lawyers weekly august 5, 2011

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HOT TOPIC

MALAYSIA DEALWhy it’s full of holes

545 Print Post Approved 255003/05160

Friday 05 August 2011

THIS WEEK

SALVOS LEGAL The fi rm of the future?

SUB-FEATURE

SIZE MATTERSLoving life in a small fi rm

OPINION

APOLOGY ACCEPTEDThe Neville Austin case

THE INDISPENSABLESThe non-lawyers propping up the business

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DOL177 ALW#545 FP InHouse ALW FP 235x 297mm July 29, 2011 5:20 PM

Client approval: ______________

Studio approval: ______________

For a full list of active roles that Dolman is working on throughout the worldwide visit www.dolman.com.auFor 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 [email protected]

Melbourne | Commercial Litigation4 years +Specialist insurance and health law firm seeks a talented lawyer to work on a broad mix of interesting matters including professional indemnity, public and products liability, a range of Health Law and general commercial matters. Genuine career progression on offer with a competitive salary. You will be involved in a growing practice, work autonomously, previous experience with Health Law that would be an advantage. Ref: MEL/4406/GG

Sydney | Senior TMT 4 – 5 yearsInternational firm is currently seeking an experienced mid level Technology and Communications lawyer. You will work on major IT outsourcing, software development, systems acquisition and integration, licensing, distribution, agency and teaming agreements or regulatory advice, network/ IT infrastructure projects, product development and customer terms as well as telecommunications-related M&A matters. Excellent salary and opportunity for progression, including secondment opportunities. Ref: SYD/4344/AM

Sydney | Funds 2 – 4 yearsAn exciting opportunity for a junior lawyer has opened up in our client’s expanding Funds team. If you have 2-4 years M&A or financial products/investments experience gained at a well respected law firm or industry player, a strong commitment to client service and thrive in a collaborative, team based environment then this is the role for you. Great mentorship offered by industry leaders. Ref: SYD/4135/OH

Sydney | Corporate/Commercial3 years +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, negotiating and drafting contracts and general advisory work. Ref: SYD/4369/GG

Sydney | Corporate2 – 3 years This well respected firm with high calibre clients and complex and interesting work on offer is looking for a talented corporate lawyer. You will have solid previous experience in this practice area and knowledge of the Corporations Act, ASX and ASIC regulations and practices. You will work with in a friendly and supportive working environment and be mentored by highly skilled professionals. Ref: SYD/4388/GG

Sydney | Insolvency & Restructuring Senior Associate Our client is a major international firm with unparalleled expertise in Restructuring and Insolvency. The team has a first rate client base and are seeking a senior associate with strong ambition and partnership aspirations. The role will involve contentious and non-contentious insolvency matters including large scale administrations and winding up actions including cross boarder matters, banking litigation, financial restructuring and distressed M&A. Ref: SYD/4366/AM

Private Practice

Sydney | Fin Services/Marketing4 – 7 yearsExciting and rare opportunity for a dynamic financial services lawyer to undertake a varied role within this major financial institution. This key role involves working across several business units/products with a focus on strategic advice to the marketing division. Strong FS experience from a major firm (preferably superannuation and/or funds) required along with a dynamic personality, strong communication skills and strategic approach. Ref: SYD/4402/DS

Sydney | Funds Management5 years +This highly regarded investment management firm is on the look out for a motivated lawyer to join their expanding in-house team. You will work closely with the General Counsel and key business units advising on a range of superannuation, funds management, life insurance and general corporate/commercial matters. Minimum 5 years financial services experience with funds management and/or life insurance expertise essential. Ref: SYD/4404/OH

Sydney | Life Insurance6 years +Key senior appointment within the highly regarded legal team of this renowned financial services and life insurance giant. A dynamic life insurance specialist is required with the ability to provide high-level legal advice on new products & legislation (including Life Insurance Act, Corps Act Ch 7 etc) as well as to contribute to the strategic direction of the division. Top-tier law firm and/or in-house experience in the industry required. Ref: SYD/4405/DS

InternationalLondon | Investment Funds3 – 6 years The asset management and investment funds practice of this UK firm is looking to appoint additional funds associates to its highly rated City practice. The team advises on the full range of legal and regulatory issues for institutional and specialist asset management firms and is recognised as one of the leading investment funds practices in the UK. Solid academics. Ref: LON/4389/RL

London | Banking & Finance4 years +Our client is looking for a high caliber, 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

London | Banking2 – 4 yearsOur client is expanding its banking group and is looking for junior solicitors with 2 years of experience to mid level solicitors to join the firm’s London practice. The group advises international financial institutions on complex domestic and cross border matters including acquisition, structured, project and property finance. The firm is looking for ambitious lawyers eager to make an impact in London. Ref: LON/4387/RL

London | Corporate Finance4 years +Our client’s market leading asset finance practice acts for financial institutions, leasing companies, airlines and rail operators. Growth is driving the need to hire high quality asset or corporate finance lawyers with an interest in this area to join its international team. You’ll benefit by gaining quality experience in cross-border financing structures and from access to world class training, mentoring and secondments. Ref. LON/4168/RL.

Singapore | Construction / Projects4 years +A new position with a global law firm has become available for a construction or project lawyer from a top or similar quality law firm to advise major international clients on the acquisition, development and construction of major off shore infrastructure projects and related joint ventures involving water, power and oil-and gas projects in SE Asia. Knowledge of EPC contracts is essential. Ref: SIN/4249/RL

Hong Kong | Corporate M&A4 years +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

InhouseSydney | Construction (front-end) 5 – 7 yearsNew, 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

Sydney | Senior Legal Counsel7 years +This is an excellent opportunity for an ambitious commercial lawyer to join a well regarded multinational, operating in the infrastructure sector. The role will involve supervising/mentoring other lawyers as well as handling high level legal work including corporate/commercial advice, contracts and property matters. 7 yrs+ pae in commercial law required from a major firm and/or in-house (preferably also including property and/or M&A). Ref: SYD/4408/DS

Sydney | Corporate3 – 5 yearsA rare opportunity exists for a dynamic Corporate Lawyer to move into a highly commercial role within this global business. You will work with the wider business and external stakeholders in drafting transactional documentation and provide advice around transactional risks and exposures. 3-5 years M&A, Private Equity or Banking & Finance experience gained at a major law firm is essential. Ref: SYD/4319/DS

In-house In-house In-house

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Contents

L AW Y E R S W E E K LY 0 5 A U G U S T 2 011 3

“ The appetite is absolutely there for doing things differently and trying new things, really getting up to speed with these emerging technologies and just having a go”

Blake Dawson’s social media strategist, Kelly O’Shaughnessy, on the growing importance of non-lawyers – page 18

Regulars

18 COVER STORY: The power of non-lawyers within the legal profession is on the rise as they prove their worth by driving business success. Briana Everett fi nds out why they’re indispensable

6 THIS WEEK: A round-up of the latest legal news

10 HOT TOPIC: As the Australian Government tries to sell its asylum seeker agreement with Malaysia to the public, experts have raised myriad concerns and warned of unforeseen consequences. Claire Chaffey reports

12 IN-DEPTH: As investment in Australian infrastructure and public private partnerships continues to grow, lawyers in the space are keeping busy - but it’s not all smooth sailing

14 OPINION: Peter Haig, a senior associate at Allens Arthur Robinson, was part of the legal team that acted for Neville Austin, an Aboriginal plaintiff, in his recently settled case against the State of Victoria. He tells his story

24 CAREER COUNSEL: Leadership and organisational skills are highly valued ‘soft skills’, yet jobseekers are overlooking their importance

26 FOLKLAW: The lighter side of the law

www.gordonsearch.com Huntly Gordon [email protected] +61 2 9994 8125Edward Gordon [email protected] +61 2 9994 8125

Sydney | Public M&ASenior AssociateSuperb opportunity to work alongside one of Australia’s preeminent M&A partners. You have strong experience in Chapter 6 transactions from a top tier firm. The firm is particularly interested to speak with candidates who are ambitious to make partner. Top of market remuneration.

Brisbane | ConstructionSenior AssociateA partner with a growing practice has an opportunity for a lawyer with strong front-end construction experience. You will be adroit at managing relationships with clients, financiers, consultants, contractors and other legal advisers. Contentious experience is valuable, but not a prerequisite.

Sydney | Funds ManagementSenior Legal CounselThe funds and asset management business of this global bank is seeking a lawyer with experience across funds management, FSR and corporate for this hybrid funds and cross border transactional role. This is a very demanding role and will suit a lawyer with high energy levels.

Sydney | Funds ManagementSenior AssociateAre you attracted by the prospect of an eclectic mix of work? A leading practice has an opportunity for an experienced senior associate to do a mix of pure funds management, FSR and structured products and derivatives. Experience mentoring junior lawyers will be highly regarded.

Sydney | Private EquitySenior AssociatePrivate equity has rebounded in Australia. Here is an opportunity to join a young and dynamic partner at this premier firm. Experience across private M&A, managed and leveraged buy-outs, acquisitions and disposals, fund formation and establishment is essential. Great package on offer.

Sydney | Banking & FinanceLegal Counsel part-timeThe business banking legal team of this major bank is seeking expressions of interest from banking and finance lawyers interested in part-time and contract positions. You will have experience in any of general corporate lending, transactional finance, derivatives and structured finance.

Sydney | Commercial PropertySenior AssociateTop tier national firm has a newly created opportunity for a senior associate with partner aspirations. You will have experience across property development, property acquisitions and disposals, projects, major leases, stamp duty and GST. Top tier experience essential.

Brisbane | Energy & ResourcesSenior AssociateIf you are an energy and resources all-rounder here is a role to consider. This leading practice is seeking an energy and resources lawyer with solid corporate/M&A, commercial and major projects experience in the oil and gas, mining and energy industries. FATA experience highly regarded.

Sydney | Construction & PPPsSenior Legal CounselLarge global contractor with major construction and infrastructure projects is seeking top tier front-end construction lawyers for these newly created roles. You will have significant PPP experience and the capacity to work autonomously. Contentious experience is valuable, but not a prerequisite.

PRivAtE PRACtiCE in-HouSE

‘ Move On Up’ Curtis Mayfield, 1970

16 SMALL LAW: Stephanie Quine talks to lawyers about the benefi ts and challenges of downsizing

18 COVER STORY: The power of non-lawyers within the legal

Features

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4 L AW Y E R S W E E K LY 0 5 A U G U S T 2 011 www.lawyersweekly.com.au

Editor’sNoteIN THE PAST, the ‘non-lawyers’ of the Australian legal industry haven’t received the attention they deserve. In this week’s cover feature (see page 18), we turn our focus to the rise of the non-lawyer and the increasing power and infl uence they have within the profession.

While they’ve been gradually building a presence behind the scenes and their signifi cance surged after the global fi nancial crisis, in 2011 the non-lawyer is more important to legal business than ever. With the arrival of global fi rms in Australia, investing in non-lawyers – whether they be chief executive offi cers, knowledge/IT, business development, communications or people managers – has become a vital way for fi rms to stay in the game.

Today, competition for business and talent is at an all time high and, as Warrick McLean, president of the Australian Legal Practice Management Association, points out this week, gone are the days when fi rms could just “do a good job” and continue to have work fl owing through the door.

Now, any fi rm which hopes to have an edge in an increasingly competitive market should be focusing on building and protecting their brand among clients, the media, their employees and the wider community – not only to win work but to attract and retain talent. And to do this effectively, they need a sophisticated team of specialist non-lawyers who have the time and skills to deliver those results.

In just a few years the legal industry has changed dramatically thanks to new technologies and communication methods, making the job of building and maintaining a strong fi rm profi le more onerous. And as the industry attempts to keep up with the world of social networking, new methods of content delivery and communication, non-lawyers – particularly in the IT, communications and social media space – are, as McLean puts it, like gold.

While not all are convinced of the true value social media has to offer business, no-one can deny that new technologies that facilitate faster and more widespread communication are changing the way organisations do business, recruit talent and communicate with clients and the community. And law fi rms are no different. Those fi rms that are unwilling to change and to make that critical investment in their brand are at risk of being left behind.

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Have your say Do you have something you’d like to share? Send an email to [email protected] or phone (02) 9422 2875. Alternatively, go to www.lawyersweekly.com.au and make a comment online.

TOP 10 STORIES ONLINE THIS WEEK

1 In-house counsel goes private 2 2011 Law Awards: Meet the fi nalists 3 Firms attempt to stem the graduate exodus 4 2011 Law Awards Finalists: Young Gun of the Year 5 Minters harnesses art of niche blogging 6 Landmark win for JWS 7 Unique crim law course produces fi rst grads 8 Federal Court to hear porn test case 9 2011 Law Awards Finalists: Managing Partner of the Year10 Lawyer scams millions to buy diamond ring

NEXT WEEK

Ex-lawyers who have pursued more creative careers reveal how they got to where they are today. Lawyers Weekly asks James O’Loghlin and other former lawyers about journeying inside and outside the legal profession.

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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 Offi cer, LexisNexis Australia or email [email protected]. © 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.

Briana Everett, senior journalist

Nick Abrahams Partner and

Sydney chairman, Norton Rose

Helen McKenzie Deputy

managing partner,

Blake Dawson

Sharon Cook Managing

partner, Henry Davis York

David CowlingPartner,

Clayton Utz

Ewen Crouch Chairman of

partners, Allens Arthur Robinson

Sue GilchristPartner and

practice leader (intellectual

property group), Freehills

Andrew GrechManaging director, Slater & Gordon

Will IrvingGroup general counsel, Telstra Corporation

Joe CatanzaritiPartner, Clayton Utz

Robert MillinerChief executive partner, Mallesons Stephen Jaques

Megan PittDirector, Australian Government Solicitor

Lucinda SmithPartner, Thomsons Lawyers

JOIN THE CONVERSATION

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GROW YOUR CAREER PROSPECTSMAKE A POWERFUL MOVE

hays.com.au

Corporate Lawyer - 4 - 6 years PAE. Sydney. This international law firm’s energy and resources practice includes a group who provide corporate advisory and transactional services, handling a broad range of work for established clients and building their network within a growth industry.

You’ll have a strong academic track record and a minimum of 4 years experience in a corporate practice group, although direct experience with energy and resources clients is not essential.

This is an excellent opportunity to take advantage of the benefits of working for a truly global law firm.

Contact Craig Poole at [email protected] or 02 8226 9753. Legal Counsel - Retail financial products - 5 years+ PAE. Sydney. An organisation that has been making the news for all the right reasons in recent times are looking to further expand their established in-house legal team. They have created a position for a lawyer with significant experience in retail financial products and working with the necessary regulatory bodies.

You’ll have gained this experience within the relevant practice area of a leading law firm, or in a similar role at another major financial services organisation.

In return, you’ll have the opportunity to work with an outstanding team and be part of an organisation who are leading the way with their innovative approach.

Contact Craig Poole at [email protected] or 02 8226 9753. Senior Legal Counsel - Energy - 6 years+ PAE. Sydney. This renewable energy business is part of one of the largest companies in the world and is creating their first in-house legal role in Australia as a direct result of a significant project win.

Their Australian operations have grown to a point where they require local strategic input to advise the board and management team on a broad range of corporate, commercial and regulatory issues.

As an accomplished corporate/commercial lawyer, you’ll have a background, ideally gained within this sector, that will be able to guide the business through a vast range of issues whilst being supported by top tier law firms. Unusually, equity in the business is potentially on offer as part of a highly competitive salary package. Contact Craig Poole at [email protected] or 02 8226 9753.

Senior Associate - Workplace Relations.Perth.This pre-eminent firm has established one of Perth’s leading employment practice groups. Due to business growth, a highly motivated and experienced Senior Associate is required to join this talented team.

With a premium list of clients, including major players in the resources sector, you’ll be engaged on a range of workplace relations, OHS and industrial relations matters. You’ll be responsible for the provision of strategic legal advice to these clients and will draft a variety of contracts, policies and agreements and appear on behalf of your clients. In addition, you’ll manage and develop strong client relationships through education and assisting in the strategic development of their business.

Contact Stacey Back at [email protected] or 08 9254 4598.

Energy & Resources Lawyer - 2 - 5 years PAE. Brisbane. This firm is offering the perfect mix of headlining transactions, the ability to work autonomously and be significantly involved with your clients. The calibre of resources work on offer is second to none, driving almost every practice area within the firm.

They need an intermediate lawyer with experience across corporate law, energy and resources, with a strong desire to elevate your practice to the highest level.The calibre of this role and the rewards on offer are without question; this is truly a career defining opportunity.

Contact Shane Badman at [email protected] or 07 3243 3033.

Corporate Lawyer. Melbourne. This dynamic firm are progressing rapidly in the market. As a boutique firm with great clients and challenging work, they’re making their mark and building a great reputation.

Due to growth, they’re looking for an expert corporate lawyer to join their team. Success will be driven by your expert skills in corporate transactions and 4+ years post admission experience. Your skills dealing with mergers and acquisitions, corporate restructures, joint ventures and private equity will see you succeed in this role.

Contact Renee Turner at [email protected] or 03 9604 9669.

Banking and Finance Lawyer. Melbourne. This firm services blue chip organisations and large financial institutions in the banking sector. They’re looking for an expert banking and finance lawyer to join their rapidly expanding practice to deal with work relating to recent changes in legislation and banking practices.

Success will be achieved with your 2+ years PAE experience in banking and finance law and your desire to further your career. Contact Renee Turner at [email protected] or 03 9604 9669.

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thisweek

Federal Court grants native title rightsAfter a 15-year battle, native title rights have

been granted to two Aboriginal groups on Victoria’s south-west coast.

On 27 July, the Federal Court of Australia granted the native title rights of Deen Maar Island to the Gunditjmara and Eastern Maars peoples, along with approximately 4000 hectares of Crown land between Dunkeld and Yambuk.

At a special sitting of the Federal Court, Justice Tony North granted the rights, consented to by the Victorian Government and other parties through mediation.

Victorian Attorney-General Robert Clark, who attended the court sitting, congratulated the parties on the historic outcome.

Hacker arrest sparks cyber crime alertThe arrest of a man over hacking charges

has sparked a warning to Australian businesses to protect themselves from cyber crime.

The Australian Federal Police (AFP) arrested a 25-year-old man from Cowra on 27 July in connection with attempts to hack into the security systems of a number of Australian IT company networks, including one associ-ated with NBN Co.

The AFP alleged in court that the man infiltrated the companies’ security systems causing significant financial and reputa-tional damage. “Cyber crime is not a victimless crime,” said Minister for Justice Brendan O’Connor.

Poll void unless public informed: LIVSentencing in the Victorian Supreme Court

should be broadcast so the public can have “all the facts” when it comes to formulating views about appropriate sentences, according to the Law Institute of Victoria (LIV).

LIV president Caroline Counsel made the comments in the wake of last week’s launch of an online opinion poll which the Victorian Government hopes will allow the public to participate in the debate about sentencing reform.

Mallesons stephen Jaques had the rights of australia’s children at heart last week at a forum dedicated to debate about what can be done to better protect them.

Coinciding with the lodgment of the 2011 NGO Report on the Rights of the Child with the united nations earlier this month, the forum included speeches from the hon Catherine Branson qC, president of the australian human Rights Commission, Benson saulo, the 2011 australian Youth Representative to the united nations, and associate professor Judith Cashmore ao from the university of sydney.

speaking to Lawyers Weekly, Mallesons lawyer sarah hoff (pictured right), who took an integral role in compiling the report, said there is still plenty to be done by the australian Government when it comes to adhering to its obligations under the un Convention on the Rights of the Child.

“the bottom line is that most australian children are doing really well, but there are certain groups who are continuing to fall behind,” she said. “the main focus is on Indigenous children, children

in out-of-home care and children in immigration detention. For example, children make up almost 50 per cent of people seeking services for homelessness, the number of children entering out-of-home care has increased by over 50 per cent in the last five years and, as of april, there were still over 1000 children in immigration detention, despite government policies to the contrary.”

hoff also pointed to the fact that aboriginal and torres strait Islander children have a mortality rate three times that of their non-Indigenous peers.

“this highlights the fact that while the Government has made some progress, there is still a long way to go. there shouldn’t be that kind of disparity in a country like australia,” she said.

Mallesons has had a 10-year relationship with the national Children’s and Youth law Centre and it was here that hoff was seconded for six months in order to work on the report, which is compiled every five years in response to a report submitted by the Government.

she will fly to Geneva in october as part of an nGo delegation.

The Web

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RE W IND

Rights of child on Mallesons’ agenda

Analysts warned there is a significant risk of another round of price falls in the housing sector, with higher than expected inflation growth meaning the Reserve Bank of Australia will consider raising interest rates sooner.

The 2011 Australian census was officially launched ahead of census night on 9 August. This year’s version includes an online e-census which it is expected one in three Australians will use.

The 2012 London Games Australian Olympic Committee announced it had almost reached its sponsorship target of $39 million, up from $33 million for the 2008 Beijing Games.

David Cecil, the man arrested for hacking into the systems of a service provider for the NBN, was refused bail in Orange Local Court facing 50 offences, including unauthorised access to platform networks which set up networks for corporate customers.

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thisweek

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Johnson Winter & slattery (JWs) and Blake Dawson have acted in a $2.2 billion proposal by CP2 limited’s (CP2) vehicle horizon roads Pty limited (horizon) to acquire the outstanding units in Connecteast Group.

CP2 is an australian-owned and headquartered global infrastructure investment manager and already controls 35 per cent of Connecteast, the asX-listed owner and operator of the eastlink tollway in Melbourne.

JWs advised CP2 while Blakes acted for Connecteast.

Corporate partner Damian reichel, who led the JWs team, said the transaction involved huge logistical challenges in drawing together, simultaneously, eight huge overseas institutions from seven different jurisdictions for a direct investment in a complex australian public company M&a transaction.

CP2 obtained funding for the

allens poaches Freehills project lawyerAllens Arthur Robinson has appointed Jeremy

Quan-Sing as senior associate in its Perth projects group. Quan-Sing has a decade of experience in commercial litigation, with a focus on energy & resources and, most recently with Freehills, he spent time at major Australian oil and gas exploration and production company Santos Ltd on second-ment.

Piper partner appointed to specialist panelCorporate partner and head of the firm’s national

agribusiness practice group Simon Venus has been appointed a member of South Australia’s inaugural Agribusiness Council. The Council was established to act as a conduit between government and industry to ensure sustainable growth of agriculture in SA. It will hold its first meeting at Parliament House in early September.

In-house counsel goes privateA former in-house counsel at one of Australia’s biggest banks has

announced his move to Middletons’ banking and financial services group. Former Westpac in-house counsel Richard Winter has joined the firm as a partner in the Sydney office, bringing years of experience within the sector, including time spent at Investec and Rabobank.

lavan litigator appointed senior associateLitigation lawyer Greg Nairn has been appointed senior associate in Lavan Legal’s

construction and contracts team. Nairn has conducted trials both as counsel and instructing solicitor, has appeared in appeals before the High Court and the WA Court of Appeal and represented clients at coronial inquests before the State Coroner.

Deal Name: Horizon Roads acquisition of units in ConnectEast Group Key Players: Johnson Winter & Slattery, Blake Dawson

Movers &

Shakers

DE A L oF THE W EEK

DE A L M A K ERS

Firms on track for multinational M&a deal

proposal from a diverse group of institutional investors including Universities superannuation scheme in the UK, pension asset manager aPG of the netherlands, national Pension service of Korea, atP of Denmark, new Zealand superannuation Fund, teachers insurance and annuity association of america and Mirae asset Maps/Korean teachers Credit Union. these institutions collectively have over $1.6 trillion under management.

“this has never before been attempted on this scale, in a transaction of this nature in australia,” said reichel.

the proposal of 55 cents per unit represents a premium of 22.2 per cent to the last closing price of 45 cents on 21 July 2011 and a premium of 22.4 per cent to the one month VWaP.

as an alternative to the cash consideration, Connecteast unitholders will be able to elect to rollover their units into an unlisted fund.

Ros O’Mally Paul Brown Susan Burns

Firm Gilbert + Tobin (ANZ and Investec), Corrs Chambers Westgarth (State), Freehills (Capella Parking)

Gadens Lawyers (Stockland), Minter Ellison (Retirement Villages Group)

Allens Arthur Robinson (MAp Airports), Freshfields (Ontario Teachers Pension Plans)

Deal name PPP financing of QEII medical centre car parking project WA

Stockland acquisition of three retirement villages

MAp disposal of interests in Europe airports for Sydney stake

Area Public private partnership Corporate M&A

Value $140 million $22 million $1.6 billion

Key players G + T’s Ros O’Mally Gadens’ Paul Brown Allens’ Susan Burns

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thisweek

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RepResenting 22 Australian investors in the supreme Court of england, Johnson Winter & slattery (JWs) last week came out with a landmark victory against the Lehman Brothers group.

Acting as co-counsel for Australian investors in Lehman-originated synthetic CDOs (collaterised debt obligations) with a value of approximately $250 million, the unanimous decision was handed down on 27 July by seven judges of england’s highest court, dismissing the appeal by Lehman Brothers special Financing inc (LBsF) - a member of the now bankrupt Lehman Brothers group.

the decision upholds investors’ claims to ‘note-holder’ priority, being their contractual right to a priority claim ahead of LBsF to recover certain collateral underlying their CDOs.

LBsF argued that the contractual provisions creating note-holder priority, which Lehman entities created, drafted and marketed themselves, were invalid under english law as a result of the ‘anti-deprivation rule’ and that LBsF had prior claim to the collateral.

“this is an emphatic and welcome win,” said JWs partner Jim Hunwick, who has represented the Australian investors since the claim was made in June 2009. “Had Lehman’s cynical attempt to invalidate its own documents succeeded, this would have called into question the validity of many widely-used contractual provisions. this fight is not over yet, however. We can expect Lehman to try anything it can to stop the trustee and the english courts from giving effect to this win.”

Corrs Chambers Westgarth has become the first large Australian law firm to commit to publishing an annual AsX guideline-compliant diversity policy.

the firm is also introducing a sponsorship program for women in the partnership pipeline where a partner will be assigned to actively support each candidate’s business case and introduce them to networks and clients.

these initiatives are part of Corrs’ refreshed diversity strategy, launched last week by federal sex discrimination commissioner elizabeth Broderick.

Broderick identified the amendments to the AsX guidelines as the most significant step taken in the last five years towards encouraging diversity and gender equality in the leadership levels of Australian business.

Corrs has also announced the firm is increasing its target proportion of women to at least 35 per cent of the partnership and 40 per cent of senior management roles by 2015.

Broderick encouraged other firms to adopt innovative strategies to drive real change in gender diversity.

“it is not just about setting the target, it’s about measuring the outcome. it’s about holding people accountable for the delivery of those outcomes. this will be an important part of the strategy and it is commendable to see Corrs take that step out front,” she said.

SpecialiSation iS the key to offering law via tweet and blog, according to a technology lawyer at Minter ellison.

“Having a general law firm blog isn’t going to help you. its all about specialist areas,” said partner paul Kallenbach, who set up Minters’ twitter account and blog.

Kallenbach said Minters’ first blog - the ‘tMt blog’ on technology, media and ip - was a “good place to start” because many people who follow that practice area tend to be adoptive of an online approach.

“Blogs tend to be niche, so the important thing is to find a community that’s interested in following you and what you’re saying in a particular area. other areas might have been less amenable to moving to a blog-type form,” he said.

the firm uses an internal micro-blogging platform for lawyers to collaborate on the blog and share ideas for articles and on the latest developments.

“it’s like twitter but internal for the organisa-tion,” said Kallenbach, adding that lawyers are very conscious of confidentiality issues.

“those issues are no different to traditional hardcopy publications, but the difference with blogs and social media is the pace is faster. [Unlike] the traditional publications which were sent out in hardcopy and later in pDF once a month or once a quarter, we’re posting content to the blog every couple of days,” he said.

the firm has a strategy in place to roll out further blogs but in the meantime, the external arm of its new media vision is the blog and the twitter updates which Kallenbach said are forms of “knowledge sharing and collaboration with clients”.

“it seems we’ve got an extremely broad audience: everyone from law students to general counsel of Fortune 500 companies overseas,” said Kallenbach, adding that readers can post comments and receive replies from Minters lawyers on the blog.

as the demographics change, he expects an increase in blog usage and a shift in the way generation X and Y expect information to be packaged from law firms.

landmark win for Jws

Corrs commits to annual scrutiny of diversity

Minters harnesses art of blogging

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RepResenting 22 Australian investors in the supreme Court of england, Johnson Winter & slattery (JWs) last week came out with a landmark victory against the Lehman Brothers group.

Acting as co-counsel for Australian investors in Lehman-originated synthetic CDOs (collaterised debt obligations) with a value of approximately $250 million, the unanimous decision was handed down on 27 July by seven judges of england’s highest court, dismissing the appeal by Lehman Brothers special Financing inc (LBsF) - a member of the now bankrupt Lehman Brothers group.

the decision upholds investors’ claims to ‘note-holder’ priority, being their contractual right to a priority claim ahead of LBsF to recover certain collateral underlying their CDOs.

LBsF argued that the contractual provisions creating note-holder priority, which Lehman entities created, drafted and marketed themselves, were invalid under english law as a result of the ‘anti-deprivation rule’ and that LBsF had prior claim to the collateral.

“this is an emphatic and welcome win,” said JWs partner Jim Hunwick, who has represented the Australian investors since the claim was made in June 2009. “Had Lehman’s cynical attempt to invalidate its own documents succeeded, this would have called into question the validity of many widely-used contractual provisions. this fight is not over yet, however. We can expect Lehman to try anything it can to stop the trustee and the english courts from giving effect to this win.”

Corrs Chambers Westgarth has become the first large Australian law firm to commit to publishing an annual AsX guideline-compliant diversity policy.

the firm is also introducing a sponsorship program for women in the partnership pipeline where a partner will be assigned to actively support each candidate’s business case and introduce them to networks and clients.

these initiatives are part of Corrs’ refreshed diversity strategy, launched last week by federal sex discrimination commissioner elizabeth Broderick.

Broderick identified the amendments to the AsX guidelines as the most significant step taken in the last five years towards encouraging diversity and gender equality in the leadership levels of Australian business.

Corrs has also announced the firm is increasing its target proportion of women to at least 35 per cent of the partnership and 40 per cent of senior management roles by 2015.

Broderick encouraged other firms to adopt innovative strategies to drive real change in gender diversity.

“it is not just about setting the target, it’s about measuring the outcome. it’s about holding people accountable for the delivery of those outcomes. this will be an important part of the strategy and it is commendable to see Corrs take that step out front,” she said.

SpecialiSation iS the key to offering law via tweet and blog, according to a technology lawyer at Minter ellison.

“Having a general law firm blog isn’t going to help you. its all about specialist areas,” said partner paul Kallenbach, who set up Minters’ twitter account and blog.

Kallenbach said Minters’ first blog - the ‘tMt blog’ on technology, media and ip - was a “good place to start” because many people who follow that practice area tend to be adoptive of an online approach.

“Blogs tend to be niche, so the important thing is to find a community that’s interested in following you and what you’re saying in a particular area. other areas might have been less amenable to moving to a blog-type form,” he said.

the firm uses an internal micro-blogging platform for lawyers to collaborate on the blog and share ideas for articles and on the latest developments.

“it’s like twitter but internal for the organisa-tion,” said Kallenbach, adding that lawyers are very conscious of confidentiality issues.

“those issues are no different to traditional hardcopy publications, but the difference with blogs and social media is the pace is faster. [Unlike] the traditional publications which were sent out in hardcopy and later in pDF once a month or once a quarter, we’re posting content to the blog every couple of days,” he said.

the firm has a strategy in place to roll out further blogs but in the meantime, the external arm of its new media vision is the blog and the twitter updates which Kallenbach said are forms of “knowledge sharing and collaboration with clients”.

“it seems we’ve got an extremely broad audience: everyone from law students to general counsel of Fortune 500 companies overseas,” said Kallenbach, adding that readers can post comments and receive replies from Minters lawyers on the blog.

as the demographics change, he expects an increase in blog usage and a shift in the way generation X and Y expect information to be packaged from law firms.

landmark win for Jws

Corrs commits to annual scrutiny of diversity

Minters harnesses art of blogging

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thisweek


tube hits Freshfields with £140m claimFreshfields is set for a High Court showdown with the London Underground Ltd (LUL)

after the company launched a £141.96 million ($210.8 million) negligence claim against the firm over its advice on LUL’s PPP with the now defunct Metronet, reports The Lawyer. The claim was originally for £178.5m but LUL managed to recoup £36.54 from other sources. It is, however, aiming to recoup from Fresh-fields the costs it incurred while negotiat-ing that repayment.

silk cashes in on News Corp scandalA British silk is under-stood to be pocketing £3,000 an hour for his advice to News Corporation in relation to

phone-hacking, reports The Lawyer. Tony Grabiner QC was drafted last week to chair the management and standards committee set up to investigate the scandal and determine the group’s internal response. Regarded as one of the UK’s top silks, Grabiner is among a shrinking number of elite barristers who can command such weighty fees.

Barristers tread boards for romeo trialSeveral of the UK’s top legal minds took to the stage this month to perform a spin-off of Shakespeare’s Romeo

and Juliet, reports The Lawyer. Audience members acted as the jury in the theatrical trial of Romeo Montague and his cousin Benvolio for the murder of Tybalt Capulet, cousin of Juliet. Celebrity witnesses were questioned by distinguished criminal barristers. High Court judge Sir Michael Burton presided over the antics.

google gC goes private Google’s deputy general counsel and head of litigation Timothy Alger has joined US firm Perkins Coie as a litigation partner in its Palo Alto office, reportsThe Lawyer. Alger, who joined Google in 2008, will focus his practice on issues that affect both new and traditional media compa-nies in areas including privacy, the first amendment, the Digital Millennium Copyright Act, the copyright fair use doctrine, defamation, the right to publicity and the Communications Decency Act.

US/U

K U

pdate

The evenT, held at nSW Parliament house on 27 July, was hosted by the hon. Greg Smith SC MP, the nSW Attorney-General and Minister for Justice.

Salvos Legal’s founder and managing partner, Luke Geary, said he hoped the work the firm is doing - and the model by which it is doing it - would spark a whole new generation of law firms.

“I hope [this] will mark the commencement of a brand new “sector” in the provision of legal services,” he said. “not strictly private, government or community, but rather a co-operative sector involving clients from all of those areas.”

Salvos Legal operates under a model which has a transactional legal arm and a humanitarian legal arm. The profits derived from the firm’s transactional services fund the salaries of the lawyers who carry out the humanitarian work.

The idea behind Salvos Legal is based on the philosophies of Salvation Army founder William Booth, who in 1890 penned The Poor Man’s Lawyer, which advocates the model that Geary has implemented.

While the firm already has offices up and running in Surry hills, Parramatta, Auburn, Campsie and Miranda, Commissioner James Condon, the territorial commander of The Salvation Army, announced a new partnership with Canterbury City Council and the appointment of a new partner, Anne-Marie Paterson, to a new Salvos Legal humanitarian arm in Lakemba.

The Council will be running a 12-month pilot program for the legal advice and referral service in Lakemba, commencing on 16 August 2011. The program will be called “Salvos Legal humanitarian - proudly sponsored by Canterbury City Council” and will involve Salvos Legal humanitarian providing one partner and two volunteer College of Law Practical Legal Training placements or solicitors

each Tuesday from 9am to 5pm.Condon said is it hoped Salvos Legal will

also become a commercial legal services provider to the Council, and that the profit from the fees generated by that work will eventually completely fund the ongoing operation of the new humanitarian office in Lakemba.

“We look forward to this brilliant and exciting relationship,” he said.

Condon also announced the establishment of a new Salvos Legal humanitarian full-time headquarters office in Goodna, Queensland, along with many other critical social services - such as employment and job training, welfare and emergency assistance, financial management and counseling - all under the same roof.

The model will mirror that of the Surry hills office, with the addition of either two or four part-time night services, or advice bureaus, which will be run on a fortnightly or monthly basis.

Condon said the focus of the humanitarian work will be on helping people understand and enforce their rights with respect to insurance claims for damage caused by the floods, as well as other flood or disaster-related legal issues.

“The opportunity to drive our humanitarian work north to flood affected areas in Queensland is an incredible responsibility which we do not take lightly,” said Geary.

“There are a lot of hurt people there who need specialist legal assistance but cannot afford to access it. We hope to close the gap in that area and, at the same time, give people the opportunity to address their other non-legal needs through the provision of the ‘hub’ model with other Salvation Army social services all running collaboratively out of the same premises. This is exciting!”

The balance of the practice will focus on criminal, family, children’s, debt, housing, Centrelink, migration and refugee law.

Salvos Legal, a unique self-sustaining humanitar-ian law firm, celebrated its official launch last week by announcing the establish-ment of two new offices.

Salvos Legal celebrates success

Managing partner Luke Geary with fiance Heather Thompson

Volunteers Josh Chalkley, Katherine Latham and Michael Lee

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T he Australia-Malaysia asylum seeker deal could lead to illegal immigrants already in Malaysia attempting to flee to Australia, according to the

Malaysian Bar.Speaking to Lawyers Weekly, the president

of the Malaysian Bar, Lim Chee Wee, said the fact that the 800 asylum seekers transferred to Malaysia under the deal (in exchange for 4000 processed refugees) will be given access to education, healthcare and employment – unlike the 90,000-odd asylum seekers already in Malaysia – could have such an outcome.

“As laughable as it may sound, there is a possibility that this deal could lead to a perverse scenario where the present asylum seekers with no rights in Malaysia may flee to Australia in order to return to Malaysia to enjoy the rights which both governments now say the 800 are assured of receiving,” he said.

Under the deal, which was signed by Australian Minister for Immigration and Citizenship Chris Bowen and Malaysian Minister for Home Affairs Dato’ Seri Hishammuddin bin Tun Hussein at a formal ceremony in Kuala Lumpur on 25 July, the 800 asylum seekers sent to Malaysia will be issued with a card which allows them access to healthcare and education, and gives them the right to work.

“[They will be] exempted from certain provisions of our Immigration Act which would otherwise have meant they are considered as illegal in Malaysia and thus exposed to prosecution, detention and whipping,” said Lim Chee Wee.

“There cannot be double standards in giving preferential treatment to the 800 asylum seekers in terms of rights and financial support.”

The agreement formalises a commitment by Australia to accept 1000 refugees from Malaysia every year for the next four years, in exchange for up to 800 asylum seekers who arrive in Australia by boat.

international organisation of migration. Now, who knows what that means?

“They will also have access to basic medical care under arrangements that the UNHCR already has for asylum seekers, which basically means getting private clinics to benevolently allow people to access medical care. It is all very discretionary, because Malaysia hasn’t agreed to make any concrete changes to its law or policy.”

The president of the Australian Human Rights Commission, Catherine Branson QC, said that while the Commission recognises the need for regional and international cooperation on the issue of asylum seekers, and supports the resettling in Australia of an increased number of refugees, she is worried by the fact that Malaysia is not a signatory to the Refugee Convention.

“There is a risk that in sending asylum seekers to Malaysia, Australia could breach its non-refoulement obligations under other international treaties, including the International Covenant on Civil and Political Rights, the Convention on the Rights of the Child or the Convention against Torture,” she said.

“Despite the safeguards in the agreement, there remains a risk that people transferred to Malaysia will be mistreated.”

She also said it was important to remember that Australia receives a comparatively small number of asylum seekers by international standards.

“Instead of establishing third country processing, Australia should process all applications for asylum on the Australian mainland under the Migration Act,” Branson said.

According to Foster, while the notion of burden-sharing in relation to asylum seekers is settled practice and Australia technically has no obligation to process or resettle asylum seekers in Australia, she agrees that the fact Malaysia is

Malaysian deal could have absurd outcomeAs the Australian Government tries to sell its asylum seeker agreement with Malaysia to the public, experts have raised myriad concerns and warned of unforeseen consequences. Claire Chaffey reports

“There cannot be double standards in giving preferential treatment to the 800 asylum seekers in terms of rights and financial support”

Lim Chee Wee, presidenT, maLaysian Bar

The United Nations High Commissioner for Refugees (UNHCR) will determine which 4000 people are most in need of resettlement and who should be given the opportunity to live in Australia.

Asylum seekers arriving in Australia by boat after 25 July will not be processed in Australia and will instead be taken to Malaysia. According to Bowen, transferees will initially be accommodated in a transit centre in Malaysia for up to 45 days, after which time they will move into the community.

Despite Lim Chee Wee’s concerns, Dr Michelle Foster, an associate professor at Melbourne Law School, said that many of the promises regarding rights under the agreement are empty (or at least very unclear) when one looks at the detail.

“The Government has been saying [the transferred asylum seekers] will have all these rights, but if you look at the details of the operational agreement, they’re pretty basic,” she said. “They are entitled to a month’s accommodation, and only in very exceptional circumstances will they get more support. Even education is only access to private education arrangements in the community, and where they are not available or affordable – which of course will be the case for asylum seekers – they will have access to informal educational arrangements which will be organised by the

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not a signatory to the Refugee Convention raises many concerns.

“The problem is that Malaysia is not a signatory … and under this agreement there is no requirement that it sign up,” she said.

“That is a disappointment. People were hoping that this agreement might raise standards in the region, but Malaysia certainly has not in this agreement agreed to sign the Convention. Nor does it seem to have agreed to change its domestic legislation, because the key issue is that in Malaysian law there is no legal right for a person to stay, even when they are found to be a refugee.”

While the agreement does state that Malaysia will respect the principle of non-refoulement, the question is whether that is sufficient.

“How will that be enforced?” asked Foster. “What sort of monitoring will take place? Is there really a way to assess whether that is being complied with?”

Lim Chee Wee also expressed concern about possible breaches of Australia’s obligations under international law.

“It is irresponsible of the Australian Government, as a state party to the UN Convention relating to the Status of Refugees - where it was an original state party - and its 1967 Protocol, to abdicate it’s responsibilities under the Refugee Convention by passing the buck to Malaysia,” he said.

The Law Council of Australia said the arrangement, designed to reduce the number of asylum seekers coming to Australia by boat, is not an appropriate solution to a complex problem.

“The Law Council does not agree the trade of asylum seekers for refugees is the solution to this substantial issue and we are very concerned over the implications and shortcomings of this agreement,” said Council president Alexander Ward.


“People were hoping that this agreement might raise standards in the region, but Malaysia certainly has not agreed to sign the Convention. Nor does it seem to have agreed to change its domestic legislation, because the key issue is that in Malaysian law there is no legal right for a person to stay, even when they are found to be a refugee”

Dr MiChelle Foster, assoCiate ProFessor, MelbourNe law sChool

The deal

“While the arrangement purports to contain some human rights protections, there are significant shortcomings in the arrangement and in particular a lack of detail about unaccompanied minors and legal assistance for transferees.”

The Law Council has previously expressed its concern in relation to the treatment of unaccompanied minors and said it is alarming that the agreement has been signed when the special procedures to deal with them are yet to be developed.

Foster also sees the issue of unaccompanied minors as one of real concern, particularly in light of the fact the agreement does not allow cases of potentially vulnerable transferees to be considered until they are in Malaysia.

“Our experience in other regions tells us that one thing the courts are being quite adamant about is that you need to have the possibility that an individual being transferred can question that transfer,” she said.

“It seems like there is no possibility of that happening, because the Minister has said they want to transfer within 72 hours. There is a vulnerable transferee assessment, but that is done once they are in Malaysian detention. Given the issue of unaccompanied children, it is really a cause of concern.”lw

the law Council does not agree the trade of asylum seekers for refugees is the solution to this

substantial issue and we are very concerned over the implications and shortcomings of this agreement ... while the arrangement purports to contain some human rights protections, there are significant shortcomings”

alexaNDer warD, PresiDeNt, law CouNCil oF australia

what: Australia will send 800 asylum seekers arriving on our shores by boat to Malaysia, in exchange for taking in and resettling 4000 refugees who have been processed in Malaysia

when: The agreement is active as of 25 July 2011 and will run for a period of four years

why: This is an attempt by the Gillard Government to prevent asylum seekers using the services of people smugglers

who: The agreement was signed by Australian Minister for Immigration and Citizenship Chris Bowen (pictured) and Malaysian Minister for Home Affairs Dato’ Seri Hishammuddin bin Tun Hussein

Chris bowen, australian Minister for immigration and Citizenship

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The outlook for public private partnerships (PPPs) in Australia is strong as state governments look to get more infrastructure projects to

market, according to an infrastructure and construction lawyer.

Allens Arthur Robinson partner Emma Warren said that PPP projects, such as the Sunshine Coast University Hospital, Sydney Convention Centre and Bendigo Hospital, were helping to drive the resurgence in PPP projects.

“The outlook for the next 12 months is very positive,” said Warren. “PPPs have become an increasingly popular way for Australian governments to procure the development of major social and economic infrastructure projects in a way that produces innovation and value for money, while allocating project risks efficiently and effectively.”

The fact that investor confidence is weathering the economic storm clouds is also evidenced by the June 2011 issue of Deloitte Access Economics Investment Monitor which shows that Australia’s investment agenda, both in terms of the value of projects underway and the value of those in the pipeline, has rarely looked better.

According to the Investment Monitor, the value of projects has grown by 8.4 per cent over the past three months, tipping $831.7 billion.

The value of projects classed as under construction or due to commence soon stands at $357.4 billion – a $70 billion increase on that recorded in the March quarter.

Projects booming but fraught with risk

While the report says that much of the growth has to do with the NBN project, a significant investment agenda for projects is also seen in infrastructure such as transport, ports, energy, water and telecommunications.

Other additions to the project list have been led by LNG developments such as the construction of the Santos-led $16.2 billion LNG facility in Queensland and Shell’s $8.9 billion Prelude LNG project in Western Australia, which is due to start later this year.

According to Deloitte, Western Australia and Queensland account for 54 per cent of the value of projects in the Investment Monitor database, while in other states, infrastructure agendas are “solid”.

Australia’s law firms are also benefitting from the strength of investment, with the latest Infrastructure Journal tables for 2011 seeing Allens Arthur Robinson, Clayton Utz and Freehills sit atop the global table for legal advisers in PPP work, with a 17 per cent market share.

Allens’ ranking was due to its involvement in two of the largest PPPs in Australian history: the New Royal Adelaide Hospital PPP and the Department of Defence’s Single Living Environment and Accommodation Precinct (LEAP) Phase 2 PPP.

Earlier this month, three firms acted in a $140 million PPP for the financing of a new QEII medical centre car parking project in Western Australia.

Gilbert + Tobin advised ANZ and Investec on the deal, which is one of the first PPPs in the West Australian market in recent times. The deal reached financial close in just over one month after the consortium was announced, with Freehills advising Capella Parking and Corrs Chambers Westgarth acting for the state.

However, despite all the good news in relation to investment, a new report by Blake Dawson has revealed that billions of

dollars worth of infrastructure projects in the construction, infrastructure, mining and energy sectors are failing to undergo adequate risk assessments.

The report, Scope for Improvement 2011 - Project Risk - Getting the Right Balance and Outcomes, examines more than $55 billion worth of projects across Australia.

It found that 10 per cent of project participants failed to undertake any formal risk identification process before entering into a contract. In over a quarter of the projects surveyed, key risks were missed at the outset and first identified after contracts were executed, thus leading to cost blow-outs and delays.

The report is based on a survey of participants within construction, infrastructure, energy and mining projects that have been completed in the last five years.

According to respondents, inappropriate risk allocation resulted in major delays, expensive disputes and cost overruns. Ten per cent of respondents said projects worth more than $1 billion experienced cost blow-outs of more than $200 million.

Of the projects which were late because of inappropriate risk allocation, more than one quarter experienced delays of one year or more.

The survey also shed light on the differing perceptions of principals and constructors, with a majority of constructors feeling that all or the majority of risks were imposed on them, often inappropriately. The majority of principals disagreed.

The report also found that less than half (48 per cent) of the projects surveyed were delivered on time, on budget and to the required standard.

Infrastructure Partnerships Australia currently estimates that the backlog of infrastructure projects across Australia is valued at $770 billion. LW

As investment in Australian infrastructure and public private partnerships continues to grow, lawyers in the space are keeping busy, but it’s not all smooth sailing.

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opinion


I t is not a scene you ever think you will be involved in, or for which you are prepared, when you are starting out in the law: television cameras, a slew of microphones

on the table in front of you and journalists firing questions.

That is the situation that my colleague, partner Maryjane Crabtree, and I faced in June when the State of Victoria settled its long-running case with Neville Austin, an Aboriginal man who had sued the state over his separation from his mother in the 1960s and 70s.

Sitting beside Neville in a press conference announcing the settlement, at which Neville read the state’s letter of apology and explained what it meant for him to have received it, was one of the most satisfying times I have had as a lawyer. It represented the culmination of what had been a hugely challenging and rewarding

Peter Haig, a senior associate at Allens Arthur Robinson, was part of the legal team that acted for Neville Austin, an Aboriginal plaintiff, in his recently settled case against the State of Victoria. He tells his story

two years I spent on the case. The case exposed me to a raft of fascinating

and complex issues – both from a legal and a non-legal perspective.

Until the landmark decision of the Supreme Court of South Australia in Trevorrow v South Australia in 2007, litigation by victims of the ‘stolen generations’ had been a largely fruitless avenue for redress. That decision, and the Federal Government’s subsequent apology to the ‘stolen generations’, were hailed in some quarters as “opening the floodgates” for such proceedings.

Though distinguishable in many respects, Neville’s case bore some similarities to Trevorrow. The fact that it did not proceed to judgment, however, means that, unlike Trevorrow, it sets no legal precedent.

Had the settlement of Neville’s claim not included a letter from the Department of Human Services acknowledging and apologising for the state’s wrongdoing, the conclusion of the case may not have been reported in the press, let alone the law reports. It was that letter, remarkable for its content, that Neville sees as vindicating his determination to pursue this litigation.

In particular, it is the last paragraph in the letter that is most significant: “Please accept this letter as a true apology and expression of deep regret on behalf of the State of Victoria”.

Neville’s case was referred to Allens from the Public Interest Law Clearing House (PILCH) in late 2007. As with all pro bono matters that are referred to Allens, Neville’s case was assessed by the firm’s pro bono committee. PILCH had by that time received a written advice from Jack Rush QC, who had undertaken a merits review of Neville’s potential claim. The fact that

a senior barrister considered the matter worth pursuing was significant. So was the fact that the matter involved assisting an Aboriginal man, as providing assistance to Aboriginal and Torres Strait Islander communities is one of the pro bono committee’s priority areas.

We were aware that it would be a difficult case requiring the commitment of considerable resources. Nevertheless, we saw it as an important contribution that we could make towards helping Neville tell his story and seek redress.

The resources devoted to Neville’s case, and the efforts and standards applied, were every bit as great as for an equivalent billable matter. Having worked on a previous large-scale piece of pro bono litigation at Allens (representing Vickie Roach in her successful 2007 High Court challenge to voting laws disenfranchising prisoners), I know that this is the way the firm treats pro bono matters.

Upon accepting the matter, Allens assembled a team of lawyers from the litigation and dispute resolution department, overseen by Maryjane, to act for Neville. That team spent many months making freedom of information requests, foraging through old files, and meeting with and taking statements from Neville and other potential witnesses.

Significant legal research was undertaken to determine how to best formulate and pursue Neville’s claim. The claim was filed in the Supreme Court of Victoria in early 2008, but not ultimately served until 2010. It was alleged that the state, as Neville’s legal guardian, breached its common law and statutory duties to act in Neville’s best interests in the years Neville spent as a ward of the state.

Until I took over her role in August 2009, the Allens team was led by Holly van den Heuvel, then a senior associate and now at the Victorian Bar. By the time she left for the Bar, Holly had developed a relationship with Neville that was vital to the running of the case. This relationship was largely forged through at times very confronting sessions with Neville, in which he recounted his story – parts of which were long-suppressed and very painful.

For Neville, whose life has been marked by

settling on sorry

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Sitting beside Neville in a press conference announcing the settlement, at which Neville read the State’s letter of apology and explained what it meant for him to have received it, was one of the most satisfying times I have had as a lawyer”

time, with junior lawyers rotating into other departments and moving in other directions. The particular sensitivities of this case, however, necessitated that we attempt to minimise any rupturing of relationships. Accordingly, Tim Goodwin, a lawyer who would ordinarily have moved off the matter following his rotation into a new department, remained part of the team through to settlement. Tim, who is himself Aboriginal, brought valuable insights into Aboriginal culture and, along with Andrew Barraclough and the other Allens lawyers involved, poured time and effort into getting to know Neville and understand his motivations.

The legal issues we confronted were varied

tragedy and regular upheaval, the creation of an environment in which he felt secure and comfortable was essential. Managing the transition from Holly to me had to be handled delicately.

After assuming Holly’s role (Holly continued to work on the case as Jack Rush QC’s junior barrister), I developed a strong and trusting relationship with Neville. Without the level of trust and understanding that developed between the team and Neville, I am certain that the outcome we achieved would have been impossible.

As with any long-running matter in a big firm, the composition of the team changed over

and complex, including difficult questions of statutory liability, causation and assessment of damages. Given the passage of time, we also encountered difficult statute of limitations issues.

While unlikely to open any “floodgates”, what the settlement of this case shows is the willingness of this State Government to consider cases on their individual merits and to be open to negotiating settlements that properly recognise those merits, including by apologising for the conduct of the relevant authority.

The apology given in this case has been immensely healing for Neville and for his community. LW

Peter Haig (left), Neville Austin and Maryjane Crabtree at the press conference announcing settlement

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feature

With work-life balance in the legal profession an increasing concern, Stephanie Quine talks to four lawyers about the benefits and challenges of downsizing from the top end of town.

Size matters (the call to go small)

16 l aw y e r S w e e k ly 0 5 a u g u S t 2 011 www.lawyersweekly.com.au

For Andrew Doyle, his day starts in a way many can only dream about.

Before heading off to Sydney to take care of a settlement for a client, he finds

time to take his horse out into the crisp, misty morning at Richmond.

The founder and manager of small law firm Doyle Wilson Solicitors (DWS), which has offices in Sydney, Goondiwindi and St George, Doyle says the keys to leading a happy existence - and one in which work-life balance is a reality - are control and knowing when to leave work behind.

“If you’ve got control in your life, you’re a lot healthier and happier,” he says.

“Technology has let us out of our cages, but I can switch off. I’m very much a rogue warrior in terms of doing what I want to do, but still being in touch.”

Doyle has managed his firm for over 25 years, but says he remembers

well his first job in a small city law firm, where he gained “incredible exposure to big matters”.

“That was back in the days when we, as article clerks, used to go and argue in the Supreme Court. I got great exposure from an early stage, rather than spending two years in the photocopying room,” he says.

Despite this, Doyle says that many firms need to take a look at how they’re treating their employees and, with much talk about depression in the law, the way in which employers operate - and the work environments created by many firms - needs questioning.

While life in a small firm inevitably requires lawyers to address administrative and other tasks

outside legal work, Doyle says this is empowering for lawyers because, out of necessity, they get to do challenging and varied work.

“People working in a small firm have got a sense of their own direction. They’re empowered within the actual structure of the firm,” he says.

Doyle says lawyers at DWS do five hours of “client time” per day, and then around two hours of “firm time” in which they have marketing roles, or something of the like.

“Because we don’t have a marketing manager and have to manage all the facets of a small business, [lawyers] get a variety of work, and that variety is really good for your head,” he says.

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You get to know yourself a bit more in a small firm. Some people are exactly the right kind of person to work in a big firm, but it’s certainly not for everyone. It would really help if some reality was given to law students about what they would find and where their own personality would sit within a large firm”

Size matters (the call to go small)

l aw y e r S w e e k ly 0 5 a u g u S t 2 011 17

Insuring happinessRoss Lee, who worked at insurance company CIC before completing his articles and starting at a medium-sized firm, says he didn’t last long before downsizing to a boutique firm.

“They were taking themselves too seriously,” he says.

“You get to know yourself a bit more in a small firm. Some people are exactly the right kind of person to work in a big firm, but it’s certainly not for everyone. It would really help if some reality was given to law students about what they would find and where their own personality would sit within a large firm.”

Lee now operates his own specialist civil litigation and insurance firm, Lee Lawyers, on the Gold Coast where he and his family reside.

After becoming his own boss in 2006, Lee says small firms offer not only variety in work, but a more realistic and relaxed approach to billing clients.

“A lot of pro bono is done on the phone on a typical day,” he says, adding that he spends around half an hour each day on various phone calls with people “just enquiring about this and that”.

“You don’t think to [send out] a bill - it’s just part of the service,” he says.

The former vice president of the Gold Coast Community Legal Advice Centre, Lee is a passionate supporter of community legal centres, which he says help community recognition of the profession as well as the lawyers going along to them.

“To many, that is pure legal practice unsullied by mercantile issues. If the model’s

right, you do 20 to 30 minutes of advice and you’ve done a world of good, but you don’t have to weigh it into the day-to-day management of running a file,” he says.

“It puts everything in perspective. Studies show lawyers that do that are happier.”

While work may be more varied and involved in a smaller firm, the pressure to pay bills, GST and wages - and meet the demands of clients, trust accounts and paper trails - is great.

“Stepping up to run your own business is not easy. Half your day is in administration and there’s a gargantuan amount,” says Lee. “You’ve really got to love the law and believe in what you do because there are going to be tough times.”

that flexible feelingStephanie Tan, a lawyer with boutique corporate and commercial firm QLegal in Perth, says moving from mid-tier firm Tottle Partners allowed her to specialise more in the areas in which she was working.

“It was good to work at Tottle, because it gave me experience in a lot of different areas. But since coming here, I’ve been able to specialise in commercial and corporate litigation and I better know my strengths,” she says.

Tan also enjoys the flexibility which QLegal offers, which she says was not as readily accessible in the larger firms in which she worked.

“They’re really good at being flexible. They let me work at home if I need to, or I can travel and work with my laptop,” she says.

Boutique blitzTracey Kerrigan, a dispute resolution partner at Piper Alderman, has been at the national firm her entire working life but will soon depart to form a new boutique workers compensation firm in South Australia, with three fellow departing Piper Alderman lawyers.

The new firm, yet to be named and due for opening on 1 October this year, will present a “really different challenge” to her and her colleagues, Kerrigan says.

“We’re going to have to be much more self-sufficient. It’s amazing the number of decisions already that we’ve had to make about things that we’ve never had to think about before,” she says, adding that the change will be a good one.

“You’re really spoilt when you’re in a big firm. Everything gets done for you because there’s a whole group of people employed to do it. We just do the legal work,” she says.

Kerrigan is certainly looking forward to an improved work-life balance at the new boutique firm.

“Being in a large firm, people don’t actually think, when they’re organising a meeting at 5pm on a Wednesday, that [I’ve] got to do the school run or get my son to sport, because they just assume that somehow that all gets organised for you,” she says.

Kerrigan says the trend to specialise is taking hold in the legal profession, especially in certain practice areas where the market place is competitive and the big firms can’t meet the client’s price.

Time will tell. LW

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Rise of the

non-lawyer

The power of non-lawyers within the legal profession is on the rise as they prove their worth by driving business success. Briana Everett fi nds out why they’re indispensable

coverstory


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he non-lawyers of the legal world have gradually infi ltrated the legal profession. Mostly, they are behind the scenes, but their power and infl uence in the legal industry is

most certainly on the rise. As the legal market rapidly evolves - largely thanks to creeping globalisation and changing technology - and as fi rms gradually pay closer attention to the marketing, business development and branding side of their business, the power of the non-lawyer has skyrocketed as the critical nature of their roles becomes more apparent.

The demand for non-lawyers - from chief executive offi cers, business development managers, communications managers and knowledge managers through to executive assistants and librarians – has dramatically increased in recent times, and it seems they no longer have to prove their worth to gain acceptance amongst the profession.

“Being a non-lawyer within a law fi rm is actually a nice place to be,” says Jeremy Hyman, the media and communications manager at Middletons. “I think sometimes some people feel that it’s diffi cult for someone who’s a non-lawyer, or that it’s not as rewarding or respected, but that couldn’t be further from the truth, in my experience.”

According to Warrick McLean, president of the Australian Legal Practice Management Association and general manager of Coleman Greig Lawyers, as fi rms increasingly recognise the need to develop a fi rm’s profi le within the marketplace, the business development, marketing and communications professionals within the industry are more valuable than ever.

“From a marketing, business development and communications point of view, I would suggest the people in those roles are gold,” he says. “They’re a resource that can ultimately, like any practice management professional, help the principals and the fi rm get from A to B.”

McLean adds that non-lawyers are growing in importance within the profession because partners and managing partners simply don’t have the time, the focus or the energy to deliver the results themselves. But beyond that, the sophistication of practice management is increasing and non-lawyers are demonstrating

Both Blake Dawson and its latest recruit Kelly O’Shaughnessy will be learning as they go as they break into previously untapped territory with a newly created social media role.

Quickly fi nding her feet having joined the legal industry only fi ve months ago, O’Shaughnessy is well versed in the social media space but joins the legal industry from a recruitment and employment brand background.

“We have a few different areas that we look to use social media in,” explains O’Shaughnessy, who’s been in the role since March this year. “One is in the recruitment and employment-branding space: looking at attracting top talent directly to the fi rm from the brand perspective, and also being able to go out and use search methodology and professional networks, like LinkedIn, to go out and fi nd great people and bring them in.”

Another function is on the marketing and business development side, according to O’Shaughnessy, which involves teaching the fi rm’s partners to use social media tools for client contact and networking.

Adding to this is the use of social media within the fi rm, to generate

greater accessibility. “We are implement-ing social technology behind the fi rewall to make our people more accessible to our other people, so that geography doesn’t become an issue, and we make sure we can be asking questions and getting answers from anywhere within the fi rm,” she explains.

While there’s a lot going on for a social media strategist - including engaging senior stakeholders, talking through the whys, hows and business drivers of the activity, producing content and creating videos as well as campaign analysis, O’Shaughnessy admits to the fun side of her job. “There is a bit of playing around on Twitter and Facebook,” she laughs.

But while she’s ‘tweeting’, ‘liking’ and building the fi rm’s following, O’Shaughnessy is faced with the challenge of keeping up with such a rapidly developing area.

“The biggest challenge in this space is keeping up! In the last three weeks another social network has popped up. I’ve got to be across what is Google + and how it works and how we can use that for the business,” she says. “The challenge is keeping up with the technological world so I can relate that to the business of being a law fi rm.”

The Strategist

“The appetite is absolutely there for doing things differently and trying new things, really getting up to speed with these emerging technologies and just having a go” KELLY O’SHAUGHNESSY, SOCIAL MEDIA STRATEGIST, BLAKE DAWSON

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the signifi cant value they can add to any legal business.

After almost three years as the communications manager for Middletons, following two-and-a-half years in a similar role at Freehills, Hyman has witnessed the changing nature of the industry and the increased focus on brand and reputation and the resulting need for specialists in this space.

“It’s always interesting to me just how much we’re covered in the media, how much prominence our voice has within the general business community or wider community on social issues,” he says.

“Law proliferates all aspects of life and if you look back over the last 10 or 15 years, what has evolved in the legal industry is even more intense scrutiny … Sometimes it’s even more weighted to scrutiny than other industries you would think would have more of a public interest. But I must say, you couldn’t get a greater public interest than the law.”

As a result of this increased scrutiny, Hyman observes how the use and engagement of the media has become a core part of legal business.

“Building, enhancing and protecting a brand or reputation has become a far more complex, sophisticated beast,” he says. “The use and engagement with the media is entirely sophisticated.”

While the bar has been raised for the non-lawyers tasked with the diffi cult job of protecting a fi rm’s brand from outside forces such as the media, non-lawyers in internal communications roles are also facing a tougher job as fi rms begin to ramp up their efforts to engage employees, improve the employee brand and improve staff retention.

“Law fi rms have put a lot of focus on getting their internal communications right, certainly at Middletons, so that staff are engaged, understand the business and what’s happening in the business, and that they are on the same journey as the business,” says Hyman.

“Communication, by its nature, speaks to transparency, speaks to collegiality, and speaks to empowering the individuals within the organisation through information and knowledge.”

This added value that non-lawyers have to offer businesses has resulted in law fi rms upping

It was the calibre of the people within the legal industry – both lawyer and non-lawyer – that really impressed Middletons’ media and communications manager, Jeremy Hyman, and lured him into the legal world – away from his previous life in government relations.

“It was a call I got one day from someone I knew and it sounded interest-ing,” says Hyman, who completed a Masters in Communications. “One to never close a door, I agreed that I’d at least have a coffee. What I then found out about the nature of the legal industry, the opportuni-ties, the kinds of people that are partners within law fi rms and other lawyers – it just seemed very intellectually stimulating.”

According to Hyman, life as a non-lawyer was mostly what he had expected. But, he adds, what it’s like to work with lawyers can only be understood once one has leapt into their very unique world. “The eccentricities, the peculiarities, the dynamics of the law fi rm – one can only truly appreciate, I feel, once you’re inside and doing the job,” he says.

It’s these dynamics of the legal community that Hyman loves most about his job, having developed close working relationships with the lawyers of Middle-tons as well as other lawyers and

non-lawyers across the industry. And refreshingly, his genuine love for his job and passion for the industry is hard to miss.

“There’s a real camaraderie,” Hyman says of his relationship with other communications managers in the industry. “It’s surprising to me – and I say surpris-ing because I would have never thought it prior to entering the law – but I’m very passionate about the legal industry and that’s because of the professional community to which I feel a part of … It’s not a job that I clock-on and clock-off. I’m deeply passionate about it.”

Having such enthusiasm for the job is made easy, according to Hyman, by the people he works with, including Middle-tons managing partner Nick Nichola.

“What makes me tick is the relation-ships I have within the fi rm. That very much speaks to my personality and makeup but I really get a kick out of working with really great people that are intellectually stimulated and are good at what they do,” he says. “The management of the fi rm has a very close alignment with the senior management, and I have direct access and a working relationship with a managing partner who I think the world of.”

The Communicator

“Building, enhancing and protecting a brand or reputation has become a far more complex, sophisticated beast”JEREMY HYMAN, MEDIA AND COMMUNICATIONS MANAGER, MIDDLETONS

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coverstory

their non-lawyer headcount as well as creating entirely new roles to achieve an edge in a more sophisticated, competitive market. While the jury is still out for some fi rms as to the actual value social media has to offer business, its presence, along with other new technologies, has been a game-changer for the legal industry – as it has been for many others.

“Gone are the days of when you can just do a good job and continue to have work fl owing through the door,” says McLean.

“In terms of social media, those marketing teams [within fi rms] which have been early adopters, I would suggest have a bit of an edge,” he says, noting that given the return of the “talent squeeze”, social media’s value as a tool for talent management is becoming more evident.

“Law fi rms are traditionally very conservative but being able to deliver social media and social media strategies are part and parcel of [good management]. It’s a given these days and it doesn’t matter whether it’s from a client perspective or a staff member perspective.”

Proof of social media’s game-changing effect on the industry is the emergence of newly created roles within fi rms that focus solely on using social media as a business development, recruitment and brand-building tool.

This year Blake Dawson became the fi rst top-tier fi rm in Australia to introduce a specialist social media role, arguably setting the tone for what’s to come in the years ahead.

“It’s quite an interesting space to be playing in … within the traditional style [of the legal] industry. Bringing that innovation into this type of industry is really quite interesting and has some excitement to it. It’s just another way to communicate and people are changing they way they communicate,” says Blake Dawson’s new social media strategist, Kelly O’Shaughnessy.

“The appetite is absolutely there for doing things differently and trying new things, really getting up to speed with these emerging technologies and just having a go.” LW

The Fixer

Arguably the most vital of all non-law-yers, executive assistants are the unsung heroes of the legal industry, with their ability to ensure the fast-paced lives of time-poor lawyers run as smoothly as possible often going unrecognised.

As executive assistant to Freehills CEO Gavin Bell, Michelle Patmore plays a pivotal part in the running of the top-tier fi rm.

“My job is wide-ranging. I support Gavin one-on-one so he’s my main focus. I help him run the business and make sure his day runs as smoothly as possible and help out with whatever he needs,” says Patmore, who’s been an assistant at Freehills for eight years.

“Of course, working for a CEO everything is urgent. You have to look at what is the most urgent and what needs doing at that time, and that can change in a matter of fi ve minutes. Like

everyone, all they want to know is that you’ve taken it on and that you’re going to deal with it. They just want action.”

For Patmore, the most enjoyable part of the demanding role is the teamwork aspect.

“You need to deal with a lot of different people to fi nd the right way to get the outcome you need and make the day run as smoothly as possible,” she says, noting the close working relation-ship she has with other EAs in the industry. “It’s fi ve minute phone calls here and there. We’re all trying to get the same outcome, so everyone’s helpful.”

“Working for a CEO everything is urgent. You have to look at what is the most urgent and what needs doing at that time, and that can change in a matter of fi ve minutes” MICHELLE PATMORE, EXECUTIVE ASSISTANT, FREEHILLS

“From a marketing, business development and communications point of view, I would suggest the

people in those roles are gold” WARRICK MCLEAN, GENERAL MANAGER, COLEMAN GREIG LAWYERS

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9.30-10.30AM

THE HON. JUSTICE IAN HARRISON

SUPREME COURT OF NSW -

SENTENCING IN THE AGE OF COMPASSION

10.45-11.45AM

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SUPREME COURT OF VIC

PROCEDURAL JUSTICE AND HUMAN RIGHTS:

INFORMAL ADJUDICATION IN COURTS

AND TRIBUNALS

11.50-12.50PM

DAVID JACKSON AM QC

THE CONSTITUTION IN 2011

2.00-3.00PM

CHIEF SUPERINTENDENT ANTHONY TRICHTER,

COMMANDER POLICE PROSECUTIONS, NSW POLICE

HOW LAWYERS CAN EFFECTIVELY ENGAGE WITH

POLICE THROUGHOUT INVESTIGATIONS / INQUIRIES

AND IN PROSECUTIONS

3.10PM-4.10PM

CHILDREN’S MAGISTRATE PAUL MULRONEY,

CHILDREN’S COURT OF NSW

EFFECTIVE APPLICATIONS UNDER S.32 MENTAL HEALTH

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THE SALVATION ARMY NEEDS YOU!

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Leadership and organisational skills are highly valued ‘soft skills’, yet jobseekers are overlooking their importance, according to Hays


careercounsel

Women who have worked abroad said

that while their career prospects improved,

they did not feel that they were treated as “equal in status” to

their male counterparts

66 %

Source: Natwest International Personal Banking survey

Women who work overseas believe the

experience will improve their chances of moving

up the career ladder 83 %

my next move

I’d like to transition into an in-house role. What should I think about before making the move?

Planning is, as always, the key to success. You should think about industry, organisation and team

to ensure you fi nd the right in-house role. Things to consider include:Work: Generally, the smaller the in-house team the broader the advisory role. You will need to establish whether you prefer to specialise in one or two areas or whether you are better suited to a more general role advising on a wide variety of legal issues. Team structure: Many in-house teams are smaller than those within private practice. Therefore careful consideration must be given to the kind of networks needed to support the transition into what is often a broader legal role. Ask yourself, ‘Do I operate better within a larger team environment or as sole legal counsel?’

Olivia Harvey, in-house consultant, DolmanWorking abroad

WHEN APPLYING for a new role, candidates tend to focus on the technical skills required for the job and brush over the soft skills components of an employer’s wish list – despite the fact these soft skills are currently in high demand.

“There is a shortage of candidates with the right technical skills as well as the additional soft skills that employers want in the candidate they will employ,” says Hays director Nick

QA

Show off your leadership skills

Level: Many in-house teams have relatively fl at structures. In smaller in-house teams, career progression can depend on the person in a managerial or general counsel position vacating their role. In these instances, it is especially important at the outset to consider at what level you enter the organisation because once in the role, career progression may be diffi cult to negotiate.Industry: Look to your existing client relationships and any secondment experience to ascertain which industry your skills are most aligned with. The more time dedicated to mapping out your preferred industry, the more time there is to establish valuable industry networks.

The role of an in-house lawyer has become more sophisticated, making it more important than ever to consider your ideal in-house role well ahead of making the move.

Deligiannis. “Some employers are becoming more fl exible in their requirements and will offer training to a candidate who is otherwise a good fi t for the role, but others will hold out for a candidate that matches all their skill requirements – both hard and soft.”

According to J Legal manager Dezz Mardigan, law fi rms are increasingly looking for “entrepreneur types” in senior associate, junior partner and partner roles.

“They are looking for lawyers who can demonstrate the necessary skills, such as leadership, management and organisation, for the fi rm’s strategic alignment for succession planning, bench-strength and business development reasons,” she told Lawyers Weekly.

“Often lawyers overlook the importance of indicating any reference related to leadership, management or organisation as they are considered to be ‘intangible’ skills. A word of advice here is that lawyers have to remember that intangible skills can and will lead to positive tangible results.”

The most commonly requested soft skills, according to Hays, are interpersonal and communication skills, team management and leadership skills, and organisational skills.

“These skills are mainly acquired on the job,” says Mardigan, “by mirroring, matching, being mentored and developed by the more experienced and successful lawyers.”

To acquire these leadership, management and organisational skills, Mardigan suggests asking for more responsibility and expressing an interest to grow within these areas, having a candid conversation with the senior lawyers and partners-in-charge about possibilities to develop these intangible skills sets, and recognising opportunities to show leadership in future deals or matters.

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• Become one of our Senior Executive Officers• Provide leadership of tax and superannuation laws• Influence the legislative agenda of the ATO

The ATO is the government’s principal revenue collection agency, managing and shaping tax, excise and superannuation systems that fund services for all Australians. Boasting a diverse workforce, we provide a professional environment where over 22,000 staff work together to achieve outcomes. We value our people and the specialist skills they bring, while building their capabilities is a top priority.

We are seeking an industrious and resolute professional to provide Tax Counsel services on behalf of the Commissioner of Taxation. You will provide leadership on major interpretive issues and products as well as the development of law and policy. You’ll resolve priority technical issues, lead strategic litigation and provide high-level rulings and advice regarding the laws administered by the Commissioner of Taxation. You’ll also direct and control the work of technical staff as well as perform a liaison and representation role with professional bodies and academics. To succeed in this high-level role you will need a very good knowledge and understanding of taxation and superannuation laws and policies as

well as the commercial and business environment in which the laws operate. You’ll have an appreciation of managing a set or system of laws as well as the ability to apply your knowledge to resolve complex, important or contentious issues.

Recognised qualifications in a tax, business or law-related discipline are essential.

Late applications may not be accepted.

To apply

The information you need to apply for this position is contained in the candidate information kit. You can get a copy by visiting www.ato.gov.au/careers You must submit your application by 18 August 2011.

More information

If you have read the candidate kit and need more information about this position, please contact Andrew England on (02) 6216 2077.

Senior Tax Counsel and Assistant CommissionerSenior Executive band 1 – Adelaide, Brisbane, Canberra, Melbourne, Perth, Sydney (several ongoing positions) Total remuneration starts at $196,141 (including superannuation)

AG49624

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Freedom to bark denied

folklaw


Lawyer breaks opposing counsel’s arm

R E A D T H E L AT E S T F O L K L A W O N L I N E www.lawyersweekly.com.au/folklaw

Well, it has to be said: in all Folklaw’s time digging up funny or quirky stories from the depths of the world’s legal shenanigan fi les, it has never seen one quite like this …

An obviously clumsy public servant is making an injury compensation claim against her government employer because she was injured whilst engaged in a “sex act” while working out of town.

Believed to be a world fi rst (now there’s a surprise!), the claim has been heard in the Federal Court in Queensland.

Naturally, the employer has argued they could not possibly be held responsible for injuries obtained during obviously perilous nookie in out-of-town motels.

“In general, you would be covered if you were in another town at the employer’s direction, but I doubt if a court in Queensland would regard an employer responsible for your sexual behaviour,” said Brisbane-based compensation lawyer Mark O’Connor.

However, O’Connor added that an employer is responsible for ensuring that staff members working out of town are accommodated in proper, safe accommodation.

“If the boss puts you up in some dodgy place where you are injured, then they could be held liable,” he said.

Hang on a minute. Does that mean the boss is responsible for ensuring that the bed in your motel won’t collapse if it is used for something other than sleeping (Folklaw is merely speculating that the said “act” took place amongst the linen)? Surely not!

O’Connor said the sex injury compo claim brings into focus the issue of where an employer’s responsibility for staff ends.

“If an employer sends a staff member out of town for work, then the employer’s

An American lawyer is suing his opposing counsel for breaking his arm and imprisoning him out of “desperation” during mediation in his Beverly Hills offi ce, reports Court House News Service.

William Bloch of Excelus Law Group claims Henry Shields, partner and managing agent of national US fi rm Drinker Biddle, “saw his client being taken apart and impeached in the deposition examination by plaintiff and

Woman sues employer for sex-gone-wrong

became desperate”.Shields is alleged to have

begun coaching his witness, making improper speaking objections, refusing to take a break, consult with co-counsel or re-think his conduct and, when the mediation was terminated, refusing to leave.

“Near the exit out of the conference room, Shields ... turned to the open conference door and deliberately shut the door, cutting off plaintiff’s egress and thereby falsely imprisoning him inside the conference room and against his will,” the claim states.

Bloch, whose right arm was seriously injured in 1993 and who has been operated on six times,

said he tried to avoid a physical confrontation but that Shields obstructed him from walking on and then “shot his right hand up to his throat in some kind of martial art move”, putting a partial choke hold on Bloch and shoving him against a nearby beam.

Bloch claims he suffered “severe bruising to his buttock, right shoulder, and an abrasion on the right elbow” as well as a fractured left wrist, which had to be put in a brace, and required medication.

Bloch claims that when Drinker Biddle “learned of Shields’ wrongdoing, they ratifi ed it and assisted Shields in creating a false alibi and

responsibility does not just end at the end of the business day. The employer has a responsibility to ensure the employee is accommodated somewhere safe,” he said.

“However, I think it’s a stretch to suggest the employer should somehow be responsible for injuries a staff member sustains during a night-time sex session.I think the courts would in general fi nd it diffi cult to accept the injury was caused during the course of the employee’s work.”

Well, thank goodness for that! Folklaw waits with baited

breath to see if this tale of woe has a happy ending …

Raising the question of whether law enforcement in Mason, Ohio, has anything better to do than prosecute somebody for barking at a dog, a judge this week has rejected a man’s First Amendment defence, reports Lowering the Bar.

Ohio man Ryan Stephens is facing trial for barking at Timber the police dog after a judge deemed Stephens’ argument that “prosecuting him for barking violated his First Amendment rights” invalid.

Stephens was arrested for “assaulting a police dog”, after he allegedly walked up to the window of a police cruiser and barked at a police dog inside. When arrested, Stephens reportedly argued that “the dog started it” but will now have to make that argument to a jury.

Stephens didn’t make contact with the dog (luckily for him), but the law also provides that no person shall “recklessly ... [t]aunt, torment, or strike a police dog or horse ...”

The prosecution argued that even if the barking was speech, it would constitute “fi ghting words” because it upset Timber.

supported him in his brazen and wrongful conduct”.

Bloch is suing Drinker Biddle and Shields for compensatory and punitive damages for negligence, assault, battery and false imprisonment.

www.lawyersweekly.com.au

false imprisonment.

“I think it’s a stretch to suggest the employer

should somehow be responsible for injuries a staff member

sustains during a

night-time sex session”

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Expect our profile to raise yoursIt’s no surprise that our name is so well known. We’ve been a leader in specialist legal recruitment for more than 22 years with one of the strongest brands in the market. Alongside our reputation for professionalism and integrity, it’s why so many law firms come to us when they’re hiring. Which means we can open more doors for you. Contact us for more information on the full range of opportunities currently available across our global office network or for an informal discussion about your career. Contact our Sydney office on +61 (0)2 9236 9000 or our Melbourne office on +61 (0)3 8610 8400 or visit taylorroot.com.au

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lawyers weekly august 5, 2011

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