law and regularly keeps track of the ACCC’s information about consumer rights, that is not reality – nor will it ever be.

“A lot more people ought to be understanding contracts,” says Carter. “Contracts are all around us.

You can’t do anything – drive a car, buy groceries, go to a restaurant – without encountering contracts.

But that doesn’t mean everybody needs to know about contract law.”

Instead, those who understand contract law have a responsibility to present it to others in such a way that the mystery surrounding the agreements can be unlocked.

It was a point Carter, in his capacity as a consultant with Freehills, made in a submission to the Government in relation to the new Australian Consumer Law. “We made the point that consumers are far better served if they don’t need to know the law. It’s very hard for ordinary individuals to be familiar with statutes that run for 50 or 60 pages.”

sharing the knowledge Unfortunately, not all students of contract law experience such excitement for the subject, and Carter readily concedes that teaching contracts can be a challenge.

“The biggest challenge is always to get people enthusiastic – to make people understand and to be able to present things to them that infuses them with enthusiasm for the subject,” he says.

“To me, that’s all about knowing your audience and being able to teach differently to people depending on whether or not they are lawyers in practice, or people doing it in first year as part of a law degree, or people in business who want to know about the law.”

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legalleaders

Contracts are all around us. You can’t do anything – drive a car, buy groceries, go to a restaurant – without encountering contracts”

With 30 years of experience to draw on, Carter believes students are finding it harder than ever to learn contract law, despite the proliferation of materials available that were simply non-existent in the 1980s.

These days, Carter says students just don’t have the time, or perhaps the patience, to devote to a particular subject. While students can build their knowledge capacity on the subject from numerous textbooks and the internet, Carter believes a philosophical shift at universities is now seeing students spoon-fed information they would have sought themselves in the past.

For the record Carter’s three decades at the coalface of contract law has seen him publish three major works in the field, establish the Journal of Contract Law, serve as a part-time commissioner to the Law Reform Commission of NSW, organise annual contract law conferences with colleagues across the globe and achieve a personal chair in the field of commercial law at Sydney University in 1995.

Next month, he will release Carter’s Breach of Contract (published

by LexisNexis, also the publisher of Lawyers Weekly). And in June, he will join forces with the Commercial Law Association of Australia and the Sabah Law Association to take the Journal of Contract Law to Malaysia. The topic of international contract law is part of his concern for sharing of knowledge in the Asia-Pacific region.

But aside from these remarkable achievements, there’s one particular incident that has put Carter into the mass media spotlight.

In 2002, Carter drew the attention of his publishers to a failure by then Justice Marcus Einfeld to acknowledge the source of portions of one of his judgments. The issue of plagiarism joined a long list of various accusations against the judge, which, according to some journalists at the time, amounted to a character reference of Einfeld that was plagued with dishonesty.

Einfeld has since served prison time for knowingly making a false statement under oath after attempting to get out of a $77 speeding fine.

But while Carter bemoans any form of plagiarism, especially in the legal field, he does believe the attention the plagiarism issue received spun a little out of control. “To be honest, at the time, the name of the judge never actually registered to me,” says Carter. “It was a storm in a teacup, as far as I was concerned, that wouldn’t have gotten anywhere if the other incidents didn’t come up.”

Like his love of The Beatles, Carter concedes that his love for contracts has its limits. In reality, it’s his wife who holds his heart.

“She transcends everything. It’s great to be able to have a relationship where you can do all these various things that I have to do and get support on them all the time. I couldn’t be without her.”

And outside the limits of the page and the strict definitions of particular words within the confines of contracts, Carter ensures that his time in the office is always accompanied by a soundtrack of some sort, and that his working days remain as unpredictable as possible. lw

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coverstory

Tell me what you want With the number of in-house lawyers on the rise, are firms finally ready to fulfil their professional wishes?

Justin Whealing investigates

T

here was a time within the legal profession when in-house lawyers were seen as the poorer cousins to their private practice counterparts. For some lawyers, going in-house was seen as a soft option. This is not the case any more.

“Moving from an external law firm to an in-house role is not a part-time job; your life will not be any easier,” says Mike Ferraro, who was the general counsel for BHP Billiton between 2007 and 2010.

Now back at his previous firm, Freehills, as a Melbourne-based senior partner with a strategic role, Ferraro says the expectations and demands on all 75 lawyers within the in-house legal team at BHP were immense. “Based on my experience and the experience of BHP lawyers, you work damn hard. I probably worked harder then.”

Ferraro notes that one of the biggest changes within the legal profession during his career has been the growth in the number of in-house lawyers. They now account for more than 20 per cent of the profession and constitute the fastest-growing area within the legal fraternity.

He believes that with more lawyers moving into corporate roles, the profession as a whole has a greater appreciation for the skills of in-house lawyers and that private practice practitioners are becoming more cognisant of

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their needs. “I now have a greater appreciation of the pressures in-house counsel have to deal with,” says Ferraro.

“A common pressure an in-house lawyer faces relates to the number of lawyers in-house available to do the work, and the concern of external legal advisers should be to work out how you can adequately support the needs of in-house counsel in such a way that you don’t over-impose yourself and take up too much of their time.

“You need to provide in-house lawyers with what they really need and make their life easier, not harder.”

step into my shoes While more private practice lawyers might be aware of what in-house lawyers want, is that filtering through to the advice they give and the way they approach relationships with in-house lawyers?

According to Trish Hyde, the CEO of the Australian Corporate Lawyers Association (ACLA), her members tell her that a little bit of knowledge of their business goes a long way.

“You don’t have to be an expert in the business, but you have to be prepared to go on a journey with that business,” says Hyde, regarding the balance between the technical

legal skills and industry knowledge in-house counsel seek from their external lawyers.

“A company had some issues and they wanted to get some external legal advice,” says Hyde, offering an example. “The response from the firm was for one of the partners to jump in their car and drive to the client, sit around the table with them and discuss what the issue was before they started to do work. It was all about being aware of the issue from the in-house perspective.”

In 2010, ACLA and the Corporate Lawyers Association of New Zealand (CLANZ) surveyed 160 of their members in order to benchmark the most important aspect of service selection criteria, with the commerciality of advice topping the list of responses ahead of overall cost/value for money and optimal outcomes.

“From the perspective of understanding the business, it is all about the commerciality of the advice,” says Hyde. “Is it applicable and practicable?”

Knowledge of what your client does might seem like a basic skill for law firms, but for in-house lawyers, it is not enough for their legal advisers to know about the market. They also need to provide solutions that take into account market conditions and the resources of the client organisation while still delivering a result.

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coverstory

“When in-house go outside their business [and seek the advice of external lawyers], they are looking for something in particular that they don’t have,” says Hyde.

What they don’t want is a lawyer with an overly formal and legalistic approach.“I don’t want a ‘black letter law’ lawyer,” says Gai Stephens, general legal and tax counsel and company secretary for Luxottica Asia-Pacific.

With its head office in Milan, Luxottica is the world’s largest eyewear company and has international brands such as Ray-Ban and Oakley under its umbrella. It also has an extensive Australian enterprise, employing nearly 2000 people, with brands such as OPSM in its domestic stable.

“The lawyers you really rely on are the ones who can help you make a decision. You don’t just want what the law is – you want them to say, ‘If I was you, this is the way that I would be heading, because of this, this and this’,” she explains. “I don’t just want black letter law dished up, as I can go and read books myself.”

The legal skills required of private practice and corporate lawyers are starting to become more defined, and with that increasing level of specialisation comes a proviso that the advice provided by law firms will be commercial and innovative.

“I think the ability to articulate a legal risk is a commodity and you can acquire that from anyone and it is fairly straightforward, but what is not so straightforward is what I would call a ‘loose definition of the X factor’,” says Richard Amos, the general counsel of Lion Nathan Australia and New Zealand, which is now part of the Lion Nathan National Foods group, owned

by Japanese company Kirin Holdings. His legal team has formal arrangements with Baker & McKenzie and Mallesons Stephen Jaques.

Amos, who looks after the alcohol side of the business, including the Tooheys, Steinlager and James Squires brands, describes the “X factor” as “being able to deliver outcomes, which usually involves taking sensible risk, and that holds true whether it is in the context of litigation or big M&A deals.

“It is the people who are able to articulate the risk, but also give me a hand with which option I am going to take – that is my sense of an X factor,” he says.

Getting off to a good start The ultra-competitive nature of the Australian legal market has only been ramped up by the arrival in recent years of a number of large global firms, meaning clients are in a position to demand more from their relationship with law firms.

The key to establishing that framework of the preferred method of communication and reporting starts with the tender or procurement process, especially in large organisations with a formal panel of law firms.

Luxottica recently invited law firms to tender with regard to its franchising work – a new area for the company – receiving 10 submissions and choosing one firm in the end.

“All the stakeholders sat down and we put together a list of the key areas, such as technical expertise, coverage in different parts of Australia, networking opportunities, their resourcing and the need to have contact with the top person, and the size of the firm,” says Stephens. “Price wasn’t everything, but we wanted to make sure the price we got was competitive.”

Stephens says the firms who tendered for the work ranged from “boutique smaller firms to the

“Moving from an external law firm to an in-house role is not a part-time job; your life will not be any easier” Mike Ferraro, partner, Freehills

“When in-house go outside their business [and seek the advice of external lawyers], they are looking for something they don’t have” trish hyde, Ceo, australian Corporate laWyers assoCiation

“i don’t just want black letter law dished up, as i can go and read books myself” Gai stephens, General leGal and tax Counsel, CoMpany seCretary, luxottiCa asia-paCiFiC

“a law firm needs the ability to understand that sometimes you might require a holden Commodore and at other times a rolls-royce” riChard aMos, General Counsel, lion nathan australia and neW Zealand

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coverstory biggest in Sydney”. In the end she chose a firm she hadn’t used previously, based on what she believed would be a fruitful personal working relationship between her and the key private practice lawyer involved.

“That relationship, at the end of the day, is everything,” she says. “Obviously, the lead partner is important and while I had not used that person previously for legal work, I had met them and networked with them a lot.

“They were given the opportunity to tender, so I had a feel for what that relationship would be like in one that was ongoing.”

Why we selected you The top five law firm service selection criteria (importance of each response is ranked from 10 to 1):

1 2 3 4 5

Commerciality of advice (10) Overall cost/value for money (7.8) Optimal outcomes (6.7) Quality of documentation (3.1) Identify value-add from outset (2.6) SOURCE: ACLA/CLANZ BENCHMARKING REPORT 2010

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How would you like to pay for that?

Arguments about money have been the death of many a relationship. “If you identify the top areas that in-house counsel are concerned about in their roles, it is about being effective with what they do, and part of that is around managing cost,” says ACLA’s Hyde.

“There is a growing desire, as shown in the benchmarking report, to have alternative arrangements. But in practice there is a lag in implementing that.”

The 2010 ACLA/CLANZ Benchmarking Report showed an overwhelming desire for corporate

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coverstory lawyers to move away from time-based billing, with only four per cent of those polled saying that hourly billing was “entirely appropriate and the best approach”. However, that is tempered by the 42 per cent of respondents who said it is generally OK, but they haven’t found anything better.

Alternative fee arrangements are now being demanded more forthrightly by companies, and they expect their legal providers to listen.

A well-known example of the power of the client in this regard is when Gilbert + Tobin managed to get on the books with Telstra, which traditionally used Mallesons for the majority of its legal work, by offering a multimilliondollar fixed fee structure for an unlimited amount of legal work on demand.

“They have listened when we have suggested flexible billing arrangements, but it has been with varying degrees of traction,” says Lion Nathan’s Amos.

According to Amos, the advantages of having alternatives to the time-

based billing system is that, in a large organisation such as his, “you don’t have the same tolerance for cost across all your legal work”.

“Some work is very cost sensitive and other work is less cost sensitive,” he says. “Sometimes quality outcomes are more important, and a law firm needs the ability to understand that sometimes you might require a Holden Commodore and at other times a Rolls-Royce.”

In addition to listening, in-house lawyers are also expecting their law firm counterparts to come up with alternative arrangements of their own.

“When we tender, it is up to them to come up with some good ideas,” says Stephens, adding that one New Zealand firm even offered a fee structure for M&A work where you pay less if any proposed acquisition is unsuccessful.

“That is how we have ended up with what we have got [alternative billing arrangements], because people do come to the table with good ideas.” LW

Why we will keep you The top five reasons in-house counsel retain law firms (importance of each response is ranked from 10 to 1): 1 Understand our business/industry/sector (10) 2 Reliable and responsive (9.4) 3 Expertise in specialist areas – lawyers (7.9) 4 Experience and judgement of lawyers (7.8) 5 Innovative/creative/problem-solving capability (5.3) SOURCE: ACLA/CLANZ BENCHMARKING REPORT 2010

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career

counsel

Life outside the law

Achieving a balance between work and other life passions is all about a commitment to efficiency, says triathlete, iron man and lawyer Paul McQueen. Briana Everett reports LAVAN LEGAL’S Paul McQueen somehow manages to fit six early morning training sessions into his sometimes 70-hour working week, all with the aim of beating Opposition leader Tony Abbott in the next iron man event.

A barrister and supervising partner of Lavan Legal’s environment and land compensation team, McQueen has been an active person all his life and has always had an interest in swimming, running and cycling.

But it was after university, when he entered the workforce, that McQueen noticed how difficult it was to commit to a team sport while also coping with the demanding workload of a lawyer.

“I tried to get into triathlons because it’s still quite a social sport, so you’re getting interaction with others, but also because you can fit in training at times when team sports are not training. So I find you can combine it more easily with working life … at 5.30 in the morning it’s much easier!” says McQueen.

Given the hefty workload that comes with being one of the founding partners of a firm, as well as a barrister and supervising partner, McQueen says balancing work with his training

my

is achievable because triathlons and iron man events are planned well in advance.

“I’m already registered for the iron man in December this year. What I tend to do is try to plan my calendar around the event,” he says.

“With court commitments it’s very important to have a clear view of what the year has ahead.

I tend to plan my year at the beginning of the year, so I’ll avoid appearance work, to the extent possible, a few days before a race.”

Recognising the demands of every busy lawyer, McQueen says a “commitment to efficiency” is paramount. “It’s about treating whatever interest you have outside work, whether it be triathlons, riding, yoga or fitness classes, the same as work. People that manage to balance both tell you that you have to treat the exercise as seriously as you do a work commitment,” he says.

“So when I put that in my diary, to me it’s equivalent to a client meeting. I’m never late to a client meeting and almost never to court, and I treat my exercise the same way.”

Noting the necessary support of his team and secretary – as well as his family, which includes three young sons – McQueen says a supportive

next move

With Jonathan Walmsley, principal, Marsden Legal Search & Recruitment

Q A

Can you offer a snapshot of what’s happening with the legal market in Singapore?

Most law firms are looking to seriously grow in South-East Asia over the next two years, with a number of UK firms moving offices to accommodate more staff. Clifford Chance has gone public with its plans to double revenue across Asia in the next four years, including growth at associate level.

Firms will be growing through further lateral hires at associate level and through internal transfers from other offices.

Premier US firms are looking for lawyers in capital markets, corporate –

including private equity – and finance. UK firms are looking for a range of skills across all transactional areas, particularly junior to mid-level lawyers. Singaporean lawyers and lateral Singaporean partners are wanted across UK and US firms, with lawyers from top-tier local firms such as Allen & Gledhill, Wong Partnership and Stamford in high demand. Indonesian, Indian and Malaysian work is flooding into Singapore. Lawyers with connections to these countries will be very valuable.

Low tax rates are one of the reasons many expat lawyers want to live and work in Singapore. There are now more than 1000 overseas qualified lawyers working in the international firms in Singapore.

office culture is pivotal to maintaining that balance. “It’s important to have a culture in your office that supports active pursuits and work/ life balance. For example, we have a personal trainer at our firm,” he says. “It’s not just about the individual; it’s about being within a culture that supports [work/life balance].”

Aside from the joy of narrowly beating fellow competitor Tony Abbott in his first iron man event, McQueen says the biggest benefit that competition and physical fitness brings is mental strength.

“You really do develop a great sense of self-belief and mental toughness,” he says.

“I’ve developed a sense of self-belief, hopefully a tough mindset and clarity of thought.

When you’re spending a lot of time training or competing, that focus you get is very important. In my job, to think clearly under pressure is vital.”

McQueen adds that competing in events over many years has helped him to develop a sense of comfort when faced with a challenge, allowing him to focus on the task at hand. “Hopefully, young people look at me and think, ‘If that old guy can do it, so can I.”

4.5 % 2.5 %

is the figure global growth is expected to reach in 2011, despite a modest downturn caused by the Japanese earthquakes and nuclear disaster is the rate gross domestic product (GDP) is forecasted to grow at in 2011

SOURCE: NAB MONTHLY BUSINESS SURVEY MARCH 2011

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folk

Anti-porn MP caught watching … porn

law

AN INDONESIAN member of parliament has landed in hot water after he was caught doing some, ahem, “research” into his portfolio while sitting in a session of parliament.

Now, this would not ordinarily be an issue for an obviously time-poor civil servant. The problem is that the MP, a certain Mr Arifinto, happens to be the minister for the staunchly anti-pornography Islamic Prosperous Justice Party. And he happened to be watching pornography.

In the Islamic state of Indonesia, pornography is not something that is tolerated in any way, shape or form. Anyone with any involvement whatsoever in the evil world of porn is, often, liable to prosecution.

So what on earth was Arifinto thinking?

Apparently, he was filmed watching the adult movie for several minutes (although we didn’t catch the title or the storyline) in the midst of an enthralling discussion about plans to build a brand-spanking-new (excuse the pun) parliamentary building.

But now, ironically, Arifinto could be prosecuted under the very same laws he and his anti-porn party brought into force.

After being caught out, Arifitno promptly resigned. “I apologise to all members of the party and parliament,” he told the BBC, adding, however, that he would continue working for the party and “continue to better myself, by repentance, reading the Koran and asking for guidance”.

Toddler gets hammered, parents sue THE PARENTS of an American toddler who accidentally downed a margarita instead of apple juice when it was served to him at a chain restaurant are suing the parent company.

Reuters reports that Taylor Dill-Reese and Dominic Wilson, the parents of 15-month-old Dominic Lacey Wilson, filed the suit last week, claiming that they suffered “emotional distress” as a result of seeing their underage son inebriated.

They are seeking an unspecified amount of damages from DineEquity Inc, which is the parent company of Applebee’s restaurants, for medical expenses and non-economic loss.

The ordeal began when the family visited Applebee’s in Madison Heights, Michigan, and ordered a kid’s meal for Dominic jnr. It was supposed to come with apple juice. Instead, little Dominic ended up chugging a nice strong margarita mix and, as he gulped it down, he began exhibiting “grossly inappropriate” behaviour.

The child was quickly taken to a nearby hospital, where it was allegedly found that he was well over the limit. He also had a wicked hangover “for a period of days after the incident”, according to details filed in the suit.

William Stern, the couple’s lawyer, told Reuters this was not the first time Applebee’s has served alcohol to those well and truly below the legal age.“It’s happened to them on multiple occasions,” said Stern said.

“This is an occasion that came really close to being tragic if the child had ingested a little more alcohol. Fortunately, they caught it when the child was acting drunk and the father tasted it and realised it wasn’t apple juice.”

In a statement, DineEquity Inc said there were “discrepancies” between the claims in the lawsuit and information obtained by the company.

Folklaw thinks the olive floating in the top of the “apple juice” should have been a dead giveaway.

Wanted: lawyer to pull rabbit out of hat WE’VE SEEN some pretty crazy law firm antics in the past, but this one is just downright strange.

According to RollonFriday, a law firm in London is hoping to hire a property lawyer who can not only advise on exchange of contracts and the finders keepers rule, but also perform magic tricks while trying to impress potential new clients.

The job description was found on a recruitment website, Ten Percent, which states the following: Can you do Magic? A firm in South West London [is] interested in employing a solicitor who is an experienced magician. This may sound a little bizarre, but the firm [has] had the idea of someone doing magic tricks whilst pitching to clients. Is this a wind up? We don’t think so – the firm sounded deadly serious. They mentioned possibly hiring someone who had done quite a bit of work on stage as an alternative. If you

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think you can stand on your head whilst balancing an apple on your chin and juggling three chain saws with your feet, and at the same time do a presentation on recent changes to employment legislation, please get in touch.

The recruiter who posted the ad, Jonathan Fagan, told RollonFriday that a psychic criminal lawyer had already shown interest in the position, but the firm wasn’t too keen and sent him this email: “Mindreading is all very well. But we are after showmanship and a track record of magical performance. If not, then really we are not prepared to consider him at all.”

Fagan would not reveal the name of the firm, but insisted this is not a belated April fool’s-day trick. Apparently, the client wants a lawyer who can conjure more than case law out of thin air, and whoever lands the role could earn up to $78,000.

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Penny Parker In-House Sydney

taylorroot.com.au

Expect us to make your life easier As a busy legal professional, finding the time to explore your career options can be difficult. As the world’s leading legal recruitment specialist, our knowledge of the market and unrivalled client network will help you find the role that meets your aspirations. And our consultants provide honest, expert advice to guide you through the recruitment process. So for your next move, take the route of least resistance. Visit our website for more information or contact us on +61 (0)2 9236 9000 or visit taylorroot.com.au

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