NEW SOUTH WALES BAR BRIEF T h e m o n t h l y n e w s l e t t e r f r o m t h e N e w S o u t h Wa l e s B a r A s s o c i a t i o n ISSN No: 1443 - 6132 “Servants of all yet of none” No. 75 July 2000 President’s Column A brief report from the Australian Bar Retirements Association conference in New York. Chester Porter QC retired on 30 June. The Bar Council has resolved to make him an The theme of the conference is the rule of Honorary Life Member of the Bar Association. law. Chief Justice Gleeson opened the He was a barrister for more than 51 years. conference on 2 July with a speech about With legendary victories up his sleeve it was ‘Judicial Legitimacy’. In his speech, which hardly surprising that at one stage t-shirts has already received some publicity in bearing the inscription ‘Chester Porter walks Australia, his Honour spoke of judges on water’ were in wide circulation. His holding their judicial power on an express decision to retire was made one morning trust, the terms and conditions of which are when he walked into chambers and said to stated in the commission of a judge or himself ‘I’ve had this’. No doubt that capacity magistrate and the terms of the judicial oath. for immediate and resolute decision making His Honour acknowledged that ‘(l)ike other was one of his great strengths as an advocate. members of the community, individual He is going to come back to help in the judges will, on occasion, disapprove of the Readers’ Course. The Bar has been well laws enacted by Parliament. Provided their served by having him among our ranks for so capacity to administer the law impartially is long. He will be sorely missed. not compromised, they are free to criticise the law and to propose change.’ The Hon. Jeff Shaw QC MLC surprised all by announcing his retirement as Attorney The final address was given by Chief Judge General on 28 June, effective the same day. Kaye, Chief Judge of New York State. She I saw him talking to Porter QC on the night spoke about ‘The Profession at the of Porter’s farewell drinks. Perhaps he, too, Ruth McColl S.C., President. Crossroads’. The crossroads of which she finally decided he’d ‘had this’. He is returning spoke were the dilemmas facing lawyers in One step, which has been taken to this end to the Bar. He has been a fine Attorney being traditionally cast in a role of in New York State, has been to abolish all General, who was always available for preserving the continuity of the law through jury exemptions. Everyone in New York is consultation and sought the Bar’s views on traditional methods in the face of public liable to serve on a jury. Many lawyers have a wide range of matters. He was able to scepticism about the value of the work done served. One of the standing instructions to present a sensible view of the law and the by lawyers and courts. jurors now is that the occupation of any legal system for public consumption which, juror does not mean their opinion holds any She adapted a saying from well known US at the same time, made sense to lawyers. greater force than the opinion of any other baseball player Yogi Berra ‘when you come While we regret his loss as Attorney General, juror. At least one New South Wales judge to a fork in the road, take it’, to challenge we welcome him back to the Bar. attending the conference expressed lawyers at the crossroads; not to treat the enthusiasm for the idea. It will be interesting We also welcome the new Attorney General, dilemma as a stop sign, but as an to see if the idea is taken up in New South Mr Bob Debus. He is to attend the next opportunity to work harder and more Wales. It means even judges can get called meeting of the Bar Council on 20 July, where creatively to ensure the justice system up. The Chief Judge of New York State has we hope we will hear more of his approach enjoys the community’s confidence. been summonsed twice but not selected. to his new position. Media Briefing In this issue... Opportunities for appointment to ICAC 2 The June 2000 Bar examinations: Media Releases issued by the GST: Addressing fees direct to clients 2 Some facts and figures 10 New South Wales Bar Association Regional Conference, 10 - 11 June 2000 11 Exploring alternatives: Rule 17A compliance 4 Cessation of District Court The NSW Bar welcomes the return of Jeff Fees in direct access matters 5 Shaw QC, 28 June 2000. sittings at Liverpool 11 Receipt of monies in advance Queen’s Birthday Honours 12 Media Releases issued by the Law of performing work 6 The Equal Opportunity Committee Making representations to the Court as to Council of Australia and mobility disability 12 the (fee) basis on which you are appearing 8 Council Calls for Restoration of Rule of Legal Aid fees in criminal matters 12 UNSW Indigenous Pre-Law Law in Fiji, 21 June 2000 Farewell for Chester Porter QC 13 Program in need of support 9 Victorian Opposition Should Support The Bar and the Olympics 14 Barristers graduating from Supervised Injecting Rooms Bill, Federal 1/00 Bar Practice Course 9 Olympic Pro Bono Scheme 15 Government Should Allow ACT Heroin Trial, 2 June 2000 . Make www.nswbar.asn.au your home page. Page 1 – BAR BRIEF July 2000 Opportunities for GST: appointment to ICAC Addressing The Commissioner of the Independent Commission Against Corruption, Irene and lead the presentation of matters to the hearing, subject to the overall fees direct Moss AO, is seeking expressions of interest direction of the Commissioner or from members of the Bar who would be interested in being appointed as Assistant Assistant Commissioner presiding at the hearing. Once the matter goes to hearing, to clients Commissioners or as Counsel Assisting In the period leading up to 1 July, some Counsel Assisting is responsible for members received correspondence from the Commission. ensuring that all relevant material is put instructing solicitors suggesting that, due The Commissioner is ultimately before the Commissioner. Counsel to accounting and cash flow responsible for all Commission activity, Assisting will be instructed by lawyers considerations associated with the including all investigations. The from the Commission. introduction of GST, barristers should responsibility for conducting hearings in address fees directly to the client. Those interested should write directly aid of an investigation is periodically On Friday 30 June, Walker S.C. for the to the Commissioner, enclosing details delegated to Assistant Commissioners, Bar Council, together with the Chairman about their areas of practice and who will have prime responsibility for of the GST Committee, Gzell QC, met previous experience. Those interested in making findings and recommendations with representatives of the Law Society appointment as Counsel Assisting should to examine this issue. The Bar based on the matters raised at hearings also indicate their daily and hourly fees. Association declined to endorse the and for the prompt preparation of a report Assistant Commissioners are remunerated proposal as one it would recommend to to Parliament if required. Those appointed at the daily rate paid to acting judges of its members. as Assistant Commissioners would come the Supreme Court. The position concerning retainers, costs from among the more senior members of the profession. Those appointed as an Assistant agreements and direct access remains Commissioner or as Counsel Assisting will the same after as before the introduction The Commission also appoints Counsel of GST. In particular, Rule 85 of the New Assisting to each hearing. In complex be fully briefed on the Commission’s South Wales Barristers’ Rules imposes matters both senior and junior counsel will procedures by officers of the Commission. no obligation to accept a brief from a be appointed. Generally there is only one Further information may be obtained from solicitor, if the brief purports to be on Counsel Assisting appointed. That person Mr Tony Marsden, Acting Solicitor to the terms under which the solicitor has no will ordinarily call and question witnesses Commission on ph: (02) 9318 5825. obligation to pay fees. Bar Council business for May Any member interested in a particular Meeting with judges of the Supreme May at which sentencing guidelines were matter should contact either the relevant Court, 3 May 2000 to be considered for the appropriate member of Council or the Executive The President advised that she, R Angyal, ‘discount’ that should be applied where Director for further information. there was a plea of guilty at an early stage. Chair of the Mediation and ADR Committee and the Executive Director had met with Bench & Bar Dinner, 12 May 2000 President’s Report Bryson, Sheller and Greg James JJ, The President noted that she had heard Meeting with Justice Lindgren, 19 Registrar Berecry, Ms Nerida Johnston, nothing but praise for the Bench & Bar April 2000 CEO Supreme Court and Ms Jeanie Dinner, in particular for the high standard Highet to discuss proposals to amend the of all the speeches. Bar Council expressed The President advised that she and the Executive Director had, at Justice Supreme Court Act 1970. The proposed its appreciation for the work done by Lindgren’s request, met with him and amendments would permit proceedings in Wheelahan QC and Ms Govindasamy in District Registrar Matheson to discuss equity to be referred to civil arbitration and organising the dinner. problems that had arisen in the enable the Court to refer matters arising Regional conference, 10 – 11 June 2000 administration of the Federal Court/Bar in civil proceedings before it for mediation. Association pro bono scheme. The President noted that the Bar Meeting with Public Defenders, Association’s annual regional conference Meeting with the Attorney General of 5 May 2000 was being held at Bowral on 10-11 June. NSW, 27 April 2000 The President noted that she, Slattery QC She asked all Bar Councillors to give The President advised that she and the and the Executive Director had been guests consideration to attending the conference. Executive Director had met with the of the Public Defenders on 5 May. Court of Appeal – Amendment to Rules Attorney General to discuss a range of Meeting with Law Society Executive, matters, including: The President noted that the Supreme 11 May 2000 Court Rules had been amended so that as • Problems being experienced with listing The President advised that the Executive of 1 July written submissions had to be practices; and had met on 11 May with the Law Society’s filed within six weeks of the notice of • The level of fees paid by the Legal Executive. One matter discussed was the appeal. This was the practise in Aid Commission. Court of Criminal Appeal hearing on 12 Queensland. The Court had consulted with Page 2 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. It was also resolved to support an Bar Council business Heritage Resources of the New South Wales Bar Association amendment to the Legal Profession Act Continued from page 2 1987 to include a statutory power enabling Bar Council noted that this report, which Jackson QC, the Bar Association’s the Law Society and Bar Association to has been endorsed by the Bar History representative on the Court of Appeal advertise the fact of a legal practitioner Committee, is part of the major review of Users Committee. having been removed from the Roll of Legal the Association’s records and heritage Practitioners or having had their practising resources which it had approved in 1999 Items for consideration certificate cancelled. be undertaken. Bar Council further noted: Australasian Legal Information Draft submission to the NSW Law • The proposed transfer of records to the Reform Commission, ‘Review of Part Institute (AustLII) request for support Mitchell Library; 10 of the Legal Profession Act 1987 – Bar Council resolved to provide AustLII • The proposed transfer of some items to Issues for consideration’ with a letter supporting its application to other institutions on long-tern loan; Bar Council resolved the submission be the Australian Research Council for RIEF • The recommendation that the Bar forwarded to the Law Reform Commission (Research Infrastructure Equipment and Association not automatically accept (and copies sent to the Legal Services Facilities Scheme) funding for 2001 and every offered gift; Commissioner, Law Society of NSW and 2002. It was further resolved that the Bar Attorney General’s Department). Association work with AustLII to develop • That a formal collection policy was an appropriate strategy and approach for being developed; and District Court Rule Committee: AustLII to seek funding from the legal Meeting of 13 April 2000 • That an insurance and valuation report profession in NSW. Bar Council noted that the Chief Judge had is being prepared. Drug Law Reform raised with the Rule Committee a proposal Bar Council resolved to approve all of the to adopt Order 80 of the Federal Court to Bar Council noted that there were report’s recommendations other than 5.6 allow the District Court to appoint currently differences between the positions (the Association engage professional practitioners on a pro bono basis. The of the Victorian and NSW Bar Councils, curatorial/research assistance to undertake Chief Judge had sought the Bar Council’s and the advice of the chair of the Criminal a program in preparation for the centenary views on this matter. Law Committee that uniformity was not of the founding of the Council of the Bar necessarily appropriate. Bar Council of NSW in 2002), and agreed in principle Bar Council expressed concern that the resolved not to explicitly endorse the to recommendation 5.6, which it referred proliferation of court pro bono schemes Victorian Bar Council’s resolution of 17 to the Bar History Committee for its was due at least in part to the unavailability F e b r u a r y, b u t t o e m p h a s i s e t h e consideration. of legal aid and problems in court commonalities between the positions of the administration, and that the profession was two Bars. The President was asked to Report of the District Court Users continuing to be asked to provide at its speak to the Bar Council’s position at Committee meeting of 6 April 2000 expense remedies to issues that should be the next meeting of the Australian Bar Council received a report from Murray addressed by governments and the courts. Bar Association. QC which discussed, among other things, It was resolved that the Bar Association’s Practising Certificates: Restrictions on a move to allow parties to engage private pro bono schemes were not to be used to Readers and Academics contractors for the purposes of obtaining overcome D i e t r i c h problems, as a transcripts. The Attorney General’s substitute for legal aid, or for long trials. Bar Council noted that practising Department set out guidelines for the It was further resolved the Executive certificates for Readers and Academics are tendering process. Bar Council resolved to Director meet with the Chief Judge to currently annotated: ‘This certificate is support the proposal. discuss how the present court/Bar subject to the condition that the holder is Association pro bono schemes worked. not permitted to appear as a Barrister Legal Profession Amendment without a leader in any Court, except with (Complaints and Discipline) Bill 2000 Note: because of the confidentiality the permission of the Bar Council’. It was It was resolved that the President, having provisions in the Legal Profession Act 1987 resolved the annotation be amended to regard to the Bar Council’s several (s171P), the Bar Council’s deliberations on read: ‘This certificate is subject to the discussions on the proposed legislation, professional conduct matters cannot be condition that the holder is not permitted write to the Director General of the noted in these summaries. to appear as a barrister without a leader in Attorney General’s Department conveying Matters discussed by the Bar Council any court, tribunal or arbitration except the Bar Association’s views on the reported elsewhere in Bar Brief, too, are with the permission of the Bar Council’. proposed amendments. omitted from these summaries. 60 Martin Place, Sydney Telephone: (02) 9231 3622 Make www.nswbar.asn.au your home page. Page 3 – BAR BRIEF July 2000 Exploring alternatives: Rule 17A compliance In the April edition of Bar Brief, an article Listed below are the most commonly value will depend on the form of arbitration prepared by the Mediation Committee understood alternatives. chosen or imposed. explored the express ethical obligation, imposed by the new Rule 17A of the New Mediation Expert determination/references South Wales Barristers’ Rules, to seek Of all the alternatives dealt with in this These processes, which are usually less alternatives to a fully contested hearing. article, mediation is the one which most formal than arbitration, enable parties to This article aims to outline the more requires particular knowledge, either by have an expert assessment of specialist common alternatives that a barrister might reading or preferably through a mediation issues. The decision can be binding or non- consider in compliance with Rule 17A. It course. The technique required effectively binding depending on what is chosen or also raises some of the cost, time and to represent a client at a mediation differs imposed by a Court. They have the privacy factors that would form part of a potential to shorten technical evidence and from those required to represent the client barrister’s consideration. can be flexible in their procedure. at a full-scale hearing. The mediator will not urge any particular result and cannot The cost will depend upon the procedure Re-cap of Rule 17A Compliance used. It can be effective to resolve an The new Rule 17A requires barristers in impose a decision. Mediators operate under an agreement signed by the parties, expert issue, particularly if the issue is not every contested matter to consider central to the action. It can be more alternatives to a fully contested hearing, or occasionally, on terms imposed by a expensive than a Court contest, especially to formulate a view on the most Court. It is fundamentally different from if there is a hearing before an expert who appropriate alternatives and, except in arbitration. A mediator, unlike an is not experienced in the management of special circumstances, to convey that view. arbitrator, can and does confer with parties oral proceedings. Conveying the view to the instructing privately and is under an obligation not to solicitor is adequate compliance. Advice disclose information provided by either Early neutral evaluation or appraisal given must be tailor made to the particular party to the other unless authorised to This is a system not much used in New matter. Generalised advice or the provision do so. South Wales at present. It involves the use of a pamphlet or standard letter is unlikely Mediation can be very effective, of a lawyer who examines a dispute to be sufficient. particularly when clients are present. It is (usually in documentary form) and hears The alternative available not possible effectively to represent a submissions usually in their own chambers Last year the Bar Association launched the client at a mediation without at least some or office. The early neutral Evaluator will Barristers’ Resolution Service, and a kit education in how mediation works. The then identify strengths and weaknesses in containing details is available from preparation required is substantial and the each party’s position and highlight areas Reception. It provides a description of the cost is similar to a day of hearing. The of agreement or dispute. A written alternatives available to a full-scale hearing, benefit of a mediation is that, at an early assessment of the merits of the case would as well as sample agreements, a list of stage, it can produce a speedy and issue, which may be binding or non-binding accredited specialists and a range of complete result in a way in which a client as the parties may agree or the Court may special clauses. Familiarity with that kit is can have a role that satisfies the need for impose. The cost would depend upon who a good foundation for understanding the pays the Evaluator (the Court or the a day in court. alternatives that might be considered to a parties) and the length of time required. full-scale contest. Arbitration There is no limit to the range of alternatives The benefits of arbitration over a Conciliation to a full-scale hearing. An alternative may conventional Court hearing may not This is a procedure mainly found in various be any one or a combination of the necessarily be in either cost or length of statutory jurisdictions, such as in industrial alternatives set out below, or it may be hearing. However, arbitration can provide disputes or workers’ compensation. It something quite different and unique to, a specialist bench, flexibility in the time involves a neutral third person using but appropriate for, the demands of the of hearing and a greater confidentiality for mediation techniques but, unlike a matter in question. clients than a public Court hearing. Its mediator, a conciliator may be expected At Bradburys, we offer ... BRADBURYS Leading Australian artists F I N E A R T Competitive prices 40 Ross St, Glebe Robert Dickerson: Summation for the jury Pastel Courteous & efficient service 11am - 5.30pm Wed - Fri Currently exhibiting works by 10am - 4pm Sat - Sun Bell, Boyd, Blackman, Brack, or by appointment Cassab, Coburn, Dickerson, Gleghorn, Heysen, Looby, Phone: 02 9571 9979 Nolan, Olsen, Proud and more. Fax: 02 9571 8869 Oils, watercolours, pastels, If you’re too busy to come mixed media, etchings & prints to us, we’ll come to you! Page 4 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. Exploring alternatives: record of its use except for filing of terms of settlement or a request for consent CHAMBERS Rule 17A compliance Continued from page 4 orders.It remains the cheapest, the most effective, the most common and the FOR SALE to make somewhat more use of making least recognised alternative to a full recommendations to assist parties to hearing. Most lawyers actively and resolve their differences. In some Courts, successfully pursue a negotiated 13th Floor, Selborne it is a compulsory pre-trial procedure settlement in most matters. which uses conciliators appointed by a Wentworth Chambers Conclusion statutory authority. has a room and a half for sale. The object of Rule 17A is to achieve Settlement conference or round resolution at the earliest reasonable stage, The chambers are situated on table conference rather than at the door of the Court. It the Macquarie Street side of This technique involves the parties’ lawyers aims to prevent delays and wasted costs. the building. (usually with clients present or nearby to The list set out above is a list of the more give instructions) meeting in the office of obvious alternatives to a full-scale hearing. The floor consists of three one of the parties or their insurer at a time The perfectly normal commencement of Senior Counsel and 28 Juniors. settlement negotiations initiated by the when preparation has reached a stage sufficient to enable informed negotiations making of an offer is not in the list above Range of jurisdictions with to occur. There are few statistics available because it is too obvious to require commercial, equity, probate, description. It is, however, an alternative as to the extent of its use, but apart from professional liability, common that may meet the requirements of Rule the usual methods of negotiating a law and administrative 17A. Settlement negotiations alone, settlement, it remains one of the most law emphasis. however, may not be sufficient. If they widely used procedures for resolving cases. are commenced early and break down, All enquiries It has little institutional recognition because it may be appropriate to consider should be directed to: it is usually done privately between the other alternatives to overcome whatever parties to a dispute. Its use is initiated by may have been the obstacle to a Mr Daniel Noll on 9377 5164. lawyers or their clients. There is no public negotiated settlement. Fees in direct access matters Barristers who accept direct access language that the client can be expected agreement. Members are reminded of briefs should take particular care to to understand. Rule 99(c) which permits a barrister to protect themselves in relation to fees. return a brief where fees have not been Issues include the work covered by a brief Instructing solicitors provide more than fee and the circumstances in which any paid promptly or in accordance with a the convenience of a trust account. cancellation fee will be payable. Barristers fees agreement, and have remained They are usually skilled communicators should stipulate whether the fee on brief unpaid after reasonable notice to the in relation to all aspects of fees: the covers some or all preparation, all work client of the barrister’s intention to return amount to be charged, the scope of done on a given day, or time in court only the brief for that reason. work covered, recovery and handling with conferences extra. Rule 99(c) is qualified by Rule 97, which client concerns. In the New South Wales Barristers’ provides that if a barrister wishes to Members are reminded of their Rules, ‘fee’ is defined to include any return a brief which the barrister is obligations under s174 and s175 of the payment for the reimbursement of permitted to return, he or she must do Legal Profession Act 1987 (NSW) expenses. Barristers accepting a direct so in enough time to give another legal concerning fee disclosure. Those access brief should consider whether it practitioner a proper opportunity to take provisions impose more onerous will involve the barrister in expenses over the case. For example, where an for which he or she might seek advance fee is agreed, the time by which disclosure requirements on a barrister reimbursement, particularly costs which the fee must be paid should be taking direct access work than is the might otherwise be incurred or borne determined by reference to Rule 97, if case where disclosure is made to an by an instructing solicitor. the barrister may want to return the brief instructing solicitor (compare s176). In for non-payment of the advance fee. drafting fee disclosures to direct access Although barristers must not receive clients, consideration should be given to money in trust for fees (Rule 77), they Attention is also drawn to Rule 100, the level of sophistication of the client are entitled to receive payment in concerning the circumstances in which who will receive the disclosure. It may advance of work to be performed (see a barrister may return a brief accepted be prudent to obtain a written advice by Bennett QC below, first under a conditional costs agreement. acknowledgment that the client published in the October 1998 edition of All fees received should be promptly understands the basis on which he or Stop Press). and properly receipted to the client, to she is to be charged. Alternately, a fee The time within which fees are to be paid avoid any dispute as to amounts paid agreement should be drafted in plain may also be the subject of a fees or unpaid. Make www.nswbar.asn.au your home page. Page 5 – BAR BRIEF July 2000 Receipt of monies in advance of performing work In 1998 Bar Council sought the advice of inference is drawn that the parties had the trust. Similarly, if there is an express David Bennett QC in respect of receipt of intention of protecting an interest in the agreement that the money is to become fees by barristers performing work under beneficiary and that a trust was the the property of the barrister and that there direct access rules. Members may wish to appropriate means of doing so, then a is merely to be a debt back if the fund are retain a copy of this advice with their New constructive trust will be inferred: see, e.g., not fully used, it is clear that there is South Wales Barristers’ Rules. Bahr v. Nicolay (No. 2) (1988) 164 CLR 604. no trust. There is no authority of which I am aware Assuming that the parties do not spell out Opinion on the application of these principles to the terms with this degree of clarity, there I am asked to advise the New South Wales barristers. There is very limited authority are certain phrases and certain types of Bar Association on the following questions: on their application to solicitors. conduct which would provide clear indicia 1. In the absence of a fee agreement and The leading case in this area is Kirk v. one way or the other. Thus the payment disregarding Rule 77 of the New South Commissioner of Police (1988) 19 FCR of monies into a trust account would be a Wales Barristers’ Rules and Regulation 530, a decision of the Full Federal Court clear indication that the monies are 26J of the Legal Profession Regulation comprising Fox, Davies and Beaumont JJ. intended to be held on trust (although this 1994 (NSW), what is the legal nature of The issue was whether funds in the trust would be less strong an indicium where the manner in which those monies are account of a solicitor could be seized by the client was unaware of the existence held by barristers? Specifically, do those the Commissioner of the Australian of the trust account). The use of the words bare circumstances give rise to a trust? Federal Police under s243E of the Customs ‘security for costs’ might be an indicium Act 1901 (CTH) which, in the events of trust since it would suggest that the 2. Does that situation change where, which had happened, authorised seizure barrister had a security interest over the pursuant to a fee agreement, monies of the client’s property. funds which otherwise remained the become payable on the happening of a property of the client. The phrase ‘pre- certain event? A particular example of The Court cited a large number of early payment’ is a slight indicium of debt as is this question would be where a English authorities establishing that a an express obligation to repay in the event barrister is briefed to appear on a solicitor was entitled to demand funds in that the funds are not utilised. The phrase number of days and by his/her advance as a condition of acting in ‘on account of costs’ is, in my view, neutral. agreement stipulates that the whole fee contested litigation. Fox J, dissenting, is payable in advance. If a client pays drew the inference that the funds were My conclusions, independently of the that fee in advance on a non-refundable not held in trust for the client. Davies J legislation, regulations and rules, are: basis, what is the nature of the way in drew the opposite inference. Beaumont J, i. Whether or not there is a trust depends which the monies are held? having rejected the applicability of the upon the intention of the parties. 3. What effect, if any, does Regulation concept of a Quistclose trust, held that it ii. It is possible to use verbal formulae 26J(2) have upon the situation? was not necessary to decide whether there which will clearly create or clearly not was a trust or a debt because in either create a trust. I propose first to deal with the topic event the funds could be seized. generally and then to deal with the iii. It is possible to use verbal formulae or specific questions asked. It is The result is that the case is not of great engage in conduct which suggests the convenient to deal with the topic under assistance. What it does indicate is that presence or absence of a trust. the following headings: there is at least some doubt as to whether, in the general situation, funds held by a iv. Each case must be looked at on its 1. The general law of trust own facts in the light of precise solicitor on account of costs are trust 2. The effect of s38P of the Legal funds or simply the property of the communications between the parties. Profession Act 1987 (NSW) solicitor on the basis that, if they are not 3. The effect of Regulation 26J used, there is a debt owing as to the 2. The effect of the Legal balance from the solicitor to the client. 4. The effect of Rule 77 Profession Act 1987 (NSW) There is no other direct authority. Sub-section 61(8) of the Act contains the 5. Practical consequences The possibility of there being a Quistclose following two definitions: 6. Answers to the specific questions asked. trust (named after the decision of the controlled money means money House of Lords in Barclays Bank Limited 1. The general law of trust v. Quistclose Investments Limited  required to be dealt with in accordance One of the three essential elements for the with subsection (2)(c) that, under the AC 567) was rejected by both Davies and creation of a trust is that there be an direct or indirect control of the solicitor Beaumont JJ. It is not an appropriate intention to create a trust. This, of course, by whom or on whose behalf it is concept in the situation where the purpose does not necessarily mean that the person received, is for the time being held for which the funds are held involves creating the trust is aware of the legal otherwise than in a general trust payment to the trustee himself or herself. nature of the concept; but it does require account at a bank in NSW. that the person intends the funds to be It is therefore necessary to analyse the trust money means money required to held for himself or herself and not to precise terms upon which the money is paid in order to ascertain whether or not be dealt with in accordance with become part of the general assets of the subsection (2)(a). it is held on trust. In this regard it is clear trustee: See Knight v.Knight (1840) 3 Beav. that it is possible for monies paid in Clearly these definitions take the matter 1458, 49 ER 58; Jacobs on Trusts, 6th advance either to be made the subject of no further. edition, @213. a trust or to be made the subject of a debt Section 38P of the Act provides: The intention to create a trust need not be with no trust relationship. Either result can explicitly spelt out. The Court will look at be achieved with virtual certainty. If, for (1) A barrister is not, in the course of the nature of the transaction and the example, there is an express agreement practising as a barrrister, to receive surrounding circumstances: Walker v. that the money will be held by the barrister money on behalf of another person Corboy (1990) 19 NSWLR 382. If the on trust, there is no doubt that there is a unless authorised under this section. Page 6 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. Receipt of monies in advance of performing work At the Lectern Continued from page 6 (2) The regulations may authorise a countervailing factors (such as contrary ‘Appellate Workshop’ #, Thursday 20 July. barrister to do so. For that purpose, language used by the barrister or the Convenor: Geoff Lindsay S.C. the regulations may apply to client), such an agreement would have the The Appellate Workshop will focus on barristers any of the provisions of effect that a prepayment does not become preparations for appeal. This seminar is Part 6 (Trust Accounts). trust money. recommended to all readers. This section merely authorises the ‘Land & Environment Court: Practice making of regulations. It does not, in my 6. Answers to the specific Directions’ #, Monday 24 July. view, relevantly affect the construction questions asked Speaker: Brian Preston S.C. of the Regulations. I answer the specific questions asked Chair: Malcolm Craig QC as follows: Brian Preston S.C. will be speaking on 3. The effect of Regulation 26J of 1. In the absence of a fee agreement Practice Directions in the Land & the Legal Profession Regulation and disregarding Rule 77 and Environment Court. This seminar is 1994 (NSW) Regulation 26J, what is the legal recommended for any member interested nature of the manner in which those in this jurisdiction. Regulation 26J of the Regulation provides: monies are held by barristers? ‘Legal Disputes in Sport: Breakfast (1) A barrister may, in the course of with John Boultbee’ #, Friday 28 July. practising as a barrister, receive money Specifically, do those bare circumstances S p e a k e r : J o h n B o u l t b e e , D i r e c t o r, in advance for costs to accrue due to, give rise to a trust? Australian Institute of Sport or to be paid by, the barrister. (a) Whether or not there is a trust Chair: The Hon. Thomas E F Hughes AO QC (2) This clause does not affect any trust depends upon the terms on which the Is our legal system an appropriate, or even to which money received by a barrister money is paid. This will vary from necessary, means to resolve sporting is subject, or any obligation of a case to case. disputes? John Boultbee, the Director of barrister under such a trust. (b) It is possible to use language or the Australian Institute of Sport, will This clause is clearly drafted so as not to engage in conduct which will make it speak on this topic, with a view to the determine the present question one way forthcoming Sydney 2000 Olympic Games. clear that the money is or is not Not to be missed! or the other. It merely activates the trust money. e x c e p t i o n u n d e r s 3 8 P. W h a t e v e r Members are reminded that CLE papers are (c) It is possible to use language or obligations exist under the Act in relation now available from the Bar Association’s engage in conduct which provide web site at www.nswbar.asn.au. to trust money apply if the money is trust indicia one way or the other. money and do not apply if the money is # Denotes courses which attract CLE points not trust money. (d) In the bare circumstances where the phrase ‘security for costs’ is used, in 4. The effect of Rule 77 of the New my opinion it is more probable than Brennan & Powell Pty Ltd South Wales Barristers’ Rules not that no trust is created, but this trading as Rule 77 provides: ‘A barrister must not, in cannot be stated with certainty in the barrister’s professional work, hold, view of the absence of authority and Barristers’ Insurance Services invest or disburse any funds for any the tendency of modern courts to since 1979 other person.’ favour clients over members of the legal profession in doubtful areas. We can arrange the following (Please tick) This rule only applies if there is a trust obligation. 2. Does that situation change where, pursuant to a fee agreement, monies Barristers’ Sickness 5. Practical consequences become payable on the happening & Accident Extension Plan t It follows from what I have said that the of a certain event? A particular Barristers’ Term Life Insurance appropriate course for a barrister to take example of this question would be is for him or her to enter into an where a barrister is briefed to & Crisis Plan t agreement with the client to the effect appear on a number of days and by Cover for Chambers and that the money paid in advance is paid his/her agreement stipulates that on the following terms: the whole fee is payable in advance. Professional Effects t (a) the money becomes the property of If a client pays that fee in advance Occupational Legal Liability t on a non-refundable basis, what is the barrister immediately; the nature of the way in which the Superannuation (DIY) t (b) the amount paid will operate in monies are held? satisfaction pro tanto of bills rendered Name ________________________________ by the barrister to the client from time In these circumstances, subject to whatever rights the client may have to time; Phone No: ____________________________ under the Legal Profession Act to set (c) i f t h e r e i s a n y s u r p l u s a t t h e aside the agreement on the basis of its conclusion of the litigation or general unreasonableness, the money For further information, please complete termination of the retainer, the becomes the property of the barrister this coupon and fax to (02) 9975 7732 barrister agrees to repay that surplus absolutely on payment. or contact as a debt; 3. What effect, if any, does Regulation Craig Brennan or Tony Powell (d) it is the intention of the parties that 26J(2) have upon the situation? (02) 9975 7322 – Mobile 0409 246 766 no trust be created in relation to None. Email: firstname.lastname@example.org the funds. DX 9104 Dee Why David Bennett In my view, in the absence of any specific 12 May 1998 Make www.nswbar.asn.au your home page. Page 7 – BAR BRIEF July 2000 Making representations to the Court as to the (fee) basis on which you are appearing When counsel appear in a matter, either instructed by a solicitor appearance for no or a reduced fee as a possible usage. It appears or by a client directly, they will have negotiated any one of a still to be resisted as a supposedly incorrect use in some number of different bases upon which their fees will be paid. authorities. An enlightening discussion is found in Bryan A Some examples are: Garner’s second edition of A Dictionary of Modern Legal Usage, at pp. 695-697 (available in the Bar Association Library). 1. A fee negotiated at market rates; Current experience and anecdote in New South Wales support 2. A reduced fee basis; the view that many lawyers, including counsel, use the term pro 3. A speculative or contingency fee basis, where the client pays bono to signify that either no or a reduced fee is being charged. on a successful outcome and/or the establishment of a cost Obviously, there may be a considerable difference between the entitlement and/or the actual recovery of costs from the absence of a fee and a reduction of a fee where the degree of unsuccessful party; and reduction is not specified to the audience. There is a particular 4. For no fee, regardless of the outcome (and hence in the event ambiguity when the term is used to describe what is truly a of success, will not be seeking a costs order which includes speculative or contingency brief. The better view is that current payment of any fee to that counsel). vagueness about the meaning of the term pro bono will lead to Whichever option is chosen (even the last), a costs disclosure its use alone producing confusion, unless it is confined to a case must be made to reflect the basis of the appearance. of no fee, without any speculative or contingency element. Difficulties have arisen in some cases where counsel have Counsel who find themselves describing the position as to their informed the court that they are acting ‘pro bono’. The dictionary own remuneration to the Court or to their opponent should not meanings of pro bono tend to emphasise some connection with use the term pro bono standing alone unless they intend to convey public good or public interest but some dictionaries refer to the meaning that they will not charge any fee in any event. Any other arrangement should be specifically described so as to avoid confusion. There remains, of course, the separate question of whether The Sydney University Society of St. Peter circumstances really do render appropriate the disclosure of what and LIFE/THEATRE present are essentially private matters. Sponsored by St Thomas More Society Staff Appointments The Man Robert Miks replaced Monika Chudy as Assistant to the Administrative Support Manager, effective Monday 5 June. Robert has a Bachelor of Arts degree from Macquarie University, Born to majoring in French and History and has most recently been working at Concise Office Automation. Kim Ellis replaced Farida Lim as Administrative Officer (Records), effective Monday 1 May 2000. She will maintain be King records and assist the Executive Director and his staff. Kim has previously worked for Johnson and Johnson. Claudia Munoz replaced Shanthini Govindasamy as Administrative Officer (Social Functions), effective 15 June 2000. A passion Play by Dorothy L. Sayers Claudia has done prior temporary work for the Bar Association. She will be responsible for social functions, the Duty Barrister Extra Performance Scheme and will assist with some committee work as required. Shanthini Govindasamy replaced Veronika Cosic as Sunday, 16th July 2000 at 7.30pm Administrative Officer (Bar Council), effective 29 May 2000. She Great Hall, Sydney University will also be looking after the Equal Opportunity Committee. Ann Maree Watt replaced Sue Divall as the Assistant to the Adults $15 / Concessions $12 / Family $40 Legal Assistance Manager, effective 15 May 2000. She is studying Bookings essential - Call Jane on (02) 9211 2793 psychology at the University of New England and has worked email: email@example.com / website: www.sspeter.f2s.com in the Faculty Office at Sydney University and Southern Cross University law schools. Page 8 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. UNSW Indigenous Elizabeth Frizell Robert Glasson Level 7 Selborne Chambers Blackstone Chambers Pre-Law Program in Michael Henry Mark Higgins Level 11 Selborne Chambers Frederick Jordan Chambers need of support Andrew Hourigan Simon Ioannou Jack Shand Chambers Blackstone Chambers A practical way for barristers to assist Indigenous Australians Matthew Johnston Samuel Griffith Chambers obtain legal qualifications is to support the University of New Andrew Jungwirth Level 13 St James Hall Chambers South Wales Indigenous Pre-Law Program. Michael Kearney Lachlan Macquarie Chambers The course is conducted by the UNSW Aboriginal Education Program. It recognises that many Indigenous people do not have Robert Kelly 12 Selborne Chambers the necessary educational qualifications or social opportunities Darryn Kelly State Chambers available to others in our community. It offers ‘catch-up’ and ‘head start’ intervention programmes to assist participants achieve Blake Maguire Level 14 Wardell Chambers their potential and to obtain legal qualifications. Tony McAvoy Frederick Jordan Chambers The success of the Indigenous Pre-Law Program is evident from Anthony McGrath Level 10 Wentworth Chambers the figures available. Approximately 120 students have participated since 1995 and all of the 17 participants for 1999 have commenced, Charles McNamara Arthur Philip Chambers or will commence, legal studies. Carolyn Morris Level 13 Selborne Chambers Federal Government funding, once sufficient for a five-week April Mountfort Level 7 Selborne Chambers programme, will now only cover two weeks. This has forced organisers to raise money themselves for a third week of tuition. Nicholas Newton Level 13 Wentworth Chambers The result is further hardship, as worthy applicants are turned Sandra Ocampo Blackstone Chambers away, either because they fail to meet the selection criteria, or Sylvia Piedade Level 9 Wentworth Chambers because they simply do not have enough money to support themselves during the life of the course. Shane Prince State Chambers There are a number of ways a barrister can assist, including John Pritchard Jack Shand Chambers providing texts, financial support and tutoring. Please contact Garry Rich Level 10 Selborne Chambers Peter Hill (0417 0444 77; firstname.lastname@example.org) in the first instance for further information. Matthew Richardson Elizabeth Street Chambers Wade Roper Level 5 Wentworth Chambers Adam Searle H B Higgins Chambers Barristers graduating from Penelope Sibtain Mark Smith Level 6 Selborne Chambers Level 9 Windeyer Chambers 1/00 Bar Practice Course Hugh Stowe Matthew Tyson Level 7 Wentworth Chambers Level 8 Selborne Chambers (in alphabetical order) Maria Tzannes Level 15 Wardell Chambers Name Chambers Jeanna Walsh South Coast Chambers Alister Abadee Level 12 Wentworth Chambers Theresa Warwick Henry Parkes Chambers, ACT Kevin Andronos Level 11 Selborne Chambers David Weinberger Level 6 Selborne Chambers Joan Baptie Samuel Griffith Chambers Harry Woods Blackstone Chambers Peter Barham Level 11 Garfield Barwick Chambers Michael Wright Level 11 St James Hall Chambers Nicholas Beaumont Level 12 Wentworth Chambers Vahan Bedrossian Edmund Barton Chambers Simon Benson Blackstone Chambers New members of Peter Campton Andrew Davis Arthur Phillip Chambers Level 14 Wardell Chambers the Bar Association Simon Davis Level 2 Wentworth Chambers Local Practising Practitioner Michelle Dolenec Sir Maurice Byers Chambers Matthew Johnston Jason Downing Level 7 Wentworth Chambers James Momsen Maureen Fanning Jack Shand Chambers Mark Smith Andrew Fernon Level 11 St James Hall Chambers Legal Practitioner other than Local Sandrah Foda Level 9 Selborne Chambers Practising Practitioner Matthew Fraser Level 13 St James Hall Chambers Peri Hoskins Make www.nswbar.asn.au your home page. Page 9 – BAR BRIEF July 2000 Papers to note Appointments The New Tax System: GST for Australian Acting Judge of the Supreme commencing on 1 July 2000 and expiring lawyers, April 2000. This guide to the New on the dates shown: Tax System was published by the Law Court of New South Wales His Honour Acting Judge H H Bell, 28 Society of New South Wales, with funding The Hon. Morris David Ireland QC has been August 2000; from the GST Start-Up Assistance Office, appointed as an Acting Judge of the on behalf of the Australian Bar Association Supreme Court of New South Wales for The Honourable Acting Judge Fisher AO and all law societies around Australia. the period commencing 14 June 2000 and QC, 11 April 2001; Copies may be obtained at Reception. expiring on 13 June 2001. His Honour Acting Judge Ford QC, 27 Justice in Jeopardy: Malaysia 2000. This March 2001; and report was issued by the International Bar Acting Judges of the District Court His Honour Acting Judge McLachlan, 17 Association, the International Commission of New South Wales November 2000. of Jurists’ Centre for the Independence of Judges and Lawyers, the Commonwealth The following persons have been Lawyers Association and the Union reappointed as Acting Judges of the Acting Magistrates Internationale des Avocats, on 6 April 2000. District Court of New South Wales, for the The following persons have been appointed It was the subject of an article by Cowdery period commencing on 1 July 2000 and as Acting Magistrates and as Mining QC in the May edition of Bar Brief. A copy expiring on 30 June 2001: Wardens for the period commencing on 1 is available for loan from the Bar Library. The Honourable Acting Judge Cripps QC July 2000 and expiring on 30 June 2001: Local Court Civil Practice Note No. 1 of His Honour Acting Judge Downs QC Thomas Cleary 2000: Legal Costs, 22 May 2000. This provides counsel, solicitors and the court His Honour Acting Judge Grogan Elwyn Elms with a defined procedure for determining His Honour Acting Judge W D Hosking QC Terrance Forbes costs and ‘guideline amounts’. A copy is His Honour Acting Judge Mitchelmore Stanley Hyde held at the Bar Library. Family Court of Australia Practice The Honourable Acting Judge Nader RFD QC Vincent Kearney Direction No. 1 of 2000, 27 June 2000. This His Honour Acting Judge Nash Gary O’Keeffe provides notice that a new Form 17 in His Honour Acting Judge Sinclair QC Susanne Schreiner Schedule 1 of the Family Law Rules, titled ‘Financial Statement’, took effect on 1 July The Honourable Acting Judge Stewart James Smith 2000. A copy is held at the Bar Library. His Honour Acting Judge Wall QC Ross Sterland Ian Bowden Malcolm Beveridge has been appointed as Clifford Boyd-Boland an Acting Magistrate and as a Mining Warden St Thomas Professor Leroy Certoma for the period commencing on 1 August 2000 and expiring on 30 June 2001, following his More Society Professor Michael Chesterman Alexander Dalgleish QC retirement as a Magistrate, with his last day of service being 31 July 2000. Professor Helen Gamble Beckett Lecture Series Legal Profession Advisory Council Alan Hogan Dr Valerie Levy has been appointed as a The Chief Justice, the Hon J J The following persons have been appointed community member of the Legal Profession Spigelman, will deliver his second as Acting Judges of the District Court Advisory Council, effective 13 June 2000 lecture on Thomas Beckett: of New South Wales for the periods to 6 December 2006. “Beckett and Henry II: A New Archbishop” Time: 6.00 p.m. The June 2000 Bar examinations: Date: Tuesday, 15 August, 2000 Place: The New South Wales Bar Association Common Room, 180 Some facts and figures Phillip Street, Sydney. • Not all exams had equal candidature; The average mark was 79. • Eight candidates withdrew and two Practice & procedure: The pass rate was Inquiries to: St Thomas More Society failed to appear; 81 per cent. The average mark was 78. DX 996 Sydney • A total of 67 people sat the exams; and The Blashki Award OR Box 282 GPO Sydney NSW 1043 • Thirty-eight members of the Bar Congratulations to Louise Clegg, who alternatively, telephone Association assisted in the preparation achieved the highest aggregate score in the Louise Pritchard on 9231 1006 sessions and marking of papers. June 2000 examinations. As a reward for or email Ethics: The pass rate was 98 per cent. The her academic achievement, Louise will email@example.com average mark was 78. receive a set of robes from P. Blashki & Sons Pty Ltd. Evidence: The pass rate was 86.5 per cent. Page 10 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. Regional Conference, Speeches 10 - 11 June 2000 ‘Judicial legitimacy’, by the Chief Justice of Australia, The Hon. Justice A M Gleeson AC. This speech was delivered at the The Bar Association Regional Conference, will and good sportsmanship prevailed and held at Milton Park Conference Centre in Australian Bar Association Conference, 2 the winning table squeaked home by a B o w r a l o v e r t h e Q u e e n ’s B i r t h d a y single hotly contested point. July 2000, New York. A copy of this speech weekend, was a great success. This was may be obtained from the Bar Library or despite the disappointing attendance of For most delegates, the real enjoyment from the High Court’s web site at only 42 people, three of whom were came from the walk through the beautiful www.hcourt.gov.au accredited solicitors. Among those absent winter gardens at Milton Park, the crisp was the Master of Ceremonies, who was cold, the roaring log fires, the company, ‘Retirement of Chester Porter, Queen’s caught up in France. Fortunately, President the good food and the chance to enjoy a Counsel’, by The Hon. John Hatzistergos Ruth McColl S.C. gave an admirable, holiday weekend away with the family. MLC, 28 June 2000. A copy of this impromptu impersonation of a tall The organisers would like to thank speech may be obtained from the moustached man. speakers Justice Virginia Bell, Justice Kevin N S W P a r l i a m e n t ’s w e b s i t e a t Apart from a broken gas main that left most Lindgren and Stephen Odgers; Chairs Rob www.parliament.nsw.gov.au or from the rooms at Milton Park at sub-zero O’Neill from the Parramatta Bar and Stuart Bar Library. temperatures on Saturday night, those who Hill from the Wollongong Bar; workshop did attend enjoyed the occasion very much. leaders, Donovan QC, Glissan QC, Lindsay The conference dinner was a sparkling affair, held in the candle-lit Conservatory Restaurant in the main hotel. Undoubtedly S.C. and Caroline Davenport; as well as Lisa Allen for contributing most of the (legal) trivia questions. Cessation of the highlight of the evening was the trivia competition. Teams were comprised of numerically unequal tables so that Interested members may obtain copies of conference papers from the B a r A s s o c i a t i o n ’s w e b s i t e a t District Court ‘handicap’ and ‘penalty’ could occasionally be heard over the clink of glasses. But good www.nswbar.asn.au sittings at Liverpool The Hon. R O Blanch, Chief Judge of the District Court of NSW, has advised that sittings in the criminal jurisdiction in Liverpool will cease at the end of First Term, on 1 September 2000. He has also advised that, from the beginning of Second Term, 3 October 2000, there will be a fourth Court sitting at Campbelltown. This decision was taken because of the significant reduction in the trial caseload at Sydney West. At the beginning of 1999 there were 688 trials but, by the end of May 2000, this had been reduced to 331. The Chief Judge has also indicated Clockwise from top left: that if this trend were to reverse, Ruth McColl S.C with Elizabeth and David Nock S.C., Trevor Neill and then sittings at Liverpool would Rob O’Neill (Parramatta Bar), Geoff resume. Similarly, if the need for the fourth Lindsay S.C. with Frank and Val Court at Campbelltown is found to be Thraves (Newcastle Bar). unwarranted, then it will be discontinued. St Thomas More Society About the speaker: Dr Samuel Gregg is a moral philosopher. He has a LLB (Hons.) and an MA from The University of Melbourne, and a DPhil in moral philosophy from Oxford Jubilee Lecture Series 2000 - “Dignitatis Humanae and the Catholic Human Rights ‘Revolution’: Past which he attended as a Commonwealth Scholar. His doctorate, Successes, Future Problems”. supervised by Professor John Finnis, has since been published by Lexington Press in the United States and by Oxford Lecture No 5 - The Idea of Liberty in the Secular City: University Press in England as Challenging the Modern World: Seven Catholic Amendments Karol Wojtyla/John Paul II and the Development of Catholic Lecturer: Dr Sam Gregg LLB (Hons.), MA, DPhil (Oxon) will conduct Lecture 5 in a series of 6 lectures. Details are as follows:- Social Teaching (1999). He is currently Resident Scholar at Time: 5.45 p.m. Date: Thursday, 3 August, 2000. The Centre for Independent Studies. Place: The New South Wales Bar Association - Conference RSVP to Louise Pritchard on 9231 1006. John McCarthy Rooms 1 and 2, Lower Ground Floor, 180 Phillip Street, Sydney. President Make www.nswbar.asn.au your home page. Page 11 – BAR BRIEF July 2000 In Brief Notice to members The President would like to thank Mark Richmond and Holger The price for Member ID cards, including GST, is $11.00. Sorensen for conducting GST seminars for members in Newcastle Bookings for an appointment to obtain your card can be made and Parramatta respectively. with Patrina Malouf at Reception on 9232 4055. It is necessary to attend in person to have your card created. Barristers should bring a form of identification with them. Due to staffing Queen’s Birthday arrangements, it is not usually possible to accommodate ‘drop- ins’ for ID cards, so members are advised to ring and make an Honours appointment to avoid disappointment. On 12 June 2000, the following members were awarded Queen’s Birthday Honours: Distribution of circulars via email As more chambers acquire an email address, the practice of faxing Order of Australia, Companion (AC) in the circulars to all chambers (‘pigeon faxes’) will be phased out. General Division Notices regarding the courts, swearing-in ceremonies, 15 bobbers The Hon. J J Spigelman, Chief Justice of New South Wales, for and social functions are being emailed to all clerks. Members service to the law and to the community; without chambers, who would like to be included on the general Order of Australia, Officer (AO) in the General Division email list for notices, are invited to contact the Administrative Support Manager on ph: (02) 9229 1729, fax: (02) 9221 1149 or via The Hon. Justice R V Gyles, Federal Court Judge, for service to the legal profession and the judiciary; email: firstname.lastname@example.org. The Hon. Justice James Wood, NSW Supreme Court Judge, for service to the community as Royal Commissioner into the NSW Police Service; and David Bennett QC, Commonwealth Solicitor-General, for service Legal Aid fees in to the law and to the legal profession. criminal matters On 4 July 2000 the Legal Aid Commission provided the Bar The Equal Opportunity Association with the new Scale of Fees payable in Criminal Matters, effective 1 July 2000. The full text is included as an insert in this copy of Bar Brief for your convenience. The fees Committee and are listed without the GST component. Members who read the June Bar Brief will be aware that the mobility disability Managing Director of the Legal Aid Commission, Margaret Allison, recently wrote to the Executive Director about the effect of GST on barristers’ fees. In that letter she said: The Equal Opportunity Committee is collecting information about Practitioners add GST to the service fee which they accessibility to all Chambers for people with mobility disabilities. normally charge to the Commission. The fees paid by the Many Chambers have problems with restricted access for disabled Commission remain unchanged and are exc-lusive of GST. people, particularly those who are required to use wheelchairs. The Commission pays both the fee and the GST to the Where these facilities are available, such as the disabled persons’ practitioner. Practitioners do not lose a further 10 per cent. toilet and parents’ room behind the lobby of Selborne Chambers, many remain unaware that they exist. This is particularly For example, a practitioner is obliged to charge GST disadvantageous for Chambers from which a significant volume totalling $35.00 to the Commission in addition to normal fees and disbursements. The Commission will pay that of personal injury litigation is conducted. amount to the practitioner who then remits it to the ATO. A questionnaire has been sent out to all Heads of Chambers to In turn, the Commission claims reimbursement of $35.00 assist the Committee in compiling a database on this issue. as an input tax credit from the ATO, which maintains the Areas covered by the questionnaire include: wheelchair access Commission’s total funding for aid. to Chambers, independently accessible toilets, designated In summary, the individual practitioner does not lose 10 parking spaces for disabled people, and accessibility to Courts per cent and the Commission’s funding for aid remains and Tribunals. unchanged so the ‘pool’ of funds for aid does not lose 10 The results of the questionnaire will enable Bar Association staff per cent either. to better answer specific questions from members of the public, Members with comments/questions on Legal Aid matters should clients, regulatory authorities and the legal profession about access feel free to contact members of the Legal Aid Committee (refer to Chambers, Courts and Tribunals. to Bar Association web site at www.nswbar.asn.au for full list of Enquiries may be directed to the Chair of the Equal Opportunity committees and members ). Committee, Michael Slattery QC or the Committee’s Administrative Stephen Odgers Officer, Shanthini Govindasamy on ph: (02) 9232 4055 or email Chair email@example.com Criminal Law Committee Page 12 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. Farewell for Chester Porter QC On 30 June 2000, Chester Porter QC retired from active practice as a barrister. In order to commemorate his memorable and distinguished career, the Bar Association held a function in the Common Room on Friday 23 June 2000. In excess of 200 members attended. Frank McAlary QC, who graduated from the University of Sydney Law School with Chester Porter in 1946, spoke. He said: I have known Chester for 57 years, from Articled Clerk to Queens Counsel, from our meeting at the Law School in 1943, until tonight. That is, from the Alpha to the Omega of his career. For me this is an honoured but sad occasion, as it will be for all members of the Bar. We are fortunate Chester has been with us so long! A role model and guiding light for brave and fearless advocacy. His career has been at the rock face of legal difficulties. The representation of a client (often guilty) in criminal proceedings is not only the true function of the Bar but also the most difficult. To walk the narrow path between respect and courtesy to a Judge, who is often obstinate, egocentric and determined to obtain the result he deems appropriate, and bold and fearless representation of a client, is what the Bar must learn to do. That is what you have done Chester. It is unfortunate you will not be in here in the future to point out the way for the rest of us. Mr. McAlary then gave an outline of Chester Porter’s career over fifty years at the Bar, from his role as junior counsel to the late Jack Shand QC in the McDermott Royal Commission, clock wise from above: through the Voyager Commission to the acquittal of Roger Chester Porter QC, Chester Porter QC and Ruth McColl S.C. Rogerson at his trial. He claimed these outstanding performances in the criminal field were without recent peer. Finally, Mr. McAlary called upon all members present to drink the toast in honour of ‘Chester Alexander Porter, a great Queen’s Counsel’. Culwulla Chambers Suite 301, 3rd Floor, 67 Castlereagh Street $220,000.00 Currently used as counsel chambers with an existing medium term tenancy, these quality premises are now available for sale for purchasers looking for a long term investment or perhaps personal occupation. The office is 40sqm in area and attracts a rental of $14,560.00p.a. Contact: Bernard McGrath 0414 360 361 Laing + Simmons, Paddington 9361 4277 Make www.nswbar.asn.au your home page. Page 13 – BAR BRIEF July 2000 The Bar and the Olympics Many of the athletes competing in the Sydney Olympics, who If you wish to volunteer for this work would you please send come before the Court of Arbitration for Sport during the Games, your expression of interest to Mr Chris Winslow, the Public Affairs will not be represented by legally qualified advocates. The Court Officer of the New South Wales Bar Association, 174 Phillip Street, of Arbitration for Sport has jurisdiction over each athlete’s right Sydney providing him with the following details. to compete in the Games on behalf of a national team. There is a (a) Your full name, address and contact details both during real need for effective legal representation for athletes particularly business hours and after hours. from Eastern European, Asian and African countries should they be involved in disputes before the Court. (b) An indication as to whether you will be available for pro bono assistance for the whole or a particular part of To assist the success of the Games and to offer the opportunity the Games. for members of the Bar to fill this need the President, Ruth McColl S.C. has offered the services of members of the Association on a (c) A general indication of the particular areas of your practice pro bono basis to appear before the Court. This offer has been which you believe would provide you with the necessary welcomed by Mr John Coates AO of the Australian Olympic grounding and experience to appear before the Court. Not Committee in the exchange of correspondence which appears only experience in appearing before domestic sporting opposite. The Olympic movement is encouraging New South Wales tribunals but equity administrative law and criminal law barristers to appear in this role and welcomes their assistance in may be relevant areas of practice. the Sydney Games. All volunteers will be expected to familiarise themselves before The Bar has also volunteered the services of its members to appear the Olympics with the Court’s procedures and the various on a pro bono basis during the Games on behalf of athletes who protocols applied by the Court, so as to be in a position to provide come to the attention of civil authorities in New South Wales because the best representation before the Court at short notice. of alleged breaches of State or Federal law. Should any of the world’s At this stage expressions of interest are being sought so that the Bar athletes find themselves before our criminal justice system it is most can commence to constitute a panel of volunteers and to be able to important that they be represented by qualified advocates. confirm to the New South Wales Sports Commission that a panel of The Bar’s offers of assistance will operate during the period from sufficient size has been assembled to make this offer viable. the entry of the athletes into the Village (approximately one week The final selection of the barristers from the panel of volunteers before the Opening Ceremony) through until the Closing Ceremony. for particular cases will be decided by members of the Bar who The Bar wishes to constitute two panels of volunteers who are have an association with the Court and experience in sports law. ready to provide these services during the Games. Here is what is involved and how you apply. Criminal Justice Scheme The Bar also wishes to make up a separate panel of volunteers The Court of Arbitration for Sport prepared to represent athletes on a pro bono basis in respect of The Court of Arbitration for Sport which will sit during the alleged breaches of State or Federal law. Members of the Bar Olympics has as two of its permanent members The Hon. Justice with criminal law experience are also requested to volunteer for Tricia Kavanagh and Robert Ellicott QC. It is not known how this service. As with the system of selection for the Court of many disputes will come before the Court during the Games. Arbitration for Sport, two senior members of the Bar with criminal However, under its mandate the Court can deal with a wide variety law experience will be asked to allocate particular counsel from of possible questions about athletes’ eligibility to compete in the the panel to particular cases as the need arises. Games. The Court may sit under conditions of extreme urgency. Issues may arise which will require a determination by the Court Expressing Interest within a 24 hour period. The Court may sit overnight to ensure a Please forward your expression of interest to volunteer for one determination is made before an athlete competes in the Games or both of these panels by 5.00pm, Friday, 28 July 2000. Please the following day. It is critical that those who volunteer for this address correspondence to Chris Winslow, Public Affairs Officer work can guarantee to be available at particular times during the at the New South Wales Bar Association, 174 Phillip Street Sydney; Olympic period and that the volunteers are prepared to conform DX 1204 Sydney; or firstname.lastname@example.org with the Court’s demanding timetables. It is important that the volunteers under this scheme reflect the It is expected that in Sydney the proceedings of the Court will be full diversity of the composition of the Bar. Women barristers conducted in English. However, barristers who have fluency in another with relevant experience are encouraged to volunteer for these language will be of special value as volunteers for this scheme. panels. The selecting counsel for both panels will be requested to Many members of the Bar have experience in appearing in New ensure that there is a fair and adequate representation of both South Wales and Australian sports tribunals. The voluntary male and female members of the Bar in the appointment of assistance of such members is particularly encouraged. barristers to provide this service. Aboriginal children in custody The President of the Bar Association recently received a letter those difficult cases, where juveniles had been refused bail or from Mr Greg Walsh, Solicitor, regarding a proposed Pro Bono otherwise are facing custodial sentences. In many such cases, scheme for Indigenous youth at the Children’s Court of New South there is a need for more effective legal representation involving Wales. In that letter he said: committed case management to enable alternatives to custodial The extremely high incarceration rate of Aboriginal children is of sentences to be considered. ongoing concern. The statistics indicate that well over 30 per cent of our children in custody in juvenile institutions are Aboriginal. Members of the Bar who are prepared to be placed on an I believe that there is a need to make available to the existing appropriate roster, should contact Greg Walsh on ph: (02) 9645 3766, Aboriginal Legal Services a resource of committed legal fax: (02) 9644 5417, DX 11224 Bankstown, email: practitioners who would be available to assist in respect of email@example.com Page 14 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page. Olympic Pro Bono Scheme The President of the Bar Association, Ruth McColl S.C., recently Australian Olympic Committee welcomed the Bar Association’s wrote to John Coates, President of the Australian Olympic proposal, and responded with the following: Committee, offering to set up an Olympic pro bono scheme. In that letter she said: The New South Wales Bar Association wishes to provide We agree it is critical that all athletes appearing before some practical assistance to the athletes competing at the the Ad hoc Division of the Court of Arbitration for Sport Sydney 2000 Games. The New South Wales Bar Association (CAS) in Sydney are properly represented. The Australian is the professional body that represents all practising Olympic Committee will be offering our Team members barristers in New South Wales. Many members of the Bar the services of a panel of lawyers on a pro bono basis. in this State have extensive experience in sports law. This panel will comprise the members of the CAS in The Court of Arbitration for Sport will be convened to sit Australia who are available. in Sydney during the holding of the Games. A number of The Association of Oceania National Olympic Committees eminent members of the New South Wales Bar Association recently enquired whether we could assist by arranging will sit on the Court of Arbitration for Sport in a judicial for some lawyers to be available to appear for their capacity. The New South Wales Bar Association wishes to athletes and I am sure that most of the other National do whatever it can to assist the fair and efficient operation Olympic Committees will have the same requirement. of the Court during the Games. Whilst many of the countries competing in the Games, We therefore very much welcome your proposal and look including Australia, will have their own legal counsel who forward to your advice as to those members of the Bar will represent athletes required to appear before the Court, Association who are willing to help by appearing on a there will be many other countries whose team members pro bono basis before the CAS. We would also appreciate will be without qualified legal assistance. To ensure that your enquiring whether there are members prepared to all who appear before the Court in Sydney are adequately appear on a pro bono or other basis for athletes from represented, the New South Wales Bar Association is overseas who may come to the attention of our civil prepared to offer the services of some of its members on legal authorities. a pro bono basis for those athletes who would otherwise be unrepresented. The Bar Association is ready to call for volunteers from among its members for individual barristers to make their services available for this purpose. I am sure that many members of the Association will be willing to volunteer to make available this important advocacy service. It is envisaged that from among the volunteers from within the Association, experienced sports lawyers associated with the Court can make a final selection of the particular barristers to appear based on their relevant experience. If this proposal is welcome, then the Bar Association will seek its members’ participation and when the scheme is SPECIAL in place a more detailed description of the proposal can be distributed to the liaison officers of each of the teams competing at the Sydney Games. Athletes competing at the Sydney Games may also come to the attention of civil legal authorities in New South Wales in respect of alleged breaches of the State or Federal law. The Bar Association may also be able to offer the services of its members on a pro bono basis to appear for athletes at the hearing of any such cases during the currency of the Games. If this idea is also welcome, then the Association can seek its members’ participation and OFFER ! Join the ‘QANTAS Club’ as a Corporate announce such a scheme when it has sufficient volunteers Member and the joining fee will be waived. to ensure it will be a success. Enjoy a reduced rate for one or two year membership. Offer valid to 31 August 2000. AUSTRALIAN CRIMINAL Contact Harvey World Travel for full details. REPORTS (FULL SET) Harvey World Travel (Counsel’s Chambers) PRICE $2000 174 Phillip Street, Sydney NSW 2000 Australia Contact: Christine Griffin, Clerk Phone: +61 (0) 2-9235 2612 • Fax: +61 (0) 2-9235 3783 Crown Prosecutors’ Chambers Telephone: 9285 8829 E-mail: firstname.lastname@example.org DX 973 Sydney Make www.nswbar.asn.au your home page. Page 15 – BAR BRIEF July 2000 Coming up Bar Brief is produced monthly for the New South Wales Bar First National Pro Bono Law London WC2N 5DX. Ph: ++44 20 7976 1007; Conference, 4-5 August, National Fax: ++44 20 7976 2395 or email: Association by: Convention Centre, Canberra. The email@example.com Weavers Commonwealth Attorney General, The Technology for justice 2000, 8-10 Studio 9 Hon. Daryl Williams AM QC MP, will October, Hotel Sofitel Melbourne. The convene a conference to publicise the 5 Parsons Street Australian Institute of Judicial voluntary provision of legal services and Balmain 2041 A d m i n i s t r a t i o n ’s s e c o n d n a t i o n a l to discuss innovations in their delivery at conference on court technology will Tel: (02) 9555 7866 state and national levels. The New South feature the latest applications of advanced Fax: (02) 9555 7861 Wales Bar Association, the Law Council of technology to case management, appeals, email: firstname.lastname@example.org Australia and other organisations will evidence presentation and other judicial participate in the development of the support systems. Basic conference details Web site: www.weavers.com.au conference programme. A conference may be obtained from the AIJA web site at brochure and registration form will be kept www.aija.org.au or from the conference Advertising bookings and enquiries at Reception. Information may be obtained secretariat at GPO Box 2609 Sydney NSW to John Weaver. from the conference web site at 2001, Ph: (02) 9241 1478, Fax: (02) 9251 www.law.gov.au/probono, or by contacting 3552 or email: email@example.com Editorial Contributions to: Kathy Laster on Ph: (03) 9479 2282 or A brochure and registration form will be Public Affairs Officer, email: K.Laster@latrobe.edu.au. kept at Reception. NSW Bar Association, LEADR 2000 ADR International The 2001 World Congress on Family Law and the Rights of Children and LG Floor Conference, 27 – 29 July 2000, The Regent Hotel, Sydney. Youth, 20 – 22 September 2001, Selborne Chambers, Bath, England. 174 Phillip Street Lawyers Engaged in Alternative Dispute Resolution (LEADR) describes itself as an The aim of this conference is to establish Sydney 2000 ‘Australasian not-for-profit organisation The Children’s Protection Network, an DX 1204 Sydney established to serve the community by international association of lawyers and associated professionals working for the email: encouraging the use of alternative dispute resolution. Topics for the ‘breakout protection of children. Information may be firstname.lastname@example.org sessions’ include ‘Native Title Mediation’, obtained from the Congress Manager, Gail Fax: (02) 9221 1149 ‘ADR in the Armed Forces’ and ‘Dispute Fowler, at Capital Conferences Pty Ltd, PO Box N399 Grosvenor Place, Sydney NSW Contributions and advertising Resolution in an Environmental Context.’ 1220. Ph: (02) 9252 1635; Fax: (02) 9241 5282 bookings and material for Bar A conference brochure and registration or email: email@example.com Brief must be received by the end of form will be kept at Reception. Information about the programme may be obtained Union Internationale des Avocats/ the month prior to publication. from the Conference Secretariat on ph: (03) International Association of Lawyers, 9820 9115, fax: (03) 9820 3581 or email: 4 4 th C o n g r e s s , 2 9 O c t o b e r – 2 *********** firstname.lastname@example.org November 2000, Sheraton Hotel, Buenos Aires, Argentina. Association email Directory International Bar Association 2000 C o n f e r e n c e , 1 7 - 2 2 S e p t e m b e r, The main themes of the Congress will be Accounts Department Amsterdam, the Netherlands. The IBA ‘Law and Justice in the Context of New email@example.com 2000 Conference will attract legal Technologies’, ‘Competing International Sickness & Accidents Inquiries practitioners from around the world to Jurisdictions in the field of International Crimes’ and ‘New Regulations, Public firstname.lastname@example.org participate in working sessions on 120 topics. Information about the conference, Services and the role of the State in a Membership Inquiries together with an online registration facility, globalised world’. A conference brochure email@example.com and registration form will be kept at can be obtained from the IBA web site at Reception. Information may be obtained Executive Director www.ibanet.org A hard copy of the from the UIA web site at www.uianet.org firstname.lastname@example.org preliminary programme, together with a or by contacting them at 25 Rue Du Jour, registration form, will be kept at Reception. Education Department 75001 Paris, France, ph: ++33 1 4488 5566, The Commonwealth Magistrates’ and fax: ++33 1 4488 5577 or via email: email@example.com Judges’ Association 12 th Triennial firstname.lastname@example.org Legal Assistance Scheme Conference, 10-15 September 2000, Edinburgh, Scotland. email@example.com A Conference booking form, providing information about registration fees, accommodation and local sightseeing, will Correction Library firstname.lastname@example.org In the June edition of Bar Brief, an article Professional Affairs Department be kept at Reception. Information about on page 12 referred to ‘The Hon. Chief email@example.com the conference programme may be Justice Pearlman’. It should have read ‘ The obtained from the Commonwealth Hon. Mahla Pearlman AM, Chief Judge of Media Inquiries Magistrates’ and Judges’ Association, the NSW Land and Environment Court’. firstname.lastname@example.org Uganda House, 58-59 Trafalgar Square, The error is regretted. Page 16 – BAR BRIEF July 2000 Make www.nswbar.asn.au your home page.
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