lawyers weekly, october 14, 2011

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Friday 14 October 2011

OPINION

HUNTER BECOMES HUNTEDMurdoch’s US legal trouble

PRAC PROFILE

TUNE OF THE LEGAL MARINERSSailing the maritime law seas

THIS WEEK

WRONG SIDE OF THE LAWEx-Minters CFO arrested

IN-DEPTH

PAYBACK TIMEANZ battlesclass action

THE MINING MONEY PIT

Law fi rms hitch a lucrative ride

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DOL184-01 ALW#555 Backstage ALW FP 235x 297mm October 7, 2011 5:37 PM

Client approval: ______________

Studio approval: ______________

Taking you where others can’t

Sydney|Competition 3 – 4 yearsThis highly regarded practice group have a new vacancy for a 3-4 PQE competition lawyer. You will provide advisory and litigation advice across a range of sectors and involving a number of international competition authorities. This is an excellent role with plenty of client contact and an interesting and varied workload. Great mentoring from senior lawyers on offer and the chance to work in a friendly, supportive environment. Ref: SYD/4490/OH

Brisbane|Employment Senior AssociateExcellent opportunity for a senior associate to join this growing international firm and work with leading partners. You will work on a diverse range of contentious and non-contentious matters including industrial/employment disputes, drafting a variety of employment agreements, and advising on equal opportunity and OH&S matters for blue chip clients. Clients include corporates from a range of industry sectors and government bodies. Ref: BRI/4022/AM

Brisbane|Energy & Resources Senior Associate This is an exciting opportunity for a talented energy and resources lawyer. Previous experience working on high level acquisitions and disposals, regulatory approvals, due diligence, joint ventures, contracting and procurements and projects is essential. High calibre client base primarily in the oil and gas industries makes the work both challenging and interesting. You will have previous experience mentoring junior lawyers. Ref: BRI/4123/GG

Sydney|Property 3 – 5 yearsAn opportunity has arisen for a mid level lawyer with expertise in commercial real estate transactions to join this busy group. The role will involve advising on all aspects of property transactions including assisting clients with: acquisitions and disposals, joint venture arrangements, property management, development projects, leasing and property financing arrangements. Highly competitive salary and benefits on offer. Ref: SYD/4366/AM

Brisbane|Corporate4 years +Looking for a realistic work/life balance and great work? This well respected firm has an opening for a corporate lawyer with at least 4 years of experience. Working on a wide variety of corporate matters, including mergers and acquisitions, joint ventures, capital raising, ASX listings and advising on a range of governance and compliance issues. Top class drafting, communication and technical skills are essential. Ref: BRI/4494/GG

Brisbane|Insurance4 – 8 yearsThis premier Queensland firm is seeking a senior lawyer to work on a range of insurance related matters including personal injury, property damage and professional liability claims for a variety of clients. You must have the ability to mentor and support junior lawyers. Competitive salary on offer and genuine career progression opportunities exist for the right candidate. Friendly and supportive team environment. Ref: BRI/3951/GG

Sydney|Insurance 2 – 4 yearsExcellent opportunity for an experienced insurance lawyer to join this national mid-tier firm. The firm has an excellent reputation and is known for their quality service offering. They are seeking a lawyer with at least 2 years experience to work across a range of professional indemnity, D&O across financial lines matters. Work with first class Partners in a down to earth team. Ref: SYD/4146/AM

Brisbane|Construction 2 – 5 years This premier top-tier firm seeks an experienced construction lawyer to work on a mix of both front and back end work with a varied client base. You will have similar experience from a top-tier or mid-tier firm with solid academic results. Working with this is a friendly, down to earth and collegiate team. You will enjoy a competitive salary and excellent staff benefits. Great opportunity and genuine career progression. Ref: BRI/4462/GG

Melbourne|Banking & Finance Senior Associate Premier top-tier firm is searching for a banking and finance lawyer with high calibre experience in projects, project finance and structured finance. You will be working with first rate partners, provided a strong work flow and great support. You will work on major projects, cross boarder deals and mentor junior lawyers. This is a genuine long term opportunity with real prospects for progression. Ref: MEL/4127/AM

InternationalSingapore|Banking & FinanceJunior and Mid LevelWork with leading global and Asian lenders and corporates across the full range of banking and project work advising on highly structured tax and trade financings, acquisition, leveraged and project financings. Advise on the development of Greenfield projects in the energy and infrastructure sectors including public-private finance initiatives. Ideal candidate has strong banking background with experience of project work either from a finance or developer perspective. Ref: SIN/4445/RL

Singapore|Corporate Associate3 - 5 YearsA new opportunity has become available for a commercially minded Commonwealth qualified junior corporate associate to move across to the Singapore office of a highly regarded international law firm. You will advise domestic and international blue chip clients on high profile transactions, acquisitions and joint ventures. Depending upon the seniority of the successful applicant, experience managing client relationships may be an important aspect of the position. Excellent academics required. Ref: SIN/4495/RL

Tokyo | Banking & Finance4 - 6 YearsWe are looking for a lawyer experienced in one or more areas such as acquisition, leveraged, project finance or general lending secured from a top or quality mid tier firm to join an global law firm. In addition to fluency at handling a range of financing transactions a commercial outlook and the ability to maintain and develop client relationships are essential. Japanese NOT required but would be highly regarded. Ref: TOK/3720/RL

Sydney|Corporate/Commercial 5 – 7 yearsThis highly recognised global corporate has a new role for a corporate/commercial lawyer to join their team. There is a broad range of work on offer including M&A, corporate advice, company secretarial, commercial contracts, TPA etc. You will be working as part of a cohesive, commercially focused team and advising senior management in key business units. Ref: SYD/4469/DS

Sydney|Construction Lawyer6 – 8 yearsA terrific new role for a competent construction lawyer has arisen in our client’s team. You will advise on a range of construction matters including infrastructure projects, design and build contracts and facility maintenance issues, consulting agreements, IP matters and general corporate practices. The successful candidate will be an experienced construction lawyer with a solid understanding of contract law and a commercially sensible approach to problem solving. Ref: SYD/4493/OH

Sydney|Corporate Lawyer 4 – 6 yearsThis highly regarded corporation has a new role for savvy corporate lawyer. You will be providing corporate advisory including advising on Corporations Act and ASX Listing Rules, financial services and company secretarial advice. 4-6 years corporate, commercial advisory and transactional experience gained in a major law firm and/or corporate environment essential. Career moulding move with an outstanding Group. Ref: SYD/4488/OH

In-house

Private Practice

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: Olivia Harvey, Gail Greener, Ralph Laughton, Daniel Stirling and Alex McIntyre.Sydney (02) 9231 3022 Melbourne (03) 8637 7317 or email [email protected]

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“Everyone wants to again become a resources lawyer” Michael Lishman, partner, Clifford Chance - see page18

ContentsRegulars Features

18

COVER STORY: The resources boom is driving the Australian economy and law firms are enjoying the ride. Justin Whealing reports

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10 IN-DEPTH: The Asia-Pacific is propping up a global M&A market that has slumped in the wake of political and economic unrest in much of the rest of the world. Justin Whealing reports on why Australian law firms are cashing in

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

12 IN-DEPTH: The biggest consumer class action in Australian history continued in the Federal Court last week with thousands of ANZ customers fighting a case worth over $50 million. Briana Everett reports

14 PRACTICE PROFILE: With Australian exports on the rise as well as plans to overhaul the country’s shipping industry, it’s busy times ahead for Australian maritime lawyers. Briana Everett reports

16 OPINION: Rupert Murdoch is facing problems not only in the UK. His company, News Corporation, also faces a lawsuit in the US. New York lawyer Raphael Grunfeld says the old fox is in the sights of the US court system

24 CAREER COUNSEL: Increasing demand and a lack of lawyers with experience in the resources and mining industry means law firms are starting to offer sign-on bonuses and salary increases to attract and retain top talent.

26 FOLKLAW: The lighter side of the law

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ONE OF the most sensible policies during Kevin Rudd’s time as Prime Minister was his proposed mining tax.

The 40 per cent “super profi ts” tax on mining companies was expected to realise as much as $9 billion per year in extra revenue for the government – money that would be extremely handy now as the government battles to restore the budget surplus.

Of course, this tax never came into fruition after a scare campaign from mining groups, spearheaded by billionaires including Andrew “Twiggy” Forrest, Clive Palmer and Gina Reinhart.

Kevin Rudd was then rolled by Julia Gillard, who then reduced the tax to 30 per cent and drastically reduced the number of mining companies to which it would apply. As a result of the watered-down Gillard tax, the government can expect to forego more than $10 billion in revenue over the next three years.

Most mining companies can a� ord to pay the tax and they should be taxed for making profi ts on the back of extracting resources owned by all Australians.

In August, BHP Billiton announced a full-year profi t of $22.6 billion, up 86 per cent, while Rio Tinto announced a record half year net profi t of $7.1 billion.

“A lot of law fi rms have signifi cantly expanded on the back of the resources boom over the last couple of years,” said Freehills partner Matthew FitzGerald in the cover story on the energy and resources sector (see page 18). “This appears set to continue based on the signifi cant numbers of large-scale projects being undertaken by companies in the sector.”

This month the International Monetary Fund (IMF) recommended that the Australian Government broaden its current Minerals Resource Rent Tax, endorse the carbon tax and recommended the elimination of ine� cient taxes.

Lawyers Weekly wholeheartedly concurs with the IMF analysis.

With China, India and Indonesia still developing and needing our raw materials to fund further expansion, the demand for Australian iron ore and coal is not likely to diminish anytime soon.

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Editor’sNote

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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 Raneberg nabbed2 New firm opens its doors3 Clayton Utz and Freehills land roles on $1.3 billion takeover4 National firms outscore global rivals5 Atanaskovic Hartnell opens London office6 Bali drug arrest “ludicrous” 7 Fight against ANZ continues in Fed Court8 Global firm starts in Perth in ex-Minters digs9 Fine line between super boss and psycho 10 New Year brings Aussie lawyers home

NEXT WEEKWhile image isn’t everything, it is becoming an ever-increasing part of a law firm’s strategy. Lawyers Weekly will profile the new digs of three law firms to find out how office design can make a great first impression on clients and ensure the troops on the ground are happy and productive.

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Nick Abrahams Partner,

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

Editor, Justin Whealing

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GROW YOUR CAREER PROSPECTSMAKE A POWERFUL MOVE

hays.com.au

Legal Counsel – Financial Services. 5 years+ PAE. Sydney. An international company offering their clients a broad range of financial, corporate and trust services with offices in Australia, Asia and Europe, are looking to hire an additional lawyer.

You’ll assist the Director of Legal in providing legal support to the operational directorates. You’ll independently manage dossiers relating to matters including high level products for the financial services sector, be involved in complex negotiations and the drafting of intricate contracts. Expressions of interest are invited from lawyers within a top tier practice or a recognised financial services legal department. Contact Craig Poole at [email protected] or 02 8226 9753.

Regional Legal Counsel - Construction. 5 years+ PAE. Sydney.

This leader in the construction and development of major projects across Australasia and globally are known for their large scale and complex landmark buildings, commercial towers and major infrastructure projects. They are expanding their legal team and need a Regional Legal Counsel.

Reporting to the Deputy General Counsel, you’ll work closely with the Executive Management team and be given broad commercial responsibility with a focus on ‘front end’ advisory work.

You’ll have relevant experience gained in a highly regarded construction practice or an in-house role with a construction business. Contact Craig Poole at [email protected] or 02 8226 9753.

Workers Compensation Lawyer. 1 year+ PAE.Sydney.

One of the most highly regarded litigation practices in Sydney are continuing to expand their Workers Compensation department. They have an enviable client base to include Work Cover NSW, all Scheme Agents in NSW as well as specialised insurers and licensed self insurers.

You’ll work under the supervision of an inspirational Partner who will ensure you get the very best ongoing professional development and an opportunity for accelerated career progression.

You’ll have an excellent grounding in this area of law, consider yourself to be technically strong for your level of PAE and have a history of academic excellence. Contact Mhairi Morrison at [email protected] or 02 8226 9664.

Lawyer - Work Cover & Personal Injuries. 3 years+ PAE. Melbourne.

This impressive mid tier firm has a refreshingly forward thinking approach. They clearly value their clients and are passionate about providing great service. Due to growth they’re looking for an expert Work Cover lawyer to join an established and reputable team.

You’ll have exceptional skills in Work Cover matters and the ability to work across litigated and non litigated matters. If you’re an expert in the field and are looking for a firm with great career progression prospects, then please apply.

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

Land Access and Regulatory Manager. Perth. This ASX listed oil and gas company has emerged as one of the success stories in the Australian oil and gas sector. Due to the increasing scope of their activities, a newly created position exists for a Land Access and Regulatory Manager responsible for the delivery of all approvals for the company’s operations.

You’ll develop, implement and maintain an operational framework to ensure the company’s activities meet all required environmental, safety, regulatory and land access obligations. You’ll have 4-6 years PAE in environmental, native title, aboriginal heritage, land access and oil and gas law issues gained with a top tier firm. If you’re willing to step out of your comfort zone, respond to challenges and develop, you’ll be rewarded with the scope for significant career progression opportunities as the company continues to grow.

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

Senior Associate - Energy & Resources. 5+years PAE. Brisbane.

A successful mid-tier law firm is looking for a talented lawyer who is, or wants to become, a specialist in the resources sector. This is a highly reputable oil and gas practice with an enviable client list and ever increasing exposure to work in the coal and other valuable mineral sectors.

Whilst the group has a Queensland onshore focus, they continue increasing their workload offshore, interstate and overseas. They are open and interested in hearing from those who may wish to move into this specialist area on the basis that you have an impressive career history to date and a background in the areas of corporate, property or general commercial law.

Contact Jonathan Turner at [email protected] or 07 3243 3033.

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Bali drug arrest “ludicrous”The arrest of a 14-year-old Australian boy

in Bali on drugs possession charges will do nothing to reduce drug use in Australia or Indonesia, according to senior legal figures. The teenager from Newcastle was arrested on 4 October over allegedly buying $25 dollars worth of marijuana. He is currently being detained in Bali. “It’s not just ludicrous but traumatic and damaging for the young boy involved,” said the national president of the Australian Lawyers Alliance, Greg Barns.

Canadian firm merges with Norton RoseNorton Rose Group an-nounced that

Canadian law firm Macleod Dixon will join Norton Rose Group on 1 January 2012. As a result of the merger, Norton Rose Group will add 60 lawyers in Latin America (based in Caracas, Venezuela and Bogota, Colombia), a 13-lawyer office in Almaty, Kazakhstan, and a team of lawyers in Moscow. With close to 700 lawyers now in Canada, Norton Rose’s Canadian operations will be known as Norton Rose Canada from 1 January 2012.

Police must disclose affidavit proce-dure: LIVThe circum-stances of the

execution of all police affidavits must be disclosed, according to the Law Institute of Victoria. The LIV made this call on 5 October after it was revealed police were signing, but not swearing, affidavits. According to LIV, the revelation throws serious doubt upon the validity of search warrants (issued by magistrates who rely on the affidavits of police) and evidence obtained as a result of executing those warrants.

RE W IND

thisweek

THE FORMER Minter Ellison CFO accused of stealing thousands of dollars from the fi rm has been arrested in Sydney.

Craig Raneberg, who was the CFO of Minter Ellison SA/NT for 10 years before being made redundant in June, was arrested at Sydney Airport on 1 October while attempting to pass through customs.

ABC News reported that Raneberg had planned a short stay in Australia before returning to Thailand, where he has been living since evidence of the alleged fraud was discovered.

Minter Ellison informed police in August that an internal investigation had uncovered that Raneberg appeared to have fraudulently misappropriated a large amount of money from partner funds.

“It appears that the senior fi nancial o� cer has abused his access and knowledge of the fi rm’s security protocols and partners’ personal information,” said managing partner Nigel McBride

in a statement to Lawyers Weekly on 15 August.While federated with other o� ces in the Minter

Ellison Legal Group, Minter Ellison SA/NT is a separate partnership and maintains completely separate fi nancial accounts. Raneberg was the CFO for both the Adelaide and Darwin o� ces.

The fi rm insisted that partners were the only people a� ected, with client funds not tampered with.

Minter Ellison declined to comment when contacted by Lawyers Weekly after Raneberg’s arrest.

Evidence presented in a civil case launched by Minter Ellison against Raneberg in the Supreme Court of South Australia alleges he withdrew at least $26,000 from a practice account over several years while working at the fi rm.

Raneberg is currently being held without bail and will be extradited to Adelaide to face six counts of dishonestly taking property without the owner’s consent.

The Web

Raneberg nabbed

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Insolvency experts warned that the accelerating rate of company collapses poses a threat to jobs. The number of companies going into external administration jumped almost 14 per cent to 1049 in August, the second-highest rate on record, according to ASIC.

South Australian premier Mike Rann joined a growing group of Labor leaders urging the Gillard Government legalise gay mar-riage. Rann, who will step down as premier next week, said “same-sex marriage is an idea whose time has well and truly arrived”. NSW is now the only branch of the Labor Party not to have endorsed a change in the laws.

Tough regulations were put in place in the UK dictating that jockeys can only hit a horse seven times during a flat race and eight times over jumps. Horses in the UK can now only be struck five times in the final furlong (200 metres). That’s half the rate at which riders can whip horses in Australia during a race.

Samsung Electronics halted the launch of an eagerly-awaited Smartphone following the death of Apple cofounder Steve Jobs. The Nexus Prime was due to be released last Tuesday as the first handset running the latest version of Google’s Android software, but Samsung and Google agreed it was not the right time.

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thisweek

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Allens Arthur Robinson and Blake Dawson have acted on this year’s largest project financing deal.

Blake Dawson advised Wiggins Island Coal Export Terminal (WICET), Queensland’s first user-funded coal terminal, on its financing by senior syndicate and mezzanine financiers, advised by Allens.

WICET is owned by a consortium of coal exporters, advised by ANZ Corporate Advisory.

The first stage of the development, located in Gladstone and due for completion in 2014, is expected to facilitate the export of around 27 million tonnes of coal per annum. The terminal, which will be operated by the Queensland Government-owned Gladstone Ports Corporation, will eventually have a capacity of more than 80 million tonnes per annum, effectively doubling the coal export capacity at the Port of Gladstone.

The financing for WICET Stage 1 is Australia’s largest greenfields project financing deal for 2011.

Signed on 9 September, the deal includes $US2.4 billion ($2.52 billion) for construction and $600 million (made up of Australian and US dollars) for performance guarantees, working capital and contingencies.

In an Australian first, the senior debt facilities reportedly include a tranche of debt guaranteed by the Australian Export Finance and Insurance Corporation.

The Commonwealth Bank of Australia is acting as the senior agent for a syndicate of 20 domestic and international banks which are providing senior debt on the deal, and as the mezzanine agent for a consortium of 13 mezzanine financiers.

Sydney-based Allens partner Phillip Cornwell, who led the team acting for the senior financiers, said the deal required the firm’s due diligence specialists.

Cornwell was supported by Sydney partners Rob Watt and Nicholas Adkins, as well as senior associate Carmen Luk and lawyers Mary-Frances Murphy, Kevin Lu, Scott Day, Amy Cashman and Sarah Petrie.

The Blakes team was led by Brisbane-based partners Damian Salsbury, Tony Denholder and Melbourne partner Jamie Ng. General Counsel David Somervaille and senior sssociate Mark Hourigan also assisted.

Finlaysons appoints new chairAdelaide firm Finlaysons has appointed partner

David Martin as its new chairman. Having joined the firm in 2006, Martin will hold the position of chairman until the end of June 2013. A property and development law specialist, Martin has acted on major projects including the $1.5 billion redevelopment of the harbour at Port Adelaide.

HFW partner jumps ship to DLA PiperDLA Piper Perth has appointed corporate

consultant Andrew Johnstone from Holman Fenwick Willan (HFW). Johnstone joins DLA as a consultant until he is admitted in WA, at which time he will join the partnership. He specialises in M&A, corporate finance and contracts, with expertise in the oil, gas and transport sectors.

Carter Newell boosts construction team QLD firm Carter Newell

has promoted Beau Mollinger to associate within the firm’s construction and engineering team. Mollinger’s practice focuses on dispute resolution, construction litigation and Building and Construction Industry Payments Act adjudications.

DLA Dubai partner returns to OzDLA Piper’s Melbourne office has added

corporate partner Simon Davidson, who has relocated from the firm’s Dubai office. Davidson has expertise in equity capital markets, having advised on public capital raisings across Australia, the UK, North America and the Middle East. Originally from Melbourne, Davidson joined DLA’s Dubai office in 2008. He was at Minter Ellison and Eversheds prior to that.

Deal name: Project financing of Wiggins Island Coal Export Terminal Key players: Allens Arthur Robinson, Blake Dawson

Movers &

Shakers

DE A L OF THE W EEK

DE A L M A K ERS

allens and blakes bolster billion dollar coal funding

Jason Mendens Paul Lingard Richard Lustig

Firm Clifford Chance (Sumisho Coal Australia), Blake Dawson (Wiggins Island Coal Export Terminal), Allens Arthur Robinson (syndicate of banks), Mallesons Stephen Jaques (Xstrata)

Allens Arthur Robinson (Leighton Holdings Limited), Mallesons Stephen Jaques (BHP)

Baker & McKenzie (DKN Financial Group Limited), Blake Dawson (IOOF Holdings Limited)

Deal name Sumisho investment in the WICET in Gladstone

Leighton sells assets which provide iron-ore contract mining services to BHP in WA

IOOF acquires financial services solutions provider DKN

Area Corporate M&A Corporate

Value Undisclosed $705 million $115 million

Key players Clifford Chance’s Jason Mendens

Mallesons’ Paul Lingard Bakers’ Richard Lustig

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thisweek

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Clayton Utz has landed a plum role on a multi-billion takeover for a company implicated in a human rights atrocity.

The firm is acting for the dual Canadian and Australian-listed Anvil Mining Limited in the wake of a $1.3 billion takeover offer from Hong Kong-listed Minmetals Resources.

Anvil’s operations are based in the Democratic Republic of Congo (DRC).

In 2005, Anvil Mining was at the centre of controversy when ABC’s Four Corners aired a program that implicated the company in a 2004 massacre of at least 73 civilians in Kilwa, in the south-eastern corner of the country.

Anvil had provided vehicles and a plane to the Congolese army after earlier uprisings in the African nation, some of which were later used in the military operation at Kilwa.

A military court in the DRC later acquitted nine Congolese soldiers and three employees of Anvil of war crimes and complicity to commit war crimes.

Human rights groups criticised the decision and questioned the independence of the Congolese military court.

In 2010 a class action against Anvil was filed by an association representing Congolese citizens affected by the massacre.

Lawyers Weekly understands that Blake Dawson previously acted for Anvil Mining in relation to much of the company’s corporate work before 2005, but after the airing of the Four Corners program, disquiet was expressed within the firm about its relationship with Anvil.

Lawyers Weekly sought comment from Clayton Utz in regards to whether it considered it acceptable to have Anvil Mining Limited as a client, but the firm did not provide an official response.

Clayton Utz partners Matthew Johnson and Gary Berson are leading the firm’s team. Berson has acted for Anvil Mining previously.

Freehills is acting for Minmetals, with the firm’s mining industry group leader John Tivey and partner Daniel Brealey leading its team on the transaction.

atanaskovic Hartnell opens london office

Global firm in ex-Minters digs

Clayton Utz acting for controversial company

American-based global law firm Squire Sanders officially commenced trading in Perth on 1 October at the old offices of Minter Ellison.

Squire Sanders announced in August that it would enter the Australian market with a single office in Perth, with its 14 foundation partners all coming from Minter Ellison.

The four remaining Minter Ellison partners, along with 30 lawyers, have moved from 152-158 St George’s Terrace to new premises at 77 St George’s Terrace, with the 80-lawyer strong Squire Sanders practice now trading from the old Minters location.

Speaking to Lawyers Weekly, Minter Ellison acting chief executive partner Andrew Cunningham said he would like at least another six partners and 40 lawyers within the next 12 months in Perth.

Gilchrist Connell also officially launched its Perth practice on 1 October. Ex-Minter Ellison partner Deborah Templeman heads the firm’s practice, which is also trading from St George’s Terrace.

Sydney law firm Atanaskovic Hartnell has expanded overseas.

The firm’s managing partner, John Atanaskovic, now heads a four-lawyer office in London. Speaking to Lawyers Weekly, Atanaskovic said his firm was looking to compete with the established magic circle and global law firms in London on the back of a blue-ribbon European client base.

“Previously, Chip Goodyear (the former chief executive of BHP Billiton) and Rupert Murdoch and others have pushed me to open an office in London and the thing that pushed us over the line recently was the work we have been doing for Glencore,” he said.

Atanaskovic refused to reveal if he, or the firm, was currently

doing work for Rupert Murdoch, who is embroiled in the News of the World phone hacking scandal and for whom Atanskovic has acted for extensively in the past.

In August, Atanaskovic Hartnell acted for Glencore on its $280 million takeover of the ASX-listed Minara Resources. Atanaskovic said after the company raised over $10 billion earlier this year, its chief executive indicated to him that the company would like to be able to use the firm during business hours in Europe as it looked to make further acquisitions.

When asked if the firm’s move into London was part of a long-term strategy to link with a global law firm, Atanaskovic said his preferred model was to

remain as a stand-alone firm.“A number of firms have

approached us, and we have spoken to them, but our preference is not to do anything,” he said.

John Atanaskovic and Tony Hartnell started their own firm in 1993. Atanaskovic was previously a partner at Blake Dawson and managing partner of Allens Arthur Robinson.

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thisweek

8 l aw y e r s w e e k ly 14 o c t o b e r 2 011 w w w.law yersweekly.com.au

Clayton Utz has landed a plum role on a multi-billion takeover for a company implicated in a human rights atrocity.

The firm is acting for the dual Canadian and Australian-listed Anvil Mining Limited in the wake of a $1.3 billion takeover offer from Hong Kong-listed Minmetals Resources.

Anvil’s operations are based in the Democratic Republic of Congo (DRC).

In 2005, Anvil Mining was at the centre of controversy when ABC’s Four Corners aired a program that implicated the company in a 2004 massacre of at least 73 civilians in Kilwa, in the south-eastern corner of the country.

Anvil had provided vehicles and a plane to the Congolese army after earlier uprisings in the African nation, some of which were later used in the military operation at Kilwa.

A military court in the DRC later acquitted nine Congolese soldiers and three employees of Anvil of war crimes and complicity to commit war crimes.

Human rights groups criticised the decision and questioned the independence of the Congolese military court.

In 2010 a class action against Anvil was filed by an association representing Congolese citizens affected by the massacre.

Lawyers Weekly understands that Blake Dawson previously acted for Anvil Mining in relation to much of the company’s corporate work before 2005, but after the airing of the Four Corners program, disquiet was expressed within the firm about its relationship with Anvil.

Lawyers Weekly sought comment from Clayton Utz in regards to whether it considered it acceptable to have Anvil Mining Limited as a client, but the firm did not provide an official response.

Clayton Utz partners Matthew Johnson and Gary Berson are leading the firm’s team. Berson has acted for Anvil Mining previously.

Freehills is acting for Minmetals, with the firm’s mining industry group leader John Tivey and partner Daniel Brealey leading its team on the transaction.

atanaskovic Hartnell opens london office

Global firm in ex-Minters digs

Clayton Utz acting for controversial company

American-based global law firm Squire Sanders officially commenced trading in Perth on 1 October at the old offices of Minter Ellison.

Squire Sanders announced in August that it would enter the Australian market with a single office in Perth, with its 14 foundation partners all coming from Minter Ellison.

The four remaining Minter Ellison partners, along with 30 lawyers, have moved from 152-158 St George’s Terrace to new premises at 77 St George’s Terrace, with the 80-lawyer strong Squire Sanders practice now trading from the old Minters location.

Speaking to Lawyers Weekly, Minter Ellison acting chief executive partner Andrew Cunningham said he would like at least another six partners and 40 lawyers within the next 12 months in Perth.

Gilchrist Connell also officially launched its Perth practice on 1 October. Ex-Minter Ellison partner Deborah Templeman heads the firm’s practice, which is also trading from St George’s Terrace.

Sydney law firm Atanaskovic Hartnell has expanded overseas.

The firm’s managing partner, John Atanaskovic, now heads a four-lawyer office in London. Speaking to Lawyers Weekly, Atanaskovic said his firm was looking to compete with the established magic circle and global law firms in London on the back of a blue-ribbon European client base.

“Previously, Chip Goodyear (the former chief executive of BHP Billiton) and Rupert Murdoch and others have pushed me to open an office in London and the thing that pushed us over the line recently was the work we have been doing for Glencore,” he said.

Atanaskovic refused to reveal if he, or the firm, was currently

doing work for Rupert Murdoch, who is embroiled in the News of the World phone hacking scandal and for whom Atanskovic has acted for extensively in the past.

In August, Atanaskovic Hartnell acted for Glencore on its $280 million takeover of the ASX-listed Minara Resources. Atanaskovic said after the company raised over $10 billion earlier this year, its chief executive indicated to him that the company would like to be able to use the firm during business hours in Europe as it looked to make further acquisitions.

When asked if the firm’s move into London was part of a long-term strategy to link with a global law firm, Atanaskovic said his preferred model was to

remain as a stand-alone firm.“A number of firms have

approached us, and we have spoken to them, but our preference is not to do anything,” he said.

John Atanaskovic and Tony Hartnell started their own firm in 1993. Atanaskovic was previously a partner at Blake Dawson and managing partner of Allens Arthur Robinson.

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10 l aw y e r s w e e k ly 14 o c t o b e r 2 011 www.lawyersweekly.com.au

crisis? what crisis?The Asia-Pacific is propping up a global M&A market that has slumped in the wake of political and economic unrest in much of the rest of the world. Justin Whealing reports on why Australian law firms are cashing in

indepth

The Greek debt crisis, riots in London, the USA receiving a credit downgrade after it was on the brink of default. Ten years ago, such global shocks would have sent

the Australian economy into a tailspin.China’s, and now India’s, insatiable appetite

for our resources, and a global shift away from the “old” economies of Europe and North America towards emerging economies in Asia, has meant that global uncertainty has not derailed the Australian M&A market.

“I am a believer in the Asian Century,” said

Graeme Browning, the Oceania managing partner, Transaction Advisory Services, Ernst & Young. “In Australia, the fundamentals are strong, the population and demographic drivers are strong, and they are the things that give me the most confidence in the future.”

Browning was speaking to Lawyers Weekly with regard to the Ernst & Young (EY) Capital Confidence Barometer Report, which was released on Monday (10 October).

The report surveyed 1000 corporate executives from around the world, with just over

Bloomberg M&A Legal Advisory League Table

Australia & New Zealand Announced DealsAny Involvement, Ranked by Deal Count

1/1/11 - 9/30/11 2011 2010 MKTSHARE

CHANGEFIRM RANK MKT

SHAREVOLUMEUSD (Mln)

DEALCOUNT

RANK MKTSHARE

Minter Ellison 1 7.3 9,568 57 1 11.2 (3.9)

Allens Arthur Robinson 2 32.6 42,585 50 3 30.4 2.2

Mallesons Stephen Jaques 3 27.5 35,858 46 4 26.4 1.1

Freehills 4 23.3 30,363 43 2 21.7 1.6

Clayton Utz 5 20.9 27,291 36 6 8.1 12.8

Corrs Chambers Westgarth 6 17.4 22,708 28 10 7.6 9.8

Baker & McKenzie LLP 7 2.7 3,539 24 7 8.1 (5.4)

Blake Dawson 8 6.3 8,245 22 4 18.3 (12.0)

Norton Rose LLP 9 6.4 8,320 18 9 4.0 2.4

Allen & Overy LLP 10 19.4 25,259 17 21 1.6 17.8

Gilbert + Tobin 11 11.9 15,537 15 13 10.3 1.6

Jones Day 11 1.5 1,898 15 15 0.7 0.8

DLA Piper LLP 13 0.4 495 9 8 3.2 (2.8)

Clifford Chance LLP 14 0.4 511 7 21 0.3 0.1

Simpson Thatcher & Bartlett LLP 15 25.3 33,000 6 17 1.3 24.0

Skadden Arps Slate Meagher & Flom LLP

15 7.3 9,585 6 26 7.8 (0.5)

Kirkland & Ellis LLP 17 1.6 2,024 5 21 0.5 1.1

Bell Gully 17 0.4 515 5 12 0.9 (0.5)

Latham & Watkins LLP 19 21.6 28,173 4 50 0.3 21.3

Sullivan & Cromwell LLP 19 17.8 23,248 4 17 14.5 3.3

TOTAL $130,534 1,039 $84,051

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“Australians have been unnecessarily cautious and pessimistic”GrAeme BrowninG, oceAniA mAnAGinG pArtner, trAnsAction Advisory services, ernst & younG

indepth

10 per cent of respondents based in the Asia-Pacific.The survey showed that the Asia-Pacific is ranked as the number

one area for investment by Australasian and, significantly, global companies. Just under half of all respondents (49%) rated the Asia-Pacific as the most fertile area for investment, well ahead of the next best performing area, North America (18%).

The EY report backs up the findings evident in a number of the Q3 global M&A financial and legal advisory league tables released last week.

The Bloomberg legal advisor table showed that the Asia-Pacific region had a four per cent increase in M&A activity as compared to July to September 12 months ago. This was in stark contrast to Europe, the Middle East and Africa, which experienced a 30 per cent reduction in M&A activity.

The Australian M&A market has been caught up in the Asia-Pacific M&A bonhomie.

The Freehills Public Mergers & Acquisitions Report, released on14 September, showed that there were 104 announced deals in the 2010-11 financial year, which was just shy of the pre-global financial crisis (GFC) level of activity in 2008.

While national law firms have recently been under siege from global rivals entering the Australian market, it was the traditional legal powerhouse of the Australian top-tier firms that reaped the biggest rewards.

According to Bloomberg, Minter Ellison has acted on the most announced deals for the first nine months of this year (57), with Allens Arthur Robinson having the largest share of deal value, with $US42.6 billion ($44.2 billion).

Allens is also ranked second for deal count, behind Minters, with Mallesons Stephen Jaques, Freehills and Clayton Utz rounding out the top five.

“We haven’t seen the global law firms impact on our client base or work flow too much so far,” said Allens Brisbane-based M&A partner Chelsea Drake.

By announced deal value, Mallesons ($US35.9 billion), Simpson Thatcher & Bartlett LLP ($US33 billion), Freehills ($US30.4 billion) and Clayton Utz ($US27.7 billion) round out the top five after Allens.

Clifford Chance and Allen & Overy, which have offices in Sydney and Perth, ranked tenth and fourteenth respectively by deal count. A&O also ranked sixth by deal value.

Glass half fullDespite the strong performance of Australasian economies, business optimism remains low when compared to their global colleagues.

The EY report showed that only 14 per cent of Australasian respondents feel positive about growth prospects in the global economy, as compared to 44 per cent of global respondents.

“I think we are running the risk of talking things down too much in Australia,” said Browning. “Australians have been unnecessarily cautious and pessimistic. We are more cautious than we need to be and we run the risk of missing opportunities as a result.”

While that might be the view of corporate executives, Australian law firms are not pessimistic about the future.

“There has certainly been growing uncertainty in global markets over the last few weeks, but it has not impacted on deal flows in the Australian market yet,” said Drake. “There seems to be an insatiable appetite for resources in Australia, so the Australian M&A market should continue to be insulated due to the amount of resources work.” lw

What are the top five areas you are likely to invest in?

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source: Ernst & Young

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indepth

Marking the first major step in the case since its launch in September last year, 34,000 ANZ customers, represented by Maurice Blackburn, continued their battle against the bank during a

hearing on 3 October in Melbourne’s Federal Court.The class action against ANZ Banking Group,

represented by Blake Dawson, first began in the Federal Court on 22 September 2010 in relation to the bank’s penalty or “exception” fees imposed on customers. These fees included the levying of honour and dishonour fees on bank accounts, as well as over limit and late fee payments on credit cards.

Last week’s hearing, which lasted just three days instead of the originally scheduled two weeks, examined the definitions within the contracts between ANZ and its customers of what constitutes a fee or a charge and whether the exception fees were capable of being characterised as penalties.

“Customers who were late paying a credit card or overdrawing their account were charged $30 or more,” said Maurice Blackburn principal Andrew Watson. “We believe that it did not cost ANZ anywhere near the amount in terms of managing an overdrawn or late payment on an account.”

According to Watson, ANZ had to demonstrate that an exception fee is a reasonable estimate of the loss caused to ANZ when a customer does not pay on time, or overdraws an account. Otherwise, he said, ANZ customers are entitled to a refund.

“ANZ said these rules do not apply to it because the charge is just a fee for a service offered to its customers,” explained Watson.

According to Watson, the hearing allowed important questions to be answered about the rights of ANZ customers to protect themselves against exorbitant fees and charges and about whether banks have a right to charge whatever fees they want.

With the hearing on the question of whether the fees are capable of being characterised as penalties completed, Watson and his team are now waiting on Justice Michelle

Gordon to hand down her decision. “If we’re correct and [the exception fees] are capable

[of being characterised] as a penalty, that leaves for future determination the question of whether or not they are sufficiently extravagant or excessive to amount in law to a penalty,” he said.

“In other words, whether they are so far beyond the actual costs incurred by the bank that they constitute a penalty.”

At an earlier hearing in April this year, the Federal Court dismissed the central tenet of ANZ’s defence – that the exception fees were not extravagant and unconscionable – labelling the defence as “unsubstantiated” and “without any factual foundation”.

The court also held that ANZ had engaged in an “abuse of process” and was proposing a “fishing expedition” in its conduct of the class action.

Justice Gordon said ANZ’s request to delay the hearing while it undertook an accountancy exercise with an expert from Deloitte would “make a mockery” of the Federal Court.

“I do not accept that a court should wait and conduct a trial of all issues in two or three years time. It is simply an inappropriate way in which to conduct this piece of litigation,” said Gordon.

If successful in the class action against ANZ, Watson noted the “undeniable” impact the case will have.

“Its most immediate impact will be that there will be further proceedings issued against the other banks,” he said.

Other banks which are potential defendants to a class action include the Bank of Queensland, Bank SA, BankWest, Bendigo Bank, CitiBank, Commonwealth Bank, HSBC, National Australia Bank, St George, Suncorp and Westpac. The total value of the class action against ANZ has been estimated at over $50 million, with the average claim being around $1,500 per account holder and the range being from hundreds of dollars to over $35,000.

The action is being funded on a ‘no win, no fee’ basis by litigation funder IMF Australia Ltd and managed by its subsidiary, Financial Redress. LW

Bank fees fight continuesThe biggest consumer class action in Australian history continued in the Federal Court last week with thousands of ANZ customers fighting a case worth over $50 million. Briana Everett reports

12 l aw y e r s w e e k ly 14 o c t o B e r 2 011 www.lawyersweekly.com.au

“Customers who were late paying a credit card or overdrawing their account were charged $30 or more. We believe that it did not cost ANZ anywhere near the amount in terms of managing an overdrawn or late payment on an account”

ANdreW WAtsoN, priNCipAL, MAuriCe BLACkBurN

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Greg Plummer email: [email protected], telephone: 02 8014 9052Samantha Cowling email: [email protected], telephone: 02 8014 9053 Jonathan Walmsley email: [email protected], telephone: 02 8014 9050

To search Australian and global job opportunities go to www.marsdengroup.com or download ourfree iPhone App (search iTunes – Marsden Job Search) - legal job searching just got easier.

Singapore lTransactional 2-6 yearsPremier US firm seeks magic circle or top tier USfirm candidate for its busy Singapore transactionalteam. If you don’t yet want to specialise and enjoycorporate, finance and projects work this couldbe the one. NY pay scales.

Hong Kong l Corporate 6 years +Our client is a magic circle firm seeking anexperienced corporate and ECM lawyer. Youmust have experience of IPO transactions but youwill be assured a mix of IPO and M&A work.Uniquely no language skills are required.

Channel Islands lTransactional 2-4 yearsJunior lawyers get to work across finance, fundsand corporate in this top tier offshore firm. Lowtax (20%) and a London salary makes this the bestbase for you to explore Europe. Recruiting for 3positions now!

Hanoi-Vietnam l Corporate 5 years +Unique opportunity for a top quality lawyer towork on public and private M&A, private equityand security offerings for foreign investors, MNCsand investment banks within a premier firm in anexciting developing jurisdiction.

Tokyo l Energy 5-8 yearsLeading international firm seeks a mid to seniorlevel lawyer to join a developing team in Tokyo.You will have international oil and gas experience;ideally with exposure to LNG. Japanese languageskills not necessary.

Paris l Energy & Infrastructure 6-8 yearsOur client is an international firm with a worldclass energy team (in Paris and globally). You willhave significant energy and infrastructure projectsexperience gained with a top tier firm. French aplus but not essential.

Hong Kong & Tokyo l Funds 3 years - SAFunds lawyers in demand in HK and we have one role(at SA level for Tokyo too). Investment fund experienceincluding offering advice on fund establishment;experience in structuring private funds and regulatoryframework of offshore fund structures useful.

London l Construction 4-7 yearsMagic circle firm which loves Aus lawyers in thisteam seeks specialist construction lawyer. Frontend experience is preferred although in this teamlawyers work on front and back end constructionmatters.

London l Banking & Finance 3-8 yearsThis magic circle firm believes that the next hiresfor its B&F team will come from Aus. Recruitmentis happening and workloads remain high acrossleveraged, acquisition, asset, structured & projectfinance and general lending.

Amsterdam l Finance 3-7 yearsWant to work in a UK banking team but wantsomething a bit different to London? The team atthis magic circle firm is just lovely and everybodyloves working with the partners. Broad English lawB&F transactions – high value, complex.

London l Corporate Mid levelTwo top tier firms looking for corporatetransactional lawyers for specialist financialinstitutions and insurance groups. If you are a toptier lawyer and interested in these industrysectors this could be your ticket to London.

Dubai l Project Finance 3-6 yearsExciting opportunity for a talented Australianwithin this global UK practice. You will be from atop tier firm with excellent academics and ideallya project finance focus, although general bankingwill be considered.

Qatar l Corporate 5 years +International powerhouse firm is seeking acorporate / M&A lawyer to join its busy, Dohapractice. Tax free remuneration, close workingenvironment, excellent quality work and highprofile clients on offer.

Oman l Energy 6 years +Exciting corporate energy role in Muscat for anadventurous energy specialist. You will be lookingfor career advancing work within the context ofa supportive, international firm network.Attractive packages on offer.

Dubai l Finance 4 years +If you have at least 4 years of premier levelAustralian banking experience, this genuinelyactive role is well worth exploring. Join a team ofhigh performers led by extremely well regardedpartners. Magic Circle firm.

YOUR JOB IS BEING A LAWYER,OUR JOB IS HELPINGLAWYERS MOVE: GLOBALLY.

YOU DON’T HAVE TO GO IT ALONE.

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practiceprofile

Despite fears of another global downturn, Australia’s trade surplus surged from $1.8 billion to $3.1 billion, including an 8 per cent increase in

shipments from Australia, between July and August this year.

The growth of Australia’s exports in the face of another global slump demonstrates the significance of Australia’s shipping industry – the fourth largest in the world. In 2009-10, 1052.4 million tonnes of cargo moved across Australian wharves, 81.9 per cent of which were exports.

Yet despite these impressive numbers, Australia’s shipping industry is in need of an overhaul.

The industry has been in a state of decline for years and, since 1996, the number of Australian registered trading vessels has more than halved from 55 to 22.

As a result, on 9 September this year the Minister for Infrastructure and Transport, Anthony Albanese, announced the Federal Government’s shipping policy reform, Stronger Shipping for a Stronger Economy – the most significant shipping reform in Australia’s history.

The proposed reforms are the result of a parliamentary inquiry into coastal shipping, commissioned by the Labor Government in 2008, which recommended that Australian shipping be revived.

According to Albanese, the package of reforms is aimed at ensuring Australia’s shipping industry does not cease to exist, to make Australia a “force in world shipping once more” and to “turn Australia from a shipper to a shipping nation”.

While 99 per cent of Australia’s international trade is carried by ships, only 0.5 per cent of that trade is carried by Australian-owned vessels, which are, on average, 20 years old – eight years older than the world average.

The reforms proposed by the Government include tax reforms to remove barriers to investment in Australian shipping (corporate tax rate of zero for Australian ship operators); a simplified regulatory framework; the

establishment of an Australian International Shipping Register; and the establishment of a Maritime Workforce Development Forum to progress maritime skills and training priorities.

Discussing the reforms, Middletons partner Stephen Thompson says their impact could be “very significant”, depending on the detail which is yet to be released. “It is fair to say, as the Government says, that this is the most far reaching, single block of reforms, probably ever in this country,” says Thompson.

While it’s difficult to predict the impact the reforms will have at this early stage, Thompson says there will be a number of areas in which legal work will be required, particularly on the tax front.

“If [the reforms have] the desired effect and attract more investment into Australian shipping, then there will be people looking to establish shipping entities, building ships for Australian flag operations – making sure they secure for themselves the tax benefits,” he says.

“A lot of the benefits [of the reforms] are linked to the engagement of Australian crew, the application of Fair Work [Australia regulations] to ships while they’re on the Australian coasts. There will be work for our core maritime team, our tax guys, our employment relations team. There will be, I would expect, some corporate structuring work going on as well.”

Likewise, Holman Fenwick Willan partner Hazel Brewer says the reforms have the potential

It will certainly be a joy to see a great deal more Australian-owned shipping and Australian-managed shipping operating on an international trade basis up and down the coast” HAzel Brewer, pArtner, HolmAn FenwIck wIllAn

With rising Australian exports coinciding with plans to overhaul the country’s shipping industry, busy times lie ahead for Australian maritime lawyers. Briana Everett reports

riding the resources boom

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Rose and Holman Fenwick, in particular, that have traditionally had a strong transport and trade background, tend to just pick up a local team,” says Thompson.

“Holmans, for example, picked up some guys from our Melbourne practice about five or six years ago and Norton Rose picked up most of the Blakes team … It’s good for them because they get to tap into their international work. It makes life interesting for us but I haven’t seen it have a significant impact on our practice profile.”

An advantage of the arrival of global firms such as Norton Rose, according to Thompson, is the referral work firms like Middletons are receiving.

“It gives us an opportunity to pick up from everyone else other than Norton Rose. We get quite a bit of referral work from some of those traditional London firms.”

For Van Buuren, previously at Mallesons Stephen Jaques and Blake Dawson, his move to Norton Rose in February this year was a result of his desire to be part of a global shipping practice.

“A challenge is keeping up with it all. Now I’m talking on a daily basis to different practice groups across the firm, like tax, corporate and commercial,” says Van Buuren. “I’m also now dealing with offices in Singapore, Hong Kong, China, London, Africa and Canada – that is a challenge and something different.” LW

practiceprofile

l aw y e r s w e e k ly 14 O c t O b e r 2 011 15

to broaden Australia’s shipping base, making it a more attractive business for Australians to get back into.

“It will certainly be a joy to see a great deal more Australian-owned shipping and Australian-managed shipping operating on an international trade basis up and down the coast,” she says.

Another positive element of the reforms, according to Thompson, is the move towards nationalisation of industry safety regulation.

Currently, the Australian Maritime Safety Authority monitors foreign ships coming into Australia but, on a state level, there are separate bodies responsible for the safety of commercial vessels within state waters. Under the reforms, this regulation will be nationalised.

“[At the moment] any commercial vessel moving around the Australian coast is subject to different requirements. It’s part of the federal curse,” says Thompson. “In that sense, [nationalisation] will probably take work away, but it’s a very positive step for the general efficiency of the industry around the coast.”

While the Government has claimed that these reforms are a positive move for Australia’s maritime industry – the details of which are scheduled to be released towards the end of this year – the Shadow Minister for Infrastructure and Transport, Warren Truss, said Albanese was using “flamboyant language” to sell the proposed changes.

“Knowing how beholden Minister Albanese and Labor are to the Maritime Union, Australian shipping has every reason to be suspicious about this so-called reform package,” said Truss on 9 September.

“While it promises benefits to some shippers, everything will depend on the undisclosed detail and the accord being proposed between shippers and the unions.”

The maritime market While the true impact of the proposed reforms is yet to be seen, lawyers in the maritime space

have plenty of work to keep them busy thanks to the growth in Australian industry sectors such as mining, energy, and infrastructure.

“On the commercial industrial side, we’re pretty excited about infrastructure projects,” says Thompson, whose core team of approximately 12 lawyers does nothing but transport and logistics work, including maritime work.

“With the continued importance of the transport sector with the resources boom, there are significant implications for the shipping industry, as well as road, rail and port structures generally. We’ve got guys here working almost full time on a big port project in the Pilbara.”

Similarly, Brisbane-based Norton Rose partner Ernest Van Buuren has noticed particular growth in the energy and commodities sectors.

“That’s to be contrasted to other sectors of the maritime law industry, such as maritime insurance, where you’ve seen a progressive decline in work over the years, as that sort of work tends to go more in-house,” he says.

For Brewer, who primarily works on the underlying sale and purchase contracts of the shipping industry, the blackberry and laptop are “both a blessing and a curse”.

“Flexibility in shipping is the key to everything,” she says, adding that working in the shipping area is particularly interesting because two issues are very rarely the same.

“You’ve got different ships, different cargo, different clients, different receivers and things going on in different countries,” she says.

The international nature of the shipping industry has meant that the global firms entering Australia, with expertise in the area of maritime law, have been able to easily pick up local work with the help of local Australian lawyers.

“What’s happened is firms like Norton

That’s to be contrasted to other sectors of the maritime law industry, such as maritime insurance where you’ve seen a progressive decline in work over the years, as that sort of work tends to go more in-house” ErnEsT Van BuurEn, parTnEr, norTon rosE

“What’s happened is firms like norton rose and Holman Fenwick, in particular, that have traditionally had a strong transport and trade background, tend to just pick up a local team sTEpHEn THompson, parTnEr, middLETons

riding the resources boom

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opinion

Getting into Murdoch’s mind


Rupert Murdoch is facing problems not only in the UK. His company, News Corporation, also faces a lawsuit in the US. New York lawyer Raphael Grunfeld says the old fox is in the sights of the US court system

Rupert Murdoch, his son, James Murdoch, Rebekah Brooks and News Corporation allegedly “knew or were reckless in not knowing that reporters

from News of the World were using illegal means to gather news”. In an effort to keep the problem in the box, they maintained that a single rogue reporter had been responsible for the phone hacking. They knowingly or recklessly engaged in a course of conduct to disseminate materially false and misleading information about News Corp, including the truth about the magnitude of the illegal activities.

During the class period, the defendants engaged in actions which deceived the market for News Corp stock and engaged in a course of conduct that artificially inflated the price of News Corp stock. Had plaintiffs known the truth, they would not have purchased News Corp stock or would not have purchased them at the artificially inflated prices that were paid.

This is the crux of the class action lawsuit filed in the Federal Courts of New York on behalf of

persons who purchased News Corp stock between 3 March and 11 July 2011, alleging violations of Sections 10(b) and 20(a) of the US Exchange Act of 1934 and SEC Rule 10b-5, which prohibit the making of material misstatements or omissions or engaging in any course of business that operates as a fraud against any person in connection with the purchase or sale of a security. Prior to 1995, there was a common perception that class action securities lawsuits were being frivolously filed upon the mere announcement of corporate bad news. To address this problem, US Congress passed the Private Securities Litigation Reform Act of 1995 (PSLRA), which sets high pleading standards for federal securities fraud claims. Plaintiffs are now required to prove that defendants made misrepresentations or omissions of material fact with a culpable state of mind (known as scienter), knowing that they were acting illegally and intending to do so, and that such misrepresentations or omissions caused the plaintiff the alleged loss. In proving such culpable state of mind, the plaintiff must at least show that

it was as likely that the defendant had fraudulent intent.

In the News Corp case, it may come down to whom to believe. Will the court believe the tabloid’s former editor and former lawyer, who claim they told James Murdoch in 2008 about evidence suggesting the phone hacking extended beyond one reporter? Or will the court believe James Murdoch, who said he only became aware of this in late 2010?

Some courts have held that a defendant’s recklessness, coupled with a motive to defraud, is sufficient to establish the culpable mind requirement, while other courts have found this to be insufficient to establish liability on its own, although it may be a factor in determining it. Even if the plaintiffs in the class action are unable to demonstrate that the Murdochs acted with a culpable mind, the case against them may still stick.

This is because section 20(a) of the U.S. Exchange Act of 1934 imposes liability on any person who controls any other person, who acted with a culpable mind; even if the controlling person himself did not.

For this purpose, ‘control’ means the possession of power to direct the management of the company through the ownership of voting securities or otherwise. Accordingly, shareholders and directors can be held responsible for the fraudulent misrepresentations and omissions of persons they control. Although there is no explicit culpable mind requirement to hold a controlling person responsible for the fraudulent activities of others, some courts require the plaintiff to prove that the controlling person was a ‘culpable participant’ in the controlled person’s conduct in order for liability to attach under section 20(a).

In the class action, it is alleged that the Murdochs, as controlling persons and through active participation in the day-to-day operations of News Corp, had the power to influence and control the content and dissemination of the various misleading statements. They had, it is alleged, unlimited access to copies of News Corp’s reports, press releases and other public filings and had the ability to prevent the issuance of misleading statements and the power to cause them to be corrected.

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Raking in the money

The resources boom is driving the Australian economy and law fi rms are enjoying the ride. Justin Whealing reports

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L AW Y E R S W E E K LY 14 O C T O B E R 2 011 19

Michael Lishman is reminiscing.The Clifford Chance partner, who was previously the head of the M&A group at Mallesons Stephen Jaques

before starting the Western Australian boutique Cochrane Lishman in 2006, was warned about the perils of being an energy and resources specialist at the turn of the century.

This was a time when dotcom companies were all the rage, Baker & McKenzie and the Coudert Brothers were the only global law fi rm of note in Australia, and Perth was still better known for being the home of Alan Bond rather than a base for global mining and professional services companies.

“If you go back to 2000 it was all about telcos, and you had all the managing partners

of all the law fi rms in Australia talking to their resources partner and saying, ‘you are in the old economy, we need to migrate the fi rm’s practice away from the miners to the telco companies, the IT industry, the banks, it is all about the new economy’,” says Lishman.

“Because of China, because of India and the world’s economy, the old economy is now the new black of law fi rms, and everyone wants to again become a resources lawyer.”

The lawyers and the global law fi rms are following the money.

Since Lishman left the confi nes of Mallesons to start his own fi rm fi ve years ago, the Perth legal market has exploded.

Six global law fi rms have arrived, including Lishman’s current fi rm Cli� ord Chance in May this year, the well-regarded Western Australian energy and resources boutique Blakiston & Crabb merged with Gilbert + Tobin, and national fi rms like Allens Arthur Robinson are o� ering bonuses of $20,000 to sta� who successfully recruit lawyers to the west-side.

“Western Australia and Queensland are our two booming o� ces,” says DLA Piper partner Damian McNair. Based in Melbourne, McNair is the head of the fi rm’s projects and fi nance group in Australia, with a large part of his work derived from the energy and resources sector.

Like Lishman, he was also a partner at Mallesons before leaving fi ve years ago, because, as he sees it, “the future is with global law fi rms, not Australian law fi rms”.

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“Everyone wants to again become a resources lawyer” MICHAEL LISHMAN, PARTNER, CLIFFORD CHANCE

For law fi rms, Peter Garrett’s environmental call to arms that “nothing’s as precious as a hole in the ground”, has taken a rather literal meaning.

“Fundamentally, the global law fi rms align to global fl ows of capital,” says Lishman “What Australia now has is a huge amount of stu� that needs to be built and needs to be fi nanced, and that is why the global law fi rms became interested.

“An important part of Asia’s economic future is supplying that demand for materials and energy and to a lesser extent, food.”

Ah, yes, Asia. Without developing economies like China and India, which each has more than one billion inhabitants, lots of Australia’s “stu� ” would remain in the ground. High commodity prices also help the local mining companies, and associated interests such as their legal advisors, to reap the rewards.

“Our revenue is up 50 per cent on what it was four to fi ve months ago,” says Lishman. “We have hired more lawyers, and are taking fi ve more graduates next year, so the work is coming in.”

While there is no doubt that global law fi rms have taken market share and clients from local fi rms, and spooked more and more Australian fi rms like Blake Dawson to merge with global fi rms to shore up its client base, they too are reaping the benefi t of the resources boom.

Australian fi rms still have major Australian-based energy and resources companies with extensive international interests as clients.

Blakes still acts for BHP Billiton, Allens Arthur Robinson is still the go to law fi rm for Rio Tinto, and

Freehills counts the Australian-based gas company Santos as a major client.

“A lot of law fi rms have signifi cantly expanded on the back of the resources boom over the last couple of years,” says Freehills partner Matthew FitzGerald, who specialises in mergers and acquisitions in the mining and resources sector. “This appears set to continue based on the signifi cant number of large-scale projects being undertaken by companies in the sector.”

The west is not always the bestWhile the riches to be found in the ground in Western Australia have been apparent ever since mining magnate Lang Hancock discovered the world’s largest iron ore deposit in the Pilbara region almost 60 years ago, the potential of the Queensland energy and resources sector is only just starting to be realised.

In January, the fi nal investment decision by the various partners in the $US16 billion [$16.1 billion] Gladstone Liquid Natural Gas Project [GLNG] was signed.

A multitude of global companies and law fi rms were involved in the deal, including Australian gas producer Santos, Malaysia’s Petronas, the French company Total and Kogas from South Korea.

Freehills acted for Santos, Allens for Total, Blakes for Kogas and Addisons for Petronas.

FitzGerald, who was part of the Freehills team on this transaction, says that a perfect storm of major oil and gas projects in Queensland has led to law fi rms increasing the numbers they have on the ground in Brisbane.

“The LNG industry has come relatively recently to Queensland after being active in Western Australia for many years,” he says. In additition to the GLNG project, the Australia Pacifi c LNG [a consortium including Origin Energy and ConocoPhillips] deal with China’s Sinopec Group to develop coal seam gas fi elds

He echoes the sentiments of his ex-colleague at Mallesons by stating that national law fi rms like Mallesons did not predict that the resources sector would explode like it has.

“If you asked me at Mallesons if we would have fi ve partners in fi nance and projects in both our Perth and Brisbane o� ces [as DLA Piper does now], I would say you were crazy. But luckily, we re-directed those resources a few years ago,” he says.

It is fair to say that without the resources boom, the six global law fi rms that have established o� ces in Perth since Lishman and McNair left Mallesons would not have done so.

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A selection of our current vacancies: Expand your horizons with Norton Rose GroupA top ten international legal practice

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PerthSenior associate – CorporateAssociate – Corporate (M&A)Senior associate – ResourcesSenior associate – Environment and planningAssociate – Employment

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FINANCIAL INSTITUTIONS ⋅ ENERGY ⋅ INFRASTRUCTURE, MINING AND COMMODITIES ⋅ TRANSPORT ⋅ TECHNOLOGY AND INNOVATION ⋅ PHARMACEUTICALS AND LIFE SCIENCES

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firms in Australia,” he says. “A global law firm does not set up offices in Zambia, the Congo or Equatorial Guinea.

They are trying to service those markets as best they can, but I spend a lot of time in those marketplaces, so I am their equivalent and their competition.”

Global law firms have certainly noticed the riches available in Africa, with particular opportunities available with the associated infrastructure development.

“Everyone talks about mining, but people have to understand that a lot of the legal work surrounds the associated infrastructure,” says Damian McNair from DLA Piper. “The mine expansion and the utilities solution that goes with that is significant. To have a 500 to 800 kilometre heavy haul rail network, then a deep water port and the associated infrastructure is where the real work comes into it.”

DLA Piper is currently acting on one such $10 billion coal and infrastructure project in Botswana.

The burgeoning South African renewable energy sector is also providing opportunities for Australian energy and resources lawyers with global law firms.

“A significant portion of our African work is on the back of the Renewable Energy Feed In Tariff [REFIT] program,” says McNair. “I do a lot of work for the Industrial Development Corporation of South Africa – which is a private equity arm of the South African government – that lends into a number of projects into South Africa.”

A taxing timeOn 1 July next year Australia’s carbon pollution pricing scheme will kick-off as a precursor to an emissions trading scheme in 2015.

Under the scheme, the 500 heaviest emitters will pay a starting price of $23 per tonne of ‘carbon pollution’.

While this is keeping many climate change lawyers at global and national law firms busy, not all firms want a slice of the action.

“Although we will advise on the carbon laws and its impact on the projects we are involved in, we are not aiming to be a carbon tax compliance practice,” says Clifford Chance partner Mark Pistilli.

Despite mining groups and the conservative side of politics in Australia warning that this could severely curtail the level of resource activity in Australia, the energy and resources lawyers on the ground report that the long-term deal flow from the sector remains strong.

“The potential for continued profits outweighs the cost of the tax,” says Lishman.

He believes that hinges on commodity prices remaining high, providing mining and resource companies with a high return on their investment.

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A global law firm does not set up offices in Zambia, the Congo or Equatorial Guinea”MiChAEl BlAkiston, pArtnEr, GilBErt + toBin

Thermal coal keeping the economy warm

“I wouldn’t want anyone to think the carbon tax won’t make a difference,” he says. “Anything that imposes a cost can make it harder. If the price is maintained at historically good terms of trade and people can make exceptional return on their capital, then the mining activity will still be there.”

Blakiston concurs with Lishman, that in the current climate of high commodity prices, the carbon tax “hasn’t stopped projects going ahead”.

However, he believes that once you impose a cost on business, you can’t just undo that to suit the prevailing stage in the business cycle, and that the carbon tax could come back to bite the Australian mining industry.

“There is a well used expression that ‘a rising tide lifts all boats’,” he says. “If commodity prices come down, and costs meets revenue, we have put ourselves in a slot where we make ourselves more uncompetitive,” he says

“Today, it is hard to say that it has had an impact on our major mines, but that could change if revenue comes down.”

With China and India still developing economically, and Indonesia rising and needing materials to fund its development, that time might be a long, long, way away. lW

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72 %

86 %

my next move:

Of firms are using social media in their

organisations

Of companies are using social media for

recruitment / talent acquisition, followed

by branding /engagement and awareness (69%)

Sian Harwood, consultant, Randstad LegalNet workingI am an Australian qualified lawyer who has been working in the UK for the last few years

and is looking to return to the Australian market. What are my prospects?

The current legal market in Sydney is quite tight. However, there are definitely prospects for lawyers looking to return to

Australia having spent time working overseas.

Top-tier and international firms value overseas experience, particularly if it is gained at a Magic Circle or leading UK firm.

Even in the current market, there are still a significant number of top and mid-tier firms looking for strong corporate candidates, particularly those with good M&A experience. This is an area which is still quite candidate-short locally, thereby providing opportunities for returning Australian lawyers.

The transactional nature of this type of work also means that skills are highly transferrable. Lawyers who have worked in larger UK firms will have been exposed to high-quality and high-value transac-tions, placing them in a strong position when competing with other candidates who may not have worked on such high-value matters.

Returning Australian lawyers are viewed favourably for their experience working in a foreign market as well as their local experience. Although they may have been out of the Australian market for several years, they have the local experi-ence that foreign lawyers don’t have, and firms regard the combination highly.

To maximise opportunities, candidates need to be flexible with their salary expectations and the post-qualification level they are employed with. Provided they consider these factors, they should be able to secure suitable roles upon their return.

Q

A

Increasing demand and a lack of lawyers with experience in the resources and mining industry means law firms are starting to offer sign-on bonuses and salary increases to attract and retain top talent.

Mining boom brings bonus boon

careercounsel

According to the latest Hays Quarterly Report for October 2011, the second mining boom has driven demand for lawyers with at least two to three years PAE across the resources and mining industry or the associated industries of energy, construction and property – particularly in Western Australia and Queensland.

Elsewhere in the Australian legal market, the Hays Report shows demand for lawyers in the employment space in response to new legislation and Fair Work compliance, while demand is also starting to increase for corporate

lawyers as companies emerge from the downturn, and as M&A, capital raisings and joint venture activity increases.

The report also indicates that banking and finance lawyers are in short supply and demand is growing.

Given a shortage of skills in these areas, particularly lawyers with resources and mining industry experience, Hays says employers are now willing to sponsor highly-skilled candidates from the United Kingdom and are working hard to source and attract the appropriate talent to Australia.

According to Hays, internal incentive bonuses of up to $20,000 per successful referral have been seen, firms are starting to offer sign-on bonuses and employers are offering greater flexibility and high salary increases to retain top talent.

In the coming quarter, the Hays Report says firms will begin to hire to support their growth strategies, while the in-house market will be less active.

But despite this increase in demand for lawyers, the report says firms are remaining selective in the candidates they will consider and only those lawyers with the exact skills and experience required will be offered a position.

Similarly, while candidate levels are low, those candidates who are looking for their next role are conservative in their job search and will take their time.

Source: SelectMinds, ROI of Social Media in the Enterprise, A Benchmarking Survey

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��

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folklawR 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

an ameRican lawyer will spend time in jail for failing to pay tax for six years, despite a neighbour stating he didn’t have time for such a mundane task.

The kennebec Journal reports that alan harding was ordered to spend 10 days in jail after being convicted of failing to pay state income taxes between 2005 and 2010.

“those who engage in the practice of law are and should be held to a higher standard than the average person,” said Justice donald marsden.

While the sentence, on face value, seems fair enough given that harding saved himself around $100,000 during this period, a neighbour vouched for his good standing by telling the court that harding couldn’t pay taxes because he was such a hard worker.

“i’ve watched alan’s practice grow way too large,” said the neighbour. “the man will not say no.”

harding’s defence attorney argued

that his over-worked client had already suffered enough, having paid back the taxes and being forced to resign from the local elks lodge.

the Benevolent and Protective order of the elks, also known as the elks lodge, is an american fraternal order which boasts the late, great Franklin delano Roosevelt as an ex-member.

the Board of overseers of the Bar in maine, which is where harding has been licensed to practice since 1978, has scheduled a disciplinary hearing in early november for the convicted lawyer.

Four clients of harding also told the Board they believe he failed to properly represent them.

Folklaw is unsure whether, like the non-lodgment of tax returns, the disgraced lawyer will claim he was just too busy with other matters to properly act for the disgruntled ex-clients.

a BeeF has broken out in a Us prison in relation to the presence or otherwise of pork on the daily menu.

two muslim inmates of an ohio prison, one of whom is on death row for killing his estranged wife and brother-in-law, have thrown a sausage in the works of the entire ohio pork industry by claiming that the non-pork and vegetarian menu provided by ohio prisons is simply not good enough.

so bad, in fact, that they are suing the state. associated Press reports the two inmates are

demanding that non-pork meats come from animals slaughtered according to islamic law, known as halal - a

suggestion that has not been too keenly received by an already cash-strapped state prison system.

death row inmate abdul awkal, who is scheduled to die in June, complained that the state is restraining his freedoms by not providing meals prepared according to islamic law, while at the same time supplying Jewish prisoners with kosher meals.

to the observer, this might seem like a fair point. But rather than cater to these demands and inevitably incur more costs, ohio officials have instead decided to remove pork from prison menus altogether, causing a huge uproar amongst ohio pork producers and processors (and no doubt many a bacon-loving inmate).

a prison spokesperson told the associated Press that pork was removed from the menu to ensure muslim inmates’ religious practices were not jeopardised by pork coming into contact with other food during preparation.

not mincing their words, Pork producers - clearly upset at the loss of a significant revenue stream - claimed that removing pork from the menu altogether is “not in the best interests” of the whole prison system.

according to the associated Press, this is not the first time pork has caused ohio prisons a headache. it was taken off the menu back in 2009 in an effort to save money, but was back on the menu twice a month as of last year, after fierce lobbying from pork producers.

Frankly, Folklaw feels sorry for the ohio inmates (well, as sorry as you can feel for multiple murderers), as they’ve missed out on the delights of the californian jails, which provide packaged kosher meals to Jewish inmates, halal meals for muslim prisoners, and regular servings of pork - in all its crispy, apple-sauced glory - to those who want it.

Beef about pork that doesn’t cut mustard

is yoUR boss a charming, seemingly normal person who grew up in a happy and loving household?

yes? then there’s a 4 per cent chance you’re answering to a psychopath.

now, Folklaw doesn’t wish to alarm anyone, but according to a recent study by an american psychologist, reported on by Time Healthland, one in 25 bosses may well be psychopathic.

according to psychologist and executive coach Paul Babiak, that is a rate four times higher than the general population.

Babiak analysed the results of a management training program undertaken by 203 american corporate professionals.

he evaluated their “psychopathic traits” using a standard psychopathy checklist (Folklaw needs to get its hands on one of those!) developed by Robert hare, an expert in psychopathy at canada’s University of British columbia.

according to Babiak, psychopaths – who are generally described as being “completely amoral and concerned only with their own power and selfish pleasures” (sound familiar?) – are likely to be over-represented in the business environment because it happens to play to their strengths.

in short, where greed is considered to be a good thing (worried yet?) and profit-making tops the values list (run while you can!), psychopaths thrive.

Frankly, based on that little assessment, it seems likely that most lawyers are probably working with at least one psychopath.

Babiak also says these amoral, power-hungry sadists are likely to be charming and manipulative, able to disguise the fact they are terrible managers by covertly charming both superiors and subordinates and thus disguising their weaknesses and deftly climbing the corporate ladder.

Unfortunately, Babiak says this last quality renders it almost impossible to tell who is a genuinely talented leader and who is a psychopath.

Bummer.Babiak adds that true psychos can be hard

to spot, as chances are they’ve grown up in happy, loving homes but, for some reason, end up using their hidden powers of evil in different ways, such as becoming your boss and making your life a living hell.

“Psychopaths really aren’t the kind of person you think they are,” says Babiak.

26 l aw y e r s w e e k ly 14 O c t O b e r 2 011 www.lawyersweekly.com.au

Lawyer too busy to pay taxNo doubt Harding also

missed out on enjoying

recreational pursuits

Mentoring wasn’t this boss’s strong point, but

he was charming …

FiNe LiNe BetweeN super Boss aNd psycHo

wilbur was inclined to side with the ohio prison officials

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For more information please visit www.allenovery.com/careers and search for the relevant reference number

© Allen & Overy LLP 2011 www.allenovery.com

It’s time for a change.LONDON (Ref: UK1292)

Transactional Finance AssociateWe are looking for mid–level to senior experienced transactional lawyers who are keen to expand and complement existing skills and ��welcome applications from those currently based within Corporate, General Finance, Structured/Project Finance or Real Estate ��

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lawyers weekly, october 14, 2011

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