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THIS WEEK
PILGRIMS JOURNEYThe man protecting privacy
BOOMTOWNBOOMTOWN
BOOMTOWNBOOMTOWN
BOOMTOWNIs Perths image a facade?
LEGAL SPOTLIGHT
OUR FUNDING FATHERSThe money
behind litigation
OPINION
TRIAL BY MEDIALawyers and the court of public opinion
IN-DEPTH
TWEET TO YOUR SUCCESSRecruitment leaves its Marque
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International Private PracticeVietnam | Corporate4-6 yearsThis
role involves a mix of public and private M&A, joint ventures,
private equity and securities offerings from complex transactions
to smaller deals providing greater responsibility. You will deal
directly with multi-national corporations and financial
institutions assisting on structuring, documenting, negotiating,
licensing and post-licensing aspects of projects. You will be
expected to mentor and supervise junior lawyers on relevant
matters. Top or highly regarded mid tier background. Ref:
VTM/4471/RL
Bangkok | M&A / Private Equity Mid Level Rare opportunity to
work on cross border deals from the Bangkok office of this
international firm. You will have at least 3 years of relevant
experience gained from a top tier or similar quality law firm. You
will act for clients within a range of sectors on private and
public company acquisitions and JVs. You need to be Commonwealth
qualified but Thai language ability is not necessary. Ref:
BAN/4452/RL
Jakarta | Corporate M&A Junior Partner or Senior AssociateA
leadership opportunity is available for a dynamic M&A
practitioner interested in relocating to one of the top performing
economies in the world and the largest economy in SE Asia. To be
successful in this role you will need a broad M&A background
and strong technical drafting expertise and the ability to take the
lead on complex negotiations and transactions. Industry sectors
include natural resources and commodities, oil and gas, mining,
water and power. Ref: JAK/4474/RL
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 3
6 THIS WEEK: A round-up of the latest legal news
10 IN-DEPTH: An international conference in Sydney put the
criminal justice system under the microscope. Justin Whealing and
Stephanie Quine report
12 IN-DEPTH: This year, Marque Lawyers decided to recruit their
summer clerks via Twitter. Now, managing partner and chief judge of
tweets Michael Bradley tells us how it went and what they
learned
14 LEGAL SPOTLIGHT: Draft regulations for litigation funders are
set to apply from next month. Justin Whealing looks at whether this
will inhibit access to justice or make them more financially
accountable
16 OPINION: As the number of cases receiving significant media
attention grows, Joe Murphy and Alana Paterson ask where lawyers
need to draw the line when it comes to engaging with the press
18 COVER STORY: With global firms moving in and local firms
bulking up in the face of the resources boom, it seems the streets
of Perth may well be paved with gold. But are things really as good
as they seem? Claire Chaffey finds out
24 CAREER COUNSEL: Male managers are the greatest ally of
working mothers, according to a study on the advancement of women
in the workforce
26 FOLKLAW: The lighter side of the law
ContentsThe war for talent in Perth is definitely a war its not
a battle Nick Nichola, managing partner, Middletons See page 21
18
14
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4 LAWYERS WEEKLY 16 SEPTEMBER 2011 www.lawyersweekly.com.au
EditorsNoteTHE GOOD times in Perth will keep rolling along.
That is the common perception of the Western Australian capital
as the resources boom continues to fuel the Australian economy,
with six international law fi rms moving to the city over the last
two years to take advantage of the riches on o er.
However, while there might be lots of work for energy and
resources lawyers, Claire Cha eys cover story on Perth (see page
18) shows that for many people in Western Australia, including
lawyers, the wealth generated from that sector is not trickling
down.
Hylton Quail, the president of the Law Society of Western
Australia, told Lawyers Weekly that many members of his society are
going through tough times.
This is a story of a two-speed economy, he said. There is no
doubt that in some practice areas there is, if not a crisis, a real
tightening of the market.
An international survey in July found that Perth is the 13th
most expensive city in the world cheaper than Sydney and Melbourne,
but more expensive than London and New York.
Steepling prices for amenities, such as water and electricity,
as well as rent increases at a higher rate that in Sydney,
Melbourne and Brisbane, are making it harder for the many people in
Perth, such as the surplus of graduate lawyers in the city, to reap
the rewards of the boom times.
Despite the massive contribution the energy and resources sector
makes to Australias export share (piquing the interest of global
law fi rms), the reality is that Australia is still a
services-based economy.
Law fi rms, which make a signifi cant contribution to the
services sector, realise this. That is why fi ve of the six global
fi rms in Perth have o ces in east-coast locations in Australia and
why it would be inconceivable that the most recent global entrant
in Perth, Squire Sanders, wouldnt follow suit if it wanted to be a
major player in the Australian market.
While Perth continues to be a focus for the legal profession,
many other areas of the law are also under scrutiny.
It was my great pleasure last week to attend an address by the
Privacy Commissioner Tim Pilgrim and to be a guest at a conference
on the criminal justice system hosted by the Australian
International Judicial Administration organisation not as sexy or
lucrative as what energy and resources lawyers are doing in Perth,
but arguably more important to the Australian community.
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TOP 10 STORIES ONLINE THIS WEEK
1 Freehills loses top partner 2 Melbourne claims top spot in
world law school rankings 3 Clayton Utz loses partner to Piper
Alderman 4 Man appeals to law firms to help nail Zuckerberg 5
Animal welfare groups must be investigated: lawyer 6 Slater &
Gordon launches fixed fee service 7 Kemp Strang poaches Gadens
director 8 Internet undermines jury system 9 Mallesons seeks true
diversity 10 Courting attention: Why engaging the media is
critical
NEXT WEEKLawyers Weekly looks at the state of Continuing Legal
Education in Australia and asks lawyers what they really think of
it. We find out what needs to change and how CLE providers are
responding.
E D I T O R I A L B O A R D Lawyers Weekly is delighted to have
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Nick Abrahams Partner,
Norton Rose
Helen McKenzie Deputy
managing partner,
Blake Dawson
Sharon Cook Managing
partner, Henry Davis York
David CowlingPartner,
Clayton Utz
Ewen Crouch Chairman of
partners, Allens Arthur Robinson
Sue GilchristPartner and
practice leader (intellectual
property group), Freehills
Andrew GrechManaging director, Slater & Gordon
Will IrvingGroup general counsel, Telstra Corporation
Joe CatanzaritiPartner, Clayton Utz
Robert MillinerChief executive partner, Mallesons Stephen
Jaques
Megan PittDirector, Australian Government Solicitor
Lucinda SmithPartner, Thomsons Lawyers
JOIN THE CONVERSATION
Editor, Justin Whealing
Greg Plummer email: [email protected], telephone: 02
8014 9052Samantha Cowling email: [email protected],
telephone: 02 8014 9053 Jonathan Walmsley email:
[email protected], telephone: 02 8014 9050
To search Australian and global job opportunities go to
www.marsdengroup.com or download ourfree iPhone App (search iTunes
Marsden Job Search) - legal job searching just got easier.
For a confidential discussion about these opportunities or other
opportunities at home or overseas contact:
Corporate M&A | 1-6 yrsTop calibre opportunities in Perth
for highperforming corporate/M&A lawyers from1 year of
experience to SA level. Excellentsalary packages and relocation on
offer to thesuccessful candidates.
Energy (Oil, Gas, Minerals, Mining, Power) | 3-6 yrsTop tier
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internationalquality experience. You will have solidcorporate
energy exposure across any of theabove areas.
Workplace Relations | 3-7 yrsNational powerhouse firm.
Excellentcareer progression opportunities on offerfor experienced
workplace relations /industrial relations lawyers. Superb
workingenvironment in this client facing role.
Finance | 1-5 yrsGeneral banking and project finance rolesat the
premier level in Perth. Get moreresponsibility sooner working in
smallerteams on impressive deals with both adomestic and
international focus.
Commercial litigation | 1-6 yrsFirst rate opportunities for
general commerciallitigation lawyers. You will have a sharp mindto
work on these complex and high profilecases. Perth or interstate
experience from aleading practice is essential.
Commercial Property | 2-7 yrsThis is a very rare offering for a
high calibrecommercial property specialist at thisinternationally
regarded firm. You will have anexcellent core skill base, a
commercialapproach and great academics. Close knit team.
Construction (Front End) | 2-3 yrsBecome involved in exciting,
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Capital Markets | 3 yrs +Highly regarded firm seeks top
calibrecapital market lawyer. An interesting mix of workand
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Funds | 4 yrs +This is a genuine growth role within a
dynamicteam environment working for impressiveclients. If you are
an SA, or on track, within awell regarded Australian practice but
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WE HAVE THE BEST JOBS IN PERTH
-
thisweek
Dont change Migration Act: ALHRThe Federal Government should
process asylum seekers onshore and not change legislation to
accommodate offshore processing, according to the Australian
Lawyers for Human Rights (ALHR).
Onshore processing is the legally certain, least expensive and
most humane and principled way ahead for determining asylum-seeker
claims, said ALHR president Stephen Keim.
Keim also cautioned the Government against resurrecting the
Nauru and Manus Island processing and detention centres neither of
which have been scrutinised by the High Court.
NSW courts to get makeoverThe New South Wales Government
has allocated $78 million in its 2011-12 Budget to allow for the
upgrade of the NSW court network, including $40 million towards a
new courthouse in Coffs Harbour.
NSW Law Society president Stuart Westgarth said he was pleased
the budget aims to provide support to those accessing the justice
system. Were pleased that the NSW Government has made good on its
commitment to expand and upgrade the NSW court network, he
said.
Melbourne claims top spot in world law school ranksThe
University of Melbourne (UOM) has claimed the top spot in
Australia for the study of law.
According to the 2011 annual QS World University Rankings
released on 5 September, UOM is ninth in the world for the study of
law.Harvard University took out first place, followed by Oxford,
Cambridge, Yale and Stanford universities. The University of Sydney
ranked 11th, the Australian National University 15th and Monash
University ranked 20th.
The Web
6 LAWYERS WEEKLY 16 SEPTEMBER 2011 www.lawyersweekly.com.au
REWIND
The latest Nielsen opinion poll published by Fairfax newspapers
has revealed that former Prime Minister Kevin Rudd would lead the
Labor Party to victory if a federal election was held now.
According to the poll, if Rudd was brought back as leader, Labors
primary vote would increase from 27 per cent to 42 per cent, giving
it a lead over the Coalition.
Blake Dawson has reappointed chairman Mary Padbury for a third
successive term as speculation mounts that the firm will merge with
global giant Ashurst.
Having worked as a lawyer at Bristows (a specialist intellectual
property firm) in London in the mid 1980s, Padbury said she has
seen first hand the dramatic changes to well-established law firms
from mergers.
Padbury said she remembers going into work at Bristows, picking
up the Financial Times and reading about the Clifford Turner and
Coward Chance merger proposal.
I remember thinking, Gee thats interesting, said Padbury. That
was also around the time that English firms were spreading into
Western Europe.
While working in London as Blakes resident partner around 10
years ago, Padbury also noticed the enormous number of US firms
opening as they came to the UK looking for growth.
While she would not comment on any Blakes merger, Padbury said
she was surprised at how long it had taken for English firms to
come to Australia.
I think partly its a credit to the quality and calibre of the
firms we have in Australia, that it was a market that foreign firms
largely steered away from, she said.
But with whats happening in Asia and the growth of China, some
of the exciting developments in our own economy and the strength of
our currency, some of the things that have deterred people in the
past will change. Its a very exciting time.
Ashurst partners are expected to vote on a proposed tie-up deal
between Blake Dawson and Ashurst before the end of September,
according to The Lawyer.
Padbury told Lawyers Weekly it was a great privilege to be
elected to chair for a third successive term.
My colleagues convinced me that continuity was a good idea and I
enjoyed the role so I re-applied. Im very touched that they wanted
me to continue, she said.
First elected as chair in 2005 to succeed Richard Fisher AM
before being reappointed in 2008 for a further three years, Padbury
has guided the firm through the introduction of a performance-based
remuneration system forpartnersand the firms re-branding in
2007.
Now, Padbury said, she maintains a semblance of practice (in IP
law), but mostly spends her time overseeing Blakes management,
profitability and strategy.
Blakes reappoints chair
The Australian Competition and Consumer Commission (ACCC) lodged
an appeal against the Federal Courts dismissal of its bid to
prevent Metcash from acquiring the Franklins supermarket. ACCC
chairman Rod Sims said the watchdog has appealed because the courts
interpretation of some fundamental principles of merger analysis
could have serious implications for the ACCCs ability to block
anti-competitive mergers.
The first shipment of live cattle since the suspension of live
exports in June has left the Northern Territory for Indonesia. On
Monday (12 September), Australian agribusiness Elders Limited
loaded a shipment of 3000 cattle at a Darwin port after receiving
approval in July to recommence supply to its wholly-owned supply
chain in Indonesia.
thisweek
LAWYERS WEEKLY 16 SEPTEMBER 2011 7
Freehills, Allens Arthur Robinson and Norton Rose have advised
on the funding of a $1 billion joint wind farm venture between
Australia and New Zealand.
Allens advised NZs largest renewable electricity generator
Meridian Energy Ltd (Meridian) on its share of the development and
construction costs of the wind farm with Australias largest
renewable electricity generator, AGL.
Due for completion in 2013, the 420 megawatts (MW) Macarthur
wind farm in southwest Victoria will be the largest wind farm in
the southern hemisphere and one of the biggest in the world. It
will have the capacity to power more than 20,000 homes and create
significant employment opportunities.
Freehills acted for Australia and New Zealand Banking Group
Limited (ANZ) and the Danish export credit agency,
G+T loses two partnersGilbert + Tobin has lost two partners to
separate firms.
Truman Hoyle has poached Richard Pascoe (pictured) to head up
its media and content practice, while Norton Rose has taken Martyn
Taylor as a partner in its corporate practice in Sydney. Taylor was
formerly a partner at G+T specialising in competition matters,
telecommunications and energy regulatory issues. Norton Rose also
poached former Corrs Chambers Westgarth senior associate Scott
Miller as a partner in its banking practice in Melbourne.
Clutz loses partner to Piper AldermanWallyMcDonald has
leftClayton Utzto join
theSydneycorporate teamofPiper Aldermanas a partner. A
corpo-rate, government, TMT and major projects lawyer, McDonald
held the national positions of departmental managing partner
(corporate) and chairman of theenergy and resourcesgroup at Clayton
Utz.
HopgoodGanim recruits top-tier expertHopgoodGanim has appointed
international
corporate expert Gavin Batcheler as a senior associate in its
resources and energy team. Batcheler has worked in Australia, the
UK, south-eastAsiaand the Middle East for firms including Clifford
Chance andMinter Ellison.
Wrays boosts IP teamWrays Lawyers has appointed
threeintellectual property lawyers
toboostits advisory andlitigation practice. Marie Wong
(pictured) whopreviously worked forNor-tonRose inMelbourne,will
joinWraysas a special counsel.
Deal name:NZs Meridian and Australias AGL join forces for
$1billion wind farm.Key players:Freehills; Allens Arthur Robinson;
Norton Rose
Movers &
Shakers
DEAL OF THE WEEK
DEAL MAKERS
Three firms spin southern hemispheres largest wind farm
Eksport Kredit Fonden, who were the lead arrangers/underwriters
for the transaction.
Norton Rose partners Vincent Dwyer and Dan Marjanovic advised
AGL with assistance from senior associates Natasha Vyrnwy-Jones,
Linda Robinson and Natalya Dingley.
Under the deal, which closed on 8 September, Meridian secured
$386 million in syndicated debt facilities, including a portion of
debt being provided by Eksport Kredit Fonden.
Partner Anna Collyer and senior associate Michael Ryan led the
Allens team on the matter.
The deal demonstrates the value that renewable energy can bring
to Victoria, said Collyer. We would hope that investment of this
nature can continue to thrive and contribute to the development of
a low carbon economy.
Bruce Adkins Jane Hodder Ross Landsberg
Firm Corrs Chambers Westgarth (Straits Resources Limited)
Freehills (Bendigo and Adelaide Bank), Mallesons Stephen Jaques
(developers)
Clayton Utz (AustraliaPacificLNG), Minter Ellison (GladstoneArea
Water Board and Gladstone Regional Council)
Deal name Straits sells Hillgrove Antimony-Gold Project to Court
Resources WA
Banks acquire new lease Agreement for provision of water
services to Curtis Island
Area Corporate M&A Major projects
Value $40 million Undisclosed Undisclosed
Key players Corrs Bruce Adkins Freehills Jane Hodder Minters
Ross Landsberg
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thisweek
8 l aw y e r s w e e k ly 16 s e p t e m b e r 2 011
www.lawyersweekly.com.au
Mallesons stephen Jaques played host to a senior united nations
(un) delegate on 8 september as it became a signatory to a global
initiative promoting gender diversity and equality in business.
the un Womens assistant secretary General, lakshmi puri, was
guest of honour at a lunch to celebrate the firms ascension to the
un Womens empowerment principles.
the principles are designed to engage with corporations around
the globe and focus on seven core features, including establishing
high-level corporate leadership for gender equality; treating all
women and men fairly at work; promoting education, training and
development for women; and measuring and publicly reporting on
progress to achieve gender equality.
puri, who has 37 years experience in economic and development
policy, said the un is seeking to partner with businesses in
australia and across the globe in order to make a difference.
National profession legislation released
slater & Gordon launches fixed-fee service
Mallesons hosts UN official
Slater & Gordon announced on 8 September that it will offer
fixed-fee arrangements for its family law services.
Starting in Victoria, but to be rolled out nationally at a later
date, the firms fixed-fee service was developed over the last 12
months and will cover every stage of a family law matter up to and
including court proceedings in Australia.
Discussing the firms intention to introduce fixed pricing with
Lawyers Weekly earlier this year, Slater & Gordon national
practice group leader Ian Shann said: [Fixed pricing] aligns the
interests of the lawyers with their clients, but also provides a
much better working environment for those engaged in family law.
Wed like to see the end of timesheets.
The introduction of a fixed-fee service, according to managing
partner Andrew Grech, will mean more people are able to access
legal services.
Legal costs are of great concern to people who need family law
advice and we are pleased that we have been able to develop a model
that will see the end of open-ended time-based billing systems in
this area, said Grech.
We have devoted significant resources, research and business
support to our family law practice over the past 12 months to
develop this initiative and get it off the ground.
speaking to Lawyers Weekly after the event, Mallesons chief
executive partner Robert Milliner said the firm was ready to become
a signatory to the principles.
We are adopting the principles as a way of providing some
targets for us and providing a framework within which to drive some
of our further work, said Milliner. It is also to be clear about
our commitment to publicly report on our work. It matches our own
strategies and values and the work we have done internally and,
because it was very reflective of where we knew we wanted to go, it
seemed to be a very appropriate thing to do.
Just under one quarter of Mallesons current partners are
women.
Its not doing it just for diversitys sake. It is making sure
that the career opportunities match the people, said Milliner.
Mallesons head of diversity, neil Cockroft, told Lawyers Weekly
that the decision to sign up was about taking a lead role within
the australian business community.
Being a signatory to the principles sends a strong signal to our
staff, our clients, and our community partners that we are
committed to achieving full gender equality in our firm. I hope
that more australian businesses will make that commitment in the
future, he said.
The draft legislation for the development of the national legal
profession was released on 9 September by Attorney-General Robert
McClelland.
The long-awaited release of the legislation followed talks on 6
September between the
Attorney-General and his counterparts from New South Wales,
Victoria, Queensland and Northern Territory.
These discussions were very productive with
some jurisdictions being in a position to commit to the scheme
and points for clarification identified for others, said
McClelland.
There are some final decisions we need to make to reach
agreement, relating to transitional costs and selection of a host
jurisdiction. We have committed to resolving these outstanding
matters before 1 October so legislation can then be presented in
the host jurisdictions Parliament as soon as possible.
The legislation has been released in the wake of crumbling
support for the national legal profession reforms after the smaller
states of Tasmania and the ACT joined Western Australia and South
Australia in their opposition to the proposals.
UN Womens Assistant Secretary General, Lakshmi Puri, with
Mallesons Head Robert Milliner
thisweek
Ashurst to vote on Blakes mergeAshurst partners are expected to
vote on a proposed tie-up deal between the firm and Blake Dawson
before
the end of September, reports The Lawyer. A merger would create
a 31-partner practice across Hong Kong, Shanghai, Singapore, Tokyo
and Papua New Guinea and is seen as an attempt to boost Ashursts
access to the Asian market. Ashursts revenue in the region rose by
50 per cent in 2010-11, making up 7 per cent of global income.
NR enters new age with appsNorton Rose Group has launched its
first smartphone applica-tions for iPhone and BlackBerry. The
apps
feature a directory of NRs 2600 lawyers with a tap and call
function, information on NRs offices, descrip-tions of its practice
areas, news, briefings and videos on topical subjects. The apps
were developed by the firms Canadian and London IT and business
development teams.
Riots cause rise in jailed childrenThe influx of child prisoners
accused of involvement in last months UK riots have contributed to
an 8 per
cent increase in the juvenile prison population in the UK,
reports The Guardian. Youth Justice Board (YJB) figures show 170
riot offenders aged under 18 are now in custody, adding to the
2,075 child prisoners recorded in June. The YJB, which
administrates youth justice in England and Wales, said half of the
under-18s facing riot charges had no previous contact with the
criminal justice system.
Greenberg Traurig poaches Wall Street wonderUS law firm
Greenberg Traurighas appointed former Cadwalader, Wickersham
&
Taftsenior partner Dennis Block to the newly-created post of
senior chairman for global M&A, reports the AM Law Daily. The
69-year-old lawyer is considered a major Wall Street dealmaker and
advised pharmaceuti-cal giant Pfizer on its$68 billion takeover of
rival Wyeth in 2009.
l AW y e R S W e e k ly 16 S e p T e m B e R 2 011 9
US/U
K U
pdatePrivacy commissioner Tim Pilgrim has welcomed moves to give
him more power to enforce privacy laws.
speaking at Henry Davis york in sydney last week, Pilgrim cited
personalities as diverse as Facebook founder mark Zuckerberg and
former Governor-General sir Zelman cowen in a wide-ranging speech
focusing on how to best provide and enforce privacy protections at
a time when so much information can be easily disseminated via the
internet and social media.
Why, in 2011, are we now looking at the potential for the
introduction of a statutory cause of action to be enacted through
the Federal Parliament? asked Pilgrim. Why, on two occasions
recently, has Facebook announced changes to its privacy settings in
response to its users concerns?
in 2008 the australian Law reform commission (aLrc) recommended
295 amendments to the Privacy act, with many of those still in the
process of being implemented. one of the proposed recommendations
is to provide a statutory cause of action for a serious breach of
privacy.
The Government has indicated that it will introduce new laws to
strengthen the powers of the Privacy commissioner, he said. Under
the current Privacy act, i am unable to impose a penalty on an
organisation or an agency following an investigation on our own
motion, where i havent received a case from the individual
first.
Pilgrim gave the example of an investigation he launched into
vodafone after media reports that the company had breached
provisions in the Privacy act by making customer information
available on the internet. even though he found that vodafone did
not have adequate security measures in place to protect the
personal information of customers, he was not able to impose a
penalty on the telecommunications giant.
additional powers for the Privacy commissioner will provide
added credibility for enforcement of privacy law, reinforce the
significance of privacy compliance and give
Justin Whealing reports on how Privacy Commissioner Tim Pilgrim
intends to wield his new powers
everyone an even greater incentive to take privacy more
seriously, he said.
Privacy v the right to knowWhile Pilgrim acknowledged the rights
of individuals to have privacy protections, he said this needed to
be balanced by concerns such as the publics right to know certain
information and concerns about individual freedoms.
Going back to the statutory cause of action, i stress here, as i
have done in a number of interviews on the subject, that the right
to privacy is not absolute, said Pilgrim. it should always be
balanced with other important human rights and social interests,
and one of these is freedom of expression.
at present, journalism is exempt from the operation of the
Privacy act.
The aLrc recommended that journalism keep its exempt status, but
expressed concerns about the lack of strong enforcement mechanisms
in some media sectors. This has only been exacerbated recently by
the News of the World phone hacking scandal, which Pilgrim said had
sparked a growing interest in privacy.
The aLrc noted that self-regulatory mechanisms do not provide
the complete answer to the task of balancing competing public
interests in privacy and freedom of expression, he said.
Pilgrim acknowledged competing points of view in this area, such
as concerns expressed by the aLrc that the lack of the definition
of the term journalism, and the vigorous campaigning of media
organisations against the application of a statutory cause of
action to acts and practices that fall within the journalism
exemption.
Privacy is about what we think, what we believe and value, what
we want and what we want to do, he said in concluding. it is also
about having the greatest ability to control who gets to know these
things about us. But it cant be an absolute in the society in which
we live and in that sense, privacy law reform is about trying to
find the balance.
pilgrim on journey to protect privacy
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indepth
10 l aw y e r s w e e k ly 16 s e p t e m b e r 2 011
www.lawyersweekly.com.au
The law can be slow to properly recognise victims of crime. This
significant acknowledgement of shortcomings within the criminal
justice system was made by the Lord Chief Justice of England and
Wales at the Australasian Institute of Judicial Administrations
(AIJA) Criminal Justice Conference in Sydney last week.
The Rt Hon Lord Igor Judge provided the opening oration at the
three-day conference, addressing the topic of vulnerable witnesses
in the criminal justice system.
Pinpointing victims of sexual crime, violent crime, children and
witnesses lacking communication skills, Judge said the principle of
innocent until proven guilty often had extremely painful
consequences for those who are victims of crime or who have given
truthful evidence about the facts of a case.
Many times in law, it is not even established that there has
been a crime until the defendant has been convicted. If the
allegation is rape, its not until theres a verdict of guilty that,
as a matter of law, there has been a victim at all, said Judge,
adding that in truth there has been a victim from the very moment
the rape occurred.
Justice and the lawAn international conference in Sydney put the
criminal justice system under the microscope. Justin Whealing and
Stephanie Quine report
Judge said that while the profession has made significant
progress in its handling of vulnerable witnesses, judges and
magistrates must remain informed about the fact that witnesses who
are vulnerable are under huge pressure.
Every single witness should, so far as possible, have the
stresses of attendance and so on reduced ... none of this is at the
expense of the fairness of the defendants trial.
Internet undermines the jury systemWhile the law has slowly
developed over hundreds of years, it is struggling to deal with the
affects of rapid technological change.
One of the most intriguing presentations at the conference was
from Peter Lowe, a barrister who recently represented Pauline
Hanson in a Supreme Court action related to the results in the NSW
state election. He said the explosion in the number of social media
forums over the past decade can alter the ways juries decide cases
and, in some instances, prejudice the results of criminal
trials.
There is currently a class of society who do not really know how
to survive without
this technology and, when asked that they do not use that
technology to search for particular information, find the request
quite disconcerting, he said. To tell anyone from the millennial
generation not to retrieve information available at their
fingertips is a red rag to a bull.
Lowe went on to provide numerous examples of juror misconduct in
cyberspace, including a juror empanelled in a criminal trial in
Victoria who posted on Facebook that everyones guilty in the
initial stages of a trial. The jury was discharged and the trial
judge referred the matter to prosecution.
The spectre of this form of impropriety is palpable, said Lowe.
There is no guarantee that the information used by an aberrant
juror hasnt been placed on the net by the accused ... or through
their agent.
Lowe believes that such inappropriate use of the internet can
undermine the justice system.
The issue of digital injustice has the potential to derail the
very basis upon which justice is administered, and must, on that
score alone, be addressed if the notion of a fair trial according
to law is to be preserved.
Many times in law, it is not even established that there has
been a crime until the defendant has been convicted RT Hon LoRd
IgoR Judge, LoRd CHIef JusTICe of engLand and WaLes pIC-MICHaeL
fLokIs
indepth
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 11
Warning against over regulationEven though Lowe cited the abuse
of social media as the greatest challenge to the jury system, he
warned against imposing strict surveillance measures to ensure
jurors are behaving appropriately.
If jurors cant be trusted to do the task that we repose in them
and report irregular contact, then why would anyone serve on a jury
if they knew that their absolute privacy was going to be invaded?
Who would want to serve? asked Lowe. Legislation must be introduced
to prevent any or all such surveillance.
Lowe said that while there is no uniform legislation in
Australia which covers jury impropriety and confidentiality of jury
deliberations, there are options available for reform. This
includes having a judge retire with the jury to assist them in
their deliberations, or the use of a jury facilitator to assist in
discussions. Such a facilitator would be trained in helping groups
reach consensus, but could not offer an opinion regarding the
evidence.
Raised in a transcript of Lowes presentation obtained by Lawyers
Weekly prior to his presentation, but not explicitly addressed
during his speech, Lowe said one area of reform that should be
strongly considered is the taping of jury deliberations. He
acknowledged this might be an unpalatable suggestion, but believes
policy makers should give serious consideration to lifting the
prohibition of taping jury room deliberations in Australia.
Such direct evidence would demonstrate whether the presumption
ordinarily underpinning juror deliberations that they comply with
their oath and assiduously follow the trial judges instructions has
been complied with and, even if not the case, whether a miscarriage
of justice has been occasioned, he said.
Cyber crime, the problems associated with long and complex
terrorism trials, the role of statistics in the sentencing debate,
and multicultural justice issues such as the cross-examination of
niquab-wearing Muslim witnesses and delivering justice in
newly-arrived African communities was also addressed at the
conference. lw
See Folklaw on page 26
Michael West, a representative from the Metropolitan Aboriginal
Land Council, spoke before the respective welcoming remarks of
Federal Court chief justice Patrick Keane and NSW chief justice Tom
Bathurst on the first morning of the conference.
In an address that profoundly moved many people, West
acknowledged the traditional owners of the land where the
conference was held, the Gadigal people of the Euro Nation. He said
that he knew about the law from day one as a member of the stolen
generation who was taken from his mother at birth.
I was talking to Justice Keane, and there is the intent of the
law and the application of the law, said West. It is about working
together to make this a great society to show the rest of the
world.
The impact of the law
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indepth
Marque Lawyers conducted its summer clerkship recruitment
campaign this year exclusively via Twitter. It proved to be a
fascinating exercise in the potential of social media for
interactive engagement in more serious matters than the name of
Beyoncs baby, and a reminder of what law school teaching does to
students brains.
We launched the campaign with an open house party and then spent
a week getting the word out virally that we were going with
Twitter. That was successful in the sense that our number of
followers increased from 70 to 500 in a few days.
The actual process consisted of us tweeting a question each
morning and then sitting back and letting the Twittersphere have
its say during the course of the day. We then selected the top
tweets of each day, and ended the week with 43 candidates who we
invited to send us a proper application.
Well interview about half of them, and ultimately offer two
clerkships (one of which is called the GetUp! Clerkship, because
its being funded by GetUp! and that clerk will mainly be doing
policy work for GetUp! over the summer).
The first days question was, Whats your favourite cheese? While
we had thought it would be obvious that we dont care what anybodys
favourite cheese actually is, and that the students might not take
the question literally, pretty much 100 per cent of them did
exactly that. We found out a lot about individual cheese
preferences, but the day very quickly degenerated into a festival
of excruciatingly bad cheese puns - mostly involving Gouda or Feta,
although fromage trois was a winner.
The other interesting feature, which stayed with us all week,
was the ability of law students to find sexual innuendo in pretty
much anything we said. This was entertaining, but didnt get anyone
a job.
On day two we asked, Should it be Kochie and Mel, or Mel and
Kochie? Again, we figured wed get some lateral tweeting on the
broader issues of gender and sexual politics, but no such luck. So
on day three, we dispensed with language altogether and posted a
photo of a stuffed chicken standing next to a Marque-branded log
(pictured). This was self-evidently
post-modernist, or more likely devoid of meaning altogether, but
the absence of direction did bring results. We got a lot of
philosophical musing and some really hilarious tweets.
The tweeting numbers stayed up all week, although one could
sense rising levels of panic among some of the regular tweeters as
they saw others make the cut and redoubled their efforts to attract
our attention. If they were trying to detect any science in our
selection criteria, it was hopeless because we just went with
whatever tickled us.
Reading all the tweets (it was a low productivity week in our
office), we couldnt help but get involved emotionally. We were
rooting for some tweeters, hoping theyd come up with something that
got them through. It was a bizarre conversation to be having, of
course, not at all like a normal recruitment process, but were not
at all sure it was any less effective.
What did we learn? Law students, like lawyers, find it difficult
and threatening to break the mould and stand out. There was a
distinct trend each day as most people clearly, unconsciously,
convinced themselves that there were rules to follow. But those
rules didnt exist. So, along with having to convey a thought in 140
characters, which isnt many, this proved a massive challenge to
many. That was interesting, and points to the downside of how law
has always been taught there are strengths to being able to
contemplate issues in a rational, linear and literal fashion, but
creativity and lateral thinking are clearly diminished along the
way.
Twitter is an exciting domain. That, in the space of a week, we
could engage with over 400 law students and have an interactive
conversation, admittedly about some pretty random and meaningless
topics, gives some small sense of the immense potential which
social media has as a forum for dialogue, engagement and knowledge
sharing. Were hooked. LW
tweet as, bro!
The day very quickly degenerated into a festival of
excruciatingly bad cheese puns - mostly involving Gouda or Feta,
although fromage trois was a winner
This year, Marque Lawyers decided to recruit their summer clerks
via Twitter. Now, managing partner and chief judge of tweets
Michael Bradley tells us how it went and what they learned.
A post-modern tweet from Marque lawyers
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legalspotlight
Draft regulations for litigation funders are set to apply from
next month. Justin Whealing looks at whether this will inhibit
access to justice or make them more financially accountable
The view from inside and out
watching the money men
14 l aw y e r s w e e k ly 16 s e p t e m b e r 2 011
www.lawyersweekly.com.au
Business has been good for IMF Australia.In August, Australias
largest litigation funder by quite some distance posted stellar
results for the 2010-11 financial year. Total revenue was up 88 per
cent to over $40 million, while net profit increased by 92 per cent
to almost $23 million.
With its dominant position in the litigation funding market
achieved through bankrolling some of Australias most well known
class actions, including the Sons of Gwalia and Westpoint class
actions, executive director John Walker is relaxed about the
prospect of tighter regulations for the industry.
As the industry grows, there will be a greater risk of default,
in the sense that the expectations of consumers will not be met, he
says from his office in Martin Place in Sydney. We are listed and
we are licensed and people understand where we are at, but other
competitors dont feel they have those obligations.
It is not so much of a problem now, but as the market gets
bigger, with more consumers accessing litigation funding, we can
see that the market needs protection from regulation.
The litigation funding business model was turned upside down by
the judgment in October 2009 by a full-bench of the Federal Court
in Brookfield Multiplex Limited v International Litigation Funding
Partners Pte Ltd. In essence, the Court held that private entities
involved in litigation were participating in an unregistered
managed investment scheme and were therefore in breach of the
Corporations Act.
This ruling meant that litigation funders would be required to
hold Australian Financial Services Licenses, threatening the
conduct of current and future class actions.
Chris Bowen, the minister for Corporate Law at the time, came to
the rescue of the funders and plaintiffs involved in large scale
litigation by removing class actions and proof of debt arrangements
from the definition of a managed investment scheme in the Act.
The Department of Treasury then called for submissions into the
exposure draft of its suggested amendments to The Corporations Act,
with IMF and the Law Council of Australia amongst six organisations
that made formal
submissions before the closing period in August.These draft
regulations are expected to apply
from 1 October this year, and Walker welcomes any moves to
require litigation funders to hold
an Australian Financial Services Licence (AFSL), as IMF has held
such a license since 2005.
By just focusing on one particular thing, mainly the management
of conflict issues, the draft regulations dont deal with all the
other issues, he says. They are trying to tie in some of those
other issues into an exemption that enables you not to be licensed
if you come within that exemption. But those things mean that some
days you are exempted, while
on other days you might not be, so it is quite difficult to run
multi-million dollar projects that require you to understand
clearly what your regulatory obligations are.
What the law firms thinkIt is no surprise that the plaintiff law
firms on the whole support the exemptions granted to litigation
funders, while many litigation lawyers from top-tier law firms that
sit at the opposite side of the table think there should be more
regulation.
It is clear the Government is thinking about this issue, but
there is a very real debate about if what is proposed in those
draft regulations is the right way to go, says Greg Williams, a
litigation and dispute resolution partner with Clayton Utz who
describes the current levels of regulation on litigation funders as
being Inadequate.
Williams cites the exclusion of litigation funders from being
required to hold an AFSL that poses the major concern to the
integrity of the litigation funding system.
I think the proposal has a number of problems, including leaving
the industry in an under regulated position, he says. My view is
that litigation funders should be required to hold licenses, and
there should be a question as to whether there should be some
additional
The money to be made Between 2001 and 2010 IMF funded claims
which returned to claimants in excess of $832 million
These claims cost IMF $91.2 million IMF has only been liable to
pay $2.8 million
during this period
What the Law Council of Australia thinksIn a Position Paper
released in June, The LCA said it would support regulation by ASIC
of the following:
prudential regulation of litigation funders regulation of
offshore litigation funders requiring that settlement of a funded
matter
be approved by a court
legalspotlight
L AW Y E R S W E E K LY 16 S E P T E M B E R 2 011 15
visit www.collaw.edu.au/alp today
MASTERS
The College of Law Masters program has provided me with not only
a better understanding of various legal concepts, but also the
practical and procedural steps that apply to those principles. It
appealed to me because it is not just a purely academic course, but
one which is relevant to every day
practice that complements my specific area of work. The online
learning platform provides me with great flexibility in my studies.
Choose from Commercial Litigation, Family Law, In-house Practice or
Wills & Estates. For further information call 1300 856 111 and
move your career forward.
AMy BArWICk, MILLs OAkLEy LAWyErs, CUrrENT MAsTErs sTUDENT
The Masters program appealed to me because it is not just a
purely academic course, but one which is relevant to every day
practice
I think the proposal has a number of problems, including leaving
the industry in an under regulated position GREG WILLIAMS, PARTNER,
CLAYTON UTZ
regulatory obligations over and above the holding of a fi
nancial services license.
Slater & Gordon practice group head Ben Phi is leading his
fi rms team on the class action against Nufarm Limited. He believes
that many of the voices calling for more regulation of litigation
funders have a vested interest in making those claims.
It is interesting that the largest critics or those calling for
the greatest regulation are those who have an interest in either
reducing the number of class actions overall or in reducing the
size of the litigation funding market, he says. In our view,
defendants are properly concerned to make sure their clients are
adequately protected in the event they win
in a litigation matter and are entitled to a costs order.
Beyond that, it is questionable as to what extent they are
properly voicing concerns on behalf of group members in class
action proceedings. None have been able to point to any situation
in which someone has been poorly advised. LW
The largest critics or those calling for the greatest regulation
are those who have an interest in either reducing the number of
class actions overall or in reducing the size of the litigation
funding market BEN PHI, PRACTICE GROUP HEAD, SLATER &
GORDON
As the industry grows, there will be a greater risk of default,
in the sense that the expectations of consumers will not be met
JOHN WALKER, EXECUTIVE DIRECTOR, IMF
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opinion
As the number of cases receiving significant media attention
grows, Joe Murphy and Alana Paterson ask where lawyers need to draw
the line when it comes to engaging with the press.
16 l aw y e r s w e e k ly 16 s e p t e m b e r 2 011
www.lawyersweekly.com.au
It is over a year now since the Fraser-Kirk v David Jones matter
hit the press. DJs lost its CEO, took a huge hit on reputation,
shares and legal costs and was left with a hefty compensation
payment. But what part did the media play in the outcome? More
importantly, what are the limits on the role a practitioner can
take in those circumstances?
As a practitioner, you may have been shocked at the time about
the degree of detail disclosed to the media and the speed at which
it was hitting the news (we were). You may have been even more
shocked to find that the statement of claim filed in the Federal
Court was posted on the internet for all to see and access
(complete with court seal and the amount paid for filing $894).
Non-legal or illegitimate tactics in litigation are fraught with
ethical dilemmas. Parties have been known to launch legal action
that is frivolous, vexatious or lacking in substance in order to
obtain an outcome that is perhaps not legitimately connected to the
cause of action. Lodging an appeal in a matter to try and settle a
lost case in the face of a large costs order can be one such
tactic.
We are not suggesting that Fraser-Kirk didnt have a genuine case
to bring. In fact (if you believe everything you read in the media)
the CEO did publicly admit some conduct that, at face value, could
attract an adverse finding. However, the case did settle for a
whopping $850,000 and a significant number of commentators took the
view that the case was worth nothing like that. Since that matter,
a number of other cases have emerged in the press, for example, the
Styles v Clayton Utz case and even more recently, the case being
touted as the $9 million case against Pacific Brands.
While media coverage can be a problem
trial by media
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 17
opinion
the Law Society suggested practitioners should seek consent
before making any public statement about a clients matter
(a trite suggestion).
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 17
outside the courtroom, cases are usually conducted in open
court. In the Fraser-Kirk v DJs case, Justice Flick commented about
the media attention the case had received (nationally and
internationally) and said; Care should be exercised when making
submissions to the Court not to make statements which were more in
the nature of a media release than a submission which provided
genuine assistance to the Court and the interests of all parties
protected.
When the trial judge is aware of the extensive media coverage of
a matter, the degree of prejudice (if any) is difficult to gauge.
In R v Gordon Wood, the Carolyn Byrne murder trial, some media went
so far as to claim partial responsibility for securing a guilty
verdict and his family agreed, complaining that he did not receive
a fair trial.
If, and we stress if, the lawyers for Fraser-Kirk set about
deliberately disseminating the details of that case to the media,
then that is a course that must be travelled with absolute caution.
Legal practitioners must be conscious of ethical duties and
responsibilities to both the client and the court (generally);
substantive law restrictions (specific rules and whether any orders
have been made about disclosure); and potential impacts of any
disclosure (short and long term for the lawyers and the
client!).
Ethical and other considerationsAside from the Bar Rules, NSW
and a number of other states have not adopted the integrity of
hearings rule from the LCA Model Rules. Victoria has and, in view
of a practitioners general obligations, it is applicable to all as
a guide. It says; A practitioner must not publish, or take steps
towards the publication of, any material concerning current
proceedings for which the practitioner is engaged which may
prejudice a fair trial of those proceedings or prejudice the
administration of justice.
Counsel are permitted to provide copies of documents used in
proceedings with the consent of the instructing solicitor or the
client and are also allowed to answer unsolicited questions from
the media about the matter, provided that they do not provide
coloured comment,
unnecessary description or express their own opinions on matters
relevant to the case.
In MG v R [2007] the court noted that the Legal Services
Commissioner found the Crown Prosecutor had breached the rules
because of comments made about the evidence in a particular case in
which she appeared at a university lecture. Those comments were
subsequently reported in newspapers. In that case the LSC dismissed
the complaint because the breach was in no way deliberate, being a
technical contravention of a complex rule deriving from an error of
a judgement.
Practitioners must also be mindful of their duty to the client,
which requires primary consideration of the clients best interests,
including confidential information.
In Legal Services Commissioner v Tampoe [2009], a practitioner
was struck off the roll after publicly disparaging his former
client (Schapelle Corby) and her family. This included disclosing
confidential information about his clients defence without
authority. In response to this matter, the Law Society suggested
practitioners should seek consent before making any public
statement about a clients matter (a trite suggestion).
The culture or policies of a practitioners firm may also have an
impact. Some will take a strict approach against media or public
comment, whilst others will take a more strategic or liberal
approach and provide comment to the media or publish details about
matters it acts in.
Practitioners need to be mindful that particular documents, such
as witness statements, may be subject of an implied undertaking to
the court precluding disclosure, despite the fact they have been
read in open court or found their way into the public domain.
A practitioner can be at risk of being in contempt of court if
they provide details to the media about a matter resulting in
publication that may have a tendency to cause prejudice to
proceedings. This is not such a problem if done in the public
interest of freedom of discussion, and dissemination of
information, about a matter of public importance.
While the issue of the public interest is an important concept
in law, the courts have said, in
Hinch v Attorney General [1987], that the public interest in
free discussion and in alerting the community to risk does not
warrant a desertion of the public interest in securing a fair
trial.
Errors inside and outside courtThe impact of mishandling a
clients case or falling foul of professional obligations extends
beyond the risk of disciplinary action, and may include:
reputational risks for all parties involved (including the
practitioners!);
the personal toll on the client. As an observation only, both
Fraser-Kirk and Styles have appeared distressed by the media
attention when appearing on television. Fraser-Kirk has also
reportedly moved to Singapore for a fresh start;
the media expressing views about the merits of a case and
placing improper pressure on a party to settle by prejudging the
proceedings or by placing the responding party in a position where
they feel they have to buy their way out of a case to salvage what
is left of their brand reputation;
trial judges and jurors can be inappropriately influenced and a
party may be unfairly prejudiced in a case; and
restrictions on the ability of a practitioner or their firm to
continue to act in a matter where they have fallen foul of their
obligations.One might ask whether the media should be
taking any responsibility. The media do have the Australian
Journalists Code and the Media Entertainment and Arts Alliance Code
of Ethics. However, compliance with these codes does not always
mean compliance with the law - but that can be left for another
article.
Media interest in court proceedings and legal stories provides a
great source of temptation for practitioners when seeking to
achieve an outcome. These issues present ethical challenges for
practitioners, so it is important for them to be familiar with
their ethical obligations as well as to understand the conflicts
and ramifications that flow. LW
Jo Murphy and Alana Paterson are lawyers with Australian
Business Lawyers & Advisors
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18 L AW Y E R S W E E K LY 16 S E P T E M B E R 2 011
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0 town
The
num
ber
of g
loba
l fir
ms
in P
erth
in 2
009
L AW Y E R S W E E K LY 16 S E P T E M B E R 2 011 19
The number of global firms in Perth in 2011
town
town
town
town
town
With global fi rms moving in and local fi rms bulking up in the
face of the resources boom, it seems the streets of Perth may well
be paved with gold. But are things really as good as they seem?
Claire Cha ey fi nds out.
coverstory
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20 l aw y e r s w e e k ly 16 s e p t e m b e r 2 011
www.lawyersweekly.com.au
coverstory
The streets arent paved with gold in Perth. A few of them in
West Perth are, but the rest of Perth is tarmacHylTon QuAil,
PresidenT, lAW socieTy of WesTern AusTrAliA
Two years ago, not one global firm could be found in Perth. In
Sydney and Melbourne, yes, but the quiet Western Australian capital
did not yet feature in the sights of the worlds biggest law firms
looking to stake a claim in the Asia-Pacific.
How things have changed.Perth now boasts six global firms:
Norton
Rose, Allen & Overy, DLA Piper, Clifford Chance, Holman
Fenwick Willan and Squire Sanders (officially opening in October).
While the first five firms to arrive also have offices elsewhere in
Australia, the most recent arrival, Squire Sanders, does not. The
US giant chose Perth as its sole antipodean base, and by doing so
made the bold statement that it is here for a slice of the energy
and resources pie and everything else is an aside.
The events of the past two years mean Perth is now firmly on the
radar of the worlds legal powerhouses, and few would dispute that
more will soon be elbowing their way into its increasingly crowded
legal services market.
But with new names moving in, old names being swallowed up and a
whole lot more competition for a lucrative corner of the market,
questions must be asked about whether the reality of Perth will
match expectations and whether this new golden era is truly a boon
for lawyers and law firms alike.
A morphing marketplaceAllion Legal principal Phil Lucas has been
watching the events of the past two years with interest.
A boutique firm native to Perth, Allion has thus far weathered
the global onslaught and
419 752 788 819
The Perth legal market in
numbers
the number of law
firms in P
erth in 2001
the number of law firms in Perth in 2008
the number of law firms in Perth in 2009
The war for talent in Perth is definitely a war its not a
battlenick nicHolA, mAnAging PArTner, middleTons
Lucas says the arrival of global firms is actually creating more
opportunities in the market.
Some of the Perth boutiques have dropped off as they have merged
with other entities, and what that has actually done, in some
respects, is create more opportunities for us at the boutique end
of the market, he says.
Quite simply, this is because Allion no longer has to directly
compete with the likes of Blakiston & Crabb and Cochrane
Lishman Carson Luscombe two well-reputed boutique firms which have
recently merged with Gilbert + Tobin and Clifford Chance
respectively.
the number of law
firms in P
erth in 2010
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 21
coverstory
There is demand in Perth for legal services to be provided to
some quite large companies by firms such as us, and if [boutique]
firms are diminishing in number, then clearly we see there is
opportunity in the marketplace, says Lucas. So, in a strange way,
you could say that the opportunities are increasing at the moment,
not decreasing.
Perth has long had a strong culture of top-notch boutique firms
and it is arguably the quality of these firms which has attracted,
and continues to attract, both national and global firms looking to
snap up well-established talent.
And with the energy and resources sector booming, recruitment
specialist Julianna Shearn of Shearn Legal believes more boutiques
are likely to spring up in Perth as more global firms move in and
companies look to use firms which can offer high-quality services
at a lower cost.
There will be more global firms to come [But] as soon as a
global equity partner touches the work, it triples in price. So I
really doubt that the Perth market can handle that, she says.
And if you have a big oil and gas company, a lot of their work
is farmed out to the best firms. If it continues that way, youll
start to get conflicts of interest occurring, so you have got to go
and find some new stellar people for the work to go to Youll have
partners and senior associates going out and starting a new
[boutique] firm because they know that will happen.
Changing the landscapeAccording to the president of the Law
Society of Western Australia, Hylton Quail, the arrival of the
global firms has irrevocably altered Perths legal landscape but in
a largely positive way.
It is definitely changing the Perth market, because most of the
larger firms which arent allied or integrated with a multi-national
firm are looking around; looking over their shoulders and
considering their positions, he says.
But they seem to have been well received. They have integrated
into Perth fairly smoothly. I think that this is because of the
models they have chosen integrating with local firms or integrating
with a large national firm. Obviously there have been some
competitive tensions, but
healthy ones.Quail also says the benefits of new firms
coming to Perth are not just for the firms themselves, but also
for Perths local lawyers and businesses.
I think it would be fair to say that the presence of the new
multi-nationals opens up new opportunities that werent previously
available in Perth, he says. It works both ways. They have not only
come here, but they have enabled easier entry into global markets
for Perth-based lawyers and Perth-based businesses.
According to Doron Paluch, a director at Burgess Paluch Legal
Recruitment, the real impact of global firms is yet to be
determined.
I think the jury is really still out on what sort of impact
[their arrival] will have, he says. It is very hard to say what is
happening, especially seeing as everybody is beating their own drum
and saying that things are going great. Naturally, the national
firms in Perth are suggesting they havent been hit particularly
hard. But the international firms themselves seem to be talking up
the fact that they are getting approaches from lawyers who are
looking to join them, and that they are winning work above and
beyond what they were expecting.
Taking to the battlefieldWith the rapid expansion of energy and
resources work has come the problem of finding talent.
Lawyers with experience in the area are few and far between, and
this is providing a significant challenge for firms trying to
increase their presence in Perth.
Earlier this year, Allens Arthur Robinson offered staff a
$20,000 spotters fee for successful referrals to its Perth office,
and firms across the board are trying to differentiate themselves
in the marketplace to lure the best and brightest.
One firm experiencing such difficulties is mid-tier firm
Middletons, which is significantly growing its Perth practice and
has recently relocated to new premises to accommodate this. But
finding lawyers to place behind desks is an ongoing issue.
The war for talent in Perth is definitely a war its not a
battle, says Middletons managing partner Nick Nichola. Its very
difficult. We rely on trying to differentiate ourselves a little
bit. We are a mid tier. We are not pretending to be a top tier or a
mega firm. We just play to our strengths in terms of being focused
in what we do.
For Lucas, finding talent has not been such an issue, though
Allion has largely been recruiting senior lawyers at the top end of
town.
In the last year we have recruited quite a few new partners; one
from Allens, a senior counsel from Freehills and three or four
senior lawyers from Corrs, Blakes and Mallesons. So we have been
very lucky in a recruitment sense, he says. We have picked up some
very high-quality people coming out of the large firms and slotting
in very nicely here. What that all adds up to is the ability to
provide legal services that we think are comparable to the national
firms, because all of our people are national firm people.
According to Lucas, Perth lawyers are snapping up the
opportunity to work in a boutique firm and enjoy the lifestyle that
comes with it. Most of our work would sit comfortably inside
national firms, so we can give our people the opportunity to do
quality work, but they dont have to put up with the issues you have
to put up with if youre working inside a national firm, he
says.
Quail acknowledges that when it comes to lawyers with between
three and five years experience in areas such as energy and
resources and construction, there is a serious lack of available
talent. But this, he says, is certainly not the case across the
board.
This is a story of a two-speed economy, he says. There is no
doubt that in some practice areas there is, if not a crisis, a real
tightening of the market. But it is only in those particular
practice areas, namely resources. If you are in resources, it is
not quite name your price but there is a shortage of the lawyers
with the necessary experience.
However, if you happen to be a recent graduate or work in pretty
much any other area of law, Quail says things are actually very
difficult.
819
As soon as a global equity partner touches the work, it triples
in price. So I really doubt that the Perth market can handle
thatJulIAnnA SheArn, dIreCTor, SheArn legAl
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AM
l aw y e r s w e e k ly 16 s e p t e m b e r 2 011 23
coverstory
It is very hard to say what is happening, especially seeing as
everybody is beating their own drum and saying that things are
going greatDoron Paluch, DIrector, Burgess Paluch legal
recruItment
We still have far too many graduates coming through who we cant
give jobs to, he says. If you are not in resources, there are
plenty of lawyers in Perth who are going through tough times The
streets arent paved with gold in Perth. A few of them in West Perth
are, but the rest of Perth is tarmac.
a harsh realityThe extent of Perths graduate overpopulation is
making itself known in various circles. According to Shearn, the
primary reason behind it is an increasing number of universities
offering law degrees.
We have got far too many graduates. There are five law schools
now, she says. We are trying to find people jobs and we cant,
because they just cant go anywhere.
So great is the backlog of graduates, says Shearn, that aspiring
young lawyers cant even find placements for their College of Law
practical legal training requirements.
Another who has noticed the states significantly over-lawyered
status is Nicola Stott, the director of legal process outsourcing
(LPO) provider Exigeant, which is based in Rockingham, just south
of Perth.
We put an ad on SEEK [for one of our projects] and I could not
believe the amount of people who came forward and great people, she
says. We had them queuing out the door.
Stott says that more and more graduates and lawyers are opting
to look at alternatives such as LPO in order to get a foot in the
door.
They are absolutely crying out to gain even first-level
experience and actually do real work, but they are struggling to
find positions within law firms, she says. They are struggling
because they dont have any experience, so this is actually a great
way for them to touch and feel real work.
The situation in regional Western Australia could not provide a
more stark contrast to the over lawyered Perth market
We have got real problems in the regions, because everyone is in
Perth. The regions are starved of lawyers, says Quail. In fact, I
would say that if there are interstate lawyers who dont want to
come for resourcing regions, there is a
dearth of lawyers in many of our regional areas. There are
plenty of opportunities for lawyers to start up in country towns
and make a really good living. Some of the most under-serviced
regions are in fact those which are very wealthy, such as Karratha
and Port Hedland. There are almost no lawyers up there, yet they
are the highest per capita earning towns in Australia.
exciting timesFor those in the energy and resources sector and
related fields, the outlook is bright and the firms who have chosen
to establish themselves in Perth have done so for very good reason.
The downside of the boom, however, has been a rising cost of living
which is outgrowing salaries, a shortage of housing and an
increasingly crowded and expensive CBD. Despite this, Perth
remains, for the moment, a vibrant place to be.
It is an exciting time in Perth, says Paluch. It is a
combination of the mining boom, the general state of the market,
and the emergence of not only international firms, but also very
strong boutiques.
Lifestyle, too, continues to be typically laid back, says Quail.
The reason to [move west] is that you get all the advantages of the
small city lifestyle, he says. Perth is a fantastic place to live
and bring up kids and you still have the opportunity to work on
significant projects. That is what makes it attractive for
lawyers.
And for Shearn, who knows what the future will bring. They are
exciting times, she says. Every day is a new discovery. lw
In a strange way, you could say that the opportunities are
increasing at the moment, not decreasingPhIl lucas, PrIncIPal,
allIon legal
We had them queuing out the door.nIcola stott, DIrector,
exIgeant
In-demand practice areas (for three-year-plus PAE lawyers)
Energy & resources Construction Corporate &
commercial
Finance InsuranceWorkplace relations
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24 l aw y e r s w e e k ly 16 s e P T e M B e r 2 011
www.lawyersweekly.com.au
73 %Source: What Moms Think: Career versus Paycheck The Working
Mother Report 2010
59 %
my next move:
Of women say they would be comfortable if their spouses were the
higher
earners
Of men think it would be okay for their spouse to be the higher
earner,
but only 42 per cent feel comfortable
when the scenario moves from
theory to reality
Alex McIntyre, senior consultant, Dolman
Gender politics
Q: When is the best time to make my next career move?
A: There are a number of factors to consider when timing a
strategic career move in order to maximise the options available to
you.
Lawyers looking to make a move within the first two years of
practice often find there are limited options available as the
larger firms usually resource these positions through graduate
schemes. Generally, lawyers are advised to learn as much as they
can with their existing employer until they have around two years
of experience, giving themselves more options in the employment
market.
As you progress towards associate level and reach up to five
years of PQE, you are more attractive to employers and have the
most options available to you. This is because you have developed
the core technical skills, knowledge of the law in your specialist
area and are able to take on higher levels of responsibility,
whilst remaining malleable.
QA
If you are on the cusp of becoming a senior associate and are
weighing up whether you should stay and get promoted or move, there
are a few factors to consider.
If you do decide to stay and become a senior associate, you
should stay in that role for at least one to two years so that you
can benefit from that experience and become more attractive to the
market. If you are a year away from becoming a senior associate and
are thinking of making a move, it would be better to make a move
now so you can invest your time with a new employer.
As you reach the five year PQE mark and above, more options
become available on the in-house side as you will have more refined
technical skills and a stronger commercial acumen that is required
for in-house roles.
At the more senior level, looking to make a move can take time
and there are fewer options available both in-house and in private
practice. Its worth keeping track of market activity as its harder
to predict when the right opportunity will arise.
Male managers are the greatest ally of working mothers,
according to a study on the advancement of women in the
workforce.
Male managers best allies of working mums
careercounsel
From THE myriad of groups surveyed for the study What Moms
Think: Career versus Paycheck, male managers regardless of whether
they have children hold the most favourable perceptions of working
mothers. Additionally, in a number of circumstances, male managers
hold more positive perceptions of working mothers than mothers
themselves.
According to the study, which surveyed more than 4,600 men and
women, more male managers agree that working mums are likely to
take on additional work (+6 per cent); will travel for work (+10
per cent); are committed to career advancement (+8 per cent) and
would relocate if called on to do so (+15 per cent).
However, the expectations of male managers differ when it comes
to family responsibilities.
While male managers may be strong workplace advocates for
working mothers, their social views stand in stark contrast, the
report
states. For example, 51 per cent feel that one parent should
stay at home to care for children. However, with todays economic
realities and preferences, just one in five of todays families
meets this mould.
Not surprisingly, working men who are fathers have favourable
perceptions about the contributions of working mothers. However,
working men who are not fathers have far less favourable
perceptions.
Compared to fathers, men without children rate working mothers
as far less likely to be committed to career advancement; take on
additional work; be committed to job responsibilities; be willing
to do whatever it takes to get the job done; reliably deliver
quality work and be prepared for a promotion, the report
states.
Additionally, working women with no children share some of the
mens harsher views
of working mothers. These judgments are the kind working
mums dread, the report states. our survey shows that
career-orientated working mothers fear their colleagues and
managers question their commitment.
The study also revealed that career-orientated working mothers
feel more respected at home compared to women who work solely for
financial reasons. The career-orientated women also said their
spouses are more helpful in caring for children and managing the
household.
We learned that mums who view work as a career feel more
satisfied, healthy and fulfilled on almost every measure on both
work and the home front than mums who say they work for primarily
financial reasons, regardless of their salary level, said the
president of Working mother media, Carol Evans.
trust | honesty | integrity | partnership
These are a selection of our vacancies, for further information
in complete confidence please contact
[email protected] or
[email protected] on 08 61021056
www.atticus-legal.com.au
Energy/Projects Partner Perth
Recently established in Perth, with an excellent national
reputation, our client is in growth mode. A partner is
sought to expand the Perth offices capability and work
closely with the energy partners nationally. Whilst you
will be expected to have your own existing client base,
this is a superb opportunity to utilize the firms name
and national profile. LWA2642
Commercial Litigation Partner Perth
This is a rare opportunity to join the successful Perth
office of this ambitious national practice. As a strong
business developer you will bring a variety of personal
contacts. Exposure to international clients would be
an advantage. A fantastic role for a partner looking
to shape a department and a real chance to shine.
LWA2641
Corporate Partner Perth
Play a key role in developing the Perth office of this
forward thinking national practice. This specific role
would suit a corporate partner who wants to work in
a more ambitious environment and to join a practice
with genuine growth plans. A genuine opportunity to
step up. Proven marketing and business development
skills required. LWA2640
PARTNER
Legal Counsel - Oil & Gas 3-4 & 6-7 PQE Darwin
This is an exciting opportunity to move in-house and work with a
premier legal team on one of the countrys foremost LNG projects.
You will have solid transactional
experience in commercial LNG/oil and gas documentation gained
within a top national or recognised boutique firm. This is a
challenging role that will afford the opportunity
of 6 months overseas. LWA2619
IN-HOUSE
Corporate 2+ PQE Perth
This international firm is looking to build their
Australia practice. Opportunities exist at all levels to
do high-end M&A work with blue chip clients within the
energy and resources sectors. LWA2379
Employment 3-5 PQE Perth
Work with this dynamic partner in an energetic team
environment to build this practice. You will have
experience in employment and independent contractor
agreements and industrial instruments. LWA2528
Banking & Finance 2-5 PQE Melbourne
This is a great opportunity for an experienced finance
lawyer to join this established and successful team.
You will have top law firm experience as well as top
academics to be successful in this role. LWA2492
Securitisation 6+ PQE Sydney
This is an outstanding chance to further your career
with a globally recognised firm. As well as solid
structured finance and securitization experience you
will have a working knowledge of ISDA. LWA2605
HSE & Risk 5-7 PQE Perth
This top tier firm is looking for an associate with
litigation experience and a background in mining,
petroleum and other HSE crisis management. Great
opportunity to join a committed team. LWA2484
Regulatory 2-4 PQE Perth
This top tier firm is looking to develop their established
practice further with the hire of an associate. You will
have ecognised financial services, regulation and
corporate finance experience. LWA2399
Litigation 2-5 PQE Sydney
Due to continued success, this leading commercial
law firm with a focus on the Asia Pacific is seeking an
associate with recognized litigation experience gained
with a highly regarded practice. LW2459
Corporate 2-6 PQE Perth
Opportunity to work with the cream of Australias top
ranked M&A lawyers on the biggest deals in a collegiate
atmosphere. Excellent academics and experience
obtained within a leading M&A practice. LWA2487
Oil & Gas 3-6 PQE Perth
Make the move to one of the countrys foremost energy
practices. You must have solid transactional experience
in commercial oil and gas documentation ideally gained
with a highly regarded practice. LWA2573
Energy & Resources 4-6 PQE Perth
Opportunity for a stellar lawyer with experience in the
mining, oil and gas, power, and/or renewable energy
sectors to join a thriving practice. You will have a
flexible and collaborative style. LWA2634
Banking & Finance 3-6 PQE Sydney
Move to this truly global law firm and work on a range
of finance transactions for some leading financial
institutions in a collegiate environment. Great
opportunity for career development. LWA2398
Corporate Energy 3-8 PQE Perth
Global law firm seeks lawyers to join highly rated
practice on high profile deals with blue chip clients in
the mining and resources sector. You will have gas and
electricity experience. LWA2449
Resources 2+ PQE Perth
Rare opportunity to work for a highly recognized
firm with high profile clients in the mining and
resources sector. You will possess experience from an
international or recognized boutique firm. LWA2504
Construction 2+ PQE Sydney
Fantastic role working for a top tier firm. You will
work on front end property and construction and
large scale infrastructure projects for a range of
clients. LWA2499
Corporate Energy 2-6 PQE Perth
Opportunity to further your career at this well
regarded nationwide market leader. They are seeking
associates with a background in energy and resources
to join their leading M&A team. LWA2524
ASSOCIATES
We are representing a number of leading US and UK firms who are
looking at the Australian market and Perth in particular. These
firms are looking at options ranging from
alliances to taking teams to full blown mergers. If you would
like to discuss this fast-changing market in absolute confidence,
please call Terrie Cole on 08 61021056 or
email at [email protected].
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4 7 A M
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folklaw
26 L AW Y E R S W E E K LY 16 S E P T E M B E R 2 011
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READ THE LATEST F O L K L A W ONL INE
www.lawyersweekly.com.au/folklaw
A man who claims he owns more than half of Facebook has issued
an open invitation to law firms to help state his case.
Paul Ceglia owned the Streetfax company in April 2003 when he
hired a young Harvard freshman called Mark Zuckerberg. Ceglia
claims that while employed with Streetfax, he gave Zuckerberg $1000
to help start Facebook. He now claims that due to stipulations in
that contract, he is entitled to up to 84 per cent of its
earnings.
According to ZDNet, Ceglia has started a website to help fund
his lawsuit. He has invited any lawyers with legal or technical
expertise to help nail him (Zuckerberg) down for good.
Unfortunately for Ceglia, he does not have a good record with
his legal representatives, having been dropped by no less than two
firms and, prior to that, two high-profile lawyers since he
indicated that he wanted to take on Facebook last year.
In July, the five-office strong American firm Edelson McGuire
severed its links with the ambitious litigant, just one month after
the global law firm DLA Piper had done the same.
One firm Ceglia wont be contacting is Orrick
Man appeals to law firms to help nail Zuckerberg
Folklaw loves getting out of the office and pressing the flesh,
so it was delighted to attend the Australian Institute of Judicial
Administration Incorporated (AIJA) Conference on the issues and
challenges for judicial administration.
While many of the topics covered were extremely meaty and
prescient, the criminal lawyers and barristers in attendance also
showed that t