Australasian Legal Business (OzLB) Issue 8.8

Law firm consolidation How far can it go?

M&AMore optimism, less caution

Career shortcutWhy postgraduate education shouldn’t be ignored

Leading lights of the in-house profession

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EDITORIAL >>

Australasian Legal Business ISSUE 8.822

IN THE FIRST PERSON

I t is touching to see that within a week of Julia Gillard’s cave-in to the mining lobby on the subject of the Resources Super Profits Tax (RSPT), there was a notable upsurge in the number of M&A transactions being reported by law firms. Not all of these were in the resources sector, but Banpu’s A$2.5bn bid

for Centennial Coal must have warmed the hearts of lawyers who were fearing the worst from the RSPT, and the violation of that cherished principle of sound economic management: political certainty.

However, Gillard’s sound economic stewardship and equally sound moral manoeuvrability cannot provide a full explanation of this M&A feast. Two of the largest deals of the month – the A$2.7bn PE bid for Healthscope and Wilmar’s A$1.75bn acquisition of Sucrogen from CSR – were not related to the resources sector at all. Still, many M&A lawyers are on the record as crediting the recent surge to the resolution of the tax issue.

While ALB would not dream of questioning this logic, some of the deals would appear to have progressed at a remarkable rate since the compromise was revealed. The parties must have been so relieved at the Gillard announcement they urged their advisers to pursue the deal post-haste.

The ‘big three’ miners appear to be satisfied with the concessions they have extracted from the Gillard Government, but the satisfaction is not necessarily universal. There are reports of disgruntled junior and mid-cap miners recommencing their protest campaign against the government. There are also concerns that the impending Federal election may freeze M&A as parties slip into “wait and see” mode.

In short, the dreaded spectre of uncertainty has still not yet been entirely banished. Fortunately, Coalition leader Tony Abbott appears to be aware of the continuing unease in the mining sector and has promised to abolish even the watered-down version of the mining tax, if elected.

If that be the case, can the legal industry look forward to an even more robust M&A workflow post-election, if there is a change of government? Perhaps the recent course of events suggests this may be the case.

“Confidence, especially from overseas investors, is being affected by the uncertainty in Australia’s regulatory regime. Overseas investors are crying out for better transparency in the guidelines for foreign investment”Robert Jackson, Mallesons Stephen Jaques (p10)

“The knowledge and experience I now have in native title law is still useful to me. Migration is also a helpful area to know and I find it useful in the billable work that I do, because it has sharpened my skills”Simon Burnett, Gilbert + Tobin (p36)

“IP is all about looking forward – you have to forecast what you want to have in the market in a few years’ time...”Leon Allen, Davies Collison Cave (p45)

The ‘big three’ miners appear to be satisfied with the concessions they have extracted from the Gillard Government, but the satisfaction is not necessarily universal

Selling out

Law firm consolidation How far can it go?

M&AMore optimism, less caution

Career shortcutWhy postgraduate education shouldn’t be ignored

Leading lights of the in-house profession

ISS

UE

8.8

www.legalbusinessonline.com MARKET-LEADING ANALYSIS COMPREHENSIVE DEALS COVERAGE DEBT & EQUITY MARKET INTELLIGENCE

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contents >>

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ANALYSIS

10 M&AWill the new financial year revive M&A optimism for firms?

12 M+K hits the Apple IsleWhy Melbourne-based M+K Lawyers is a firm to watch

14 Private equity: new paradigmTrade sales and dual track – just part of the changing face of today’s modern equity dealscape

FEATURES

18 Plan for retirementLawyers need to employ forward thinking towards their retirement plans

38 Postgraduate educationNow there’s more to further education than just taking the traditional MBA or LLM

44 UK careersPessimism may still be the order of the day in the UK – so is there any room left for the expatriate Aussie lawyer?

52 IP lawCompanies are emerging from the gloom of the financial crisis with a new perspective on their intellectual property

PROFILES

48 ALB-LexisNexis Managing Partner series: Leon Allen, Davies Collison CaveThe leader of the patents team at ALB’s ‘IP Specialist Firm of the Year’ talks about his career and guiding an intellectual property practice through the financial crisis

58 ALB-Kensington Swan In-house profile: Andrew Arnold, LynasLynas Corporation’s GC and company secretary Andrew Arnold speaks about his role and his career highlights to date

REGULARS

6 DEALS 20 NEWS

• Top-tier firms eye Mallesons’ parental leave benchmark

• Life after Valemus: lawyers ponder volatile IPO market

• In-house salaries remain steady, tipped to rise• Light at end of tunnel for REIT capital raisings• Griffith Hack absorbs Perth IP firm• Federal election could impact M&A• China set to seize IPO crown from Hong Kong

COLUMNS

19 In-house Q&A21 US Report25 UK Report58 M&A deals data 59 Capital Markets deals data

COMMENTARY

11 Employment Law Sparke Helmore

15 New ZealandBuddle Findlay

ALB ISSUE 8.8

COVER STORY

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30 ALB In-House 10 ALB showcases ten in-house lawyers who are proving to be an

industry inspiration

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australasian legal business ISSUE 8.8

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In-house

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NEWS | deals >>


deals in brief

| HEALTHCARE | ► TPG CAPITAL AND CARLYLE GROUP BID FOR HEALTHSCOPE A$2.7bn

Firm: Freehills Client: TPG, Carlyle

Firm: Minter EllisonLead lawyer: Bart Oude-VrielinkClient: Healthscope

Firm: Sullivan & CromwellLead lawyers: Robert Chu, Duncan McCurrachClient: Healthscope (US law)

• If approved by shareholders at a scheme meeting in October, this acquisition will be the largest private equity buy-out in Australia, subject to FIRB approval

• Deal expected to be completed by the end of the year

• Healthscope is an existing client of Minter Ellison and has previously received other advice from the firm on corporate and transactional matters

and previously advised the company on its A$1.1bn sale of the Anvil Hill project and stake in Austral Coal in 2007

| M&A | ► WILMAR ACQUISITION OF SUCROGEN FROM CSR A$1.75bn

Firm: FreehillsLead lawyers: Andrew Pike, Philippa Stone, Clayton JamesClient: CSR

Firm: Minter EllisonLead lawyer: Leigh BrownClient: Wilmar International

• Singapore commodities group Wilmar will acquire CSR’s sugar unit Sucrogen

• Acquisition comprises A$1.35bn in equity and A$403m debt and is expected to be completed in September 2010, subject to regulatory approval

• Wilmar is new client for Minters, who advised on all aspects of the transaction

• Freehills has long involvement with CSR Group; previously acted on the demerger of the Rinker business in the context of a takeover bid from Cemex

| RESOURCES | ► BANPU BID FOR CENTENNIAL COAL A$2.5bn

Firm: Norton RoseLead lawyer: James Stewart Client: Banpu

Firm: FreehillsLead lawyers: Tony Damian,Andrew RichClient: Centennial Coal

• Thai coal miner Banpu has made an all-cash, off-market takeover bid for 80% of Centennial Coal. Banpu already has a 20% stake and the bid values Centennial Coal at approximately A$2.5bn

• First time Norton Rose has acted for Banpu

• Other Thai deals the firm has advised on include PTT’s A$800m acquisition of a majority interest in Straits Resources coal assets

• Freehills has an established relationship with Centennial Coal

| M&A | ► ORICA–DULUXGROUP DEMERGER A$1bn

Firm: FreehillsLead lawyers: Neil Pathak, Tim McEwenClient: DuluxGroup

Firm: Minter Ellison Lead lawyer: Russell MillerClient: DuluxGroup

• Demerger sees creation of new, stand-alone, ASX-listed company by scheme of arrangement (SOA)

• First significant demerger to have been completed in the Australian market since 2008

• ASX listing of DuluxGroup business is the largest listing since last year’s Myer IPO, in which Freehills was also involved. Other work Freehills has performed for Orica include the acquisition of its A$625 IPL stake sale

• Minter Ellison has advised new company DuluxGroup general counsel Simon Black on demerger since idea was initially proposed in 2008, but was postponed due to economic conditions

| M&A | ► PROVIDENCE ACQUISITION OF STUDY GROUP A$660m

Firm: Allens Arthur RobinsonLead lawyers: Richard Gordon,Tom HighnamClient: financiers (Crédit Agricole, Goldman Sachs JBWere, National Australia Bank, Westpac)

Firm: Baker & McKenzieLead lawyers: Mark McNamara,Simon de Young Client: Study Group

Firm: Blake Dawson Lead lawyer: Mark StanbridgeClient: Providence Equity Partners

Leigh Brown Minter Ellison

Russell Miller Minter Ellison

“With some of the uncertainty of the RSPT now behind us, this could be the start of a renewed round of mergers and acquisitions in the resources sector”

Tony Damian, Freehills

NEWS | deals >>


► YOUR MONTH AT A GLANCEFirm Jurisdiction Deal name A$m Practice

Allens Arthur Robinson

Aus Providence acquisition of Study Group 660 private equity

Aus Riverside capital raising 337 equity

Aus Genesee and Wyoming acquisition of railway from KordaMentha

334 M&A

Aus, NZ Bank of Queensland acquisition of CIT Group 475 M&A

Aus, US Valspar bid for Wattyl 142 M&A

Aus AGL bid for Mosaic 130 M&A

Aus, Singapore CSR Asian businesses sale to Rockwool Group 128 M&A

Baker & McKenzie Aus Providence acquisition of Study Group 660 private equity

Aus, Singapore CSR Asian businesses sale to Rockwool Group 128 M&A

Aus LaSalle acquisition of Sofitel Sydney Wentworth hotel 130 M&A

Aus Quadrant acquisition of Media Monitors n/a private equity

Blake Dawson Aus Providence acquisition of Study Group 660 private equity

Aus Riverside capital raising 337 equity

Aus, South Africa

Metcash acquisition of Franklins 215 M&A

Chang, Pistilli & Simmons

Aus AGL bid for Mosaic 130 M&A

Clayton Utz Aus, NZ Bank of Queensland acquisition of CIT Group 475 M&A

Aus, US Valspar bid for Wattyl 142 M&A

Aus Tat Hong acquisition of Tutt Bryant 132 equity

Aus LaSalle acquisition of Sofitel Sydney Wentworth hotel 130 M&A

Aus Atlantic capital raising 56 equity

Corrs Chambers Westgarth

Aus Vodafone Hutchison Australia consolidation program n/a M&A

DLA Phillips Fox Aus, China China Magnesium IPO 28 equity

Freehills Aus TPG Capital and Carlyle Group bid for Healthscope 2,700 private equity

Aus, Thailand Banpu bid for Centennial Coal 2,500 M&A

Aus, NZ, Singapore

Wilmar acquisition of Sucrogen from CSR 1,750 M&A

Aus Orica–DuluxGroup demerger 1,000 equity

Aus Lend Lease and ARIF acquire Jurong Gateway Road 618 Real estate

Aus Boral capital raising 490 equity

Aus, South Africa

Metcash acquisition of Franklins 215 M&A

Freshfields Aus, China, Hong Kong

Seven Group Holdings cornerstone investment in Agricultural Bank of China

284 equity

Gilbert + Tobin Aus Financing of Hancock bid for Queensland forestry assets 603 finance

Aus Sydney Airport buyback/ reissue of bonds 175 debt market

Herbert Smith Aus, China, Hong Kong


284 equity

Johnson Winter & Slattery

Aus Atlantic capital raising 56 equity

Mallesons Aus Boral capital raising - 490 equity

Aus Genesee and Wyoming acquisition of railway from KordaMentha

334 M&A

Aus, China, Hong Kong


284 equity

Aus Sydney Airport buyback/ reissue of bonds 175 debt market

Minter Ellison Aus TPG Capital and Carlyle Group bid for Healthscope 2,700 private equity

Aus, NZ, Singapore

Wilmar acquisition of Sucrogen from CSR 1,750 M&A

Aus Orica–DuluxGroup demerger 1,000 equity

Aus Quadrant acquisition of Media Monitors n/a private equity

Norton Rose Aus, Thailand Banpu bid for Centennial Coal 2,500 M&A

Sullivan & Cromwell Aus TPG Capital and Carlyle Group bid for Healthscope 2,700 private equity

Does your firm’s deal information appear in this table?Please contact [email protected] 61 2 8437 4700

| M&A | ► LASALLE ACQUISITION OF SOFITEL SYDNEY WENTWORTH HOTEL A$130m

Firm: Baker & McKenzieLead lawyers: Roy Melick, Graeme DicksonClient: LaSalle Investment Management

Firm: Clayton UtzLead lawyer: Anne TaylorClient: Tourism Asset Holdings

• LaSalle Investment Management is acting on behalf of the LaSalle Asia Opportunity Fund III

• Baker McKenzie has previously advised LaSalle Investment Management on joint ventures and hotel management agreements in Shanghai

• Clayton Utz has previously advised Tourism Asset Holdings on sale of Royal Bros Hotel Portfolio and sale of Novotel Atrium Darwin

| M&A | ► QUADRANT ACQUISITION OF MEDIA MONITORS Undiscl

Firm: Baker & McKenzieLead lawyers: Mark McNamara, Brendan WykesClient: Media Monitors

Firm: Minter EllisonLead lawyers: Callen O’Brien, Stewart RobertsonClient: Quadrant Private Equity

• Quadrant has reportedly paid A$160m for Media Monitors; deal will put MM on course for an eventual public listing or trade sale

• Baker McKenzie has been advisor to Media Monitors since 2008, although this is first transaction on which Bakers have advised their client

• Minters also previously advised Quandrant on its A$180m acquisition of Australian Fast Foods

Anne Taylor Clayton Utz

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NEWS | deals >>


• Private equity firm Providence has purchased Study Group, formerly controlled by Champ Private Equity. Deal is one of the first underwritten leveraged finance deals to have closed since the GFC

• Baker & McKenzie advised Champ when it acquired Study Group in 2006 and have ongoing relationship with the business since then

• AAR previously advised a consortium of Independent News and Media, Providence Equity Partners and The Carlyle Group on a A$3.8bn bid for APN

| CAPITAL MARKETS | ► BORAL CAPITAL RAISING A$490m

Firm: Freehills Lead lawyers: Tony Sparks,Philippa StoneClient: Boral

Firm: MallesonsLead lawyer: David Friedlander Client: UBS

• Money raised will be used to strengthen Boral’s balance sheet and to buy out remaining 50% of the company’s US concrete roof tile business and invest in Australian assets

• Mallesons has previously advised UBS as underwriters on Asciano’s A$2bn capital raising, the PacBrands A$256m capital raising, and OneSteel’s A$559m capital raising

• Freehills has advised Myer on its IPO; Elders, Santos, Woodside and Lend Lease on secondary raisings, and advised underwriters on other raisings including Rio Tinto’s US$15.4bn rights offer and Kathmandu’s IPO

| BANKING & FINANCE | ► BANK OF QUEENSLAND ACQUISITION OF CIT GROUP A$475m

Firm: Allens Arthur RobinsonLead lawyers: Jeremy Low, David Clifford, Andrew WisemanClient: CIT Group

Firm: Clayton Utz Lead lawyer: Tim Reid Client: Bank of Queensland

• BoQ has acquired the Australian and New Zealand operations of vendor equipment finance provider CIT

• CIT repaid its outstanding fixed and floating rate notes as part of transaction

• CIT Group is longstanding client of Allens Arthur Robinson

• Other work Clayton Utz has advised on for Bank of Queensland include its 2009 retail shareholder entitlement offer

| TRANSPORT | ► GENESEE AND WYOMING ACQUISITION OF RAILWAY FROM KORDAMENTHA A$334m

Firm: Allens Arthur RobinsonLead lawyers: Richard Gordon, Vijay Cugati, John WardeClient: KordaMentha

Firm: MallesonsLead lawyers: Evie Bruce,Robert Gibson Client: Genesee and Wyoming

• Deal will see G&W acquire the Adelaide to Darwin railway and an integrated rail and port transport business operating between South Eastern Australia and the North Territory

• KordaMentha were appointed receivers and managers when previous owner Freightlink went into voluntary administration in 2008

• Allens has advised existing client KordaMentha on a number of other receivership sales to date

• G&W is longstanding client of Mallesons Stephen Jaques

| M&A | ► METCASH ACQUISITION OF FRANKLINS A$215m

Firm: Blake DawsonLead lawyer: Mark StanbridgeClient: PicknPay Retailers

Firm: FreehillsLead lawyers: Martin Shakinovsky, Andrew RichClient: Metcash

• Metcash has acquired Interfrank Group Holdings, which owns the Franklins business, with plans to onsell the chain to IGA.

• Deal is subject to ACCC approval

• Freehills has advised longstanding client Metcash on a number of other strategic transactions including the acquisition of a 50.1% stake in Mitre 10 hardware stores

| BANKING | ► SEVEN GROUP HOLDINGS CORNERSTONE INVESTMENT IN AGRICULTURAL BANK OF CHINA US$250m

Firm: MallesonsLead lawyer: Nicola Wakefield-EvansClient: Seven Group Holdings

Firm: Freshfields Lead lawyers: Teresa Ko (China), Antony Dapiran (Beijing) Client: Agricultural Bank of China

Firm: Herbert SmithLead lawyer: Tom ChauClient: joint bookrunners

• Deal sees Seven Group Holdings invest US$250m in the HK and Shanghai IPO listing of the Agricultural Bank of China

• Seven and ABC

have also entered into a MoU as part of the deal, forming a strategic alliance to develop the WesTrac China business

• Seven Group Holdings was created following a merger between Seven Network and WesTrac Holdings in May. Mallesons has advised Seven Network for over two decades on media and IP issues

| DEBT MARKETS | ► SYDNEY AIRPORT BUYBACK/ RE-ISSUE OF BONDS A$175m

Firm: Gilbert + TobinLead lawyer: Duncan McGrathClient: Westpac Banking Corporation

Firm: MallesonsLead lawyers: Ken Astridge, Yuen-Yee Cho Client: Sydney Airport Finance Company

• First buyback of credit wrapped bonds and reissue of secured bonds in Australia

• Gilbert + Tobin previously advised Westpac on its A$47bn merger with St.George Bank

• Sydney Airport is a longstanding client of Mallesons; deal is one of a series of major refinancing deals on which firm has advised this client

| M&A | ► VALSPAR BID FOR WATTYL A$142m

Firm: Clayton UtzLead lawyer: John ElliottClient: Wattyl

Firm: Allens Arthur RobinsonLead lawyers: Guy Alexander,Marcus ClarkClient: Valspar

• Deal represents continuing trend of “agreed” deals recently and subject to necessary approvals. Valspar is expected to obtain outright control of Wattyl by late September 2010

• Clayton Utz has advised Wattyl on a range of other matters, including takeover bids by Allco Equity Partners and Barloworld in 2006

David Friedlander Mallesons

Mark Stanbridge Blake Dawson

Teresa Ko Freshfields

Mark McNamara Baker & McKenzie

NEWS | deals >>


http://www.macquarie.com.au/legal

10

NEWS | analysis >>


There’s life in the old M&A work-horse yet. Despite a first-calendar half of relatively subdued M&A activity, firms

are still eyeing off a steady stream of sizeable deals. Canada Pension Plan's A$3.47bn bid to acquire Sydney-based Intoll Group is a reminder of

and her determination to appease the mining lobby has helped. So it is interesting to note that a number of law firms have used the start of the new financial year to voice their optimism about the prospects for Australian M&A. Freehills, which also made a similar prediction in January, has issued a new release featuring commentary from partner Rebecca Maslen-Stannage, to the effect that M&A activity was “set to heat up during the second half of 2010.”

Maslen-Stannage said that M&A would be defined by “re-energised PE activity as well as increased momentum in health, energy and resources, financial services and insurance.” However, she also said that activity would be conditional on the extent to which “equity market volatility” is resolved.

AAR’s Guy Alexander was another who thought that “the current uncertainty [could] only hold back positive momentum for so long,” and that “the final quarter of 2010 should see an increase in M&A deals.” Expressing a more moderate view was Mallesons’ Robert Jackson, who said that the next six months would be “a little bit like the previous six months, cautious optimism”.

the continuing Canadian interest in Australian assets, while the A$2.5bn Banpu–Centennial Coal acquisition seems to suggest that reports of the demise of resources M&As are somewhat exaggerated.

No doubt, the ascension of Julia Gillard to the prime ministership

ANALYSIS >>

Will the new financial year revive M&A fortunes for firms?

► BLOOMBERG: M&A COMPLETED DEALS, FIRST CALENDAR HALF 2010

Firm Rank 2010 Rank 2009 Value (US$m) Number of deals

Allens Arthur Robinson 1 2 32,075 30

Freehills 2 1 19,955 26

Blake Dawson 3 4 13,687 19

Mallesons Stephen Jacques 4 3 10,787 25

Norton Rose 5 50 9,098 14

Sidley Austin 6 - 9,013 2

Gilbert + Tobin 7 12 5,252 12

Clayton Utz 8 14 3,653 25

Minter Ellison 9 21 2,832 21

Baker & McKenzie 10 6 2,301 14

► MERGERMARKET: M&A COMPLETED DEALS, FIRST CALENDAR HALF 2010

Firm Rank 2010 Rank 2009 Value (A$m) Number of deals

Allens Arthur Robinson 1 2 26,212 15

Mallesons Stephen Jaques 2 1 24,560 26

Freehills 3 11 16,095 27

Blake Dawson 4 12 11,867 13

Sidley Austin 5 - 9,117 1

Gilbert + Tobin 6 17 5,079 7

Clayton Utz 7 14 4,794 17

Norton Rose(Deacons) 8 29 2,621 14


Baker & McKenzie 10 23 1,179 8

DEAL OR NO DEAL?

Rebecca Maslen-Stannage Freehills

NEWS | analysis >>


UPDATE >>

Employment Law

he Fair Work Ombudsman (FWO) has brought pregnancy discrimination proceedings against an employer, marking the first case of its kind since the Fair Work Act 2009 (Cth) (FW Act) commenced. This is a timely reminder for employers to review their legislative obligations to employees who have

parental responsibilities.

The factsThe FWO claims Wongtas Pty Ltd (Wongtas) and its two directors took adverse action, or discriminated against, a female employee on the basis of pregnancy and/or gender.

The employee was told her pregnancy was an ‘inconvenience’ to Wongtas and she would have to ‘deal with the consequences’. These consequences included having a replacement hired for her role, being placed on lower-paid (and more physically demanding) duties and her employment being terminated three days before Christmas.

Wongtas faces a maximum fine of $33,000 and directors’ up to $6,600 per alleged breach of the general protection provisions of the FW Act.

Coinciding with these proceedings, FWO announced a national campaign to raise awareness of pregnancy discrimination in the workplace. Information packages have been distributed to hospitals and GPs, detailing conduct that constitutes pregnancy discrimination and how the FWO can assist those who are subjected to it.

The proceedings and campaign suggest these cases may increase as the awareness and profile of parental rights are raised. Furthermore, the FWO’s willingness to bring complaints on behalf of employees may contribute to this increase as employees are not required to fund the cost of such action.

Parental rightsWhile this case deals with discrimination under the FW Act, there are a number of other key areas employers should review to ensure they are meeting their obligations to employees: Parental leave under the FW Act, including:

• up to 24 months unpaid leave; • providing safe employment; • where safe employment can’t be offered, providing ‘paid no

safe job leave’;• consultation with employees on leave regarding any changes

that may effect their employment. Flexible working arrangements:

• who can apply? • how can requests be accommodated?• when can an employer refuse?

Discrimination: • what constitutes discrimination?• when/how must an employer accommodate an employee?• when will discrimination be lawful?

Paid parental leave (PPL) future obligations: • eligibility criteria?• how will PPL be paid?• impact on other entitlements? In considering these issues, employers should also review

internal procedures to ensure compliance with legislation. This will assist to ensure that managers are aware of legislative rights and obligations thus limiting employer exposure to any breach of legislation.

Catherine Wilkinson, Partner, Sparke Helmore Lawyers

For further information contact Catherine Wilkinson on [email protected] Catherine Wilkinson

THE PARENT TRAP: PARENTAL RIGHTS UNDER THE SPOTLIGHT

T

► THOMSON REUTERS: M&A COMPLETED DEALS, FIRST CALENDAR HALF 2010

Firm Rank 2010 Rank 2009 Value (US$m)

Number of deals

Freehills 1 1 6,094.6 34

Clayton Utz 2 3 4,802.4 36

Blake Dawson 3 4 4,087.6 25

Allens Arthur Robinson 4 2 4,046.4 31

Freshfields 5 27 3,216.4 9

Linklaters 6 12 2,820.7 4


Allen & Gledhill 8 22 2,689.8 7

Mallesons Stephens Jacques 9 6 2,500.6 29

Sullivan & Cromwell 10 54 2,045.1 3

► THOMSON REUTERS: M&A ANNOUNCED DEALS, FIRST CALENDAR HALF 2010

Firm Rank 2010 Rank 2009 Value (US$m)

Number of deals

Allens Arthur Robinson 1 2 25,226.9 35

Mallesons Stephens Jaques 2 3 24,787.4 44

Blake Dawson 3 4 24,135.8 29

Freehills 4 1 15,699.3 33

Norton Rose 5 21 9,147.5 16

Sidley Austin LLP 6 45 8,653.5 3

Gilbert + Tobin 7 14 5,225.4 11

Minter Ellison 8 16 5,020.2 24

Clayton Utz 9 11 4,651.3 42

Corrs Chambers Westgarth 10 12 980.2 11

Jackson cited uncertainty in the equity and debt markets and in the availability in debt as key challenges and also cited foreign investment review as an additional hurdle for further M&A in Australia from overseas investors. “Confidence particularly from overseas investors is being affected by the uncertainty in Australia’s regulatory regime,” said Jackson. “Overseas investors are crying out for better transparency in the guidelines for foreign investment.”

Blake Dawson’s Mark Stanbridge was another commentator leaning towards the “cautious” side of cautious optimism. “There are a number of deals on the horizon, but not much one can read into,” he told ALB. Indeed, Stanbridge does not expect to see much movement, up or down in the M&A area in the next six months, with the exception of private equity. “Private equity is becoming an increasingly active participant in Australia’s M&A market,” he said. “Secondary selling between private equity firms is also becoming increasingly common practice. It’s historically been more common in the US and Europe but it’s now picking up here.”

League tablesA new financial quarter means the start of a traditional contest for “bragging rights” for the law firms which topped the various M&A legal advisor league tables across

Guy Alexander AAR

12

NEWS | analysis >>


Australasia. Amid the usual suspects such as Mallesons, Blake Dawson and Freehills is the rather interesting case of Norton Rose, which has climbed from 50th place to fifth place in the Bloomberg table and from 29th to eighth in the MergerMarket tally. Given that Norton Rose Australia has only been in its present form since the start of the year, it is difficult to interpret this movement, but M&A head Shaun Clyne is keen to proffer an explanation: “If you track the trend of the last five years, we have had an increase in the share of deals we act on,” he said. “We have always been around the top five in terms of the number of deals, but in recent times we have increased the value of the deals.

Clyne says that this is the result of two initiatives coming to fruition: “Firstly, the investment we made into the M&A team five years ago, with a number of our younger partners becoming advisors of choice in the M&A landscape. Secondly, the branding lift received from joining Norton Rose and the cross-boarder capabilities bought to the table through that merger.”

In the coming months Clyne expects the M&A market to be “buoyant”, requiring the firm’s M&A team to be at full capacity. “We initiated a lot of deals during the GFC, which were then put on hold and are now coming to the fore on the back of renewed market confidence.”

Mark Stanbridge warns against “reading too much” into league tables. “Most tables will count a deal on the tally, regardless of the role that firm played in the deal. One has to look at the quality of the role a firm has in that deal,” he said.

M&A league tables are clearly an imprecise science for a number of reasons which will be all too familiar for lawyers practising in the area. Nonetheless, one of the key benchmarks for success for the new Norton Rose structure will be the firm’s ability to increase market share. Flawed as they may be, M&A league tables will prove to be very interesting reading in the quarters to come. ALB

It would be going too far to say that M+K Lawyers’ Damian Paul is Melbourne’s answer to Danny Gilbert – but this entrepreneurial MD has more than a few bright ideas of his own on how to build up an innovative firm

Grand visions for SME space

If the name M+K Lawyers is not yet familiar to you, make a note of it and take a closer look. This firm does not aspire to the glamour of

the top tier – even the name itself is more suggestive of an accounting firm or perhaps even some kind of plumbing outfit. But beneath the modest exterior lies a business strategy which apprehends, perhaps better than most, the future direction of the Australian legal services industry.

► M+K’S TASMANIAN EXPANSION

M+K’s merger with Tasmanian firm Dobson Mitchell & Allport means that M+K will now have 115 lawyers, 41 of whom are principals, the firm's partner equivalent. The firm already had offices in Sydney, Melbourne and Dandenong. National managing director Damian Paul told ALB that there was no intentional strategy behind the decision to move into Hobart prior to tackling other centres such as Brisbane or Perth. “There's no [strategy] in terms of the timing - these kinds of things have their own life and some arrangements come to fruition ahead of others,” he said.

The exact details of the merger remain confidential, but it is understood that the Dobson Mitchell practice has been incorporated, with former partners becoming directors of the new company which is in turn owned by the M+K group. The Dobson Mitchell partners have received shares in the M+K group.

Stephen Knight, Dobson Mitchell's chairman of directors, said that the move was motivated by a desire to build a national reach: “The fact of the matter with modern business is that clients no longer conduct business just within one state. We have a lot of Tasmanian clients that conduct business transactions interstate and we have a lot of clients on the mainland that conduct business here as well,” he said. Like M+K, Dobson Mitchell has a strong SME client base but also undertakes a substantial amount of insurance litigation work, mostly derived from outside Tasmania.

Dobson Mitchell & Allport will continue to operate under the Dobson Mitchell brand.

“This firm has been in existence since 1834. It is one of the oldest continuously operating law firms in Australia, so we feel it would be madness to leave our heritage and drop the name,” said Knight. Damian Paul said that he would not insist upon consistent branding, although his longer term vision was for all of the group firms to operate under the M+K name. “However, that's their call when they're comfortable with it,” he said.

M+K, or Macpherson + Kelley as it is also known, grew revenues by 29% last year, largely through organic growth and pursuit of the SME market. Originating in Melbourne, the firm has expanded into Sydney and most recently Tasmania, courtesy of a merger with local firm Dobson Mitchell & Allport.

This merger means that M+K will now have 115 lawyers, 41 of whom are principals, the firm’s partner

Mark Stanbridge, Blake Dawson

ANALYSIS >>

NEWS | analysis >>


► M+K GROUP: QUICK FACTSTotal lawyers: 115, including 41 principalsOffices: Dandenong, Hobart, Melbourne, SydneyNational managing director: Damian PaulFY2009 revenue: $23.7mFY2010 revenue: $30.5m (pre-audit estimate)Revenue growth: 29%

equivalent. Plans are afoot to build a national presence.

On one level, there is nothing unusual about the story of a mid-size firm growing through a merger. It is a process which Stephen Knight, Dobson Mitchell’s chairman of directors, said was to some extent inevitable. “The cost of practice is enormous and only getting worse. I suspect the cost of running legal practices has risen out of proportion to the returns for the practices,” he said.

“It means a lot of smaller mid-size firms will not be able to continue as they are. They either have to downsize or get big and get critical mass so they can pay their overheads more easily. The guys in between will continue to suffer. There will be continuing changes in the profession.”

The consolidation of the mid-tier is a familiar story, which ALB has followed since the days when firms such as Herbert Geer and Thomson Playford made their first tentative interstate forays. The new element which M+K adds to the narrative, however, is the emphasis on the SME space.

“I don’t know of any firm other than us that’s looking to grow a national firm that’s purely focussed on the mid-market,” said M+K national MD Damian Paul. “If you look at the other so-called mid-tier firms, I don’t think you could name one that wasn’t doing a significant amount of work for either insurance companies or banks or government work. It feels right for us – whether there are other firms that

are looking to go national, I just don’t know," he said.

The market has already seen the consolidation of large commercial firms into national – and in some cases international – entities. It is generally accepted that mid-tier commercial firms are beginning to go down the same path, although there are notable exceptions such as Brisbane’s HopgoodGanim and Melbourne’s Hall & Wilcox. Could the M+K group represent the beginning of a national consolidation of firms in the SME and private client space?

In last year’s ALB Fast 10 survey, two notable new entrants were listed firms Slater & Gordon and Integrated Legal Holdings, with 29% and 59% revenue growth respectively.

to pursue similar growth strategies to achieve the same economies of scale.

Slater & Gordon, ILH and M+K are three very different firms and ALB does not suggest that the trio have a great deal in common. Indeed, even a cursory glance at the client base and structure of each firm suggests otherwise. But what the three firms do share is a purposeful strategy of national expansion

“[Costs] means a lot of smaller mid-size firms will not be able to continue as they are. They either have to downsize or get big and get critical mass so they can pay their overheads more easily" STEPHEN KNIGHT, DOBSON MITCHELL

With over 200 lawyers and still in acquisition mode, Slater & Gordon in particular is beginning to take on the proportions of a mid-tier commercial firm – and a fairly sizeable one at that. ILH and M+K are both somewhat more modest in size, but again it is not inconceivable that they will cross the 200-lawyer threshold in coming years. Once this occurs, pressure will inevitably be brought to bear on rivals

which demonstrates that law firm consolidation is capable of occurring at all levels within the profession.

It is still too early to ascertain any trend, or to predict a new tier of national firms at the private client or SME level. But in the context of developments at the Norton Rose or Allen & Overy end of the scale, it is worth remembering that industry consolidation comes in many forms. ALB

http://www.hollows.org.au

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NEWS | analysis >>


Private equity: a new paradigm emerges

ANALYSIS >>

ALB investigates the changing face of private equity activity in Australia

The postponed Valemus IPO sent chill winds around law firms last month and has some interesting implications for

PE firms pondering exit strategies. However, it is not all bad news on the private equity front. TPG Capital and Carlyle's proposed A$2.7bn acquisition of Healthscope promises to be the largest private equity buy-out in Australia to date, and there has been a steady level of other PE action, propelled primarily by secondary market activity. Private trade sales have increased in the past four months, with recent examples being Champ’s sale of Study Group

“Vendors got excited last year when the IPO window finally opened up again. There was an influx of floats and exits" NICK HUMPHREY, NORTON ROSE

With the exception of some small-to medium-sized speculative deals in mining, exploration, IT and pharmaceutical companies, the IPO market has been quiet over the past four to five months. Companies seeking to exit via an IPO have often been met with low and unstable prices. This disappointment, of course, was capped off by the Valemus postponement – which set a discouraging tone for other potential float candidates such as REDgroup, Rebel Sport, and Aston Resources, which would have been watching Valemus carefully.

However, as ALB was going to print Aston was reportedly still proceeding with its IPO.

Dual track and trade salesMany companies disappointed with the IPO market have found better offers from private bidders. Clayton Utz partner Niro Ananda says there is an increasing trend to adopt a dual track sale process. Pursuing both platforms simultaneously can entail several strategic advantages, with the most obvious being a higher price, driven by competitive tension between the two processes.

“There is pressure on potential trade buyers to offer an acceptable price, because they know the seller can always opt to list the company,” Ananda said. “The vendor is afforded with greater flexibility in choosing the right exit option.”

Trade buyers can often afford attractive tenders. “The buyers are comprised primarily of other private equity funds or corporates. We are also seeing increased participation from overseas corporates, in particular from Asia. Corporate trade buyers often envisage the acquisition will produce corporate synergies, for example by

Niro Ananda Clayton Utz

to Providence in a $660m deal and Quadrant offloading ATF back to Champ and acquiring Media Monitors in a management buyout.

Minter Ellison partner Callen O’Brien said that companies waiting to exit have had to resort to private auctions in the face of a volatile stock market. “Vendors got excited last year when the IPO window finally opened up again. There was an influx of floats and exits,” O’Brien said. “But before the backlog accumulated over the previous 18 month slump had time to all clear, a sudden drop in global confidence shut the window abruptly this March.”

NEWS | analysis >>


Cybersquatting has been an issue since traders began to utilise the benefits of online trade via the internet.

Like all top-level domain name registries, the .nz space has not been immune to cybersquatters. In fact, because .nz domain names are registered on a first-come, first-served basis, disputes frequently arise as to who is the registrant for a domain name, particularly when a registrant has registered a domain name that features a third party’s trade mark.

Until recently, trade mark owners who fell victim to cybersquatting in the .nz space had limited means to stop cybersquatters or to obtain transfer of a disputed domain name(s). In order to take action, trade mark owners were forced to use the jurisdiction of the High Court of New Zealand, which was often a timely and costly exercise and did not guarantee a favourable outcome.

Due to the time, cost and uncertainty, trade mark owners were often reluctant to take legal action and in some cases forced to negotiate transfer of domain names directly with cybersquatters for a high price. Ironically, trade mark owners who negotiated the transfer of domain names in this way inadvertently encouraged cybersquatters to continue their activities.

Dispute resolutionThe Domain Name Commission (Commission), which is responsible for the .nz space, responded to the cybersquatter issue by establishing an impartial dispute service called the Dispute Resolution Service (DRS).

Based on the Nominet dispute system, the DRS allows anyone to make a complaint via the Commission if it is the complainant’s view that registration of a .nz domain name is unfair.

To be successful, a complainant must prove on the balance of probabilities that:• It has rights to a name or trade mark

which is identical or similar to the .nz domain name in dispute

• The registration of the .nz domain name in the hands of the current registrant is unfair.

Since the launch of the DRS on 1 June 2006 around 400 complaints have been filed. From an analysis of the DRS decisions issued to date, it is clear that the DRS is a trade mark owner friendly mechanism, which provides for the resolution of domain name disputes in a timely and cost effective manner.

Key factors in successful complaintsThe DRS decisions issued show that a number of key factors contribute to the success or otherwise of a complaint:• Complainants that prove they have

registered and/or unregistered trade mark rights in New Zealand that pre-date registration of a domain name in dispute were almost always successful

• Complainants that could not prove prior use and/or registration of trade marks were usually unsuccessful

• Complaints to domain names that feature generic or descriptive word(s) were almost always unsuccessful

• Complainants that had legal representation were far more successful than those that were not

Have cybersquatters met their match in .nz?

NZ COMMENTARY

Firm Profile Buddle Findlay

• Complaints were often dismissed because the complainant was not the correct complainant

• Complaints were dismissed simply due to insufficient information provided in the complaint.

Legal representation shown to be effectiveThese DRS trends clearly demonstrate that almost without exception a trade mark owner is successful when legally represented and a DRS complaint is filed with corroborating evidence, including evidence of prior trade mark use and/or registration.

The DRS has therefore been very successful at countering the cybersquatter problem and now provides far more certainty to trade mark owners. As a result, the value and potential returns for a cybersquatter in the .nz space has been greatly reduced and cybersquatters can expect trade mark owners to take swift and decisive action against them via the DRS.

Hamish is a senior associate in the

Auckland office of Buddle Findlay,

one of New Zealand’s leading

law firms. Hamish has extensive

experience advising clients on their

intellectual property portfolios in

both New Zealand and overseas.

In particular, Hamish advises on

the implementation of strategic

intellectual property protection

and enforcement measures as well

as key aspects of intellectual property commercialisation.

He can be contacted by phone: +64-9-363 0703 or email:

[email protected]

Hamish Selby, Buddle Findlay


16

NEWS | analysis >>


The growing trend for exits to pursue the dual track-process does not necessarily mean a doubling of the workstream for lawyers. “There are significant overlaps and cost savings, for example in due diligence, so it’s not like lawyers can cost for two different transactions,” O’Brien said. “The additional work generated depends on how far a company goes down the IPO platform before pulling the pin, and most are being pulled just before the final float.”

BacklogPrivate auctions have certainly helped to clear some of the excess, but there remains a considerable backlog of shelved assets waiting for stability to return to the share market. O’Brien said some portfolio companies, especially larger ones, are simply not

Assets which are parked are not stagnating, but continue to grow and accrue in value.

Different dynamicsO’Brien said that banks, and especially domestic banks, are increasingly willing to lend but generally liquidity is still limited. Compared to pre-GFC dynamics, a PE market starved of debt is a very different beast.

Restricted capital has concentrated most of the trade sales activity onto the mid-market. “There is a noticeable absence in large transactions north of $500m, but deals in the $200-300m [range] have continued to flow in,” Ananda says. While the Australian mid-market has always been active, its importance relative to the big ticket deals that dominated the market prior to the GFC has increased dramatically.

An increasing proportion of acquisitions have been equity funded. “The debt market is still tight,” Humphrey says. “We are seeing many more 100% equity buyouts rather than leveraged ones.” Vendors are also seeking humbler beginnings and pursuing, at least initially, minority ownership. “There are lots of buyers who want to get a footprint in, but don’t have sufficient funds to secure a controlling interest,” O’Brien said.

The long-term plan is to buy out the majority at a later stage. Many are happy just to remain in the minority as long as they have negative control in important areas under shareholder arrangements, for example to force an exit or drag along rights.” An alternative plan is to pursue bolt-on acquisitions. “Rather than going for a large entry point acquisition, purchasers are looking to buy a smaller entry point asset and grow it through further bolt-on acquisitions,” Ananda said.

The current dominant paradigm of mid-market trade sales resembles private equity patterns in Australia in the early 2000s. “There is less focus on financial structure, more on operational activity, “Humphrey said. “We are seeing the Australian PE market return to its roots.” ALB

Callen O’Brien Minter Ellison

Nicholas Humphrey

Norton Rose

► RECENT/CURRENT AUSTRALIAN PRIVATE EQUITY DEALS

Deal Value Firms

TPG Capital and Carlyle Group bid for Healthscope

A$2.7bn Freehills,Minter Ellison,

Sullivan & Cromwell

Providence acquisition of Study Group

A$660m Allens Arthur Robinson,

Baker & McKenzie, Blake Dawson

Quadrant acquisition of Media Monitors

A$160m Baker & McKenzie, Minter Ellison

Catalyst Investment acquisition of Actrol Parts

n/a AAR,Corrs Chambers

Westgarth,Freehills

sharing management functions,” Ananda says. “As a result, they are often prepared to offer a higher price.”

A trade sale also enjoys logistical benefits. Norton Rose’s Australian head of private equity, Nick Humphrey, said trade buyers are more experienced from a process point of view. “The management team has probably gone through the process before and knows what has to be done in the transfer,” Humphrey said. “Due diligence and other systems required from the change in hands are already in place. They can be sealed much more quickly.”

The shift from IPOs to private sales is a common trend seen across PE markets in the post-GFC global economy. Humphrey told ALB that last year, one third of PE deals in the US were trade buy-outs. The continuation of PE activity, albeit through another channel, can be explained by the simple axiom that market volatility, though potentially scaring away speculative investors, should not affect the underlying attractiveness of businesses which are fundamentally sound.

There is some concern that the surges in private sales have been driven by pressure on managers to prove their vintage. “There are a lot of managers, especially mid-market, who have been sitting on big portfolios for five or six years and are pressured to prove their portfolios,” Humphrey said. “They have to sell their existing assets [so] they can raise new funds.”

However Humphrey said the fear that unscrupulous managers are selling assets between themselves is mostly unwarranted, because the assets that have been sold on the market are genuinely good ones.

“Private equity firms are redirecting their focus to their existing portfolios" NIRO ANANDA, CLAYTON UTZ

suited to private sales and have their natural home in listed markets. Others assets suited for private sale simply cannot find the right buyer.

“There are many assets which have been ready to exit in the past 12 months but cannot reconcile the gap in buyer and vendor expectations in terms of valuation,” O’Brien says. “Vendors are demanding a value from pre-GFC levels and the purchaser is unwilling to pay that given the slump in the debt and equity market.”

The gap is closing now as vendor expectations become more realistic and debt become more readily available, but the mismatch in price expectations means many assets remain on the shelf. Ananda says that inactivity does not equal stagnancy in the backlog room. “Rather than adding to their portfolios, private equity firms are redirecting their focus to their existing portfolios, injecting money into portfolio restructure and growth.”

NEWS | analysis >>


http://www.legaljobscentre.com

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NEWS >>


For any senior partner in an Australian law firm it would be unthinkable to advise clients without strategic planning. But

ask senior partners about plans for their retirement and it is likely many will lose the optimism and enthusiasm they have for their clients. Most will say retirement is so far in the future that it’s a “fairy tale”, but for those over the age of 50, not thinking about retirement and planning is the worst thing they can do.

According to Law Society of NSW data, 28% of solicitors were aged 50+ years in 2008, but the percentage of solicitors aged 60+ years is only 8.6%. With life expectancy calculated by the ABS in 2010 for a 50-year-old being 81.5 years for males, 85.2 years for females, many senior lawyers could well find themselves at the start of a life stage, not necessarily by choice, which they are unprepared for.

For many, retirement is an event; the destination at the end of the line. Yet this notion is outdated and counterproductive and often hinders constructive planning. The first hurdle has been challenging images the word “retirement” itself conjures. For many it suggests moving from “who’s who” to “who’s that?” Ideally the word

work identity and function, attitude to retirement, adaptability, leisure interests, dependents and life meaning.

Expectations of how a retirement will be structured and balanced need to be met with adequate preparation and groundwork. Not to do so risks disappointment and often depression. “There are only so many times you can try to break your personal best for packing the dishwasher,” one professional commented when asked how he found his post-retirement life.

“Keep those you want for as long as you can, help those you don't want to find other work and keep the pipeline full of ambitious successors" DEBRA CASSENS WEISS, AMERICAN BAR JOURNAL

“retirement” should be retired, but realistically what is needed is to give it new meaning.

The directions retirement can take are myriad – ranging from consultancies and second careers to part-time or volunteer work, creative pursuits, family interests, travel, leisure interests and intellectual stimulation. It is the opportunity to realise often long-forgotten dreams. To make the most of this journey the preceding years become integral to the process.

Australian lawyers might be forward thinking when it comes to advising their clients, but are they applying that same foresight to their own retirement? Sue Morgan and Diana Mills of LEGALease Consulting advise

Strategic planning key to happy retirement

OPINION >>

Sue Morgan

Diana Mills

Good planning uses past experience and skill as a template to find the next phase of a fulfilling life. The task is to plan so there is something to retire to, not just to retire from something. Planning requires an assessment and understanding firstly of finance and health, but also as to expectations and preparedness in such areas as perception of age, replacement of

Perhaps the most tragic example of failure to embrace the opportunities retirement can bring comes from a man to whom retirement could have had endless possibilities and promise. The founder of the Eastman Kodak Company, George Eastman, committed suicide two months after his retirement. His suicide note read: “My work is done, why wait?”

NEWS >>


LESLEY MOORE General Counsel | Legal

Deloitte Touche Tohmatsu

IN-HOUSE Q&A >>

integrity legal

Why have in-house lawyers become an increasingly indispensable part of an organisation?

I imagine that all of us, whether we practice law in house or at a firm, would like to believe that we are indispensable – if only for a moment! What is indispensable are both an excellent in-house team and a superb group of external lawyers – both of whom are comfortable working in close partnership.

On the one hand, our in-house team handles only Deloitte’s business. Deeply immersed in the day-to-day affairs of one client, we know that client well. We know the beauty marks and the warts, and we can handle a broad range of issues quickly and efficiently – and for minimal cost.

On the other, there are certain issues that we would be foolish not to send to our external lawyers. They bring a depth of learning and expertise that no in-house team can match. Moreover, certain issues require a team of a size that only an external firm can provide. Deloitte’s relationships with law firms are also critical to our business – we spend significant time nourishing those relationships, and we value them highly.

In recent times, the role of general counsel has diversified into a multi faceted role, where the GC can wear the ‘hat’ of lawyer, legal

manager, compliance manager, and company secretary. Do you believe this has increased your risk profile?

I was trained as a litigator and trial lawyer in a firm in New York. My role was to provide legal advice, and our work was protected by legal professional privilege. When I first moved in-house, I had only one title – legal counsel – but I realised within days of taking on the role that part of what I did, even with that title, would not attract legal professional privilege. I learned that I needed to reflect, each time I provided advice, on the context: would the advice attract privilege, or were we engaged in a commercial discussion?

I currently chair Deloitte’s Social Media Steering Committee. While I remain the firm’s general counsel, I do not chair the Committee in that capacity. Rather, I am a partner leading a team in an interesting area of the firm’s practice. If we were to need legal advice, I could not simply switch hats to my day job (general counsel), as I might well lack objectivity. I would need to draw on the expertise of others.

So my answer to the question is “no” – but only so long as I ask myself, every time I give advice, whether legal professional privilege would, or would not, attach.

What do you consider to be the main challenges you and your team will face in 2010?

The main challenges are both ongoing – budgetary constraints and the engagement of our lawyers. Budgets for in-house teams are always tight, and even though Deloitte treats its lawyers generously, the demand for our services is always greater than the supply of lawyers. This pressure – if not managed well – can affect the engagement of the team and lead to burn out.

To retain a dedicated team of professionals over the long haul requires a creative approach. Thus Deloitte provides not only training in substantive law but also continual mentoring and coaching, formal development of our lawyers’ skills in management and leadership, and ongoing identification of other opportunities in the business.

1

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The journey away from full-time work in fact usually takes several years. This transition period is a time of adjusting priorities and working out a place in the world with meaningful challenges. With lawyers used to a competitive environment and six- minute increments, problems can occur when plans aren't made to ease into this different phase of life.

Generally work provides five benefits – financial remuneration, life structure, utility, status and socialisation – and these generally become personal needs in our society, needs that do not stop in retirement. For lawyers in particular, identity loss can be a big issue. Many realise the attraction of an interest outside the law bloomed only in the context of escaping from work. 89% of retirees going back to work gave one of their top reasons as “to keep active”, according to the Cornell Retirement and Well-being study, published in 2000.

This situation is not new, so why does it still occur at all? One suggestion is that lawyers are used to having their professional lives structured in such rigid terms that “retirement” is either not addressed at all or becomes too hard without equally structured support within the firms. And it will become increasingly common as Baby Boomer lawyers move toward the end of their primary legal careers. In 2008 NSW solicitors aged between 50-69 accounted for over 25% of the profession. In the private practice sector, solicitors aged between 50-69 account for 29.4% of this sub-category in NSW (National Pro Bono Resource Centre).

By managing retirement properly, with enough time and planning, the transition is not only much less painful for the individual, but real value can be added to the firm. By approaching it as a way of renewing purpose in their lawyers’ lives, the “culture” within a firm can become more positive and supportive while providing a clear path beyond the firm.

A former managing partner of a top-tier national firm who has taken up a position in the public sector loathes the “r” word. “It is a progression really, not retirement,” he says. As managing partner, it was his job to guide the firm’s lawyers through – sometimes unwelcome – changes in their careers, as well as mentoring others through their last years at the firm. The smooth transition of client work and lawyer progression through law firms is crucial to success in this demographic environment, with succession planning being at its hub. “You have got to get to the people in the firm who need it most and not waste the time of people who are functioning well,” he says.

Succession planning also allows the less senior workers in the firm to see that their career paths are not impeded by older workers who are unhappy, yet determined to stick it out. This is an attitude summarised by Debra Cassens Weiss in the American Bar Association Journal: “Keep those you want for as long as you can, help those you don’t want to find other work and keep the pipeline full of ambitious successors.“

“You have to unlock them,” the ex-managing partner said, “evaluate their possibilities and options, strengths and weaknesses.” An ideal time to raise this issue could be within the structure of the yearly personal business plan or performance review. ALB

20

NEWS >>


news in brief >>KELLY & CO BASKS IN MASTERCHEF GLORYFormer colleagues of the 2010 MasterChef Australia winner Adam Liaw have expressed their pride and happiness for the former Kelly & Co lawyer. “We were absolutely thrilled when he won. It is always good to see a South Australian win a national competition, but when you know them personally it is even more special,” said Kelly & Co CEO Stuart Price. “We’re so happy for Adam to have achieved such success in a field for which he has such a passion and flair.”

31-year–old Liaw worked at Kelly & Co Lawyers in the IP group, before moving to Japan to work for The Walt Disney Company as a media lawyer in 2004. Liaw was one of three lawyers in this season of MasterChef. Other lawyers included Claire Winton Burn who previously worked at Clayton Utz Melbourne and Peter Kritikides, a property lawyer at Melbourne firm Lander & Rogers.

GENDER DIVIDE: DISPARITY IN LAW GRADUATE SALARIES WIDENSFemale law graduates entering the workforce in 2009 earned on average 8% less than male graduates, according to new research from the leading graduate careers authority in Australia.

The annual Graduate Careers Australia (GCA) survey found that female law graduates were paid at 91.7% of male graduate wages last year in the legal profession, down from 97.9% in 2008. In dollars this equates to A$53,000 for male law graduates and A$48,600 for females. However, claims of discrimination may prove to be off the mark. GCA’s research associate David Carroll said that the statistical gap between males and females who completed law studies could be explained by the different career paths that law graduates chose. “Female graduates may choose to work in a different field to male graduates,” he said.

VICTORIAN BAR OPENS NEW CHAMBERS The Victorian Bar has announced plans to open two new Chambers.

‘Gorman Chambers’ will accommodate 21 barristers at Melbourne’s Little Lonsdale Street. The new Chambers will provide alternative accommodation for the 21 barristers who had been tenants in Equity Chambers, which will cease to operate. The opening of a second set of new Chambers, at William St, is foreshadowed for the first half of 2011.

Victorian Bar Chairman, Michael Colbran QC said that the new chambers would provide a variety of options for all barristers. “The Victorian Bar will continue to work to ensure there are low barriers to entry for all who decide to join the profession, as well as premium accommodation for those who want it.” he said.

INDUSTRY >>

Top-tier firms eye Mallesons’ parental leaveMallesons may have recently

increased its paid parental leave allowance from 12 to 14 weeks, but other firms may not be too far behind in implementing more generous policies of their own. Minter Ellison, Clayton Utz, Blake Dawson and Freehills are all currently in the process of reviewing their parental leave policies. However, the reviews are in response to recent legislative changes, rather than an attempt to keep up with Mallesons.

“Like all other organisations in Australia, Freehills is assessing the very recent changes to parental leave and flexible working conditions,” said Freehills People & Development Director, Gareth Bennett.“We are also working with our clients in assessing best practice and likely responses across a range of sectors. Especially in the context of uncertainty around the election, the detail of the legislation remains to be finalised.”

Under the new Mallesons family leave provisions, female staff will be entitled to 14 weeks paid maternity leave, two weeks more than what other major firms are offering. The firm has also reduced the qualifying periods, allowing the maternity leave to accrue in stages, which means 14 weeks paid maternity leave will be available after 12 months of employment.

Meanwhile, the media team at Corrs have been somewhat miffed at claims

IP >>

Griffith Hack absorbs Perth IP firmI P specialist firm Griffith Hack has

merged with West Australian IP firm Mallon & Co. Headed by director Paul

Mallon and comprising four IP legal specialists, Mallon & Co have made the move into the Griffith Hack Perth

“There is no doubt that if more law firms would take this issue seriously the challenge of retaining senior women would improve”ALEXIS NAVIE, CORRS CHAMBERS WESTGARTH

that Mallesons is leading the top tier in parental leave allowances, pointing out that Corrs has offered 14 weeks paid parental leave for employees with at least 18 months’ continuous service and has had this policy since 2005 . Whether or not Mallesons can be said to be leading the “top tier” may well depend on that sticky question of whether Corrs is to be included in this esteemed category. “We are delighted that Mallesons is following our lead,”

NEWS >>


us report ► PARENTAL LEAVE POLICIES - TOP-TIER FIRMS

Firm Paid parent leave entitlements

Qualifying period

Allens Arthur Robinson

13 weeks 5 + years of continuous service

Blake Dawson


Clayton 12 weeks 12 + months of continuous service

Freehills 12 weeks 12 + months of continuous service

Mallesons 14 weeks 12 + months of continuous service

Minter Ellison


Corrs Chambers Westgarth

14 weeks 18 + months continuous service

offices. “I see this merger as a huge boost to our Perth practice. It is also in line with the Griffith Hack expansion into the IP law space. Not just a good fit – a dovetail,” said Griffith Hack chairman, Tony Ward. The addition of the Mallon & Co IP lawyers will bring Griffith Hack’s IP division in Perth to 19.

Mallon added: “[The move] actually strengthens our IP capability in Western Australia, by being able to provide a broader range of IP services to our existing and future clients. Our goal is to really lift the level of understanding and protection of intellectual property in Western Australia.” Griffith Hack has offices in Perth, Melbourne, Sydney and Brisbane. ALB

ROUNDUP• The US legal industry is still shedding jobs. In June, around 3,900 jobs were lost, according to the

US Bureau of Labor Statistics. In May that number was 600, seasonally adjusted from the initial expectation of 300 jobs lost

• London-based law firm Olswang has reportedly formed an alliance with US firm Cooley, in an effort to boost its international work

• Loeb & Loeb has appointed Alan Cutler as its chief operating officer. Cutler will succeed Jerry Post who retired from the firm after serving for ten years in the position

• Nixon Peabody has appointed Ernst & Young healthcare group professional Peter Egan as a partner in its health services practice in New York

• White & Case have snared two new partners for its global IP practice in Washington DC. Alston & Bird lawyers Trevor Nagel and Lee Van Blerkom will join the firm’s sourcing and technology transitions group

Chadbourne taps into BRIC market Chadbourne & Parke is planning to launch in Sao Paulo and has hired two finance lawyers top be based in the office there. The Sao Paulo branch, which will provide foreign legal advice, will launch once regulatory approvals from the Brazilian Bar Association have been received.

The office will have new finance partners Charles Johnson and Daniel Spencer; and Felipe Creazzo, a New York corporate lawyer who will relocate. “The success and growth of our Latin America practice, and the increasing significance of Brazil in the world economy, encouraged us to move decisively to gain on-the-ground capabilities in Brazil,” said Chadbourne managing partner Charles O’Neill.

Former Toyota VP launches new Washington law officeUS labour law firm Fisher & Phillips has opened an office in Washington DC, led by the former senior vice president of Toyota Motor North America, Dennis Cuneo, who is joining the firm as partner. Chairman Roger Quillen said “we believe it’s important for us to bring a voice to Washington on behalf of our clients, especially at a time of rapidly changing workplace laws and regulations. Dennis is the right person at the right time to lead this new effort.”

Hogan Lovells snares DCM lawyerHogan Lovells has expanded its debt capital markets and structured finance practice, with the appointment of Emil Arca as a partner in its New York office. Arca joins from Dewey & LeBoeuf in New York and is expected to drive the development

of the firm’s Latin America and Europe practice.Finance co-heads Ben Hammond and David

Hudd said in a statement that “the work handled by Emil is at the high end of the securitisation business and is a very good fit alongside the team based in Europe. We are seeing definite signs of improvement in the securitisation market and this is exactly the right time for the team to be growing its capability in this area.”

US still leading M&A market by value The US is still leading the world as the biggest M&A market, capturing 34% of market share according to Thomson Reuters. However, deal volumes have declined: in the US alone there were 3,902 M&A deals in the period from January to July this year. This is a drop from the 4,105 deals recorded in the same period last year.

The data also shows the Americas have snared US$559bn worth of inbound deals (determined by the acquirer’s net debt). The Americas closed 6,035 M&A transactions, which is a slight drop from the same period last year when there were 6,043 M&A deals closed.

Nixon Peabody loses more lawyers Nixon Peabody has reportedly lost another 14 lawyers to rival firm Pillsbury, after losing nine lawyers to DLA Piper in June.

Among those that have left for Pillsbury include Mats Carlston, who had headed up global finance; Bart Pisella, who will now lead Pillsbury’s corporate trust team and Doug Schneller, who will now head Pillsbury’s distressed investment practice.

said Corrs HR Director Alexis Navie. “There is no doubt that if more law firms would take this issue seriously the challenge of retaining senior women in the industry would improve.”

According to figures released to ALB, the uptake of paid parental leave at Corrs has more than doubled in the past four years. The firm has recorded a 6.2% increase in the number of lawyers having taken paid parental leave, from 4.5% in the 2005-06 financial year to 10.7% in the 2009-10 financial year, or a rise from 14 lawyers to 39 lawyers. ALB

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NEWS >>


news in brief >>LAW FIRM FRANCHISE SPREADS WINGS IN AUSTRALIALawyers may be familiar with a line of criticism which suggests that certain global law firms are akin to franchises practising a “McDonalds” brand of law. One Melbourne firm, however, seems to have taken to the franchise concept rather more literally, seeking to build a national franchise network of associated firms. Specialist firm Franchise Legal has decided to practice what it preaches with the launch of its first franchisee, Sydney-based Adams & Partners Lawyers. The deal will see Adams & Partners carry the Franchise Legal brand name to cover its operations in the franchise area.

Founder of Franchise Legal, Ilya Furman, who has worked in franchising for the past 10 years, is aiming to position Franchise Legal as a new way to expand within the legal industry. “From my point of view, lawyers are very independent people and they are difficult to control, particularly from afar. So in order for me to expand my firm into other states, I thought that franchising would be a better method,” he said. Furman said he would look to spread the franchise into the Brisbane market, once the Sydney operation was well established and running smoothly.

JOB MARKET>>

In-house salaries remain steady, tipped to rise Anew global survey by Laurence

Simons has confirmed that the salaries of Australian in-house lawyers have remained largely unaffected by the GFC. The survey reported that Australian salaries “held up well” in comparison to those of Asian neighbours such as Hong Kong and Singapore. ALB has previously reported that Australian in-house salaries were even exceeding private practice salaries in some brackets.

In-house salaries are expected to rise in the second half of 2010 as pay freezes are lifted and stronger economic activity fuels more legal work. Naveen Tuli of Laurence Simons said that there was a reported shortage of candidates for in-house roles and that the recruitment market was expecting the number of lawyers interested in moving to in-house roles to increase in the next two to three months, particularly if private practice lawyers were not satisfied with their bonuses or pay rise offers.

Tuli said that on average it would take a pay rise of between 16-20% to tempt an in-house lawyer to join another employer. However, pay alone was not the most significant induecement. “Over 55% of respondents

said that career development and varied work were the primary reasons why they left their last role, not salary,” he said. ALB

LAWYERS HEAD TO SHANGHAI TO PROMOTE AUSSIE ARBITRATIONAustralian lawyers and representatives from the Attorney General’s Department and the Australian Centre for International Commercial Arbitration (ACICA) were on hand at the Shanghai World Expo last month to promote the benefits of arbitration in Australia.

President of the ACIAC and head of arbitration at Clayton Utz, Doug Jones AM, said he was encouraged by the attendance at the event and the feedback he received. “We gave papers which were aimed at getting Chinese firms and lawyers to come to Australia for arbitration purposes. We are suggesting that Australia is a viable option for firms in China and India, looking for a neutral location for arbitration, as opposed to Hong Kong or Singapore, ” he said.

In large international arbitration hubs such as London, all major firms have dedicated arbitration practices. “The value of these practices as well as the combined value to the entire economy is measured in billions of dollars. Even though parties involved in arbitration can bring their own legal advice for arbitration, they generally use local firms as well,” said Jones. “The value to Australian legal practices is enormous, there is a lot of growth potential, but we are starting from a very low base.”

CAPITAL MARKETS >>

► IN-HOUSE SALARIES DATA

PQE (years) Median salary

0-1 A$73,000

2-3 A$88,600

4-5 A$109,800

6-7 A$135,200

8-9 A$155,700

10-11 A$180,000

12-13 A$195,000

14-15 A$230,800

16-20 A$250,000

21+ A$285,800

Source: Laurence Simons In-HouseGlobal Salary & Benefits Survey, 2010

Life after Valemus: lawyers ponder volatile IPO market and future prospectsThe postponement of what was to

be the biggest IPO of the year in the A$1.3bn Valemus float has left lawyers with a new perspective on the fragility of the market. The postponement would have come as a particular disappointment to Valemus advisor Clayton Utz, which reportedly had assigned as many as 18 partners advising on the deal.

“The best way to describe IPO activity at the moment is that it is very difficult because of the state of the equity capital markets. Local and international markets are quite volatile and that was the reason for the Valemus IPO being pulled,” said Allens co-head of equity capital markets, Robert Pick. The

Valemus IPO would have been the second largest IPO after the Myer IPO since the market re-opened last year. It would have also been the first significant float from a non-retail focused industry.

The market might have re-opened on a high last year with some strong deals such as the Myer IPO, but the performance of some of those deals over the last six months has been disappointing. According to Pick, this has led investors to become more cautious when backing IPO deals at the prices issuers want.

Robert Pick, AAR

NEWS >>


CAPITAL MARKETS >>

Light at end of tunnel for REIT capital raisings

Gadens has advised the ING Real Estate Entertainment Fund on a

A$39m placement and renounceable rights issue – the fifth A-REIT capital raising Gadens has worked on in the last 18 months. While Gadens has acted on three particularly large raisings for A-REITs to raise over A$1.5bn in that period, the firm is predicting that the next wave of action will come from small to medium-size REITs.

“During the darkest days of the GFC only the biggest A-REITs could raise funds on the capital markets but now we are seeing the mid and smaller-cap A-REITs tapping the markets successfully”, said Gadens Sydney corporate advisory partner Paul Brown. He said that the GFC had created a pattern of “haves” and “have nots” and noted that since 2008, large REITs have dominated the market as small REITs have lacked institutional support and have been unable to raise money quickly compared to their larger and better established counterparts. “It’s only now that we are starting to see more small and mid-cap REITs being able to enter the capital markets,” he said.

In the next few months, Brown

Life after Valemus: lawyers ponder volatile IPO market and future prospects“The best way to describe IPO activity at the moment is that it is very difficult because of the state of the equity capital markets. Local and international markets are quite volatile and that was the reason for the Valemus IPO being pulled”ROBERT PICK, ALLENS ARTHER ROBINSON

says the market will see more capital raisings coming from smaller REITs . “The smaller funds are slowly working through their debt arrangements and getting that organised, before they can

enter the equity market to finish off stabilising their balance sheets,” he said. He said the market was unlikely to see more raisings from large REITs in the near future. ALB

Despite the uncertainty surrounding IPOs, lawyers are seeing a resurgence of trade sales activity, including private equity deals. However, Mallesons partner Shannon Finch says that trade sales have their own challenges in current market conditions, including availability of financing and conservative pricing from bidders and

regulatory hurdles. “There’s no clear winner at this stage – it’s a case by case thing. Certainly, we are seeing trade buyers more willing to make acquisitions which give a seller another potential exit route but

Shannon Finch, Mallesons

we would not say that is a significant reason itself for the small number of IPOs this year – market conditions are the main driver,” said Finch.

In the short term, lawyers are predicting good conditions for IPO activity so long as the market remains stable over the over the next three to five months. However, these are likely to be mainly small to medium sized speculative deals, generally from mining exploration, IT and pharmaceutical companies.

“The future for IPOs is still positive – it’s just a case of not being able to currently predict when it will all happen,” said Mallesons partner Michael Barker. ALB

24

NEWS >>


news in brief >>

GOOD ISLAMIC FINANCE LAWYERS HARD TO FIND, SAYS NORTON ROSE LAWYER Davide Barzilai, a partner at Norton Rose, said there is a real dearth of lawyers who understand the ‘drivers’ behind the Islamic banking industry in Asia.

Speaking to ALB after a recent move from the firm’s London headquarters to Hong Kong to build its Islamic banking practice, Barzilai said that while there is no shortage of astute banking & finance practitioners, very few are able to combine these skills with a deep understanding of Shariah law.“There are good opportunities and strong growth potential [for Islamic banking] in the Asia-Pacific” he said. “There is always a shortage of suitable lawyers in the Islamic finance sector who have strong banking legal skills as well as an understanding of Islamic drivers.”

But while Barzilai bemoans the lack of suitable candidates, he does note that lawyers with strong skills in banking & finance can be trained up. “Any good banking lawyer can make a good Islamic finance lawyer – even if they are not necessarily familiar with Islamic drivers and lack knowledge of Islamic finance. That could be trained,” he said.

YOU’RE THE VOICE: NEW SOFTWARE BRINGS VOICE ASSESSMENT FOR LAWYERSIf the current range of psychometric and behavioural testing is not arduous enough for lawyers seeking employment, law firms could soon have a new recruitment tool on hand: voice assessment software. Bo Yin, from the National ICT Australia research centre in Sydney, has developed a new software application known as BrainGauge, which measures changes in tone and voice patterns. The aim? To assist recruiters to identify candidates with superior cognitive skills who will perform better under pressure.

Changes in tone and voice quality correlate to the amount of mental effort the person is exuding to complete a task, says Yin.“Generally people have full control over their vocal muscles and can position their tone to create different intonations, however when under pressure people lose control of being able to position their speech muscles,” he said.

As the testing is based on performance and speed of response, the detector can also be used to assess a candidate’s stress levels. However, stress does not indicate whether a candidate will perform poorly at a task – it merely shows that the candidate is using a higher level of ‘mental effort’. “The purpose of the voice indicator is to assess candidate’ cognitive abilities and not their ability to handle stress,” said Yin.

Federal election could impact M&A The looming federal election could

have an impact on M&A workflows and commercial activity. Mallesons M&A partner Robert Jackson said it was common for business activity to slow when an election is called. “The imminent election will also see a pause in the amount of M&A,” he said.

“This [election period] is typically a period for less activity, as investors wait for certainty on what the

government will look like going forward”.

Greg Evans, director of economics and industry policy at the Australian Chamber of Commerce and Industry, said it is common for consumers and business to react to an election. “We get some changes in business and consumer behaviour during the election period,” he said. “In the lead-up to an election consumers become

China set to seize IPO crown from Hong KongCHINA >>

China has become Hong Kong’s greatest contender for the position

of leading IPO centre and according to analysis is “well-poised to surpass Hong Kong in 2010.” According to reports released by PricewaterhouseCoopers (PwC), domestic companies are expected to raise US$55.7bn on the Shanghai Stock Exchange this year, while in Hong Kong the figure is expected to be US$47.7bn. Last year Hong Kong raised approximately US$30bn in new listings with Shanghai tagging closely behind with US$27.3bn.

“The China IPO market, especially Shenzhen SME Board and ChiNext, has picked up significantly in the first half of the year, despite the uncertainties on global recovery and the Euro debt crisis impact causing

greater market volatility. This really demonstrates that Chinese companies are developing well along with the continuing growth of domestic economy and [have] become more mature,” said PwC China markets leader Frank Lyn.

Domestic companies have raised RMB213bn from 176 IPOs in the first half of the year, more than the RMB187bn raised in the whole of 2009. And according to PwC’s predictions, the total number of new listings on the country’s two bourses in Shanghai and Shenzhen may reach 300 in 2010, compared to 99 last year.

Investor confidence is what Wayne Chen, partner and head of capital markets at PRC firm Llinks, attributes to the booming local market. “There are many elements that have boosted

M&A >>

NEWS >>


China set to seize IPO crown from Hong Kong

uk reportmore conservative.”

However, Shaun Clyne, head of M&A at Norton Rose Australia, said that for the most part Australia has a stable political landscape, regardless of election outcomes and that companies accepted that government changes are part of this landscape.

“This election is interesting, as we rarely see a substantial change in the legislative landscape as we have seen with the announcement of the mining tax,” Clyne said. “It is the most substantive change in many years, and has given clients cause to sit back and wait and see.”

He added that as the “bombshell” of the proposed mining legislative changes had already been dropped he didn’t expect many companies to continue waiting it out.

John Pagacs, special counsel at Australian Business Lawyers, said that while the big end of town might cool down with an election approaching, small to medium size businesses tended to show less concern.

“SME’s will adapt and cope with any changes a new government might bring, but at the big end of town, larger companies may have to adapt at a policy level,” he said. ALB

investor interests in local listings. This includes the increasing listing value and the strict regulations of the China Securities Regulatory Commission (CSRC),” said Chen.

CSRC has been reputed to be extremely strict with its approval procedures and Chen said that authorities are requiring, in addition to the usual basic listing requirements, an industry peer review of status of the company.

Such strict regulations have resulted in the local board being dominated by the top-tier companies, a result which is both inviting and assuring to potential investors. “This type of confidence, at this time, is a notion that is lacking in investors in international markets,” said Chen. ALB

ROUNDUP• Pinsent Masons’ GFC-prompted flexible working scheme saved the firm around £2m and avoided

50 redundancies. The scheme involved 204 staff taking 13 weeks of annual leave as their incomes dropped to a minimum of 80% of normal rates

• Clyde & Co has appointed Martin Davies to its London corporate practice. Davies arrives from Howard Kennedy, where he headed the international group. At Clydes he will lead a new Middle East business strategy

• Charles Russell has made up seven lawyers to partner as part of its new financial year promotions. The firm now counts four new partners in London, two in Cheltenham and one in Oxford

• Lee Doyle, the former head of RBS’s UK corporate and global restructuring legal team has moved to join Ashurst as partner in its London loan markets practice

Halliwells sells off practices to rival firms Manchester-based law firm Halliwells could be forced into administration, after the firm filed a second notice of intent to appoint an administrator in late June. The firm has been in discussions with rival firms to sell off its practices in the last month.

It has already secured a deal with Barlow Lyde & Gilbert where they will acquire Halliwells’ insurance practice, and is also reportedly in negotiations with Hill Dickinson and HBJ Gateley Wareing. The firm’s demise was said to result from high overhead costs and lack of transactional work during the downturn. It reportedly owed the Royal Bank of Scotland £17.7m. Executive chairman Ian Austin has left to join another firm, Heatons.

Baker & McKenzie spin-off firm acquiredLondon-based boutique litigation firm Stewarts Law has acquired Baker & McKenzie spin-off firm, Masseys. Masseys is a litigation boutique founded by a group of Bakers litigation lawyers in 2004, and will move to the Stewarts office in London. The two firms merged in early July with Stewarts assuming the Masseys brand.

Stewarts will gain commercial litigation, anti-trust and employment expertise for its litigation practice, with the appointments of Masseys’ founding partners Jane Colston and Sean Upson, fellow partners Fiona Stewart and Fiona Gillett and their respective teams. Managing partner John Cahill said “during our discussions we were struck by the extent of our shared values and vision. We will work together to establish Stewarts Law as a leading litigation brand.”

UK law society’s virtual appointment The UK Law Society has elected the managing partner of a virtual law firm as its new deputy vice-president. Lucy Scott-Moncrieff, a mental health and human rights lawyer who heads online legal practice Scott-Moncrieff Harbour and Sinclair, takes up the post working under Law Society president Linda Lee and vice-president John Wotton.

Scott-Moncrieff was chosen for her role having founded an ‘innovative’ legal practice, said the law society. On her appointment, Scott-Moncrieff said: “It is both an honour and a great responsibility to be elected deputy vice-president, especially at such a challenging time for the profession as a result of the transformation of legal aid and the licensing of alternative business structures. I very much look forward to championing the profession as we move into the next decade.”

Reed Smiths boosts energy practice Reed Smith has appointed four new partners to its energy, trade & commodities group in London. The addition of Keith Hartley, Peter Cassidy, Vincent Rowan and Gordon Bell will grow the firm’s London energy practice to 13 partners.

“The energy and natural resources sectors have enjoyed unprecedented growth over recent years – including through the economic crisis. Our trading clients are aggressively diversifying beyond trading, creating integrated supply chains enabling them to add value across their commodity portfolios at every stage from production to marketing/trading,” said head of the energy practice, Kyri Evagora.

26

NEWS >>


► LATERAL HIRESName Practice areas Organisation going from Organisation going to

Alice DeBoos Workplace relations HWL Ebsworth Middletons Angus Jones Energy and resources AAR Allen & Overy Bryan Belling Workplace relations HWL Ebsworth MiddletonsMichelle Harpur Litigation Corrs Chambers Westgarth Swaab AttorneysPeter Cook M&A Mallesons Gilbert +Tobin Seamus Burke Workplace relations HWL Ebsworth Middletons

APPOINTMENTS

ACLA

Sweet move for ACLAACLA, the peak Australian body for in-house lawyers, has appointed Trish Hyde as its new chief. Hyde replaces Peter Turner who has held the role for the past eight years. She joins ACLA after serving three years as CEO at the Confectionery Manufacturers of Australasia.

Linklaters Bell Gully

Bell Gully lures new COO from LinklatersNew Zealand firm Bell Gully has appointed senior Linklaters executive Cecilia Burgess as the firm’s new chief operating officer. Burgess resigned from her London-based role as global head of client development at Linklaters to return to New Zealand. Prior to that role Burgess was Asia head of marketing at Linklaters and prior to that, director of marketing at Minter Ellison.

Piper Alderman

Phelps takes top job at Piper AldermanPiper Alderman has promoted Tony Phelps, an experienced commercial litigation lawyer, to the role of national managing partner. He replaces Gordon Grieve who held the role for the past four years. Phelp has been with Piper Alderman since the mid 1980s and has held various management roles in the firm, including head of the dispute resolution division for four years.

► PARTNER APPOINTMENTS - PROMOTIONSFirm Name Area

Logie-Smith Lanyon Lawyers Andrew Logie-Smith Commercial and corporateFB Rice & Co Connie Merlino Information and communicationsBlake Dawson Mark Disney Construction and infrastructure

Carter Newell Lawyers James Plumb Resources

HopgoodGanim Jonathan Fulcher Resources/native title

Mallesons Paul Longard M&A, energy & resources

Cecilia Burgess

FB Rice & Co

FB Rice promotes from within Patent and trade mark attorneys FB Rice has promoted Connie Merlino to the role of partner in the information and communications technology (ICT) group. Merlino has been with the firm since 2000, when she commenced her patent attorney training.

She specialises in drafting and prosecuting patents in imaging technologies, software, telecommunications and data communications and data security. Merlino also works with the firm’s nanotechnology, mining and clean tech teams.

.HWL Ebsworth Middletons

HWL Ebsworth partners move to Middletons Middletons has poached three Sydney-based partners from HWL Ebsworth: Bryan Belling, Alice DeBoos and Seamus Burke will move across to Middletons to join the workplace relations group in August. These additions will mean that Middletons has recruited five partners during the past year – including Duncan Fletcher, formerly of Mallesons and Kathy Dalton, who moved across from Herbert Geer in Melbourne.

.Mallesons Gilbert + Tobin

Gilbert + Tobin adds four partners Former Mallesons partner Peter Cook has taken up partnership at Gilbert + Tobin. Cook was a member of the ALB Australian Deal Team of the Year, named earlier this year.

Cooks’ appointment as partner in the corporate advisory group coincides with the appointment of three other partners at Gilbert + Tobin.

Competition and antitrust lawyer, Elizabeth Avery, has been promoted to partner along with special counsel in the corporate transactions group, Ros O’Mally, and Ken Saurajen from the corporate, communications and technology group.

Carter Newell lawyer takes Plumb roleCarter Newell Lawyers has added resources specialist James Plumb to its partnership. Plumb has extensive experience advising and acting for clients in the sale and acquisition of mining and petroleum projects and assists clients with Queensland pipeline projects, including drafting and advising on joint venture and commercial interests, liaising with Queensland Mines and Energy and the EPA to manage licensing processes. Carter Newell has also promoted Nola Pearce to the position of special counsel in the firm’s litigation and dispute resolution group.

New partner at HopgoodGanimBrisbane law firm HopgoodGanim has promoted resources and native title specialist, Jonathan Fulcher, to partnership, bringing the firm’s total partnership ranks to 25.

Fulcher has authored numerous publications influencing Australia’s native title landscape.

Young gun makes partner at Mallesons Paul Lingard, 31, has become a partner at Mallesons Stephen Jaques’ Perth office. A member of the M&A team, Lingard has extensive experience in energy and resources, major projects, electricity and gas. He acts for Australia’s largest resources and energy companies including BHP Billiton, Synergy and TRUenergy. Lingard joined Mallesons as a clerk nine years ago.

.Allens Arthur Robinson Allen & Overy

AAR resources guru heads to A&O Allen & Overy has enticed leading Australian energy and resources lawyer, Angus Jones, to join the firm’s new office in Perth, working in the global energy group. Jones has been a partner at Allens since 2007.

He has more than 20 years experience in the sector with a particular focus on LNG, upstream oil and gas transactions/acquisitions, gas sales and gas

Peter Cook

James Plumb

Jonathan Fulcher

Mallesons Stephen Jaques

Carter Newell

HopgoodGanim

NEWS >>


pipeline arrangements, and renewable energy and mining projects.

Logie-Smith Lanyon Lawyers

Logie-Smith Lanyon announces new head Founding partner of Melbourne firm Logie-Smith Lanyon Lawyers, Andrew Logie-Smith, has been appointed as the firm’s inaugural managing partner. The move comes on the back of a standout year in revenue and an increase of 35% in staff numbers, taking the firm to 58 employees.

Logie-Smith Lanyon was formed in 1996 by founding partners Michael Lanyon, Charles Veevers and Logie-Smith.

Schultz climbs the Wallmans ladderAdelaide firm Wallmans Lawyers has appointed general manager Catherine Schultz as its first chief executive officer. Previously the firm’s finance manager, Schultz has been in the GM role for more than eight years, joining Wallmans in 1996.

Her appointment to the role comes after a period of significant growth at the firm and aims to provide for greater leadership, business development and

strategic direction. Schultz has more than 20 years experience in senior management and began her career as a chartered accountant at Touche Ross.

Russell Kennedy

New special counsel for government groupAstrid Di Carlo has been promoted to the role of special counsel in Russell Kennedy’s government, environment and planning team. Her practice encompasses water law, planning, heritage, local government and road law. She is part of the Environmental Issues Committee of the Law Institute of Victoria and the Advisory Committee for Collaborative Approaches to Cultural Heritage Protection established by Victoria University.

Cooper Grace Ward

Promotions at Cooper Grace WardJanet Wilson has been promoted to the role of COO at Cooper Grace Ward, having been general manager since 2005. In her new role Wilson will focus on providing support to the firm’s board by overseeing, coordinating and providing strategic direction for the management group. Coinciding with Wilson’s appointment are several other promotions, including Leanne Doxey, who has been promoted to the role of senior associate in the firm’s property, planning and

environment workgroup. Doxey joined Cooper Grace Ward in December 2009 as part of the firm’s merger with Brisbane firm Bain Gasteen.

Corrs Chambers Westgarth Swaab Attorneys

Leading litigator joins Swaab Prominent Australian litigator, Michelle Harpur, has joined Swaab Attorneys as a partner within the litigation and insolvency teams. Harpur joins from Corrs Chambers Westgarth, where she was a partner.

She is often touted as being one of the country’s first female managing partners, following her appointment to the position of the Australian arm of the now-dissolved Coudert Brothers. Prior to Coudert Brothers she was a partner at Norton Smith.

Disney lands in BrisbaneMark Disney has joined the Blake Dawson partnership and will relocate to the firm’s construction and infrastructure practice in Brisbane. Disney joined the firm in 2001 and will relocate from the Melbourne office. He has experience in a wide range of project delivery methods, acting for both the public and private sectors, and is also experienced in procurement. In Brisbane Disney will act on the Gold Coast Light Rail project as well working for major energy and resources clients.

Andrew Logie-Smith

Wallmans lawyers

Blake Dawson

http://www.holdingredlich.com.au

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http://www.kensingtonswan.com

NEWS >>


http://www.kensingtonswan.com

30

FEATURE | In-house 10 >>


Many in-house lawyers have distinguished themselves and the legal profession throughout 2010. This year’s ALB In-house 10 list contains some faces that are new to the in-house sector, as well as some faces that will be very familiar to readers and the industry at large

ALB’s showcase of Australasia’s top in-house lawyers

In-house

The legal landscape continues to change – but who is driving that change? As controllers of most of the biggest legal budgets, it

appears to be general counsel. Today, GCs typically hold the highly

valuable role of advisor to senior management, not just on direct legal issues but also on issues such as reputational and regulatory risk. They are also responsible for managing the internal and external legal functions of their business, while needing to deliver value for their organisation.

There has been a shift in the attitude of general counsel, and law firms have certainly noticed that they are becoming more demanding. They are looking for their legal partner to provide relevant, timely, and innovative legal advice. To remain competitive law


firms need to continually challenge the way they work, and how they add value to their clients.

Never has it been more crucial to invest in even stronger relationships with clients. Listening to gain a better understanding of the full ‘real world’ impact of legal advice and adapting to a client’s needs are key.

By recognising the top 10 in-house lawyers, ALB magazine is highlighting those at the height of their profession. Congratulations to those who have made the ALB In-house 10 list for 2010. It is a great achievement to be recognised as an industry leader.

We are proud to support and partner this year’s feature.

Regards William Fazio managing partner Herbert Geer

Introduction by William Fazio, managing partner, Herbert Geer



► METHODOLOGYThis list is a subjective look at some of the

most inspirational figures in the in-house legal

profession. It is not intended to be a complete

or exhaustive list – rather, it is a tribute to the

substantial business contribution made by in-

house lawyers located across Australia and New

Zealand.

1 ► ALB IN-HOUSE 10: 2010 LIST

Annette Spencer, head of legal counsel, UBS

Carl Rowling, GC, Auckland City Council

David Williamson, chief legal counsel, BHP Billiton

Deborah Marris, GC (Asia-Pacific, Europe and America), ANZ

Karen Perret, chief counsel (Australia and NZ), Kraft Foods

Kerry Willcock, executive general manager, corporate & legal – Tabcorp

Michael Anderson, GC, Tabcorp Casinos Division

Tess Lye, general manager - governance and legal, Macarthur Coal

Trish Hyde, ACLA, Jeremy Valentine, CLANZ

Will Irving, GC, Telstra

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10


In-house

32



ANNETTE SPENCER Head of legal counsel, UBS

CARL ROWLING General counsel, Auckland City Council

The new “super city” Auckland Council, an amalgamation of eight existing government authorities, will come into effect in November and the

development and transition work has kept a number of New Zealand law firms busy. Looming large in this process is the Auckland Transition Agency (ATA), which counts among its advisors recently retired Simpson Grierson chairman Rob Fisher.

Another stalwart of the reform process is Carl Rowling, GC of the existing Auckland City Council. Rowling, who should be no stranger to ALB readers, was part of the general counsel advisory group that advised the ATA on the establishment of the new in-house legal team for the super city council. “There has been quite a significant debate on the scale and makeup of the future in-house function with a wide spectrum of existing in-house operations across councils,” explains Rowling.

“Basically I was fighting to secure the gains we had made here at Auckland City over the last two years. The predisposition of the ATA was to a small in-house legal team, so I had to go in and advocate for a more substantial team, based on the range of benefits that a well resourced in-house team can provide to the organisation that we were able to prove had been secured by the Auckland City approach. The new team will be somewhere in the vicinity of 35 people. It has some disappointing gaps and is not as big as I would have liked, but adequate.”

Rowling has a solid track record in these matters. At Auckland City Council he structured the in-house legal team to meet well over 50% of the council’s legal needs, much of that at the high end, and reduced annual external legal spend by around NZ$2m.

What is your view on alternative fee structures?“Alternative billing structures are still a very small percentage of fee structures. In my role I have not been able to identify an area of the organisation that would benefit from alternative billing structures other than those relatively straight-forward areas where the nature of the work is very predictable and so fixed fee arrangements work for both sides. The one area where it might be useful in the future is outside my remit; that is weather tightness litigation.”

What are your priorities for the coming year? “Although I will be returning to private practice, I hope to still be involved with the organisation going forward in a more strategic, less legal role. It is inevitable, however, that there will be more work for the in-house team going forward. There will be a lot of activity in the procurement space and there will inevitably be a lot of difficult public law issues as everyone wrestles with the new structure.

“The reason for the amalgamation was to decrease the time it took for major projects to get off the ground which had previously taken too long, often because of in-fighting. Once the new organisation is running smoothly the number of projects should increase, not diminish, as the projects move more easily through the new single council.”


UBS has continued a remarkable dominance over the Australian deal scene. In the five quarters to the end of 2009, UBS assisted 29 of the 55 ASX100

companies which undertook equity capital raisings. It hardly comes as a surprise that this has translated into dominance of the ‘Investment Bank In-house Team of the Year’ category at the ALB Australasian Law Awards 2010. For the record, UBS has won this award five out of the past six years (Goldman Sachs secured the 2008 gong). “It has to be UBS,” one partner said of this award category. “In terms of the deals they do and the quality of the work, they are a clear standout.”

Spencer said that the award represented, above all, a team effort. “’Team’ is the very important word in that award title, because you need individuals that work well together. We seek to employ top talent, but you also seek to make sure that staff can integrate within the team and the entire business.”

The flurry of capital raisings certainly disproved the old stereotype of in-house lawyers clocking-off routinely at 5pm. “[In-house lawyers] stay till the job is done; we were working around the clock last year when we were very busy with capital raisings,” recalls Spencer.

What is your view on alternative fee structures?“Some firms have talked about fixed fee quotes for specific services, but we have not made any changes to our billing structure. We are open-minded and we discuss new initiatives from time to time, but given the kind of business we are, billable hours work quite well.”

How can private practice better meet the needs of in-house counsel? “External legal advisors need to make sure that the advice they give can be readily applied. They need to give advice that is not only legally correct but also addresses the client, the deal and the objectives of the deal. It is often easy enough to get the law right, but they also need to actively help provide efficient legal advice, and to do that you need to have an excellent understanding of the deal and the client.”

What are your priorities for FY2011? “This year is definitely a change from last year, which involved a lot of capital raisings. This year we are seeing different types of deals and we are also being kept busy with regulatory changes.”

“External legal advisors need ...to give advice that is not only legally correct, but also addresses the client, the deal and the objectives of the deal”

Annette Spencer UBS



DAVID WILLIAMSON Chief legal counsel, BHP Billiton

As former BHP chief counsel Mike Ferraro returns to the familiar surroundings of Freehills’ offices in Melbourne’s Collins St, he may well cross paths with

the man who has replaced him at BHP – former Blake Dawson partner David Williamson. A Blake Dawson veteran of 28 years, Williamson is also no stranger to the BHP business. He was the lead advisor on BHP’s takeover bid for Rio Tinto, the second-largest takeover ever announced, and he also advised on BHP’s proposed Western Australian iron ore production joint venture with Rio Tinto. Williamson has been involved in a number of other significant deals, including ANZ’s acquisition of Royal Bank of Scotland’s retail, wealth and commercial businesses across a range of Asian jurisdictions in 2009.

His appointment at BHP has been warmly welcomed by Blake Dawson, with both chairman Mary Padbury and managing partner John Carrington issuing statements congratulating Williamson and acknowledging his contribution to the firm. When contacted, Williamson politely declined to be interviewed, indicating that it would be premature to discuss his plans for the role. It will be interesting to see what impact Williamson’s move to BHP will have on the BHP-Blake Dawson relationship. Previously, Freehills was one of three key legal advisors to BHP under Mike Ferraro. There are many who believe that it is an advantage for a GC to continue the relationships built up in private practice.

DEBORAH MARRIS General counsel (Asia-Pacific, Europe and America), ANZ

It was a double act at the ALB Australasian Law Awards 2010 for the ANZ bank: Asia-Pacific GC Deborah Marris was voted ‘Australasian In-house Lawyer of

the Year’ while her trans-Tasman colleague Debra Blackett and her team won the award for ‘NZ In-house Team of the Year’. Marris, who also has responsibility for the legal function in ANZ’s Europe and American operations, has built the bank’s Asia legal team up from three lawyers to 45 – a capacity which must have come in handy during last year’s US$550m acquisition and integration of selected RBS retail, wealth and commercial businesses across multiple Asian jurisdictions.

Complicating the transaction was the nature of the deal – an asset and liability acquisition rather than an equity acquisition – and the fact that it was signed in August 2009 and closure across all six markets was required by 31 July 2010. “You have to pick up every asset and every liability and move it individually, as most countries did not provide a transfer mechanism,” explains Marris. “Obtaining [customer] consent – it was a huge process. I still find it staggering that we’ve managed to do it.”


“Alternate billing structures are still a very small percentage of fee structures” Carl Rowling

Auckland Council

In-house


34



There’s no rest for the legal team at Cadburys. In the past 18 months they’ve watched over the sale of the Australian Schweppes beverages business, the

resolution of Cadbury’s long-running and high-profile anti-trust litigation in the Federal Court against Amcor, and a takeover of Cadbury itself by US giant Kraft Foods. Playing a key role in bringing about these changes in the Australian and New Zealand market has been chief counsel Karen Perret, who topped off an eventful 2009 by being named ACLA’s In-house Lawyer Young Achiever of the Year.

Perret now sits on the Kraft Australia and New Zealand executive leadership team and is also the company secretary. “I see my role in the company having two important components – one is as a member of the Kraft Foods Australia and NZ executive leadership team, and second, as the leader of the legal function for Australia and NZ,” she said.

What is your view on alternative fee structures?“We have strategically employed alternative billing methods in a number of areas, such as fixed fees, especially for certain types of routine work, and have also used some very flexible and cost effective secondment arrangements. We also now have a blended rate with one of our key providers (DLA). There remains some reluctance by law firms to move to alternative billing methods, and firms tend to be reactive rather than proactive in this area. There is certainly scope for firms to differentiate themselves by proactively putting forward alternative billing strategies targeted to the needs of the particular client.”

Do you expect to have a greater load in FY2011 than the current year? What projects are keeping you occupied? “I definitely expect to have a greater workload in 2011 [and] there are a number of reasons driving this. Now that Cadbury is part of Kraft Foods there a significant amount of legal work associated with integration and bringing the two businesses together, including both on an operational basis and through corporate restructuring and the like. It presents a unique opportunity to review the processes and systems that the company has in place, including within the legal function, and take them to the next level.

There are also a number of exciting initiatives that the business plans to embark upon to step change growth, which will necessarily benefit from legal involvement and contribution. Going forward we are also now supporting the NZ business from Australia which is a change to previous ways of working, so that will contribute to the activities which the Australian based team work on.”

KAREN PERRET Chief counsel (Australia and NZ), Kraft Foods

KERRY WILLCOCK Executive general manager, corporate & legal – Tabcorp

This year’s In-house 10 features a rare double act for Tabcorp – both executive general manager Kerry Willcock and casino division GC Michael Anderson

have, for quite different reasons, had a highly distinguished FY2010. Readers will be familiar with the landmark A$284m Tabcorp corporate bond issue which was a finalist for the ‘Debt Market Deal of the Year’ at the ALB Australasian Law Awards 2010. Described as “the most significant retail bond offering by an ASX-listed company in the past 20 years”, the offering was certainly a novel and challenging contrast to the plethora of capital raisings which occurred throughout 2009.

“The offer was designed to provide Tabcorp with greater funding flexibility and align our funding program to the longer-term business investments we are making,” Willcock said. “It was an exciting and challenging project for the Tabcorp people involved, including our internal legal team.”Tabcorp has a panel of five firms (AAR, Freehills, Mallesons Stephen Jaques, Gadens and Herbert Geer) that carry out all of the legal work performed externally. “Our panel is small and we have considered reducing it further, however having five firms provides Tabcorp with both flexibility and competitive tension between the various panel members,” said Willock. “We continuously review the make-up of our legal panel so that we get the mix right, and maximise the value for our spend.”

What is your view on alternative fee structures?“They do have value, particularly for major projects as they can significantly reduce the cost of projects that do not ultimately proceed for one reason or another. Alternative billing arrangements also work well for commoditised work, of which Tabcorp does relatively little.”

Do you expect to have a greater load in FY2011 than the current year? “Tabcorp’s business continues to respond to many challenges in what is a complex and uncertain environment. That is unlikely to change in the short term. The wagering market in which Tabcorp operates has undergone enormous change in the last few years. Significant regulatory and business uncertainty has resulted from the growth in online wagering competitors who operate from low-tax jurisdictions, and from constitutional and other court challenges to the way wagering is conducted in Australia. In the absence of Federal Government invention, this uncertainty and complexity is unlikely to end any time soon.”


“There is certainly scope for firms to differentiate themselves by proactively putting forward alternate billing strategies targeted to the needs of the particular client” Karen Perret

Kraft Foods



MICHAEL ANDERSON General counsel, Tabcorp Casinos Division

The increasingly commercial nature of in-house legal roles has been well documented, and the charismatic and highly intelligent Anderson is an example

of the new breed of GC. When Sydney’s Star City casino launched ambitious plans for its A$575m redevelopment, Anderson was called upon to not only manage the traditional legal side of the project, but also commercial aspects such as fit-outs and leasing strategy. “The work associated with the ongoing redevelopment of Star City in Sydney, both construction-related and associated commercial work, is clearly a highlight for my team during the last 12 months,” he said.

Andersen was also named ACLA’s Australian Corporate Lawyer of the Year in late 2009.

What is your view on alternative fee structures?“Yes, alternative billing structures are useful and can often assist in ensuring that external legal budgets are achieved and can also help drive better thinking and more efficient delivery from external lawyers. Undoubtedly hourly rate charging is still entrenched in most law firms.

Only some law firms respond to the challenge of providing alternative billing arrangements proactively. Most law firms wait for the client to ask for an alternative billing method which is disappointing – however it is part of the in-house lawyer’s role to drive these more efficient billing methods out of the external law firms they are using. Sometimes the appointment of more in-house lawyers, the use of cheaper legal contractors or briefing the bar directly is the best alternative billing method – [it] simply avoids the bill entirely!”

Do you expect to have a greater load in FY2011 than in the current year? “Yes, particularly given that ‘Future Star’ will open next year in Sydney, so there will be so much happening as we open the biggest entertainment venue in NSW.”


“Sometimes the appointment of more in-house lawyers, the use of cheaper legal contractors or briefing the bar directly is the best alternative billing method”

Michael Anderson Tabcorp

In-house


36



The next two subjects share a spot in the ALB In-house 10 not as much because of past

achievements but because of an expectation of what they will achieve in the year ahead. Both ACLA and CLANZ, the peak representative bodies for in-house lawyers in Australia and New Zealand, have had a change of leadership.

In Australia, Trish Hyde takes over the CEO role from long-serving stalwart Peter Turner, who has been in the role for the past eight years. Hyde was previously CEO at the Confectionery Manufacturers of Australasia, the peak industry body for confectionery. In New Zealand, ANZ Associate General Counsel Jeremy Valentine has been appointed president,

ACLA CEO, Trish Hyde (pictured)CLANZ President, Jeremy Valentine

WILL IRVING General counsel, Telstra

One of Australia’s best-known GCs, Irving has always been synonymous with innovative and interesting new projects. Readers will be familiar with Telstra’s

NBN manoeuvres and alternative fee arrangements with Gilbert + Tobin, and the Telstra team was named ‘Australian In-House Team of the Year’ at the 2010 ALB Awards.

While there have been market whispers that the G+T arrangement had some teething problems, Irving said the deal has performed very well – a point reinforced by the fact that the arrangement has been renewed for the new financial year. “That is a testament to it working for us and G+T. We have learned a lot about how these things work, and it has well and truly delivered both our objectives. G+T is now one of our top suppliers of legal services and is involved in many of our most important matters, including the NBN work…” he said.

Last year, you mentioned that the NBN was not a significant driver of work. With the recent agreement with the Federal Government, will this change?“NBN is now a significant focus as we move from the non-binding stage to the work on definitive agreements and the related regulatory and other approvals that are required before any deal can be finalised and implemented. It involves work across a range of legal areas including infrastructure, competition and regulatory, M&A, tax and corporate governance.”

Will you increase legal spend? “No, we don’t expect overall legal team spend to increase. We cut spend this year notwithstanding the NBN, and expect to do so again in the coming year given the re-design of our work, alternative fee arrangements and other measures we are taking across the whole business.”

What other issues are on the agenda for this year?“Continuing our work to further improve Telstra’s customer service, launch new products to deliver innovative services and finally continue to focus on improving the quality of our interactions with suppliers, regulators and customers and in so doing, to reduce the level of legal intensity in the business.”

TESS LYE General manager- governance and legal, Macarthur Coal

Macarthur’s bid for Gloucester Coal was the A$669m deal which would have created the largest independent coal producer in Australia, but it just wasn’t

to be. Tess Lye describes the saga as “an incredible learning curve”. Macarthur, of course, is still looking like a hot prospect for further M&A activity this year and Lye may be called upon to exercise her newly gained experience sooner rather than later.

“There were a lot of things we learned about ourselves during the process, which is going to be beneficial going forward,” she says. “We have captured the learnings of that experience so we can incorporate them into our strategy development going forward. Building relationships and maintaining communication is critical to ensuring engagement in our strategy by staff and shareholders. You can’t just push through with a transaction because you have invested time and money into it. There is a very strong sense at the board and executive management level of the duty to shareholders.”

Macarthur itself became a target from US-based Peabody earlier this year. While the latter threw down the proverbial handbag in May, there are whispers that the coal giant may be back to pick up the pieces now that the Australian Government’s proposed mining tax is off the table.

What is your view on alternative fee structures?“To date Macarthur Coal has not used alternative billing arrangements such as success fees or at risk remuneration for legal service providers. Generally speaking, I value impartiality as to the outcome when it comes to legal advice. There is a balance between value for money and attracting and keeping the right fit in terms of legal support for our business. If Macarthur Coal were to enter into a risk-sharing agreement with a law firm, I would need to know that the risk-sharing model was embraced at a partnership level and not passed on to employed solicitors through inflexible budgets or billing targets.”

What are your priorities for the coming year?“2011 for me will be about focusing on strategy: Macarthur Coal has a growth strategy for mining projects. I’m focused on ensuring that project development will be governed and structured well; making sure that there is a robust governance framework for future projects.”

taking over the role from Fisher & Paykel GC Rebecca Holbrook who had fulfilled this function for the previous two years.

Both Hyde and Valentine have some rather large shoes to fill: Peter Turner and Rebecca Holbrook have been notable for their excellent advocacy on the interests of the in-house profession and challenged the conventional discourse of the legal profession which – perhaps inevitably – tends to take a private practice-centric bias.

In an era where the demands on the resources and talents of in-house counsel are greater than what they have ever been, sound leadership of representative bodies will be critical.





38

FEATURE | post grad education >>


There’s more to postgraduate legal education than taking the traditionalMBA or LLM, reports Olivia Collings

The qualification quandary

► MAJOR POST-GRADUATE LEGAL FACILITIES

Institution Dean/Head of law faculty

Post-graduate courses New courses/ subjects in 2011 Fees

Australian National University Professor Michael Coper

LLM, Graduate Certificate, Graduate Certificate in Migration Law, Graduate Diploma in Legal Practice

- A$2,250 per six unit course or A$4,500 per 12 unit course, equalling A$18,00 per course (a master degree requires 48 units)

Bond University Professor Geraldine Mackenzie

LLM (Legal Practice)LLM (International Legal Practice), Master of Business Law, Post-graduate Diploma in Legal Practice and Juris Doctor

- From A$14,710 for a Post-graduate Diploma in Legal Practice to A$82,560 for a Juris Doctor.

College of Law Neville Carter Graduate Certificate, Graduate Diploma or Master of Applied Law (Commercial Litigation), Graduate Certificate, Graduate Diploma or Master of Applied Law (Family Law) Legal Practice Management Course, in-house Legal Practice (graduate diploma)

Master of Applied Law (Wills and Estates), Master of Applied Law In-house Legal Practice (proposed)

From A$1,575 for the Legal Practice Management Course to A$12,950 for the Master of Applied Law (Family Law) or (Commercial Law)

Melbourne University Professor Michael Crommelin AO

LLM, graduate diplomas and Juris Doctor 25 new subjects including Chinese tax and investment law, resource and environment taxes and corporate governance and employee relations

LLM by coursework or coursework and minor thesis; specialist master degrees and graduate diplomas are all A$3,712.50 per subject, or a total of A$29,700. A Juris Doctor is A$93,630

Monash University Professor Arie Freiberg LLM, with seven specialist areas, Master of Regulatory Study and graduate diplomas in six specialist areas

Nine new subjects including innovation: labour, competition and intellectual property law perspectives, corporate environmental responsibility, international trade marks law, patent practice, drafting patent specifications, and advanced torts

LLMs and Graduate Diploma in Law are A$22,800 (for 48 credit points, which represents a standard full-time course load)

University of Adelaide Professor Rosemary Owens

LLM, Master of Laws/ Master of Commerce and Master of Comparative Law

International franchising and the law, introduction to environmental law, health and biotechnology law, migration law, work relationships and the law and personal property security law

A$16,500 for 24 units, an LLM requires eight subjects ranging between three and six units each

University of New South Wales

Professor Brendan Edgeworth

LLM with 10 specialisation areas, Master of International Law and International Relations. Master of Human Rights Law and Policy and Master of Taxation

LLM (Environmental Law). Includes subjects on climate change and natural resources law.

A Graduate Diploma in Law is A$12,480, an LLM is A$18,720, a Masters of Laws and Management is A$23,400 and an MBA is A$30,420. A Juris Doctor over three years is A$81,360

University of Sydney Professor Gillian Triggs LLM and 13 other specialist master programs, 11 graduate diploma in law courses

Will be announced in September LLM courses and graduate diploma law courses are A$22,080 (with the exception of the criminology courses).

University of Western Australia

Winthrop Professor William Ford

Graduate Diploma in Law, Graduate Diploma in Commercial and Resources Law, Graduate Diploma in Energy Law and LLM

Negotiation and regulation of the energy industries (proposed)

Graduate diplomas are A$9,922 (48 units), an LLM is A$19,844



practitioner can undertake within a number of specific areas. We find that there are quite a significant number of practitioners undertaking those programs, because they are profession regulated and practical, not academic.”

Gilbert + Tobin lawyer Simon Burnett says that while the LLM and other masters programs remain popular choices among his Gilbert + Tobin colleagues, he has observed more colleagues choosing to undertake specialist courses in line with their practice areas.

In contrast, Henry Davis York senior associate Iona Borthwick says the majority of practitioners at her firm still choose an LLM, rather than shorter specialised courses. “If you are going to do further study then [the LLM] is the natural course to choose,” she says. However, it wasn’t the right option for Borthwick, who opted instead for a Graduate


For years lawyers have undertaken further study to boost their credentials – it is well documented that in recent years

an increase in the number of lawyers opting for this path has eventuated. But increasingly, while traditional options such as MBAs or LLMs remain popular, the legal profession is moving towards shorter specialised courses aligned with practice areas.

Law Institute of Victoria general manager Julie McCormack, says that while MBAs are still an important avenue for the legal profession, they are more suited to practitioners in larger firms, whereas study in a particular field is more relevant in smaller firms.

“Most practitioners take five or six years to identify what area they want to settle into, once they do, they then start looking for short or long courses that compliment or round-off the skills they have in that area,” she says.

“We have postgraduate programs at the institute, called Accredited Specialisation, which comprise of assessment tasks an experienced

“Students [legal practitioners] recognise that a focus on their area of practice is worthy of further study, either to become better as a practitioner or to transition into a new area of practice”

John Nelson College of Law

Alex Cameron Gilbert + Tobin

http://www.collaw.edu.au/alp

40



Certificate in Applied Finance through Kaplan Professional. “While there is a lot of benefit in doing an LLM, in the short term I felt I needed to do this short course in finance to improve those skills,” she explains.

The financial crisis prompted G+T lawyer Alexandra Cameron to undertake a one-year Insolvency Education Program at Queensland University of Technology. “I had previously done some insolvency work, so I was interested in beefing up my skills in that area, to be better prepared if we got more insolvency work during the GFC,” she says.

By contrast, lawyers opting for an LLM may have broader motivations. Simon Burnett completed his LLM at the University of NSW and says that his aim was to gain more knowledge and experience in areas of law he did not study during his undergraduate degree. “When working

in law, you don’t always have the option of throwing around ideas and reading in-depth on a particular subject,” he says. “Because the course was essay-based, I could attend class each week, absorb knowledge and then pick a topic to write a paper on.”

Those topics Burnett chose to study included competition and litigation, which compare to his practice field, but also unrelated subjects such as refugee law, native title law, armed conflict law and Chinese law. “The knowledge and experience I now have in native title law is still useful to me. Migration is also a helpful area to know and I find it useful in the billable work that I do, because it has sharpened my skills.”

When to study Deciding on when to undertake further study can often be as difficult as deciding what to study. Burnett chose to commence his LLM early in his career, only two years after starting at Gilbert + Tobin; but admits early entry into post-graduate study is a double-edged sword. “It was good to

Simon Burnett Gilbert + Tobin

“I would definitely like to do more study in the future. It’s an integral part of our industry; you can’t get out of university and relax. It’s important to keep on top of what is happening and learn new skills”

Iona Borthwick Henry Davis York

http://www.masters.law.unimelb.edu.au



http://www.canberra.edu.au/facuities/law

42



do it then, because I didn’t have the same level of responsibility I have now; however, doing it that early could also be premature as you might not have a clear idea of where you want to go,” he explains. In contrast, Borthwick decided to wait a few years before undertaking her Graduate Certificate in Applied Finance.

She only decided to undertake the course after settling in a specific area of law. Having completed a Bachelor of Arts/Law degree, Borthwick moved into corporate law working on equity capital raising and M&A, despite not having a finance background. “I realised that it would have been beneficial for me to have undertaken some economics or finance subjects,” she explains. “I felt that I needed to hone in on those skills through a short course, so that I could understand our clients’ businesses

better,” she says. Borthwick says having those four

years of practice under her belt before undertaking study were beneficial and allowed her to apply her own experiences to what she was studying.Having taken this first step Borthwick says she intends to do more study throughout her career.

“I would definitely like to do more study in the future. It’s an integral part of our industry; you can’t get out of university and relax. It’s important to keep on top of what is happening and learn new skills.”

Trends and developmentsMichelle Mabille, marketing manager at the Australian National University Law School says that the university’s LLM (legal practice) program remains its most popular course amongst legal practitioners. “This is because they can receive credit for courses completed during the Graduate Diploma in Legal Practice (GDLP) and the courses can be completed online,” she says.

Subject areas which have grown

in popularity within the past year include international law and environmental law, adds Mabille. “Our environmental law program is at the forefront of teaching very topical courses and continues to change as new issues emerge, such as climate change,” she explains. Migration law also remained popular among those legal practitioners wishing to become migration agents; with more than 300 students seeking to be registered as agents following graduation from the school each year.

At Melbourne University Law School, tax law, construction law, corporations and securities law and IP law have emerged as the most popular areas of specialisation. Subject areas such as environment, energy and resources law have continued to prosper in recent years, in line with political and legal developments in those areas, says marketing manager for the law school, Amy Little. “There is also a move into international economic law. We have, however, seen a move away from e-law,” she adds. ALB

Michelle Mabille ANU

http://www.sydney.edu.au/law/fstudent/coursework/



http://www.int-bar.org/conferences/conf302/

44

FEATURE | UK careers >>


For years Australian and New Zealand lawyers have headed off to the UK to earn their stripes, build up experience and boost their salaries. Yet when the GFC hit, many young lawyers were left wondering what would become of them and their UK adventure

While some recruiters claim there has been a recovery in the UK legal market in recent months,

others are warning the outlook is still uncertain. “I think it is still very early to make an accurate assessment with respect to overseas recruitment from the UK firms,” says David Talalla, director of David Talalla & Associates. “The market seems to be slowly

► TAYLOR ROOT UK PRIVATE-PRACTICE SALARY SURVEY 2009-10 (LONDON)

PQE Small firm Medium-sized firm Large firm

NQ £35,000-£55,000 £48,000-£64,000 £60,000-£66,600

1 year £40,000-£58,000 £52,000-£66,000 £63,500-£72,500

2 years £45,000-£64,000 £57,000-£70,000 £66,000-£86,000

3 years £48,000-£70,000 £63,000-£74,000 £75,000-£93,000

4 years £52,000-£75,000 £66,000-£78,000 £86,000-£102,500

5 years £55,000-£80,000 £70,000-£85,000 £87,000-£110,000

Source: Taylor Root

The lure of London

CAREER MOVES



All of the recruiters interviewed by ALB said that they had observed more movement to places such as Hong Kong, Singapore, China and the Middle East than to the UK. However, recruiters readily concede that London remains a strong attraction. “I think that most legal practitioners look at it as part of a long-term plan,” says Dwyer. “It is more important for them to gain the skills [that] working in London has to offer – [it] gives them the chance to work on bigger deals, often spanning several markets.”

Annett says that those Australian lawyers in international firms should first attempt to transfer internally before heading to the UK. “You have to wonder, if you can’t get a transfer in the firm you are already in, what issues will you have to face when you get there?” she says.

International firms In contrast to the “big six” Australian firms which have only minimal operations in the UK, law firms such as Norton Rose or DLA Phillips Fox, which are part of an international network, may offer greater opportunities for those eying


picking up for junior-level corporate and commercial lawyers, with a particular slant to DCM, planning & environmental, and energy and resource lawyers to a lesser extent.”

GR Law recruiter Jane Dwyer agrees that there are some redeeming features of the UK market. “We have seen the market in London picking up in recent months. There is a lot more demand than there was a year ago, but it’s still not back to the levels of 2005,” she says.

Dwyer says that mid-level practitioners with between 3-7 years experience are having the most success, while the senior level remains competitive. Tallala says there are also still opportunities in smaller firms – however, in that scenario, Australian lawyers would need to be willing to make their own way to the UK and organise their own work visas.

Ultimately however, Tallala warns against over-exuberant optimism for the UK market. “My advice is to carefully consider the cost of living, the high level of tax and whether there is a quality and level of work they are after. Many of the Australian, NZ and US lawyers [in London] were made redundant and it will take some time for confidence in the UK to return.”

Other recruiters are equally lukewarm. “I can’t see the London market changing much in the next six months,” says Hughes-Castell senior consultant, Jayne Annett.“If an Australian lawyer is applying from here, then I would say the chances of securing a job are very slim. Australians would be competing against existing Australian lawyers already on the ground – possibly with similar experience – who are out of work, and not to mention UK lawyers who are still looking for work.”

It is somewhat sobering to reflect that many UK firms managed to increase PEP last financial year in the face of falling revenues – a strong indicator that law firms have been slimming down their lawyer numbers and cutting back on recruitment.

Jayne Annett Hughes-Castell

► TOP TEN COST OF LIVING CITIES (BASE CITY: NEW YORK, USA)

City, country 2010 ranking

2009 ranking

2008 ranking

Luanda, Angola 1 – –

Tokyo, Japan 2 1 2

Ndjamena, Chad 3 - -

Moscow, Russia 4 3 1

Geneva, Switzerland 5 4 8

Osaka, Japan 6 2 11

Libreville, Gabon 7 1 1

Hong Kong, Hong Kong 8 5 6

Zurich, Switzerland 9 6 9

Copenhagen, Denmark 10 7 7

Singapore, Singapore 11 10 13

London, United Kingdom

17 16 3

Paris, France 17 13 12

Sydney, Australia 24 66 15

New York, USA 27 8 22

Melbourne, Australia 33 92 36

Perth, Australia 60 117 53

Auckland, New Zealand 149 138 78

Source: Mercer Cost of Living Survey 2010

http://www.lawstaff.com.au

46



► HUGHES-CASTELL WINTER 2009-10 SALARY TRENDS AND PREDICTIONS (LONDON)

PQE Small firm Medium-sized firm Large (Magic Circle) firm

NQ £42,000-£52,000 £52,000-£62,000 £59,000-£61,500

1 year £43,000-£56, 200 £58,000-£67,000 £64,000-£68,000

2 years £45,000-£62,000 £60,000-£75,000 £67,900-£73,000

3 years £50,000-£67,000 £63,000-£83,000 £77,500-£86,000

4 years £52,500-£71,000 £68,500-£89,000 £86,000-£92,500

5 years £54,500-£75,000 £70,000-£94,500 £96,000-£97,250

London. At UK-based Norton Rose, six of the 17 Australian fee earners in London only joined the firm in the past 12 months. Four of those transferred from the firm’s Australian offices, while other Australian practitioners have moved to other Norton Rose offices, in locations such as Hong Kong and Singapore.

International HR manager for Norton Rose, Sara Coleman, says the firm encourages employees to work in other offices. “This year we have launched the ‘Global Mobility Register’,

an online form which employees can complete to express interest on working in other international offices. We will use this source of information to match interested candidates to vacancies, where their skills, experience and preferred location match.”

Coleman says lawyers with expertise in media and technology, financial services, asset finance, energy and infrastructure and commodities would have greater success, as these areas were in demand at the moment.

DLA Piper head of media and PR, Helen Obi, says that the firm has more UK opportunities on offer than last year, and there has been a corresponding increase in interest

Sara Coleman Norton Rose

“My advice is to carefully consider the cost of living, the high level of tax and whether there is a quality and level of work they are after ”

David Talalla David Talalla & Associates

Source: Hughes Castell



from Australian applicants. Areas of practice that are in demand at DLA Piper revolve mainly around transactions and finance.

When the going gets tough... Australian and New Zealand firms have noted an increase in the number of expatriate lawyers returning home. That has certainly been the case at the Australian outpost of Allen & Overy, where news of the Magic Circle firm’s arrival ‘Down Under’ led to countless inquiries from Australians at the firm’s other offices.

“We are in the fortunate position that we had a high level of interest from Australian lawyers in top-tier firms, as well as practitioners already within the Allen & Overy global network,” said Allen & Overy director of human resources, Fiona Spender. Interest was particularly strong from senior associates who had previously worked in top-tier Australian firms before joining Allen & Overy overseas, Spender adds. “We have a couple of staff here who have transferred from other offices, and we have noted interest from staff at other offices who we will continue to be in contact with.”

However, the traffic may not be completely one-way. Spender says there has been a pick-up in the level of recruitment from the UK office, and expects to see more secondments

Fiona Spender Allen & Overy

happening in the next 12 months as roles begin to open up again.

Things to consider While Australian and New Zealand legal practitioners might be able to secure a job in the UK, other factors to consider are income and the costs of living overseas. Salaries in Australia remained stable during the GFC; whereas salaries in London for non-partners fell by about 10% amongst Silver Circle and medium-sized UK firms, according to the 2009/10 Taylor Root salary survey.

According to this survey, salaries in the UK range from £40,000 (A$71,000) in a small firm to £72,500 (A$119,000) in a large firm for first-year lawyers. By comparison, a Mahlab salary survey found that in Australia, first-year lawyers can expect to earn between $50,900 in a small firm and $77,000 in a top-tier firm.

The unemployment rate in the UK is also of concern. In the three months to April 2010 it was 7.9%, up 0.1% on the quarter, whereas in Australia the official unemployment rate was measured at 5.3% in March.

In the past two years the cost of living in London and Sydney has fallen markedly, as the GFC impacted on foreign exchange rates. The Mercer Worldwide Cost of Living Survey reports that London fell from third place in 2008, to 16th and now 17th in 2010. Sydney’s fall has been more dramatic, from 15th in 2008, to 66th and then 24th this year. ALB

http://www.lawstaff.com.au

PROFILE | managing partner >>

48 Australasian Legal Business ISSUE 8.8



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Trademarks and patents are rather like a good insurance policy: they might be a chore to organise but they’re well worth

the trouble. That’s the view of patent attorney Leon Allen, who, in his role as head of the patents team at Davies Collison Cave (DCC), has had abundant opportunity to perfect the insurance analogy. “You don’t see the value of intellectual property when you file the patent application; you see it down the track when hopefully you don’t have to litigate,” he says. “You can file a general patent: that gives you some protection, but it’s a bit like an insurance policy without anything behind it.”

DCC is a boutique IP practice and one of a growing number of IP specialist firms which offer both patent/trademark application related-services and intellectual property law advice. “We draft and prosecute patent applications both here and overseas; we also do the same thing with trademarks,” Allen says. “The [boutique] model works well as a business model, because all we do is IP. There is quite a lot of cross-fertilisation across the arms of the business.”

Highs and lowsHaving been a partner at DCC since 1998 and managed the patent side of the firm since 2004, Allen has witnessed the highs and the lows of the practice: from the heady pre-credit crunch days to the depths of the GFC, which brought the firm to a grinding halt after nearly a decade of growth.

“One of the things we felt the most was the decrease in activity from international players coming into Australia. If you look at the Australian figures, they came off something like 15% reasonably quickly,” he says.

The GFC pessimism hit IP practices particularly hard. “IP is all about looking forward. You have to forecast what you want to have in the market in a few years’ time, and that’s why there is a bit of hesitancy when things are

Davies Collison Cave was recently named ALB’s ‘IP Specialist Firm of the Year’ – for the fourth time – at this year’s Awards. But 2010 has not been all clear sailing for the firm, as head of patents Leon Allen reveals to ALB

ALB 2010 MANAGING PARTNER SERIES

Leon Allen, Davies Collison Cave: The art of patent perfection

“IP is all about looking forward. You have to forecast what you want to have in the market in a few years’ time, and that’s why there is a bit of hesitancy when things are tough to invest too much money in IP. It’s all about investing in tomorrow”

Leon Allen Davies Collison Cave

tough to invest too much money in IP,” says Allen. “It’s all about investing in tomorrow.”

The firm retrenched more than 20 staff earlier this year as a result of the drop in work. “I think it was the first time we have ever had to retrench staff, but you can’t keep capacity if you don’t have the work. 30% of our staff have been with us for 10 years or more, which is why it was so difficult to make those redundancies,” says Allen.

The timing of the redundancies is also of interest, coming earlier this year at a point well after the initial round of redundancies seen from most Australian law firms. This, Allen says, is explained by the fact that the IP business has a significant time lag compared to the rest of economy. “Between a patent application being

1981

Joined Shelton Waters IP firm

1995

Joined Davies Collison Cave

Became a partner of the firm

1998 2004

Appointed head of patents for the firm

LEON ALLEN – CAREER TIMELINE

Appointed to the Advisory Council on Intellectual Property (ACIP) for the Federal Government

2006

Became chair of ACIP

2009


50 Australasian Legal Business ISSUE 8.8

technical knowledge we can. You can never be too strong in technology when it comes to protecting IP.” The firm employs more than 60 specialists who assist with both patent writing and litigation. “We try and get the best and brightest people we can in a particular field, which creates a collegiate atmosphere,” says Allen. This collegiate atmosphere or spirit of cooperation within the firm is something Allen considers to be very different to what he has observed in general practice firms.

The other key distinction, in Allen’s view, is a different attitude towards litigation. “We regard going to litigation as a failure, because we are fundamentally scientists and engineers, so we are resolution-driven. It’s a different attitude,” he says. To be fair, litigation and dispute lawyers also frequently express their desire to avoid litigation – although cynics may quickly point to the clear incentives which exist to go down that path.

Becoming a patent attorney starts with a degree in science or a technological field such as engineering. “It takes quite a while to become a patent attorney,” says Allen. “IP specialisation in general is a long apprenticeship, which can make it hard to really assess the potential people have to become good attorneys.”

Allen himself started as a patent attorney at Shelston Waters (now Shelston IP) in Sydney in 1981, before moving over to DCCin 1995. “When I first started in this business, very few people knew what IP was, and less knew what it meant. It’s gone from obscurity to being on everyone’s lips. I don’t think there would be too many corporates or SMEs that are not aware of IP today.”

In addition to his managing role, Allen is president of the Institute of Patent and Trade Mark Attorneys of Australia, international vice-president of the Asian Patent Attorneys Association, chairman of the Australian Government Advisory Council on Intellectual Property and a member of the Advisory Board of the Intellectual Property Research Institute of Australia. However, he’s never lost sight of what motivated him to become a patent attorney in the first instance. “My passion is drafting patent specifications. I really enjoy that and I still dabble in it from time to time.” ALB

filed and the finalisation of that process, there is a period of around 12 to 18 months,” Allen says.

While revenues were down last financial year, Allen says he is quietly confident that in the coming financial year the firm will be able to increase revenues and get back on the growth curve. “We are now in the position where, with the growth of the local market, I would envisage growing our workforce in certain areas in the not-too-distant future,” he says.

However, the fragile state of the global economy may continue to cast a pall over the firm’s workflows. 50% of DCC’s revenue comes from overseas businesses. In addition to subdued IP investment, fluctuations in the value of the Australian dollar are also having an impact on the bottom line. This raises an interesting question as to whether firms such as DCC would be better off attempting to excise the vagaries of the Australian dollar

by opening offices globally. This is something which Allen says is not on the agenda at present. The desire not to compete with the same overseas firms that refer work to DCC is a significant factor. “The challenge is to maintain a strong presence in the international market – but there is increasing competition in the market,” Allen says.

Domestically, the firm is anxious to maintain and improve market share while keeping its costs down. “We have a dominant market share, so it’s everybody else’s job to take it off us. Realistically I would hope to achieve a 10% growth in revenue in the coming financial year... if we achieve 10%, then I think we will have done well.”

Secret to success The secret to a successful intellectual property firm, says Allen, is having staff with technical knowledge. “IP is always about something technical. We always seek to have the very best

“We regard going to litigation as a failure, because we are fundamentally scientists and engineers, so we are resolution driven. It’s a different attitude”

Leon Allen Davies Collison Cave

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http://www.lexisnexis.com.au/internationalcontent

52

FEATURE | IP law >>


Companies are emerging from the gloom of the financial crisis with a new perspective on IP, according to lawyers. ALB investigates

If you exclude for a moment the work derived from mergers and acquisitions, intellectual property practices never really felt the worst

of the global financial crisis. Sure, business was down over 2009 like it was in almost all areas of the law, and some IP firms were forced to make redundancies. But even through the worst, Australian and New Zealand companies kept filing and litigating and looking to exploit the potential of their intellectual property – albeit in a less prolific way than the year before.

In fact, in last year’s ALB overview of IP practices, some lawyers even reported that litigation was increasing, as lawyers looked to enforce IP rights. Yet despite being sheltered from the worst of its effects, IP practices have been shaped by the GFC in some very important ways – not least by drawing clients’ attention to the value of assets they didn’t previously think about enough. Now that the economy

The value of IP

123

“In the GFC they were cleaning up their asset base and asking what was going to make them money”

Rationalisation of IP portfolios

David Webber Davies Collison Cave

“[Clients] want to know what’s out there and what their competitors are doing in the IP area”

Establishing IP management strategies for the future

Brett Lunn FB Rice

“There’s such a lot of online activity. At management level there’s a lot more understanding of the value of IP and a willingness to protect it”

Protecting IP online

Lisa Lennon Gilbert + Tobin

► IP LAW: THREE KEY TRENDS


FEATURE | IP law >>


http://www.wrays.com.au

http://www.fbrice.com.au

54

FEATURE | IP law >>


has turned the corner, greater client awareness of IP issues is driving significant growth in many of Australasia’s IP practices.

From stocktake to strategy Almost all the lawyers that ALB spoke to said the financial crisis drove their clients to assess where they were at with their IP. For many, this meant no longer filing the same numbers as previously, a position which was particularly true if the client was from North America or Europe, hit harder by the GFC than their Australasian counterparts. “There was a period going back a few years where it seemed clients were happy to see how much intellectual property they could acquire,” says partner and patent attorney David Webber of Davies Collison Cave. “But in the GFC they were cleaning up their asset base and asking what was going to make them money.”

The managing partner of Australian patent and trademark attorneys FB Rice, Brett Lunn, says “there was a real rationalisation where companies looked at their patent portfolios and what they were going to keep and what they weren’t going to renew. We were looking at this and watching what was going to happen. Now we’re seeing that companies are at the end of that process and what they’re left with is their core IP, the stuff that’s going to be important to them for as long as 20 years – rather than just over an economic cycle,” he adds.

Lunn says that this same trend for IP consolidation has also been driving clients of all sizes to move beyond

“We’ve noticed far more confidence than this time last year, so clients are looking to expand and looking at establishing their IP rights, and that’s leading to registration work as well as acquisitions and licence registrations”

John Glengarry Buddle Findlay

thinking of intellectual property in terms of just filing and litigation, and to start seeing their lawyers for strategic IP advice. “They want to know what’s out there and what their competitors are doing in the IP area also,” he says. “So we’re seeing more commercial and strategic advice regarding competitors’ positions too,” Lunn says.

One way many companies are becoming more serious about their IP is by taking action to enforce their brand online – for example, cracking down on ‘cybersquatters’. “There’s such a lot of online activity,” Gilbert + Tobin trade marks practice partner Lisa Lennon says. “At management level there’s a lot more understanding of the value of IP, and a willingness to protect it and to engage in conversations on how to protect and enforce it.” Lennon points out that the push to protect online identity is also being aided by regulatory developments. For instance, the Internet Corporation for


FEATURE | IP law >>

Assigned Names and Numbers (ICANN) is currently looking at ways to expand and strengthen the protection of generic top level domain names.

A number of recent high-profile cases are also drawing the attention of companies to IP issues in the online space, providing lawyers with both advice and litigation work. These include the Federal Court’s decision in favour of iiNet, in which G+T represented the Australian Federation against Copyright Theft, as well as the High Court’s rulings in favour of IceTV against the Nine Network.

All the lawyers ALB spoke to anticipated that online IP issues would continue to grow in the foreseeable future. Not least this is due to the uplift in online trade expected, as a result of the Australian government’s National Broadband Network (NBN) and the New Zealand government’s National Fibre Network.

Help for IP lawyers It’s not only through much-needed infrastructure projects that lawyers say that governments are driving IP-related work. Davies Collison Cave’s partner and patent lawyer Mark Roberts points out that a supportive government approach is critical for small innovative businesses, who hope to exploit the value of their IP by registering and enforcing patents. Roberts attributes some of the lag in patent registration during the financial crisis to the Australian government’s abandonment of schemes to help small business.

He also believes that the government’s recent establishment of (and substantial funding for) research assistance body Commercialisation Australia should help more small businesses get their ideas up and running and, in turn, drive more IP-related work.

But lawyers also agreed that the main driver for growth for the next 12 months is most likely to be continued favourable economic conditions in Australia and New Zealand, as well as recovery in the economies of North America and Europe. The effect of increased business confidence is already being felt in this space: as Brett Lunn puts it, “the rate of inventiveness is actually fairly constant. It’s how well that inventiveness is supported by the economy and by people’s willingness to invest in IP that matters. There was a period there where people weren’t doing it but now their mindset has moved on.”

A number of partners pointed out that this change in mindset has led to clients taking up projects that were put “on ice” during 2009. This was also leading to an increase in work across all areas of practice. Partners all believe that the worst of the economic conditions were now behind us, and the Australasian economies had emerged much better off than those of most industrialised countries.

“We’ve noticed far more confidence than this time last year,” said Buddle Findlay’s New Zealand partner John Glengarry. “So clients are looking to expand and looking at establishing their IP rights, and that’s leading to registration work as well as acquisitions and licence registrations, both in New Zealand and Australia.”

Trends: insolvencies and Chinese investment Mark Gavin, a partner and founder of New Zealand technology and IP firm Hudson Gavin Martin, says that

http://www.hgmlegal.com

56

FEATURE | IP law >>


GFC-related insolvencies are still driving some IP work in New Zealand. Rights owners are looking to the value of their property in the context of receivership. For example, Gavin says that his firm recently acted for a DVD distributor who took its case to the High Court, in order to try to assert its IPR over the rights of the banks.

Buddle Findlay’s Glengarry also says that IP work is becoming more international and that it tended to follow trading patterns, with increased Chinese investment abroad making Chinese businesses increasingly important as a source of work in both China and abroad. Davies Collison Cave’s Roberts also points out that the Chinese government was putting a lot of money into innovation through all levels of the economy, investing heavily in research and development hubs.

An increased level of Chinese innovation means companies are sometimes registering offshore and taking advantage of the certainty

afforded by Western IP jurisdictions. This has also led to a number of Chinese firms scouting the Australian marketplace – both to better understand the local IP regime as well as the local talent.

While the amount of strategic advice increases and the online space continues to grow, the bread-and-butter work of IP practices (filing and litigating) also continues to move nicely in the background. In that sense, the growth areas of IP practice seem to be adding a layer to the top of lawyers’ workloads, rather than replacing traditional areas of legal work.

What this all means is that several of the region’s IP practices are looking to grow and top take on new staff. “We’re at a point where we have a lot of confidence about the future again,” FB Rice’s Lunn says, echoing the sentiment of other partners

“We came out from the GFC exactly where we predicted and now we’re recruiting across the team again.” ALB

“There was a period going back a few years where it seemed clients were happy to see how much intellectual property they could acquire”

David Webber Davies Collison Cave

http://www.trumanhoyle.com.au


FEATURE | IP law >>

http://www.alpma.com.au

58

FEATURE | interview >>


What exactly are rare earths? One man who knows a bit more than most on the subject is Lynas' general counsel and company secretary Andrew Arnold

Andrew Arnold, Lynas Corporation

Rarified space

Playing Aussie Rules football in Seattle is one of the fond memories Andrew Arnold has of a two-year secondment in the

US. “I spent several years working my way up from junior solicitor to partner at Norton Rose (previously Deacons),” recalls Arnold. “Our firm had an excellent network of international offices, and in 1998 I was offered a secondment with Riddell Williams in Seattle. My two years in Seattle were a fantastic time – both professionally and personally.”

Riddell Williams was the Seattle associate office of the now-defunct US firm Graham & James, which was previously in a three-cornered association with Deacons HK and Deacons Australia. Given the present condition of the global economy, job prospects overseas may not be what they once were, but Arnold says that he would encourage young lawyers to travel if they get the opportunity. “You meet great new friends and you learn so much more when you’re out of your comfort zone,” he says.

“Ideally, overseas travel should be arranged in consultation with your existing firm so that you have a great job waiting when you come home.”

That, in fact, was the course which Arnold himself took, returning home to Deacons after his secondment, before eventually moving to his current role at Sydney-headquartered rare earths miner and supplier Lynas Corporation.

LynasThe Lynas company website provides some clarification on what exactly constitutes “rare earths”: “Rare earths are a moderately abundant group of 15 metallic elements known as the Lanthanide series (atomic numbers 57 through to 71) plus Yttrium (39),” explains the marketing material without a trace of irony.

“Although Scandium (atomic number 21) is not a rare earth element, it is commonly included with the Lanthanides because of its similar properties.” Presumably that explanation provides some illumination for those readers with a scientific bent, but Arnold puts it in a practical context for the rest of us.

“Rare earths are metals that are vital for a range of environmental applications including hybrid vehicles, long life light bulbs, catalytic converters, and wind turbines,” he says. “China currently supplies approximately 90% of the world’s rare earths, and Lynas will gain a first mover advantage from being the first

IN-HOUSE PERSPECTIVE

“I would advise a lawyer who aspires to be a general counsel to get really close to his or her clients – and to never underestimate the role of networking ” Andrew Arnold

Lynas

new supplier of significant volumes outside China.”

Lynas is building a concentration plant at Mt Weld, Western Australia, and a processing plant at Kuantan, Malaysia, with production scheduled to commence in Q3 2011. The company is small – but growing – and Arnold is currently the only full-time lawyer on board, although the team also includes a company secretary who is experienced in corporate and ASX-related issues. “Working for Lynas has two significant added benefits,” says Arnold. “First, we are building a new business and so we get to see very tangible results from our work, and second, our business will make a vital contribution to key environmental industries.”

Arnold is being kept busy with the work associated with the building of the two new industrial plants. As the only full-time lawyer, his role runs the full gamut of activities such as capital raisings, M&A and employment issues. He also serves on the Lynas executive committee, contributing to strategies across the whole of the Lynas business.









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60



of the escrowed funds were returned to the bondholders, with some of the escrowed funds released to Lynas and all of the bonds being cancelled.

Three months later, Lynas had reached a tentative agreement for a new funding arrangement with Chinese corporation CNMC. The investment was subject to Foreign Investment Review Board approval, and after several months FIRB indicated it was only prepared to approve the investment if some key deal terms were changed. FIRB’s proposed changes were unacceptable to CNMC, so the proposed investment was terminated in late September.

This must have been a moment which caused some sleepless nights for Lynas management and staff, but fortunately, global equity markets had recovered over the intervening period. By November 2009 Lynas had completed an A$450m rights issue and placement transaction, using an AREO structure. “It was a type of transaction that I’d previously worked on at Deacons, so it was something I was quite familiar with,” says Arnold “It was a very successful transaction for the company.”

External advisorsThe principal legal advisors for Lynas are Norton Rose in Australia and Jeff Leong Poon & Wong in Malaysia. The company has also engaged various other firms in Australia and overseas, including Freehills and Baker & McKenzie. “I enjoy working with Shaun Clyne from Norton Rose on corporate and fundraising matters,” says Arnold. “Shaun provides commercially-savvy advice and his network of contacts in the ECM industry is excellent.”

Like many other private-practice lawyers who have moved in-house, Arnold has grappled with the tricky question of whether to continue the relationship with his former firm. “It would be incorrect to say that you shouldn’t work with your previous firm because there might be a perception that you’re too soft on them. Inevitably

GFCLike many GCs, Arnold found his workload weighted towards the dispute resolution side as the GFC took hold. In February 2009, Lynas became involved in a dispute with some bondholders who alleged that the 'conditions precedent' for the release to Lynas of some escrowed funds had not been satisfied. “We suspected that some of the bondholders were motivated by their own GFC-related pressures,” he observed. Rather than become involved in a lengthy dispute, Lynas entered into deeds of release with all of the bondholders. The basis on which most

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1993

Joined Deacons

1998

Secondment to Riddell Williams Returned to Deacons

2000 2008

Joined LynasCAREER TIMELINE

– not just in the legal industry but in business generally – a lot of key relationships are based on networks that are built up over years,” he says. “Ultimately it is a question of the individual GC being trusted and empowered to manage the legal relationships effectively. One of the benefits of dealing with people whom you know is that you literally do know what their strengths are. I would regard it as a positive to have a deep understanding of the strengths of individual practitioners, because you have worked with them in the past.”

More generally, Arnold enjoys working with people and prefers external lawyers who combine technical expertise with a client-friendly manner. Another important part of a GC’s role is managing the legal budget. “I’m always impressed by lawyers who are so busy that they are motivated to turn a $100,000 transaction into a $70,000 transaction so that their team can move onto the next deal,” he says.

“The opposite is a complete turnoff, i.e. lawyers who appear to be spinning their wheels or who look like they are working outside their normal areas of technical expertise.”

What advice can Arnold give aspiring GCs? “I would advise a lawyer who aspires to be a general counsel to get really close to his or her clients – and to never underestimate the role of networking,” he says. “The chances of finding a great GC role by picking up a telephone and ringing a recruiter are surprisingly slim. I can think of several GCs who have found great roles through their own networks, including through former clients.”

Arnold himself is counted among that number – his transition from private practice to his current role at Lynas came about after having coffee with the executive chairman of Lynas, who was a client at the time. He has never looked back. “I’m certainly very lucky to have found my niche at Lynas. It might sound like a cliché, but most days I really enjoy coming to work.” ALB



http://www.albmasterclass.com

62

MARKET DATA | M&A >>


Australasian M&A Activity - Quarterly Trends

League Table of Financial Advisors to Australasian M&A (Jan 01, 2010 - July 30, 2010)League Table of Legal Advisors to Australasian M&A (Jan 01, 2010 - July 30, 2010)

5-Jul-10 Sucrogen Limited Advising seller:Freehills

Wilmar International Limited

Minter Ellison CSR Limited 1,750

30-Jul-10 AWB Limited Freehills GrainCorp Limited Gilbert + Tobin 1,594

5-Jul-10 Loscam Limited (Controlling stake)

Minter Ellison China Merchants Group Limited

Freehills; Richards Butler in association with Reed Smith

Affinity Equity Partners 650

7-Jul-10 Sigma Pharmaceuticals Limited

Aspen Pharmacare Holdings Limited

956

2,2535-Jul-10 Centennial Coal Company Limited (80.1% Stake)

Freehills Banpu Public Company Limited

Norton Rose

19-Jul-10 Healthscope Limited Minter Ellison; Sullivan & Cromwell

The Carlyle Group; and TPG Capital

2,630Freehills; WongPartnership

35330-Jul-10 RD Card Holdings Australia Pty Limited

Palamon Capital Partners LPWright Express Corporation Mallesons Stephen Jaques; WilmerHale

AnnouncementDate

Target Company Target/SellerLegal Advisor

Bidder Company Bidder Legal Advisor Seller Company Deal Value(AUDm)


Top 10 Announced Deals - Australasia (3 July, 2010 - 30 July, 2010)

Valu

e (A

UDm

)

Value (AUDm)

Num

ber o

f dea

ls

Volume

00

10,000

30,000

40,000

50,000

60,000

70,000

80,000

20,000

120

140

160

80

100

20

40

60

180

200

Q103

Q209

Q310*

Q210

Q110

Q409

Q309

Q109

Q203

Q303

Q403

Q104

Q204

Q304

Q404

Q105

Q205

Q305

Q405

Q106

Q206

Q306

Q406

Q107

Q207

Q307

Q407

Q108

Q208

Q308

Q408

29-Jul-10 Mitchell Communication Group Limited

Mallesons Stephen Jaques Aegis Group Plc Freehills; Slaughter and May 338

MARKET DATE | M&A >>

M&A TRANSACTIONS AND STATISTICAL ANALYSIS

Notes: Based on announced deals, including lapsed and withdrawn bids, from 3 July 2010 to 30 July 2010•Based on geography of either target, bidder or seller company being Australasia•Includes all deals valued over USD 5m. Where deal value not disclosed, deal has been entered based on turnover of target exceeding USD 10m•Activities excluded from table include property transactions and restructurings where the ultimate shareholders' interests are not changed•League tables are ranked by volume•Q3 10 * = 1 July 2010 to 30 July 2010

Rank House Value (AUDm) Deal Count

1 Freehills 24,314 35

2 Mallesons Stephen Jaques 25,276 29

3 Minter Ellison 6,801 25

4 DLA Piper 1,033 19

5 Clayton Utz 4,794 18

6 Allens Arthur Robinson 26,442 17

7 Norton Rose 4,977 16

8 Blake Dawson 12,100 15

9 Baker & McKenzie 2,366 12

10 Gilbert + Tobin 6,918 10

Rank House Value (AUDm) Deal Count

1 Goldman Sachs 8,445 16

2 Macquarie Group 26,116 15

3 UBS Investment Bank 13,782 14

4 Deloitte 6,317 12

5 KPMG 1,293 11

6 JPMorgan 18,117 10

7 Deutsche Bank 17,973 10

8 Bank of America Merrill Lynch 14,568 8

9 Grant Samuel 2,513 6

10 PricewaterhouseCoopers 813 6

In association with

30-Jul-10 Dalkia Polska SA (40% Stake)

Industry Funds Management Pty Limited

Linklaters 575Dalkia International

5-Jul-10 Secura NV Advising seller:Baker & McKenzie

QBE Insurance Group Limited

NautaDutilh; Slaughter and May

KBC Group NV 399

63

MARKET DATA | capital markets >>


DEBT CAPITAL MARKETS TRANSACTIONS LIST Australia, New ZealandJul 11-Aug 7

Issuer Proceeds (USDm)

Issue date

Currency Bookrunner(s) Sector

AUSTRALIA

Westpac Banking Corp 2,990.2 07/26/10 USD Citigroup Global Markets Japan Mizuho Securities Co Ltd Nomura Securities

Financials

National Australia Bank Ltd 769.6 07/23/10 JPY Commonwealth Bank of Australia UBS Investment Bank

Government and Agencies

Tasmanian Public Finance Corp 666.3 07/15/10 AUD JP Morgan Australia Ltd National Australia Bank Bank of Scotland (Australia)

Financials

Bella Trust Series 2010-1 531.7 07/16/10 AUD Deutsche Bank Securities Corp Financials

ANZ Banking Group Ltd 500.0 08/04/10 USD Bank of America Merrill Lynch Citi RBS Macquarie Bank

Financials

Macquarie Group Ltd 499.7 08/03/10 USD Citigroup Global Markets Japan Mizuho Securities Co Ltd Nomura Securities

Financials

National Australia Bank Ltd 374.0 07/23/10 JPY ANZ Banking Group National Australia Bank

Energy and Power

APT Pipelines Ltd 260.4 07/15/10 AUD Westpac Institutional Bank Financials

ConQuest 2010-2 Trust 224.1 07/23/10 AUD Deutsche Bank Securities Corp Financials

National Australia Bank Ltd 150.0 07/16/10 USD Deutsche Bank AG (Australia) Government and Agencies

New South Wales Treasury 133.6 07/21/10 AUD Goldman Sachs International Financials

Commonwealth Bank of Australia 65.0 07/27/10 EUR Deutsche Bank Securities Corp Financials

National Australia Bank Ltd 15.0 07/19/10 USD BNP Paribas SA Financials

Commonwealth Bank of Australia 14.2 07/12/10 HKD HSBC Holdings PLC Financials

NEW ZEALAND

ANZ National (Intl) London 999.2 08/03/10 USD Barclays Capital ANZ Banking Group JP Morgan

Financials

Westpac Securities NZ Ltd 285.0 07/28/10 CHF Credit Suisse Zuercher Kantonalbank

Financials

BNZIF-London Br 97.5 08/02/10 CHF UBS Investment Bank Financials

Auckland City Council 36.4 07/15/10 NZD Bank of New Zealand Government and Agencies

Taupo District Council(NZ) 18.2 07/23/10 NZD ANZ Banking Group (NZ) Government and Agencies

Hamilton City Council 17.8 07/12/10 NZD ANZ Banking Group (NZ) Government and Agencies

EQUITY CAPITAL MARKETS TRANSACTIONS LISTAustralia, New ZealandJul 11-Aug 7

NB: Does not include transactions valued at less than than USD10m, best efforts transactions and private placements

Issuer Proceeds (USDm)

Issue date

Currency Bookrunner(s) Sector

AUSTRALIA

Gloucester Coal Ltd 833.9 08/04/10 AUD UBS AG RBS Morgans Ltd

Materials

Riversdale Mining Ltd 241.3 07/16/10 AUD UBS Australia Ltd Materials

Andean Resources Ltd 223.4 07/21/10 CAD BMO Capital Markets RBC Capital Markets

Materials

SAI Global Ltd 105.2 07/23/10 AUD Macquarie Equity Capital Mkts Consumer Products and Services

iiNet Ltd 63.7 07/30/10 AUD Goldman Sachs (Australia) JBWere Ltd

High Technology

Cromwell Group 47.7 07/14/10 AUD RBS Morgans Ltd Real Estate

Cardno Ltd 44.8 08/03/10 AUD RBS Morgans Ltd Industrials

Dart Energy Ltd 31.8 07/21/10 AUD Citibank (Australia) UBS Australia Ltd Wilson HTM

Energy and Power

Source: Thomson Reuters

Source: Thomson Reuters

64

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