IN-DEPTH
OPINION
THIS WEEK
PRACTICE PROFILE
The carbon tax’s darling
Michael Bradley on depression
Fallout from News of the World
What funding means for health lawyers
RENEWABLE ENERGY
JUST BE HONEST
www.lawyersweekly.com.au
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SAVING PRIVACY
STICKING TO BUDGET
Friday 22 July 2011
AWARDS SPECIAL ISSUE Meet the finalists
Print Post Approved 255003/05160
Page 24
The
LONDON REPORT
Careers to build on
In-house Sydney | Banking
Sydney | Construction (Front-end)
Perth – Employment/Disputes
Exciting and diverse banking & finance role has arisen within this major international bank. Ideal first in-house move for a dynamic lawyer from a major firm with experience across financing transactions, loan structuring, DCM or derivatives. Excellent verbal and written communication skills are also a must! Enjoy a first class, complex workload within a collegiate, high-performing team environment. Ref: SYD/4363/DS
New, front end construction role working on a high profile project and for a highly regarded infrastructure company. You will work closely with a key business unit advising on a range of engineering services contracts, subcontracts and commercial agreements. Experience in a mid or top tier firm or respected engineering, construction or infrastructure firm is desired. Ref: SYD/4362/OH
Leading international mining business with global operations is looking to expand their team with an additional dynamic lawyer. Broad range of work available including corporate/commercial matters, employment and disputes. Top-tier experience is required in one or more of these areas. Join a close knit, collegiate team with scope to develop your career in Australia and overseas. Ref: PER/4355/DS
London | Banking & Finance
Singapore | Banking
Hong Kong | Corporate M&A
Our client is looking for a high calibre, energetic banking and finance lawyer with a broad range of experience gained from a top tier or highly regarded mid tier practice to join its leading City finance team. Leveraged finance experience will be highly regarded. You will need strong academic, inter-personal and technical skills to qualify for this role. Ref: LON/4306/RL
A junior and mid level lawyer with general banking experience are sought to support the Singapore based finance practice of this international firm. The role will involve regional work but also have an aspect of Singapore based work as well. The ideal candidate will have 2 to 4 years experience in general banking gained with a top-tier or strong mid-tier law firm and have strong legal analysis and drafting skills. Ref: SIN/4371/RL
International law firm is searching for a Commonwealth qualified M&A specialist for a high profile role involving mergers & acquisitions, joint ventures and advisory work. Experience gained from a top tier or respected international mid tier law firm together with solid academics are necessary. Chinese speaking ability will be highly regarded but is not necessary for this role. Ref: HK/4233/RL
2 – 4 years
5 – 7 years
4 years +
International 4 years +
Junior – Mid Level
4 years +
Private Practice Brisbane | Corporate Insurance
Sydney | Corporate/Commercial 3 years +
Sydney | Life Sciences
Senior Associate Prestigious law firm has a new opportunity for a savvy insurance lawyer to work on predominately front-end work including policy drafting, policy interpretation, corporate governance and risk management. Some exposure to contentious work so an insurance litigation background will be considered. Working for high calibre clients across a broad spectrum of industries including marine, aviation, technology and media you will gain top-class experience. Ref: BRI/4211/GG
This large mid-tier firm has a new opportunity for a dynamic corporate/commercial lawyer with a minimum of 3 years of solid experience. Broad client base from a range of different industry sectors, including information technology & telecommunications, transport, health and automotive. The work includes structuring, asset protection, acquisitions and sales of businesses, commercial leases, due diligence, negotiating and drafting contracts and general advisory work. Ref: SYD/4369/GG
Rare opportunity for an experienced lawyer to join the Life Sciences team of this highly regarded firm. Working with a leading partner and a special counsel this role will see you focus on high profile and sensitive litigious and regulatory matters for the biggest names in the pharmaceuticals space, international corporate clients and their insurers from across the APAC region and the US. Candidates with experience in IP, commercial litigation or health law will be considered. Ref: SYD/4372/AM
Sydney | Environment & Planning
Sydney | Corporate Advisory
Sydney | Insolvency & Restructuring 2 – 4 years
A rare and exciting vacancy has arisen for a junior Environment & Planning Lawyer to come on board with this top tier firm. You will receive mentoring from industry recognised Partners and work in a collaborative advising developers, property owners and resource companies on all facets of projects and dispute resolution in the property development and resources sectors. Ref: SYD/4374/OH
Our client is a leading national firm and has a vacancy in its Sydney office for a junior lawyer to join their corporate team. You will work with great mentors and gain plenty of hands on experience working for clients in the energy, infrastructure, telecommunications and electricity industries. Work includes, regulatory and compliance, competition, trade practices, consumer protection and some IP matters. Great opportunity. Ref: SYD/4094/GG
Our client is tier one firm with unparalleled expertise in Restructuring and Insolvency. The team has worked on most of the major insolvencies and corporate collapses in Australia over the past decade. The role will involve contentious and non-contentious matters including distressed investing, debt trading, financial restructuring, creditor’s schemes of arrangements and administrations and winding up actions including cross boarder matters. Ref: SYD/4366/AM
Sydney | Banking & Finance
Sydney | Construction (Front-end)
Sydney | Property
2 – 4 years
3 years + This top tier firm has a new role for a senior banking and finance lawyer to join their fast growing team. You will be advising leading private equity firms, banks and major corporates on project and infrastructure finance, takeover/acquisition financings and large syndicated loan transactions. Great opportunity to work amongst market leaders for an impressive client list within a supportive team environment. Ref: SYD/4376/OH.
1 – 2 years
Senior Associate
Leading national law firm is seeking a senior front-end construction lawyer. You will be exposed to a range of complex and interesting construction and projects work. It will be an advantage if you have previous experience working on government matters. You will have the ability to mentor junior lawyers and possess top-class drafting and technical skills. Excellent career opportunity with a competitive salary. Ref: SYD/4377/GG
For a full list of active roles that Dolman is working on throughout the worldwide visit www.dolman.com.au For further information please contact one of our consultants for a confidential discussion: Daniel Stirling, Alex McIntyre, Olivia Harvey, Gail Greener and Ralph Laughton. Sydney (02) 9231 3022 Melbourne (03) 8637 7317 or email dolman@dolman.com.au
3 – 5 years
Senior Associate
Excellent opportunity for an experienced property lawyer to join this top tier firm. Work with two first rate partners across a range of commercial property matters including various land transactions, large scale developments complex leasing work and property trusts. You will work with some of the firm’s most key property clients and be hands on in managing the relationships. Real opportunity for career advancement available. Ref: SYD/4366/AM
“Australians [can] work in Sydney or Perth ... move to an offshore office and come back five years later with the firm knowing how good they are”
Contents
Clifford Chance Sydney managing partner Mark Pistilli on the career benefits of working within a global network – page 16
Regulars
12
OPINION: In response to last week’s cover feature on mental illness in the legal profession, Michael Bradley says it’s time to start being honest.
Features
6 10
14
36
38
THIS WEEK: A round-up of the latest legal news
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IN-DEPTH: Amongst the widespread debate as to whether the Government’s recently announced carbon tax is a positive step for the country, Australia’s renewable energy sector has emerged as a clear winner. Briana Everett reports
ANALYSIS: The collapse of Lehman Brothers International in 2008 was an event now frozen in infamy. Braydon Heape looks at why Australia should examine its own regime to determine whether it remains appropriate
18
PRACTICE PROFILE: This year, the health industry received an unprecedented cash injection through the Federal Budget. Stephanie Quine asks three health lawyers just what this funding means to both the legal and health sectors CAREER COUNSEL: In the next quarter, law firms will be expanding their practices to pre-2008 levels, leading to more vacancies through newly-created positions
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FOLKLAW: The lighter side of the law
LONDON REPORT: Lawyers Weekly provides its annual wrap-up of all that’s happening in London, including the state of the legal market, tips to land the right job as well as insights from recruiters and Londonbased lawyers
MEET THE FINALISTS: Lawyers Weekly unveils the industry’s top talent who made the cut as a finalist in the 2011 Lawyers Weekly Awards
QGC is a leading Australian coal seam gas explorer and producer. We offer diverse and global career opportunities to talented individuals who will help our business to meet growing domestic and international demand for cleaner hydrocarbon energy. QGC is establishing Queensland Curtis LNG, one of Australia’s largest capital infrastructure projects, to turn our world-class reserves of coal seam gas into liquefied natural gas (LNG). QGC also operates the gas-fired Condamine Power Station, the world’s first combined-cycle power station to run entirely on coal seam gas.
We currently have two key roles available in our legal department. If you’re a talented legal professional seeking an opportunity in the fastest growing sector in Australia, this is your chance.
Legal Counsel, HSSE
Legal Counsel, Land Management
In this challenging role, you will manage the legal aspects of QGC’s environmental and permitting function along with health and safety. It will be your responsibility to manage legal risk across HSSE within the Upstream area of the QCLNG Project. By providing expert legal advice, you will ensure relevant environmental conditions and permits are interpreted, negotiated and operated appropriately.
Reporting to the Lead Counsel, Upstream, you will manage legal risk in the Upstream area of the QCLNG project for our Land Management department. You will achieve this by providing strategic and cost effective legal services in the negotiation and operation of relevant commercial arrangements.
It is essential that you possess relevant tertiary qualifications and admission as a solicitor in the Supreme Court of Queensland. A current Practising Certificate and membership to the Queensland Law Society are crucial and ideally the preferred candidate will have related industry experience. QGC offers a progressive work environment, career development opportunities and a generous remuneration package commensurate with your skills and experience. QGC values diversity and is committed to equal opportunities. Applications are welcome from all suitably qualified candidates. For more information about QGC and to apply online visit www.qgc.com.au/careers
QGC – A BG Group business
www.qgc.com.au/careers
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Editor’sNote
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
Deputy Editor, Claire Chaffey
JOIN THE CONVERSATION Tweet, tweet Get your 140 characters of must-know legal news via @lawyersweekly Friendly faces Follow Lawyers Weekly on Facebook at www.facebook. com/lawyersweekly
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IN THE WAKE of Briana Everett’s cover story last week about the difficulties many lawyers face in talking about their mental illness, we received some interesting feedback from readers. The general gist was that readers are pleased we are keeping the issue of mental illness in the profession on the radar and not letting it disappear into the sunset. Amongst those to comment was the managing partner of Marque Lawyers, Michael Bradley. He was so wound up by the article that he felt compelled to put pen to paper and air his views on the subject. The opinion piece he authored (see page 12) makes for compelling reading. Not only is it entertaining (in typical Michael Bradley style), but it is also a bold, frank and forthright look at the issues the profession needs to confront before the beast that is mental illness amongst lawyers can be tamed. I have no doubt that some will disagree with Bradley’s sentiments, but I also believe many will see his piece as one which cuts to the heart of the issue and throws up a refreshing challenge to the legal profession. This week we are also providing our annual update on the London legal services market (see our cover story from page 18). For the first time in quite a while, talk of the global financial crisis during interviews was at a minimum. Instead, the news is all quite positive: 2011 has been a good year in terms of available positions for lawyers in London, and 2012 is set to be even better - fantastic, even. That is great news for those looking to embrace a change of scene and take advantage of all that Europe has to offer, and is perhaps indicative that the cloud of the GFC is lifting. Let’s hope this optimism isn’t dashed by the growing threat of a second crisis which hangs on the horizon.
TOP 10 STORIES ONLINE THIS WEEK
1 In the eye of the storm: the legal rainmakers 2 Mental illness hits lawyers in their prime 3 Carbon tax brings legal challenges for businesses 4 Mallesons promotes 34 5 Courts unhappy with interpreters 6 Can law firms be friends with social media? 7 Capturing lawyers in the moment 8 My Next Move: Should I wait until I’m a senior associate before moving overseas? 9 New group for Pacific lawyers 10 Law students look to Asia NEXT WEEK
Lawyers Weekly uncovers the emerging opportunities for Australian law firms as South Korea opens up its legal market to international firms. Find out which Australian firms are exploring the potential of South Korea’s legal industry and planning to establish a presence in the previously untapped market.
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, Thomsons Lawyers
ABOUT US Editor: Justin Whealing Deputy Editor: Claire Chaffey Senior Journalist: Briana Everett Journalist: Stephanie Quine Designer: Ken McClaren Design Manager: Anthony Vandenberg Senior Online Producer: Rebecca Whalen Group Production Manager: Kirsten Wissel Group Sales Manager Adrian Fellowes Senior Account Manager Stephen Richards 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 sales@lawyersweekly.com.au (02) 9422 2134 (mob) 0407 489 060 Stephen Richards stephen.richards@lexisnexis.com.au (02) 9422 2891 (mob) 0429 305 836 EDITORIAL ENQUIRIES: Justin Whealing justin.whealing@lexisnexis.com.au (02) 9422 2832 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
Australia boosts ICC funding The Australian Government will provide an additional $250,000 of funding to bolster support for the work of the International Criminal Court (ICC). Federal Attorney-General Robert McClelland and Foreign Minister Kevin Rudd announced the funding at the Commonwealth Law Ministers Meeting last week. “These contributions recognise the pivotal role the court plays in prosecuting the most serious crimes of international concern, including genocide, war crimes and crimes against humanity,” McClelland said. “Australia already makes a significant annual financial contribution to the ICC under the Rome Statute.” Judge to lead phone-hacking inquiry British Prime Minister David Cameron announced on the appointment of Lord Justice Leveson to lead the News of the World phonehacking inquiry. Heading the tabloid phonehacking inquiry, which will include an investigation into the wrongdoing of the press and police, as well as a full review of the regulation of the press, Leveson will be assisted by a panel of senior independent figures with expertise in media, broadcasting, regulation and government.
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The Web
COAG delays sign-off on national profession Approval of the new legislative package for the national legal profession framework was delayed after the Council of Australian Governments (COAG) cancelled its meeting scheduled for last week. Anticipating that COAG would accept the new legislative package at this week’s meeting and make a recommendation for the jurisdiction to host the legislation at its July meeting, the Law Council of Australia (LCA) has expressed its disappointment over the delay. “The Australian legal profession is hopeful COAG will progress this matter out of session,” said LCA president Alex Ward.
Mental illness hits lawyers in their prime AustrAliA is in the midst of a mental health crisis in which sufferers, including lawyers, are being struck down at their peak, according to a leading advocate. speaking at a NsW law society luncheon last week, 2010 Australian of the Year Professor Patrick McGorry AO said mental ill-health is affecting lawyers in their “prime of life”. McGorry also said that while mental ill-health is a top concern for Australian society, on par with climate change, it is beset by significant underinvestment in terms of both money and research. “Australia is innovative, but we don’t scale things up when we’ve got a good product. under-spending causes major structural problems,” he said. in relation to lawyers, McGorry compared them to “soldiers” in that their work typically calls on strong, tough and resilient personality requirements, and mental illness is therefore seen as a weakness. “it’s not a weakness: it’s a health problem, it’s part of life,” he said. “if you want to be strong and
resilient you’ve got to recognise and respond to it. that strength, competition and adversarial aspect of the legal profession might make it seem more difficult to respond.” McGorry said that while society tends to invest most in a person up to the prime of their life (which he said is around 22 years of age) through parenting and education, one in two people between the ages of 18 and 25 have commonly experienced at least one psychiatric disorder - whether it be depression, obsessive-compulsive disorder or a substance abuserelated illness. McGorry also said that while he is confident the new Minister for Mental Health, Kevin Humphries, will be an ally for positive change because “he understands the nature and scale of the crisis and scandal that has befallen the NsW health system over the last few years”, meaningful reform would require “enormous political courage and determination”. “i don’t think anything is going to change unless it becomes a voting issue. it’s a politicised issue,” he said.
R E W IND
The NRL threw support and funding behind the match review committee decision to go ahead with defamation proceedings against Mal Meninga and Queensland Newspapers. Japan expressed a desire to “re-energise” discussions on an Australia-Japan free trade agreement after talks stalled in March due to the earthquake and tsunami. Doubt was cast over new regulations under the Civil Dispute Resolution Act after Federal Court judge Bruce Lander warned that mediation and arbitration outside the courts could marginalise the judiciary. Tensions between Brazilian mining giant Vale and its Queensland joint-venture partner Aquila mounted last week as Vale considered legal action to end an export impasse which led to cancelled exports. Former NSW transport minister John Watkins and QLD state secretary Anthony Chisholm warned the NSW Labor party it risked being “obliterated unless it undertakes deep changes”.
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thisweek D e A L o F T He W e e K
Deal Name: Peabody, ArcelorMittal make $4.7 billion offer to buy Macarthur Coal Key Players: Mallesons, Freehills, Corrs Chambers Westgarth
Three of AusTrAliA’s leading law firms have announced they are advising on a $4.7 billion bid for Australian mining company Macarthur Coal. The world’s largest steelmaker, ArcelorMittal s.A, made an indicative, nonbinding and conditional proposal to make an off-market takeover bid (jointly with Peabody energy Corporation) for AsX-listed Macarthur Coal. ArcelorMittal
is Macarthur’s second-largest shareholder owning 16.2 per cent currently. Both companies claim their joint bid (offering $15.50 a share) is an improvement over previous offers for Macarthur. Corrs Chambers Westgarth corporate partners Teresa handicott, Braddon Jolley and Jeremy horwood are advising Macarthur on the latest offer. Macarthur previously rejected a $3 billion takeover bid by Peabody in March 2010, claiming it undervalued the Brisbane-based company. it then spurned another offer by Australian coal mining rival New hope the following month. Mallesons stephen Jaques sydneybased M&A partners David friedlander and Greg Golding are advising ArcelorMittal, while partner robert hanley, special counsel Joe Newitt and senior associate Jonathan Wood in the firm’s london office are allowing 24-hour coverage to its european-based client. st. louis-based Peabody is being advised by freehills M&A partners Tony Damian and Andrew rich in sydney. Buying Macarthur would give the two companies ownership of mines in Queensland, where Macarthur operates in the Bowen Basin. The bidders will likely seek the support of China’s Citic Group and south Korea’s Posco, which own 22.78 per cent of Brisbane-based Macarthur between them.
De AL MAKeRS
Marcus Best
James Lonie
Peter Stirling
Firm
Minter Ellison (COFCO Corporation), McCullough Robertson (Tully Sugar)
Henry Davis York (Orange Capital), Allens Arthur Robinson (Charter Hall Group), Gilbert + Tobin (Charter Hall independent directors)
Blake Dawson (TRUenergy), Page Seager (Hydro Tasmania and Roaring 40s)
Deal name
Chinese takeover of Tully Sugar Limited
Orange Capital invests in Charter Hall
Expansion of TRUenergy renewable energy portfolio
Area
Corporate transactions
Corporate transactions
Corporate transactions
Value
$136 million
$3.6 billion
$156.7 million
Key players
Minters’ Marcus Best
HDY’s James Lonie
Blake Dawson’s Peter Stirling
Movers & Shakers
Three firms act on steely deal
Bakers poaches Corrs partner Roy Weitzman, a former partner in the banking and finance group at Corrs Chambers Westgarth, has joined Baker & McKenzie’s major projects group in Melbourne. “I thought Bakers was the best possible option for me as I want the ability to take my business offshore into markets where I think there are opportunities for social infrastructure, PPP and project financing,” he said. Bar list appoints former Slaters specialist Australia’s largest list of commercial barristers, List A Barristers, has appointed commercial litigation lawyer David Andrews as its executive director. Andrews was previously employed as a practice group leader and senior associate at Slater & Gordon and has almost 30 years experience in insolvency, insurance, intellectual property, trade practices and general commercial issues. IP expert joins DLA Piper Yan Zhao has left Foley & Lardner, where he was a senior counsel, to join DLA Piper as a partner in its Asia intellectual property team. Zhao has more than 13 years experience in China covering patent prosecution and patent litigation work. He will be based in Shanghai but will also spend time in DLA Piper’s Hong Kong office. Blakiston moves to G+T Michael Blakiston has officially moved from Blakiston & Crabb into Gilbert + Tobin’s new energy and resources group as a consequence of the merger. Blakiston will be part of the team establishing G + T’s Perth office after the firm fully integrated with Blakiston & Crabb in May this year.
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thisweek
Unite to fight cyber crime Commonwealth countries must unite if they are to tackle the growing threat of cyber crime, according to Federal Attorney-General Robert McClelland. Speaking at the Commonwealth Law Ministers Meeting (CLMM) in Sydney last week, McClelland and Minister for Home Affairs Brendan O’Connor discussed Australia’s experience in combating cyber crime with First Law Officers from across THE PRESIDENT of the International Criminal the Commonwealth. Court (ICC) and the Commonwealth secretaryAs part of the discussion, the general have signed a Memorandum of Australian Federal Police (AFP) provided Understanding (MoU) to strengthen and develop an update to the cyber threat faced by cooperation to support the implementation of Commonwealth nations, and delegates received a briefing from cyber crime international criminal law. expert Dr Jonathan Clough about the The signing of the MoU by Judge Sang-Hyun threat posed by cyber crime to national Song and Kamalesh Sharma took place at the security and law enforcement. Commonwealth Law Ministers’ Meeting (CLMM) “Cyber crime is a global problem which in Sydney last week. no single country can tackle alone,” The ICC president commended the McClelland said. “Greater opportunities Commonwealth secretariat for its work in for countries to share experiences and foster better international cooperation promoting the development and implementation are invaluable.” of international criminal law. McClelland and O’Connor “National jurisdictions are the were joined in a discussion first line of defence against impunity panel by law ministers from “Cyber crime for mass atrocities. The ICC is a Canada and Botswana. They costs Australia safety net, a court of last resort,” discussed a range of topics, well in excess of including the intersection of said Song. “For justice to prevail, $1 billion a year” cyber crime and the national we need to develop the national and security agenda. international elements in parallel. “Australia has been involved in many The Commonwealth is uniquely placed to initiatives as part of the global response to facilitate that process.” cyber crime and I was pleased to share Sharma said the ICC plays a central role in our experiences with our international achieving justice for victims and preventing colleagues,” O’Connor said. “The Australian Federal Police impunity for genocide, crimes against humanity, estimate that cyber crime costs Australia war crimes and other forms of aggression. He well in excess of $1 billion a year and said the agreement between the Commonwealth billions more is lost in countries across the world, but through international co-operation we can reduce cyber threats. “We all face similar challenges in combating cyber crime and there’s a lot to be learned from the experience of others, Law students must develop global legal literacy in legal frameworks, education initiatives and knowledge of the Asian legal system if they or technical solutions.” want to succeed, according to the president of the More than 40 countries had Australian Law Students’ Association (ALSA). representatives at the CLMM, which Speaking to Lawyers Weekly in the final hours of provided an opportunity for discussion on last week’s 2011 ALSA Conference held in Sydney, legal issues of common concern across president Matthew Floro said the event had the Commonwealth. fostered a sense of involvement in the Asia-Pacific region, especially with its strong international student presence. “Twenty per cent of our delegates were international, coming from New Zealand and many places in Asia, including Taiwan, China, Hong Kong, Indonesia, Malaysia, Singapore and Japan,” he said. “I think that goes a long way to developing those friendships and that cross-cultural exchange.” Five hundred and fifty delegates representing top law schools from across Australasia had the chance to network over seven days, taking part in
Commonwealth signs ICC MoU and the ICC would help promote the rule of law on the domestic front through capacity-building measures in international humanitarian law and international criminal law. “This marks a new chapter in our work in the delivery of capacity-building measures such as developing training and assistance programmes for national judges, prosecutors, and other criminal justice officials in the fields of international humanitarian law and international criminal law,” Sharma said. “The conclusion of this Memorandum of Understanding demonstrates our deep-rooted commitment to the rule of law. It is a fundamental Commonwealth value within the new humanism we espouse. In concrete terms this means providing mutual support in upholding human rights, in providing access to justice for victims and in fighting impunity, particularly for perpetrators of those most heinous atrocities, war crimes and crimes against humanity.” The MoU calls for the exchange of knowledge and materials, participation in meetings and conferences at all levels, the development of training and assistance programs for lawyers in Commonwealth countries, and support for states as they enshrine international criminal law into domestic law.
Law students look to Asia
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day trips to Newtown and Bondi Beach and enjoying a full schedule of social events, including theme nights, cocktail parties, pub crawls and day events. Hosted by the University of New South Wales (UNSW), this year’s conference featured six national championships, which Floro said showcased the “wonderful display of the legal skills of upcoming law students”. Floro said the conference gave ALSA the opportunity to strengthen ties with their peers in Asia. “Last night we signed a new memorandum of understanding with the Asian law student association which basically allows for further collaboration and cooperation with our Asian counterparts, including the possibility of setting up internships and other exchanges with our Asian neighbours,” he said.
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thisweek
As the United Kingdom’s News of the World phone-hacking scandal deepens, Australia should be looking at implementing a tort of privacy. Briana Everett reports THE RECENT announcement that News Limited will review the operation of its newspapers in light of the News of the World phone-hacking scandal has reignited calls for Australia to introduce a tort of privacy. Rejecting Greens Senator Bob Brown’s claim that a full senate or independent inquiry into media ownership regulation in Australia is required, Holding Redlich partner Ian Robertson said the phonehacking scandal highlights the “regrettable” behaviour of certain media outlets and the need for a tort of privacy. “In my opinion the big issue in all of this is whether Australia will now move to a proper tort of privacy,” said Robertson, agreeing with former Prime Minister Paul Keating who also noted the “serious need” for a tort of privacy on ABC’s Lateline last week (14 July). “Well there’s one thing for sure that comes out of this and that is self-regulation by the media is joke. A joke,” Keating told Lateline.. “People shouldn’t have a right of appeal about invasions of their privacy to some body funded by newspapers (the Press Council). They should have a right at law.” According to Robertson, the Australian Press Council and Australian Communications and Media Authority have proved to be “woefully inadequate” and the introduction of a tort of
Ian Robertson, partner, Holding Redlich
privacy is a significant issue which Australia’s state and federal politicians need to address. Noting instances in which certain media outlets have committed “outrageous” invasions of privacy, Robertson claims such acts by the media have almost become a daily occurrence. “I think anyone these days who becomes even momentarily in the public eye will find they are harassed by journalists or photographers,” he told Lawyers Weekly. “I think there is a point past which people shouldn’t have to put up with it just because they are a public figure, a celebrity or somebody the media is momentarily interested in.” While recognising that a tort of privacy would not provide absolute protection, Robertson claims it would alleviate what is now a prevailing issue and one that is becoming increasingly difficult thanks to the era of digital information. “What we need in this country is robust political debate. I don’t think the quality of our society would be harmed, even a little bit, if people were able to protect their truly private information - unless there was an overriding public interest for it to be disclosed,” he said. “The interesting issue in all of this is whether the most powerful media group in Australia, being News Limited, has been sufficiently damaged by recent events, as has happened in the United Kingdom, so that the Government will now stand up to them.”
US/UK Update
Phone-hacking scandal puts spotlight on Oz laws
UK firm rallies up NotW class action UK law firm Silverman Sherliker has launched a News of the World (NotW) action group for employees of the axed tabloid, reports The Lawyer. The group aims to launch a class action against NotW by rallying its former employees to claim “stigma damages” and long-term impact on their careers following the ongoing phone-hacking scandal. Legal aid cuts ripple through community Tens of thousands of people pursuing asylum and immigration cases have been left without support after the immigration advisory charity service Yarl’s Wood went into administration, blaming government cuts to legal aid, reports The Lawyer. The UK Government’s Legal Services Commission alleged the collapse was due to “claims irregularities”. Fox caught in US blackmail lock Defence secretary Liam Fox is being called to give evidence in a blackmail trial in the US, reports the Guardian. The “unprecedented” action could make Fox the first serving British cabinet minister to give evidence in a serious US legal case. US conglomerate 3M is considering serving Fox with a subpoena over a claim he was aware of a threat to interfere with a knighthood award to 3M’s British-born CEO. Linklaters opens in Abu Dhabi Linklaters has launched an office in Abu Dhabi, with New York finance partner Paul Kruger among a number of partners relocating to the new arm, reports Legal Week. The launch marks Linklaters’ 27th office worldwide and will mean that all magic circle firms – bar Slaughter and May – have a presence in Abu Dhabi. L’Oreal wins TM ruling against eBay The European Court of Justice (ECJ) has ruled that online auction site eBay be held liable for trademark infringement where it is aware that users are selling imitation items via the site, reports The Lawyer. The decision will have farreaching implications for all online sites allowing vendors to sell branded goods. The case was referred to the ECJ in 2009 after L’Oreal, Lancome Parfums Et Beaute & Cie, Laboratoire Garnier & Cie and L’Oreal (UK), asked the domestic court to find eBay liable for trademark violation committed by its users.
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indepth
A win for renewable energy Amongst the widespread debate as to whether the Government’s recently announced carbon tax is a positive step for the country, Australia’s renewable energy sector has emerged as a clear winner. Briana Everett reports
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gainst a background of political instability and robust debate between the Gillard Government and the Opposition, the proposed “carbon tax” brings some good news for the renewable energy sector. If the Government’s carbon pricing package is passed through Parliament – the draft legislation is due to be released on 31 July – the renewable energy sector will receive over $13 billion in funding, including $10 billion for the establishment of the Clean Energy Finance Corporation (CEFC), which will invest in renewable energy and energy efficiency projects and technologies, and $3.2 billion for the establishment of the Australian Renewable Energy Agency, for research and development into renewable technologies. This investment in Australia’s renewable energy sector is triple that of the UK, which invested just $4.8 billion in its Green Investment Bank – upon which Australia’s proposed CEFC is modelled. “What’s really exciting is the Clean Energy Finance Corporation and the Renewable Energy Authority,” said Norton Rose’s global head of climate change, Anthony Hobley, who attended the lock-up in Canberra on 10 July as the new scheme was announced. “I think it will allow Australia to give many of these hubs that are emerging in this region, like Singapore, Beijing and Tokyo, a real run for their money in terms of this whole green economy.
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“It will attract a lot of talent and a lot of investment in renewables, clean technology, clean energy and energy efficiency, and allow a lot of capacity building for those projects. It’s fantastic.” According to Hobley, the general reaction amongst climate change lawyers to the carbon pricing proposal has been positive. “I think everyone’s pleased. You’ve got to look at this in the political context,” he said. “The Government has made the smallest possible target they can. They seem to have been pretty clever in diffusing or taking the wind out of the sails of most of the particular areas of criticism. Not all areas, obviously, and they’ll still have pretty robust discussion around this in the next few weeks and months, but I think the initial view is that it’s a very clever package to address all of these issues.” In her address to the nation, Prime Minister Julia Gillard confirmed the carbon tax will come into play from 1 July next year, forcing approximately 500 “big polluters” to pay $23 for every tonne of carbon they release into the atmosphere. The carbon price per tonne is set to increase from $23 to $24.15 in 2013-14 and $25.40 in 2014-15, with an emissions trading scheme (ETS) to come into force on 1 July 2015. The ultimate goal of the carbon policy is to cut the nation’s carbon emissions by 5 per cent by 2020, cutting 160 million tonnes per year of carbon pollution. “Putting a price on carbon is a big change for our country,” Prime Minister Gillard said on 10
“I think it will allow Australia to give many of these hubs that are emerging in this region, like Singapore, Beijing and Tokyo, a real run for their money in terms of this whole green economy” ANTHONY HOBLEY, GLOBAL HEAD OF CLIMATE CHANGE, NORTON ROSE
July. “I know we can do it together. Our economy is the envy of the world. We have world-leading renewable technology, a coal industry determined to cut pollution among the world’s richest reserves of natural gas.” Following the announcement of the proposed scheme, businesses must ensure they understand the potential impact of the carbon price and the risks of a future ETS, according to Clayton Utz partners Graeme Dennis and Brendan Bateman. In particular, Dennis and Bateman said the introduction of a carbon price could trigger “change of law” clauses in long-term supply contracts, which could lead to wholesale contract negotiations and disputes over pricing. “If the new carbon pricing mechanism falls within the definition of ‘change of law’ in a particular contract, there are a couple of possible scenarios,” said Dennis. “One could be a forced renegotiation of the contract and a dispute between the parties over how the increased costs resulting from the change in law should be factored in to the new price.” LW
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opinion L W_ 5 4 1 . p g 0 0 1 . p d f
Pa ge
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IN-DEPTH
PROPER CONDUCT
Lawyers get uniform rules
Speak the truth
In response to last week’s cover feature on mental illness in the legal profession, Michael Bradley says it’s time to start being honest.
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THIS WEEK
TAXING ISSUES
Breaking down the carbon price
PM
LEGAL LEADERS
PAVING THE WAY
Tony McAvoy shares his story
OPINION
WE’RE WATCHING YOU
Spying on the regulators
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SPEAK NO EVIL
Friday 15 July 2011
Why lawyers still can’t talk about mental illness
Lawyers Weekly’s cover story about why lawyers can’t talk about mental illness
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he debate about mental illness in the legal profession is driving me nuts.It’s good that we’ve moved on from denial of the problem’s existence, but we appear now to be stuck in a bizarre and immoveable stand-off where the one thing we’re not saying is the one thing we need to address. On one side are the advocates of awareness and reform, like the Tristan Jepson Memorial Foundation and Lawyers Weekly, giving voice to the issue but unable to do anything about it. On the other stands the profession, engaged in very active and sincere hand-wringing and saying, “Yes, terrible, isn’t it. If only we could find a way for our lawyers to feel comfortable about speaking out about their mental illness, we really want to help them.” And they really do, there’s no doubt about that. Lawyers are not inhuman, and only a few are actually dedicated to the destruction
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hasn’t helped, but focusing the debate on why lawyers won’t talk is missing the point. There is no genetic or historical inevitability about lawyers being depressed. Law does not by its nature attract candidates who have mental illness. There’s no basis for assuming that lawyers shouldn’t have the same chance of happiness as anybody else. Therefore, “To have any hope of achieving whatever it is that’s causing lawyers’ progress with this problem, we unhappiness/anxiety/depression, or have to name the cause. And it’s worse, must be something we’ve created. very obvious. Our profession To have any hope of achieving just doesn’t want to say it” progress with this problem, we have to name the cause. And it’s very obvious. Our profession just doesn’t want to say it. The cause is the institutional, corporatised, mercenary and singularly money-driven culture which has been created over the past few decades and permeates every aspect of how most law firms run. Timesheets are awful, soulless things, but they are a symptom, not the central cause. If you work in a law firm, you know what I mean. Your destiny is driven by a linear relationship between the time on your timesheet, the fees next to your name, the clients you “own”, the debtors you collect, the of other people’s souls. Law firms do carry an utilisation rate of your team and what you get unusually high proportion of sociopaths, but paid, your status in the firm and, ultimately, they’re not evil: they’re crying out for help too. how you regard your own worth. If that doesn’t So the initiatives taken by the large law cause you to feel a little anxious, wow. firms to help bring this sleeping monster of an If there’s no true desire to acknowledge and issue out into the open are commendable and address this reality, that’s okay. Just don’t waste shouldn’t be cynically dismissed as just so much any more energy wondering what the problem whitewash. But nor should the wilful blindness might be, but be honest about its consequences. underlying the profession’s approach to this In the end, every individual lawyer has the issue be allowed to persist without comment. freedom to choose their workplace, and they Fact: lawyers suffer from anxiety and have to take responsibility for their choice. depression, and commit suicide, at a It’d help a lot if everyone stopped lying to considerably higher rate than the general them while they’re still law students, though. population. Maybe law firms could give some thought to What’s missing is a real discussion of why. being a little more honest in their approach As Lawyers Weekly has recently noted, to summer clerk and graduate recruitment. lawyers are not speaking up about their personal There’s nothing more depressing than a hopeful problems, because they fear the consequences expectation dashed. LW of doing so. The appalling spectacle of two magistrates having to abase themselves before Michael Bradley is the managing partner of State Parliament to plead for their jobs of course Marque Lawyers in Sydney.
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CONSTRUCTION LAWYER – DUBAI • 4-5 Years PQE • Arabic Not Required Our client, a Magic Circle Firm with operations in Dubai, is seeking a lawyer to join their busy Middle East practice. You will be involved in largescale construction dispute resolution for our client’s blue chip international clients. Top quality contentious construction experience is a must. There is no requirement to speak Arabic. Ref. No. BX/32010. 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
practiceprofile
Healthy change in the pipeline This year, the health industry received an unprecedented cash injection through the Federal Budget. Stephanie Quine asks three health lawyers just what this funding means to both the legal and health sectors.
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hen the Federal Government announced sweeping national health reforms in the 2011/12 Federal Budget in May this year, an air of cautious optimism settled on the health sector. With $2.2 billion allocated to mental health reform over five years, and $55.4 billion for aged care programs over the next four, health professionals, operators and patients all looked forward to improvements within the embattled sector. Health lawyers also became aware of potential changes to the work they do within the industry, but two months down the track, they say they have felt “no difference” since the much-heralded reforms. Norton Rose corporate and commercial lawyer Bernard O’Shea, who specialises in the biotechnology and pharmaceutical spaces, says that while there are “changes in the pipeline at all levels” and a “great deal going on behind the scenes”, the announcement has not yet manifested in more work coming to lawyers in the private sector. “There’s a fair hiatus from the announcement of the reforms, but it hasn’t really hit our desks yet in terms of a specific work flow,” says O’Shea. Shane Evans, head of the national health & ageing industry group at Minter Ellison, also says the Budget announcements have thus far brought little change. “The [aim] of the money was to better target and coordinate existing services, rather than create different services,” he says. “There’s a significant under-investment in mental health and a lot of the Budget was to make up for the shortfall. You’d be looking for substantial
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change or reform for that to translate into change in the legal services.”
Governance and risk One aspect of Evans’ work which is likely to see significant change is the over-arching systems in place for health care providers and the responsibilities of management. Since the early 2000s, tort reform under the Civil Liability Act has seen an increase in expectations on regulators about clinical governance. “If there’s an adverse outcome now, it’s not just about looking at blame for an individual doctor or nurse. It’s seeing what the executive and management are doing about it,” says Evans. A few years ago, he adds, a serious event might have resulted purely in a claim for compensation. Now, though, healthcare providers can expect that the state health complaints commission, the private health regulatory unit, the coroner, the complaints investigation scheme and OH&S bodies will all be involved. Essentially, says Evans, the Commonwealth’s increased funding to public hospital services came on the proviso that recipients will adhere to national standards. “Everyone will have to adhere to and report upon these standards, and if there’s noncompliance it will be investigated. That’s a significant change. We haven’t before had such a mandated and consistent set of national standards,” says Evans. Leon Shohmelian, a solicitor at Atkinson Vinden Lawyers in Sydney, agrees that much of the funding revolves around the establishment of a new regulator for the industry - something
he hopes will “improve the efficiency of bureaucracy in the sector”. Since amendments were made to the Retirement Villages Act in March last year, cites Shohmelian, operators have had to work within significant changes (especially relating to disclosure and budgeting issues), but he adds that “operators have got their heads around it now”.
Out with the old … Another area which is benefitting from federal funding is new online health initiatives. Due to a boost in funding for eHealth and telehealth, Evans says “there is a lot of work going on in relation to privacy issues, privacy IT policies and contractual arrangements”. Evans cites a recent case in which Minter Ellison was involved, whereby Medibank acquired an American business for online medical consultations, as being one example of the growth in this area. “You expect it to generate legal work just because it’s one of those transformational changes,” he says. Another primary issue arising from the Federal Budget relates to funding for new developments in aged care. Given Australia’s ageing population, and productivity commission reports which highlight the serious lack of housing for the elderly, Shohmelian says “we need to investigate how to make funders more comfortable with lending in this area in order to move the industry forward”. “The access to funds is definitely not as easy as it was before the global financial crisis,” says Shohmelian, who adds that a recent ATO ruling to increase the GST cost of purchasing some retirement villages was a move which could
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practiceprofile
“I think you might now see a much more holistic, comprehensive and sensible Commonwealthcoordinated approach to funding or reimbursement of the things which the industry supplies” BERNARD O’SHEA, LAWYER, NORTON ROSE
discourage development. “It’s completely contrary to the idea of encouraging investment and growth in the sector,” he says. Recently visiting the US, Shohmelian says that aged-care in the US embraces the alignment of retirement villages and aged-care facilities much better than we do in Australia. “The continuum”, as he describes it, is not so much about combining, but placing the two kinds of facilities on the same premises so there’s a “continuum of care for people as they move through those later years of their life”. Evans, who has acted for the Department of Health and Ageing as well as Queensland Health, believes aged care is due for a “big reform” in the next couple of years in the way it is funded and modelled. “I think there will be a lot of consolidation. When the Commonwealth puts funding into that it will generate legal work because it’s going to be a big change. The many small providers will consolidate and they will have to change the way they do business,” he says.
Drugged up “We need to investigate how to make funders more comfortable with lending in this area in order to move the industry forward” LEON SHOHMELIAN, SOLICITOR, ATKINSON VINDEN
According to O’Shea, another major issue facing the industry is the current dichotomy of funding that occurs at the state and federal levels of the health system. This, he says, has had the effect of convoluting access to pharmaceuticals. With multiple clients having submissions for pharmaceuticals in the backlog of the pharmaceuticals benefits scheme (PBS), O’Shea believes a more formal mechanism, where “the Commonwealth takes the sole funding reigns”, could help fix the overlap between various forms of Medicare reimbursement. “The clients are not asking any particular questions because they’ve asked all the
questions before and I say there’s very little you can do about it … Unfortunately for us lawyers, while you can complain about the system being slow, you don’t typically speed it up by taking it off to court,” he says. O’Shea says the current senate inquiry into why the PBS-listing of seven drugs recommended by the Pharmaceutical Benefits Advisory Committee (PBAC) was deferred offers a useful forum for airing grievances, but adds that past processes whereby an “effectively uncontrolled group – namely cabinet –sits at the end just simply not doing anything” have been “simply rude” from an industry perspective. The PBS was a strong area of focus of the Federal Budget, with $717 million allocated to expand access to diagnostic imaging services and make medicines more affordable. “I think you might now see a much more holistic, comprehensive and sensible Commonwealth-coordinated approach to funding or reimbursement of the things which the industry supplies,” says O’Shea.
“If there’s an adverse outcome now, it’s not just about looking at blame for an individual doctor or nurse. It’s seeing what the executive and management are doing about it” SHANE EVANS, PARTNER, MINTER ELLISON
COUNSEL AUSTRALIA & NEW ZEALAND (Full-time, permanent) Based in Melbourne, the successful candidate will be expected to provide sound, strategic and independent legal advice to Marketing and other business functions within Kraft Foods on corporate and commercial matters. This role will be responsible for managing legal aspects of marketing and product activities and advising on a range of IP, consumer facing and general commercial issues. The incumbent will also have an opportunity to support other functions and business commercial activities as required by the BU Chief Counsel and to assist on local, regional and global legal projects as required. Applicants must be qualified to practice law in Australia and ideally have a minimum of 4 - 6 years post-qualification experience with a top-tier law firm or in-house. Experience in IP and drafting and negotiating commercial contracts is desirable. To be successful in this role, you must be a strong team player though a self-starter, possess great communication skills and have proven ability to work well under pressure in a fast-paced environment. Progress your career at Kraft Foods where we take the creation and selling of our fun products very seriously! Please forward applications and academic transcripts to Natasha.hosein@ kraftfoods.com quoting reference CAD2500 in subject line. Enquiries may be directed to the Kraft Foods resourcing team at: 1 800 069 882. Applications close 31th July 2011.
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analysis
Lessons from Lehman
The collapse of Lehman Brothers International in 2008 was an event now frozen in infamy. Braydon Heape looks at why Australia should examine its own regime to determine whether it remains appropriate.
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he decision of the English Court of Appeal in CRC Credit Fund Limited v GLG Investments Plc Sub-Fund [2010] EWCA Civ 917, and the granting of leave to appeal the decision by the UK’s Supreme Court in December 2010, demonstrates the important role of trust account protections for client money when a financial services business fails. And it may hold significant lessons for Australian regulators. The case concerns the consequences of the Lehman Brothers International (Europe) (LBIE) administration, for clients who had paid money to the company in connection with its investment services business. LBIE was based in the United Kingdom. As the main trading company of the Lehman Brothers group within Europe, it provided a variety of services typical of a global investment bank, including prime brokerage, corporate advice, equity and fixed income trading and investment management. On 15 September 2008 – a date now notorious in the history of modern finance − it went into administration. It was regulated under the Financial Services and Markets Act 2000 (UK) by the Financial Services Authority (FSA). Client monies paid to LBIE enjoyed some protection under a statutory trust, through the rules provided for in the FSA Handbook. In Australia, similar provisions are found in the Corporations Act 2001 (Cth) and Corporations Regulations 2001.
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analysis
The global financial crisis and the collapse of Lehman Brothers has led to a number of interesting legal disputes”
The issues in the case concerned the scope of the protection afforded by the statutory trust. In the case, the English Court of Appeal closely scrutinised the UK’s regime for distribution of client money on failure of a financial services business. The rather vague definitions of the terms of the statutory trust created fertile ground for dispute about the entitlements of different classes of clients. The main contest was between those whose client monies had been segregated in a client account and those whose monies were simply mixed in house accounts with LBIE’s own money. Given the time and expense it would take for the “unsegregated” clients to pursue their claims individually, and the poor prospects for recovery in any event, there was a powerful incentive for these clients (represented by CRC Credit Fund Limited) to seek to extend their entitlement under the statutory trust to money held in the client account.
Equally, given the impact this would have on the claims of segregated clients already facing a diminished pool of segregated money, there were strong reasons for segregated clients (represented by GLG Investments Plc) to resist these claims. While the Australian law has not yet been put to such a test, the case presents a strong argument for re-examining the Australian regime to determine whether the outcomes produced by it remain appropriate. The English court decision reveals two potential flaws in the Australian regime. The first is that Australian clients whose investment monies have not been placed in the required trust account by the investment firm – whether through permissible delay, negligence or fraud – will likely be forced to bring expensive and lengthy legal proceedings to recover their trust monies in the event of failure of the investment firm. In contrast, clients whose money has been held in a trust account will benefit from the rules in place to streamline distribution of these monies. Section 981H of the Corporations Act 2001 provides that client money is taken to be held in trust by the licensee for the benefit of the client. Section 981F of the Act governs the event of the licensee’s insolvency. Critically, the section applies only in respect of money in a segregated client account. The section, with its related regulations, has nothing to say about unsegregated client monies. The second is that the financial services firm benefits from residual trust account monies, instead of clients whose money has not been set apart in the trust account. This is because under the current rules, the firm is entitled to any residue remaining after trust account clients’ claims have been met. The “waterfall” provision at regulation 7.8.03(6) of the Corporations Regulations provides (at paragraph (b) and (c)) for the distribution of the trust monies to segregated clients. Following any such distribution, the residue is to be paid to the licensee (under para (e)). No provision is made for any distribution to clients with unsegregated client monies. Thus the licensee itself will participate in the distribution of client money, in all likelihood well before the claims of unsegregated clients will have been satisfied. Those whose trust money has been wrongfully dissipated by the firm may only compete for the residue of the trust account − pooled with other
assets of the firm − along with other unsecured creditors. Ironically, consideration of these consequences proved important in shaping the English Court of Appeal’s decision. The Court concluded that these consequences could not have been intended in the UK regime, which led it to favour an interpretation of the relevant rules that did not produce such an unfair outcome. By contrast, the unfair consequences appear to be intentionally present in the Australian regime. The reasoning in the British case suggests that a review of the regime is warranted in Australia. It is appropriate to consider whether these outcomes remain appropriate in light of international experience. The striking differences in treatment of the different classes of clients suggests that the issue of unfairness can be expected to arise upon failure of an Australian investment firm with significant numbers of clients whose money has not been segregated in a client trust account. Regardless of the decision of the UK’s Supreme Court in the final appeal in the Lehman case, the issue is likely to remain significant as a matter of Australian financial services regulation and policy in the future. The global financial crisis and the collapse of Lehman Brothers has led to a number of interesting legal disputes. Henry Davis York advised Perpetual Limited in relation to recovery action since Lehman Brothers filed for bankruptcy and assisted Perpetual negotiate a settlement with Lehman Brothers in November last year following a complex cross-border insolvency priority dispute. Details of an out-of-court settlement with Lehman Brothers were released in May. This related to $125 million of credit-linked notes (CLNs) issued by an Australian company, Mahogany Capital, backed by other CLNs issued from the Lehman Brothers sponsored “Dante” note program. Approximately 1,000 retail investors who bought the Mahogany notes will recover around $100 million from their $125 million investment. The dispute was hard fought and involved complex priority, conflict of laws and crossborder insolvency issues. It ran for nearly two years with proceedings across three jurisdictions of the UK, the US and in Australia. LW Braydon Heape is a senior associate with Henry Davis York.
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londonreport
The
LONDON REPORT What you need to know to land that London role
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londonreport
MARKET WRAP
What you’ll earn City 7yrs’ PQE-Partner £100k+ 6yrs’ PQE £90-125k 5yrs’ PQE £85-110k 4yrs’ PQE £75-102k 3yrs’ PQE £67-90k 2yrs’ PQE £60-80k 1yr PQE £58-70k
Hot practice groups Banking and finance lawyers rejoice – it’s all about you! This year’s hot-to-trot practice areas are all banking-related, with roles in general banking, leveraged finance, projects and asset finance – particularly in relation to infrastructure, mining and trade, shipping and aviation – making up the bulk of available positions in the London market. Not into banking? Fear not. There is still a decent level of demand for employment lawyers, particularly those with experience in the pensions space, as well as property, M&A and private equity, debt capital markets and equity capital markets lawyers. Still not convinced? The good news is that commercial litigation positions are also remaining steady, as are roles in intellectual property and telecommunications.
Landing that London role According to James Franklin, the manager of the legal division at Robert Walters in London, some of the best things Australian lawyers can do in preparation for landing a London role are: • Make sure you have strong academics from a well-regarded university; • Secure a position in a well-known law firm in Australia (preferably in the top tier, or close to it); • Take up a secondment within a large, well-known company; • Specialise in a particular practice area (due to the nature of London firms, those with a more general CV are not necessarily viewed as stronger candidates than those who choose to specialise); and • Be open to accepting temporary or contract positions in order to get a foot in
Newly-qualified £55-65k
the door. Once you are in the UK market you are more likely to get a permanent job.
The current state of recruitment When it comes to the chances of scoring a role in London, there is both good news and bad. The good news is that the legal services market is a lot stronger than it was last year. The bad news is that it is still not fantastic. “The legal services sector is pretty busy at the moment,” says Franklin. “It’s a good time. It’s not the most amazing of times, but it is certainly better than what it was last year.” Luckily, there happens to be a silver lining to this lingering grey cloud. “The UK economy is growing, but slowly in comparison with what is happening in Asia,” adds Franklin. “We are seeing more roles but it is not a flood of roles. We expect that 2012 is going to be much stronger. Start looking at next year and start making investigations now as to what the possibilities are for next year.”
Paralegal £23-36k
West End 7yrs’ PQE-Partner £85k+ 6yrs’ PQE £67-85k 5yrs’ PQE £55-75k 4yrs’ PQE £51-67k 3yrs’ PQE £47-65k 2yrs’ PQE £44-61k 1yr PQE £40-55k Newly-qualified £35-52k Paralegal £20-32k Source: Robert Walters 2011 Salary Survey Exchange rate: 1GBP = $AUD1.51
Immigration issues If you’re not lucky enough to have a European ancestry visa, here are a few things you’ll need to know: • You will need a visa. If a law firm wants to hire you, they can apply to sponsor you under a Tier 2 visa. Recent changes to the UK’s immigration policies mean that each firm has a quota of Tier 2 visas. • You may also qualify for a visa without having to be sponsored. A Tier 1 visa, formerly known as the Highly Skilled Migrant Program visa, is a four-year visa which will allow you to work within your own area of expertise.
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WHAT TO EXPECT The good There is no doubt that Australian lawyers living in London can be exposed to work that is diverse, exciting and often on a much larger scale than the work on offer within Australia’s capital cities. “It is a change of scenery. At the big firms you’re working on large and often multinational deals,” says Blake Dawson partner Murray Wheater, who spent seven years in London before returning to Sydney in 2005. “There’s travel too. Instead of going to Brisbane for a due diligence, you could be going to Rome. That is all fun. You’re in a new city and dealing with the top investment banks and all the top advisors. And London being an international commercial centre, you feel like you’re in the hub of things where things are happening.” And let’s not forget the social side of things which, given the similar cultures and the significant expat community, can be a lot of fun. You’re also likely to receive a very warm welcome from your new employer. “Australian lawyers are absolutely loved in London,” says Nigel Clark, a London-based partner at Minter Ellison. “They find that Australian and New Zealand lawyers are very well trained, they have a very good work ethic, and they work hard and play hard. They fit in really well, so London firms love to have Aussies and Kiwis in their office, especially when they hold the Ashes!”
The bad Once you’ve landed that role in London, the reality of working in a magic circle firm or a large multinational firm may not be as glamorous as you were perhaps expecting. After all, a significant factor in the decision to take on Australian lawyers is that they have a reputation for working very, very hard.
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… coming home The good
“The work/life balance is definitely more work than life,” says Wheater. “If you go to one of the magic circle firms or US firms, you should not expect to have much of a social life during the week. You do get to travel on the weekends, but it is snatched between deals and work. It’s not a total party scene. “Generally speaking, it is pretty full on. There are high expectations, particularly in the US firms which have high billable hour targets (of at least eight hours a day).”
The ugly To avoid the ugly, it’s best to make sure you know exactly what you’re getting yourself into. Ask which practice group you’ll be working in and what expectations that particular group has. “Do your due diligence. I basically just turned up to [one of the firms I worked in] because I had heard it was an excellent firm. I ended up being put in a group called The Group of Death,” says Wheater. “They just lapped up South Africans, Aussies, Canadians and Scots because they knew we worked hard. If I had my time again, I would ask exactly what team I would be going into, because that was never really discussed.”
Having London experience on your CV is definitely seen as a positive and is an increasingly valuable weapon in your career artillery. Law firms see exposure to London work as building better lawyers with greater depth of experience, as well as a more rounded career and character. And if you want to return to your old firm, chances are they’ll take you back with open arms. “If our lawyers go off and do a couple of years in London and they come back, that is a fantastic outcome for everybody,” says Jane Lewis, director of people and development at Allens Arthur Robinson. “Last year, nearly 50 per cent of the lateral hires we made were from overseas locations, so the international market is definitely one which we draw from a great deal. “Generally, it is about the richness of legal experience that they get and also about the general life experience which fills their tool kit.”
The bad You might be competing with a whole cast of other equally enriched lawyers who have that much sought-after London experience. “I think Australia is quite over-lawyered and I think the UK is probably overlawyered now too,” says Clark. “There are a lot of people competing for a smaller pool of jobs now.”
The ugly There is no ugly: after burning the candle at both ends in London, coming home to an Australian firm will almost feel like a holiday.
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STEPPING STONES The global route Not surprisingly, the presence of global firms in Australia has its advantages for Australian lawyers looking to make a move overseas and, in particular, to London. While lawyers working at Australia’s top-tier firms are still well-placed to land themselves a job in a London firm, there are now many valuable opportunities for lawyers working in the Australian offices of global firms such as Allen & Overy and Clifford Chance. These firms can provide employees with the perfect stepping stones to a career in London. “People within [Clifford Chance] have an ability to look at moving throughout offices within the network, virtually at will,” says Clifford Chance Sydney managing partner Mark Pistilli. “Wherever there’s a demand for lawyers and the desire from within the network to go there, we seek to facilitate it. That is certainly one of the key attractions to the Australian offices in joining Clifford Chance. That opportunity is now available to our people to work anywhere in the world.” According to Pistilli, since Clifford Chance made its Australian debut in May this year, there has been significant interest from lawyers at national firms across Australia - at all levels - who want to work within Clifford Chance’s global network. “They want to work in the Australian office but they also see it as a launching pad to everywhere else in the world, including London,” says Pistilli. Aside from the growing interest of Australian lawyers hoping to join the global networks in London, there are now more attractive career opportunities in Australia for Australian lawyers looking to come home after a lengthy stint at a magic circle firm. According to Pistilli, until now, Australian lawyers working at magic circle firms in London who were thinking about returning home did not have much choice when it came to finding an appealing firm through which they could re-enter the Australian legal market. Now, as global
firms enter Australia, Australian lawyers working in London’s magic circle can find an equivalent experience, with the same cross-border work, to come home to in Australia. “The biggest problem that Australians had faced – if you go back to the old market, the domestic market – is that they moved from Australia to the UK, established credentials in a firm like Linklaters, Clifford Chance, Freshfields or Allen & Overy, and then had to come back five or six years later and start again – there was no-one who knew them,” says Pistilli. “Now, Australians have an opportunity to work in Sydney or Perth, get their credibility recognised, move to an offshore office and then come back five years later with the firm knowing how good they are.” Additionally, even if Australian lawyers aren’t looking for a long-term stint in London, the ease with which secondments can be arranged between the Australian and London offices of global firms is another benefit on offer in 2011. According to Allen & Overy Australia’s head of human resources, Fiona Spender, the firm’s international secondment program allows lawyers with two to four years of experience to go to any of the firm’s offices across the globe. In addition, while UK trainee lawyers can choose to spend the last six months of their training contract at any office in the firm’s network, Australian lawyers at Allen & Overy have the opportunity to attend a training program in London. “We have the University of Banking and the University of Corporate, as we call it,” explains Spender, “where lawyers with about two years of experience get to go to London (for two weeks), with all lawyers of a similar level from around the world.”
“People within [Clifford Chance] have an ability to look at moving throughout offices within the network, virtually at will” MARK PISTILLI, CLIFFORD CHANCE
“We have the University of Banking and the University of Corporate, as we call it, where lawyers ... get to go to London” FIONA SPENDER, ALLEN & OVERY
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HOME GROWN
“I very much enjoy, from a personal perspective, the kind of entrepreneurial role that you get in a small office” NIGEL CLARK, MINTER ELLISON LONDON
The Australian way Despite the array of opportunities made available by the spread of global firms, Australian firms with offices in London provide another option for Australian lawyers seeking the London experience. Australian national firms such as Minter Ellison and Mallesons Stephen Jaques have had a presence in London for many years, allowing Australian lawyers to work in London while practising both Australian and English law. “We’re here basically to provide Australian law advice to the London market. Given the size of the London market, there is a lot of referral work that comes through,” says London-based Minter Ellison partner Nigel Clark, who works with a predominantly Australian team of seven lawyers practising in the corporate and finance space. “We do a lot of referral work for the UK and US firms in London and we also do what we call ‘hand-holding’ for the major Minter Ellison clients coming in … We have relationships with a number of our clients here and do bits and pieces for them.” But while over the years these offices have developed close-knit ties with the local firms of London, the presence of global firms in Australia has changed this dynamic. “We do work closely with the local firms. Until probably two years ago, we worked with all of the major firms,”
“We do work closely with the local firms” ROBERT HANLEY, MALLESONS STEPHEN JAQUES
explains London-based Australian lawyer Robert Hanley – the partner-in-charge at Mallesons. “But these days, since Allen & Overy, Clifford Chance and Norton Rose have opened up in Australia we naturally don’t get as many referrals. We still get some, interestingly enough, but obviously to the extent that they can direct them to their own Australian offices, they will do that. As a result, I think it’s fair to say our relationship with firms like Freshfields and Linklaters has strengthened quite a bit.” As with most London firms, the Australian firms operating in London – which house mainly transactional lawyers
– are still feeling the pinch of the recession. However, the work is starting to pick up. “Our team has varied between six and 12 lawyers,” says Clark. “Clearly London has suffered hugely from the global financial crisis but it’s actually picked up quite a bit in the last six months.” As for working in the London branch of an Australian firm, it provides a number of advantages, according to Clark. “I very much enjoy, from a personal perspective, the kind of entrepreneurial role that you get in a small office,” says Clark, whose role includes managing the firm’s relationships with local London firms as well as recruitment for the practice. “There’s a lot of business development work and I enjoy that. I think anyone who works in a smaller office of a major firm would say they’re out of the office a lot meeting people and I enjoy that side of it.” Agreeing with Clark, Hanley points out that working within a small team, while also having the back up of a national firm and its resources if needed, is an advantage. LW
Qualify to practise in England and Wales Don’t miss out! If you hold a Certificate of Eligibility under the Qualified Lawyers Transfer Test (QLTT) make sure you complete the test before the scheme ceases in 2013.
You can sit the test in either Sydney or Hong Kong through The College of Law England and Wales. For further information contact qltt@collaw.edu.au
visit www.collaw.edu.au
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Meet the finalists Showcasing the finest talent amongst Australia’s increasingly global legal profession, the high-calibre individual and team finalists of the 2011 Lawyers Weekly Awards have demonstrated passion, leadership, innovation and a true commitment to the legal profession. Stay tuned to find out who the winners are – to be announced at a cocktail party held at the Opera House Marquee in Sydney on Thursday 4 August 2011.
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s more global firms make their way to Australia, the competition is becoming tougher than ever. And with this background of change and growth, this year’s awards are a celebration of those who have well and truly raised the bar amid uncertainties and new challenges. Following the success of last year’s Lawyers Weekly Awards program, we have once again sought to uncover the best the legal profession has to offer and recognise their hard work and dedication over the last 12 months. With nine categories this year, including the Life Achievement Award, Hays Young Gun Award, Dolman In-house Lawyer or Team Award, Project Futures Dealmaker of the Year Award, Pheonix Managing Partner of the Year Award, Toll Practice Manager of the Year Award, LexisNexis Talent Manager of the Year Award, The College of Law - Law Student of the Year Award and the Philips Box Breaker Award, the Lawyers Weekly team was inundated with impressive and inspiring submissions from young students and aspiring partners to the top managing partners across the country. There are a few familiar names amongst the finalists this year, including those who made the finals cut last year and are back to take on the competition once again. Corrs Chambers Westgarth chief executive officer John Denton is back as a finalist for the Pheonix Managing Partner of the Year Award, last year receiving a highly commended after being pipped at the post by Gilbert + Tobin managing partner Danny Gilbert. The 2010 Dealmaker of the Year, Freehills partner Tony Damian, is also back again to reclaim the title, while Kraft Foods’ in-house team (formerly Cadbury) is a finalist following the success of the Cadbury in-house team, which took out the award in 2010. The difficult task of picking the winners from this year’s group of finalists will be left to a panel of independent judges selected from across the legal industry. LW
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The College of Law – Law Student of the Year Award
Ben Bullock
Alexandra Clare
Ryan Harvey
Joanna Vincent
Courtney Young
Michael Zhou
Murdoch University
Australian National University
Macquarie University
University of Western Australia
University of New South Wales
Monash University
judging Criteria Lawyers Weekly called for current law students (or a law student who graduated in 2011) to nominate for this award which recognises the academic, community and legal achievements of undergraduates. Nominees will be judged on their academic achievements, their current work experience, their extra-curricular activities, participation in university and campus life, and any contributions they have made to community and/or not-for-profit organisations.
Criteria • Brief CV of candidate including work experience (both in profit and not-for-profit organisations); • Achievements of note, additional campus achievements (and memberships) and extracurricular interests and activities; • Recent academic transcript (from one of the last three semesters); • Reference letter – from employer, mentor or lecturer; • Brief outline of nominee’s future ambitions following graduation.
The finalists of the College of Law - Law Student of the Year Award bear testament to the commitment and enthusiasm of young law students across Australia. All finalists are already making a mark on the profession with impressive academic results coupled with strong campus and community involvement.
Joanna Vincent is set to graduate next year with a range of work experience completed throughout her double degree from UWA. She has completed vacation clerkships at Freehills, Allens Arthur Robinson, Blake Dawson and DLA Phillips Fox and currently works as an advice line paralegal at the Employment Law Centre of WA.
Ben Bullock is in his final semester of Commerce/Law at Murdoch University. He works part-time at the Midland Information, Debt and Legal Advocacy Service as a paralegal. Ben has also entered the Australian Army Reserves as an officer cadet and has been heavily involved in founding and captaining his local cricket and AFL teams.
Courtney Young graduated from UNSW this year and has already taken up a position as associate to Judge Flannery in the District Court of New South Wales. She is a research assistant in the Australian Prisons Project for UNSW and has also lectured in criminal law. She has a strong interest in rural justice and practising criminal law in the country.
Alexandra Clare works as a paralegal for Wotton & Kearney Lawyers while completing her studies at ANU. She has already had significant experience in international law, spending five months at the Commonwealth Human Rights Initiative in Ghana, West Africa, and working on the defence team for Radovan Karadzic during his trial for genocide, war crimes and crimes against humanity at the International Criminal Tribunal for the Former Yugoslavia.
Michael Zhou is a Monash University student set to graduate next year with a Bachelor of Laws/Bachelor of Music. He is currently working as principal legal advisor and researcher at the Victorian Office of Public Prosecutions. An accomplished violinist, he has undertaken clerkships in Australia and overseas.
Ryan Harvey is studying a Commerce/Law degree at Macquarie University and recently represented Australia in the 2011 Commonwealth Moot Competition. He currently works as a paralegal in Allens Arthur Robinson’s banking and financial services group and will next year begin as associate to the Honourable Justice John Dyson Heydon AC.
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Hays Young Gun of the Year Award
James Farrell
Rebecca Jancauskas
Amy Munro
Gregory Seeto
Alice Skipper
Scott Traeger
Manager/principal lawyer, PILCH Homeless Persons’ Legal Clinic
Associate and department manager, special projects, Shine Lawyers
Senior associate, Mallesons Stephen Jaques
Senior lawyer, Clayton Utz
Senior associate, DLA Piper
Senior associate, Lander & Rogers
judging Criteria Lawyers Weekly called for nominations from lawyers of any age who are in their first five years of practice for the Hays Young Gun of the Year Award. Nominees were asked to outline when they graduated, their work and community experience during study and in their first years of practice, their notable achievements so far, and any experience, skills and initiatives undertaken that set them apart from other young lawyers. References from employers, community leaders and academics will assist candidates during the final judging process.
Criteria • Brief CV, including work and community experience, education, extracurricular activities, any special/unique skills and interests and notable achievements; • Brief overview of the entrant’s view on what they have contributed thus far to the legal profession and the wider community; • At least one reference from an employer, community leader or academic; • One paragraph on the entrant’s future ambitions.
The finalists of the Hays Young Gun of the Year Award bear testament to the impressive array of emerging legal talent in Australia already making a significant contribution to the profession James Farrell is the manager and principal lawyer with the PILCH Homeless Persons’ Legal Clinic. He is responsible for supervising and supporting a team of over 300 volunteer lawyers who assist approximately 1000 clients per year. Rebecca Jancauskas has already made a big impression at her firm, Shine Lawyers, where she was appointed as the firm’s youngest ever associate in 2008. As a litigation lawyer, she acted for 18 female staff members from the ABC in pursuing compensation from the Australian Government, and also founded and developed the website for the Environmental Justice Society. Amy Munro is a senior associate at Mallesons Stephen Jaques in the dispute resolution group. She also co-ordinates the Sydney Human Rights Law Group and played a major role in acting for two young plaintiffs in successful High Court action against amendments to the Commonwealth Electoral Act.
Gregory Seeto, a Clayton Utz senior associate, has earned a nomination through a combination of legal skills and interests outside the law. Seeto was one of two authors asked to contribute to a tome on ASX listing rules. While out of the office he is a board director with the Queensland Youth Orchestra and leader of the Brisbane Concert Orchestra. Alice Skipper is a DLA Piper senior associate. Heavily involved in the firm’s mentoring program, Skipper was invited to Delhi last year to speak as part of an Australian delegation participating in an environmental law workshop. She is also the co-ordinator of the firm’s pro bono program, Inside Access. Scott Traeger is a senior associate with Lander & Rogers. In 2010, he was awarded the firm’s pro bono award, after acting successfully for an Australian pensioner living in Greece who had his pension cancelled. Scott has thus far achieved favourable outcomes in the Social Security Tribunal, Administrative Appeals Tribunal and the Federal Court.
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Philips Box-Breaker Award
Tom Haslam
Jane Hogan
John Knox
Jeremy Szwider
Chief innovation officer, Herbert Geer
Head of knowledge, Gilbert + Tobin
Chief executive officer, Advent Lawyers
Managing director, Bespoke Law
judging criteria Lawyers Weekly called for nominations from individuals practising law, or managing the practice of law, in an innovative way that “thinks outside the square”. Nominees were judged on their innovation, problem-solving capabilities and their creative solutions that aid in providing better client service. Box-breaker nominees may refer to one sole initiative of their work that they believe demonstrates the “box-breaking” ideals, or can refer to multiple examples within their day-to-day legal work that they believe prove they practise law “outside the square”.
Criteria • Brief CV of entrant and brief overview of why the entrant believes innovation in the legal industry is necessary; • Introduction to the entrant’s key innovation technique(s) and how they assist in better client service delivery and/or better legal business best practice; • Outline of the demonstrated impact on how such innovative legal service delivery techniques have impacted the practise of law, and where such innovative practices might take the industry in the future.
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The Philips Box-Breaker Award celebrates the innovators within the profession. Tom Haslam is the chief innovation officer at Herbert Geer. Haslam has helped the firm to develop new models and systems, including its innovation program that helps users find alternative approaches to the practise of law and to better share knowledge throughout the firm.
Jeremy Szwider is the managing director at Bespoke Law. After practising as an IP and IT lawyer, Szwider started Bespoke Law in April 2009. He offers the service of a “virtual law firm”, offering varied methods of client communications. Szwider has also established a business model that provides for alternative fee arrangements, designed an outsourced in-house counsel service, and operates in a paperless environment.
Jane Hogan, the head of knowledge at Gilbert + Tobin, was nominated for her work in assisting the firm with the development and implementation of “FRANK”, a tool developed by the firm to help its lawyers solve legal problems and produce legal documents. John Knox is the founder and chief executive officer of Advent Lawyers. After extensive experience with big law firms in Australia and overseas, Knox founded Advent Lawyers in December 2008. Its business model looks to provide experienced lawyers, at a significantly reduced cost, to small and entrepreneurial companies, and it has also signed a strategic alliance with a well-known global legal resource process outsourcing company.
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Dolman In-house Lawyer or Team Award
AMP
Future Fund
Kraft Foods
Laing O’Rourke
Perpetual
Telstra
Legal team
Legal department
Legal team
In-house legal team
Legal services
In-house legal team
judging criteria Lawyers Weekly called for nominations from lawyers or teams of lawyers in government departments or corporations. Nominees were asked to outline their legal and business contribution to their organisation over the last 12 months, and will be judged on their ability to raise the profile of legal work within their organisation, their contribution to managing risks within their organisation, their contribution to the bottom line, as well as any significant transactions/deals undertaken during the course of the year.
Criteria • Outline of legal team and brief introduction of organisation; • List of legal, business and community achievements over the last 12 months, including deals and transactions, internal achievements (such as the implementation of a new system/process) and staffing/ resourcing challenges that have been overcome; • Details of how the success of the team has contributed to managing risks within their organisation and contributing to the bottom line, all while maintaining a strong commitment to legal privilege and ethics.
This year’s finalists will present a challenge to the judges, with all teams having had some remarkable achievements in the last 12 months. The AMP legal team was instrumental in helping AMP deliver two new and critical business initiatives, including AMP Flexible Super and the implementation of the primary recommendation of the Ripoll inquiry, by engaging and collaborating with many different parts of the business to resolve a myriad of complex regulatory issues. Future Fund legal department’s key contributions from the past year have included performing the internal legal role on more than 30 major investment transactions by the board, performing the internal legal role in connection with the ongoing obligations of the board as an investor in connection with existing investments, and coordinating, managing and providing internal legal input to the external legal roles on investment transactions domestically and internationally.
Court of NSW, and also reacting to the devastating Queensland floods which affected numerous projects and destroyed one of the company’s Brisbane-based offices. Perpetual Limited’s legal services team saw the retirement of the company’s managing director and chairman, and the assessment of a takeover approach by KKR to acquire Perpetual’s shares. Whilst involved in the complexity that these issues produced, the team continued to push forward with numerous significant transactions. Telstra’s in-house team has been heavily involved in lengthy and complex negotiations with the Commonwealth Government in relation to the $43 billion National Broadband Network (NBN) program. When complete, the NBN will become the single largest infrastructure investment made by an Australian Government.
Kraft Foods’ legal team was hard at work finalising the acquisition of Cadbury (from whence last year’s winners hailed) by Kraft Foods, including the harmonisation of intellectual property, overseeing the relocation and managing legal risk in the commercial processes. The Laing O’Rourke in-house team had a busy year successfully defending the company in two significant matters, one being in the Supreme
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LexisNexis Talent Manager of the Year Award
judging criteria Lawyers Weekly called for nominations from human resources and people managers in law firms for the LexisNexis Talent Manager of the Year Award. This award recognises achievements around staff retention and recruitment strategies, and acknowledges the work of human resources and people managers in contributing to the satisfaction levels of staff in their firm. Nominees will be judged on specific programs and initiatives to address retention, recruitment and satisfaction.
Criteria • Brief profile of nominee, including significant accomplishments of note during their time with the organisation; • An outline of relevant strategies implemented regarding staff retention and recruitment within the nominee’s organisation; • Examples of specific programs and initiatives that have addressed retention, recruitment and satisfaction within the nominee’s organisation.
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Gareth Bennett,
Vicki Thompson,
Director, people and development, Freehills
HR manager - Canberra, Clayton Utz
The LexisNexis Talent Manager of the Year Award recognises one of the most important facets of running any organisation: how to successfully manage and motivate people and how to attract and keep the best people. In nominating finalists for this award, the Lawyers Weekly editorial team decided to make two recommendations to the judges, leaving it for them to decide who to give the award to, and who to nominate for a highly commended.
Vicki Thompson is the HR Manager – Canberra for Clayton Utz. In that role she has been the catalyst for the adoption of policies throughout the firm. After being approached by a Canberra lawyer who was returning to work at the firm after a period of parental leave and needing a room for breastfeeding, Thompson ensured such a facility was provided and the firm was recognised as a breastfeeding-friendly workplace by the Australian Breastfeeding Association. Thompson also helped to co-ordinate the pooling of resources throughout all of the firm’s Australian HR teams to ensure a breastfeeding-friendly workplace policy was drafted. Thompson also ensured training for Canberra staff in mental health first aid (MHFA). Thompson liaised with the HR managers at Blake Dawson, Mallesons Stephen Jaques and Minter Ellison in Canberra to ensure their respective resources could be pooled to give HR managers and firm representatives training in MHFA.
Gareth Bennett is the director, people & development, at Freehills. Joining the firm in 2007, Bennett has been instrumental in developing a number of programs at Freehills. In particular, he has assisted with the implementation of a program that looks at the most talented performers at Freehills, and the development of a strategy which develops emotional awareness, learning about the physiology of stress, ways to reduce and control stress, and enhance resilience and mental health awareness. Bennett has also played a key role in the development of the firm’s retention strategies. In July 2010 he announced a new bonus plan that targeted attraction, retention and engagement strategies. The scheme is uncapped (a first in the Australian market) and is available to all lawyers. The scheme has delivered significantly larger bonuses for leading lawyers below the partner level at Freehills, and has looked to take a holistic view of the strengths and contributions of the firm’s lawyers.
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Toll Practice Manager of the Year Award
Erin Feros
Ken Fowlie
Andrew Price
Luke Solly
Queensland practice director, Allens Arthur Robinson
National general manager of commercial and project litigation, Slater & Gordon
Chief operating officer, Wotton & Kearney
General manager, Colin Biggers & Paisley
judging criteria Lawyers Weekly called on nominations from practice managers within law firms for the Toll Practice Manager of the Year Award. Nominees were asked to outline their contribution to the management of the firm and their ability to assist in easing the processes and procedures undertaken by lawyers during day-to-day tasks, as well as any unique programs that they believe set their practice management capabilities apart from other law firms. Nominees will be judged on employer and employee buy-in, practical results and leadership.
Criteria • Brief CV of entrant, including achievements of note during their time with their current organisation; • Outline of significant contributions the entrant has made to the management of the firm, including examples of the solid introduction of new processes and procedures relevant to the management of the firm. This includes relevant details on how such actions have assisted a lawyer’s day-to-day tasks and why such programs are unique; • Reference from a key individual within the firm who can outline how their work has been influenced by the entrant.
Erin Feros currently holds the positions of Queensland practice director; Allens board member; chairperson of the Brisbane Charity Committee; relationship partner to many of the firm’s key global resources clients as well as private equity clients from the UK and US; and director on the board of the Queensland Theatre Company. Resources law, mergers and acquisitions in the resources and energy sector, privatisations and capital markets are Feros’s primary areas of expertise, and she was a key member of the Allens team advising the Queensland Government on the $7 billion privatisation of Queensland Rail’s coal transport business.
finalist for Corporate INTL’s 2010 ‘Legal Award for Maritime Law in Australia’. W+K has also been appointed to panels of some of the largest marine insurers in Australia. Luke Solly, Colin Biggers & Paisley’s general manager, encouraged the firm’s partners to embark on their first three-year strategic plan. The initiative was so successful that a subsequent five-year plan is now being rolled out. This has given the firm a robust framework to carve out a distinctive niche in a crowded market for legal services.
Ken Fowlie is the national general manager of Slater & Gordon’s commercial & project litigation (C&PL) practice. Since its establishment in 2009, the group under Fowlie’s leadership has grown to become a major player in the class action and major litigation industry. Under his leadership, Slater & Gordon’s C&PL practice has grown to have teams set up in Melbourne, Sydney, Brisbane, Preston (Victoria), Coffs Harbour and Gunnedah (NSW). Andrew Price is the chief operating officer at Wotton & Kearney. He has been involved in numerous initiatives including the development and implementation of new practice areas at W+K, including trade and transport law. Although only in its first year, the practice group’s reputation is already such that W+K has received international recognition, named as a
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Project Futures Dealmaker of the Year Award
Garry Besson
Stuart Byrne
Jeff Clark
Yuen-Yee Cho
Tony Damian
Philippa Stone
Partner, Gilbert + Tobin
National head of equity capital markets, Clayton Utz
Partner, Mallesons Stephen Jaques
Partner, Mallesons Stephen Jaques
Partner, Freehills
Partner, Freehills
judging criteria Lawyers Weekly called for nominations from partners/principals for the Project Futures Dealmaker of the Year Award, recognising the completion of one or multiple deals and transactions over the last 12 months. Nominees will be judged on how they handled challenges that emerged in completing transactions and deals, the creativity and excellence needed, and the significance of getting it/them completed.
Criteria • Brief CV of entrant nominee; • Introduction to deal(s) or transactions(s) completed by the dealmaker, including name, value (if disclosed) and key players (including any opposing firms); • Outline of the deal(s) or transaction(s) in terms of legal complexity, key challenges to completion, any significant hurdles, and how the dealmaker involved more junior staff members in the process.
The competition was fierce in the Project Futures Dealmaker of the Year Award category. In 2010, the M&A market reached heights not seen since before the GFC in 2007. According to Thomson Reuters, the value of M&A deals in Australia increased from $69 billion in 2009 to $165 billion in 2010. The first half of 2011 has seen a continuation of that trend, with M&A and capital markets lawyers shifting from one boardroom table to another as the deals continue to flow.
the $2.3 billion sale of the Port of Brisbane, and acting for TRUenergy on its $1.6 billion acquisition of Energy Australia.
Garry Besson, a partner at Gilbert + Tobin, established the firm’s M&A group in 1996 with Gary Lawler. During the 2010-11 financial year, Besson advised on a number of multi-billion dollar transactions, including acting for Shell Energy Holdings Australia Limited on the $US3.3 billion partial sale to Woodside Petroleum Limited, and for Riverside Mining in its recommended $4 billion bid by Rio Tinto.
Tony Damian, the reigning 2010 Lawyers Weekly Dealmaker, is looking to emulate last year’s achievement. He has been at the centre of some of Australia’s biggest deals over the last 12 months, including advising on Santos Limited’s $1.3 billion sale to Total and KOGAS as part of the $17 billion Gladstone LNG Project, Eldorado Gold’s $3.5 billion takeover approach to Andean Resources, and now Peabody’s historic bid for Macarthur Coal.
Stuart Byrne is the head of the national equity capital markets team at Clayton Utz. That team has had a role on all the major IPOs over the last couple of years, with Byrne the lead partner on many of those capital raisings. One particular deal of note was the Origin Energy $2.3 billion entitlement offer, where Byrne, in conjunction with Origin and Merrill Lynch, developed a new capital raising structure, the “PAITREO”.
Yuen-Yee Cho, a banking and finance partner at Mallesons Stephen Jaques, has acted on some of the biggest transactions of the last 12 months, including advising the five lead banks that provided Origin Energy with $4.2 billion to assist with acquisitions, and acting for Sydney Airport on its $3.16 billion refinancing.
Philippa Stone, a partner at Freehills has, over the 2010-11 financial year, advised on a multitude of deals, including Prime Infrastructure’s $2.5 billion merger with Brookfield Infrastructure and CSR’s $1.75 billion sale of its sugar division to Wilmar.
Jeff Clark has been a partner at Mallesons Stephen Jaques for 15 years. His nomination as a finalist comes on the back of deals including being the lead partner advising the financiers on
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Pheonix Managing Partner of the Year Award
John Denton
Joseph DeRuvo
Andrew Grech
David Kearney
Robert Milliner
Mark Pistilli
Partner & chief executive officer, Corrs Chambers Westgarth
Managing partner, Fox Tucker Lawyers
Managing director, Slater & Gordon
Managing partner, Wotton & Kearney Insurance Lawyers
Chief executive partner, Mallesons Stephen Jaques
Office managing partner Sydney, Clifford Chance
judging criteria Lawyers Weekly called for nominations from law firm managing partners and managing directors for the Pheonix Managing Partner of the Year award. Nominees were asked to outline their contribution to their firm, significant achievements as well as examples of how their leadership has shaped the culture, strategy and growth of their firm.
Criteria • Brief CV of nominee, including significant accomplishments during their time with the organisation; • An outline of the relevant strategies that have contributed to the growth of the law firm during the last 12 months and/or overcoming significant challenges; • Examples of leadership and innovation in managing staff as well as any clear examples of how the nominee has shaped the culture of the law firm and wellbeing of staff.
Not surprisingly, the Pheonix Managing Partner of the Year category attracted some impressive talent. As the Australian legal industry undergoes significant change amid a globalising market in 2011, managing partners have had to reassess their strategies and innovate to keep their firm in the game. John Denton, Corrs Chambers Westgarth’s chief executive officer, was a highly commended finalist in last year’s Managing Partner of the Year category. Appointing an unprecedented number of lawyers to the firm’s partnership in July this year, Denton has well and truly implemented his strategy to grow the firm by at least a third by 2015. Joe DeRuvo, the managing partner of Fox Tucker Lawyers, has also had an exciting year. The former managing partner of DLA Phillips Fox Adelaide, DeRuvo made the strategic decision to financially separate from the national firm in 2009 and, in 2010, instigated the merger with Rankine Tucker & Associates to create Fox Tucker Lawyers, which was launched in September 2010. Andrew Grech is Slater & Gordon’s managing director. In the last 12 months, Grech has overseen the acquisition of both Keddies and Trilby Misso – the two largest acquisitions the company has undertaken to date, helping it increase its share of the personal injury market from between 12 and 15 per cent to almost 25 per cent nationwide.
David Kearney, the managing partner and co-founder of Wotton + Kearney, made the finalist cut this year after a strong 12 months for the firm. In 2010 the insurance firm attracted a number of lawyers from top-tier firms both in Australia and overseas, amounting to a 50 per cent increase in headcount. A former partner of DLA Phillips Fox (now DLA Piper), Kearney has seen the firm grow from a team of just six lawyers to 65 in 2011. Robert Milliner, the chief executive partner of Mallesons Stephen Jaques, will step down as the firm’s head at the end of 2011 after more than seven years at the helm. In his final 12 months, Milliner has implemented the firm’s strategy for 2015, which includes the pursuit of the firm’s regional and international aspirations. Mark Pistilli is the managing partner of Clifford Chance’s Sydney office. Pistilli played a pivotal role in the merger of the firm he founded – Chang, Pistilli & Simmons (CP&S) – with Cochrane Lishman Carson Luscombe and Clifford Chance on 1 May, finally putting an end to ongoing speculation of Clifford Chance’s arrival in Australia. Impressively, the former managing partner of Atanaskovic Hartnell saw CP&S treble in size under his guidance.
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Life Achievement Award
Criteria This year Lawyers Weekly did not take nominations for this category. The winner of this category was selected by the editorial team of Lawyers Weekly and will be notified and invited to be involved in the awards program prior to any information being published or the award being presented. The winner will be selected based on the following: • Their contribution to the Australian legal profession; • Their accomplishments of note over the course of their career; • Their lifetime client service, as well as their overall leadership and influence on the Australian legal sector.
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Where do you begin when looking to select someone for the Life Achievement Award? This was the question on the minds of the Lawyers Weekly editorial team as it sat down to discuss who would be deserving of such an honour. In order to make the process as open and transparent as possible, while still ensuring the selection of a candidate who is acknowledged throughout the profession as a leading legal luminary, it was decided that the award would be open to outstanding members of the profession who have been profiled as a Legal Leader over the past 12 months in Lawyers Weekly. The subject of one such profile was Michelle Sindler. She returned to Australia last year to take up an appointment as the CEO of the Australian International Disputes Centre (AIDC), which was officially opened in Sydney on 3 August. Sindler was a partner at Minter Ellison before moving abroad and becoming the first female partner of the Swiss firm Bär & Karrer and the president of the International Young Lawyers Association. She then moved to London and became a partner with local firm Olswang LLP, gaining the rare distinction of being a partner with three different law firms in three different jurisdictions. Sindler’s good friend and fellow alternative dispute resolution specialist Doug Jones became the first Australian to head the Chartered Institute of Arbitrators, a 12,000-strong global body of learned professionals. In a legal career that spans 40 years, Jones is Clayton Utz’s relationship partner for the Department of Defence, and is also the president of the Australian Centre for International Commercial Arbitration (ACICA). In attending the launch of his book Commercial Arbitration in Australia in May, the former NSW Attorney-General John Hatzistergos told Lawyers Weekly that Jones “has invested an enormous amount of time in commercial arbitration in Australia and helped put Australia on the map internationally”. After “retiring” as the NSW chief justice in 1988 after 14 years in the role, Sir Laurence Street has gone on to oversee the settlement of over 1500 commercial disputes as a mediator. At 85 years of age, he is still actively involved in the profession, with his expertise being called upon in numerous royal commissions and government inquiries, including the “Street Inquiry”, established by the Australian Federal Police in 2007 to review its counter-terrorism operations. Recognised as the Senior Australian of the Year in 2011, Emeritus Professor Ron McCallum AO was the subject of a Legal Leaders profile in
May. McCallum has had a long and distinguished legal and academic career, having taught law students around the world, authored numerous books on labour law, served a five-year term as Dean of the Faculty of Law of the University of Sydney, was the inaugural president of the Australian Labour Law Association, and the Asian regional vice-president of the International Society for Labour and Social Security Law, amongst other things. As the current chair of the United Nations Committee on the Rights of Persons with Disabilities (UNCRPD), McCallum, who has been blind since birth, is also a champion for the rights of the disabled. Some younger legal leaders of the profession have also been profiled in our Legal Leaders section. Michael Blakiston, the managing partner of Blakiston & Crabb for many years before his firm merged with Gilbert + Tobin a few months ago; Ian Cochrane, a former Corrs Chambers Westgarth and Mallesons Stephen Jaques partner who started his own firm in Perth five years ago before merging with Clifford Chance this year; Helen Campbell, the CEO of the Women’s Legal Service NSW and the former executive officer of the Redfern Legal Service; and Ian Williams, a former Wallaby and now partner at Blake Dawson, who was instrumental in helping his firm establish the first Tokyo office of an Australian law firm. All have been prominent members of the legal profession recognised by Lawyers Weekly as legal leaders.
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career
counsel
Creating new vacancies In the next quarter, law firms will be expanding their practices to pre-2008 levels, leading to more vacancies through newly-created positions.
According to the latest Hays Quarterly report for July to September, there will be more vacancies in the coming quarter at the entry level up to newly-promoted senior associate level as firms expand their practice groups to pre-2008 levels. in the private practice space, the Hays report reveals that corporate lawyers with significant M&A transactions experience are currently in demand as law firms see a large increase in the volume and complexity of transactions as economic activity approaches pre-financial crisis levels. “this activity is focused largely around the banking and financial services industry as the banks are starting to provide higher levels of financing for their institutional clients,” the report states. “thus, demand is also up for banking and finance lawyers working on advisory and transactional matters.” insolvency and restructuring lawyers are also in demand, according to the report, as businesses continue to tie up outstanding issues
my
Consumer sentiment The fall in consumer sentiment, from 101.2 per cent in June 2011 to 92.8 per cent in July 2011 The largest fall in sentiment, which was in the highest income group. The confidence of those people with a mortgage plummeted by 16.5 per cent.
8.3 % 11.1 %
Source: The Westpac-Melbourne Institute Index of Consumer Sentiment – July 2011
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resulting from the global financial crisis. demand is also up for project lawyers, with a focus on construction, energy, resources and mining projects. this increased demand is not just within Western Australia and Queensland, but also in new South Wales where some Sydney-based firms are being engaged for larger resources and infrastructure projects across Australia. Within the in-house market, commercial lawyers with significant experience drafting and negotiating it and software licensing agreements are sought in response to a large increase in transaction volume, while banking and finance lawyers with a strong transactional focus in the funds, structured finance and equity transactions areas are also in demand. With the existing skills shortages in private practice (and in-house), the report states that toptier firms have become open to candidates with international experience and are more willing to sponsor good candidates, particularly those from the UK.
next move
Alex McIntyre, senior consultant, Dolman Legal Search & Recruitment Preparing for technical interviews Technical interviews are a common part of most law firms’ recruitment processes, but answering technical questions in an interview can be confronting. While thorough preparation will help you feel more confident, it is sometimes difficult to know the level of detail you will be expected to go into. A technical interview will usually involve talking about the issues on a particular matter which is cited on your resume. More often than not, partners are looking for more than your knowledge of the facts and applicable legislation. They want you to demonstrate that you know the law but also that you have a “bigger picture” understanding on why the law has been applied in a certain way. They will want to assess your understanding of your client’s objectives, commercial factors and legal strategy.
This can be drawn out through questions around applicable provisions of legislation, the documents you drafted and why they were drafted in a certain way, why a transaction was structured as it was or why a particular course of action was taken. To prepare, go through your resume and refresh yourself on the matters you have worked on with the above in mind. Be prepared to talk, in detail, about at least two significant matters you have worked on, including what you did on each matter and why you did it, right down to the documents you drafted and why you drafted them that way. Preparing to demonstrate the depth of your knowledge, beyond just knowing the facts and issues, will leave you feeling confident and ready for anything the interviewers may ask, enabling you to set yourself apart from other applicants. w w w.law yersweekly.com.au
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R E A D T h E L AT E S T FoLkLAW oNLINE
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www.lawyersweekly.com.au/folklaw
Selfrepresented defendant causes outrage
Lawyers hope to win more than toss in Barbados The Australian Lawyers Cricket Council (ALCC) is preparing to send its newest batch of cricket recruits to defend the glory found at the most recent Lawyers Cricket World Cup (yes, there is such a thing) held in 2009. Two years ago, a dedicated team of swinging, tossing and fetching lawyers from around the country - including barristers, solicitors and government lawyers - earned themselves the title of world champions at the competition held in Cambridge, England. According to the ALCC’s website, after two weeks of fierce competition (and no doubt many cups of Earl Grey and a scone or two) Australia beat India in the final at “The oval” by a mere run, with two balls to spare! This year, the ALCC has rounded up some more players to defend the title in – wait for it – Barbados! While this alone sounds like a tough gig (having to toss a cricket ball amongst the swaying palms and snow-white sand must be a real bummer), the chosen few will have the opportunity to retain the Butterfield Cup and know that they are the best team of cricket-playing lawyers in the whole world.
Capturing lawyers in the moment
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What more could a lawyer want? The tournament will consist of several 30-over, one-day matches between 7 and 21 August, which will be hotly contested between teams from India, Pakistan, Sri Lanka, Australia, the West Indies and England. Folklaw might just have to make the trip to Barbados with the team in order to provide the most extensive coverage possible.
Joining a throng of other law firms which have attempted to be innovative and re-brand themselves with cringe-worthy profile shots of their staff, international law firm Latham & Watkins is taking awkward website photography one step further. As reported by Above the Law, associates of Latham & Watkins will have to pose, not just for the usual headshot photos, but for full-body shots in what has been amusingly labelled as a new ‘moment-in-time’ style. “This new photographic style is sophisticated, modern, vibrant and approachable,” the firm said in an email statement. “It is essential that all lawyers have their photos retaken in this new format.” With these plans to go beyond the traditional portrait-style photos, Latham & Watkins has hired Gittings Photography - a studio specialising in, among other things, law firm photography - to take photos for the firm’s new “world-class” website. Folklaw is interested to see how the photographers will make the lawyers look ‘approachable’ rather than awkward, but mostly what ‘moment-intime’ style will entail. Will these ‘moments-in-time’ capture lawyers burning the midnight oil or working over the weekend? or perhaps filling in their time sheets or getting a bit tipsy at a client lunch? Probably not. Instead, Folklaw expects to see photos of lawyers standing awkwardly as they try to look ‘vibrant’ and ‘approachable’.
In a blatant case of law gone mad, an American prisoner accused of child molestation has been allowed to view videos he made of the abuse while sitting in his jail cell. Why, you quite rightly ask? Because he’s his own lawyer and therefore has the right to review evidence for his impending trial. The Associated Press reports that authorities in Washington have expressed their outrage at the situation. “The whole thing is just dirty,” said Pierce County Sheriff’s Detective Ed Troyer. The fact that the accused is allowed to view the videos results from a 2007 Washington Supreme Court ruling which states that upon request, prosecutors must give defence lawyers copies of evidence used to support child pornography charges. The court’s 8-1 decision said that granting copies of the materials was essential in order that defence lawyers, their investigators and defendants could seek to challenge the evidence. The Supreme Court established guidelines for handling the material, including that it should only be shown to defendants under the supervision of counsel. The glaring problem in this case is that the defendant is counsel. Nevertheless, the judge in this particular matter has allowed the defendant/counsel to view the materials at the jail, albeit barring him from being alone when he does so. Under the judge’s directions, he must watch the videos in a room visible to prison officers, and the jail requires him to adjust his computer screen so other inmates don’t see. But according to prosecutors, these rules don’t take away from the absurdity of the situation. “We have to disclose when we intend to introduce cocaine in a drug case, but we don’t give the defendant a kilo to take home and check out,” said Pierce County Prosecutor Mark Lindquist. “It is not necessary for the defendant to view the child porn himself to assist in his defence.”
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