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                                                                                               WINTER 2006 / Volume 8

Welcome                                                                                        INSIDE
By David Maher                                                                                 1 Welcome

                                                                                               2 Bill Weir retires from Partnership
                                                it has been extremely pleasing to see
                                                him progress through the firm from junior      2 Gilshenan & Luton Lawyers
                                                lawyer to Partner. He is a tremendous            has appointed Stuart O’Neill as
                                                asset to the firm and we are all delighted       Partner of the firm
                                                to welcome him to the Partnership.
                                                In addition to Stuart’s appointment we         3 New Defamation Bill Enacted
                                                have also welcomed a number of new
                                                staff members to the firm with Stephen
                                                                                               3 New arrivals at Gilshenan &
                                                Tonge joining the expanding Business &           Luton
                                                Financial Services section as Corporate
                                                                                               4 Million dollar donations made to
                                                Counsel. In June, we also celebrated
                                                Stewart Ebbott’s admission to practice           Brisbane Hospitals
                                                law in Queensland, and we look forward
                                                                                               4 Firm supports students
I am delighted to welcome you to the latest     to his ongoing contribution in the firm’s
edition of The Adviser, Gilshenan & Luton’s     Administrative Law section.                    5 Lawyers in demand for legal
quarterly newsletter.                           Our professional staff have also been            conferences
The past three months have produced a           in high demand for public speaking
number of significant highlights for the firm   engagements with several lawyers               6 Staff get behind World’s
that have enabled us to build on a number       being invited to present papers at legal         Greatest Shave
of the successes we enjoyed in the first        conferences throughout Queensland on a
                                                range of topics including defamation law       6 Office of Fair Trading speak at
quarter of 2006.
                                                and commercial leasing.                          Real Estate Forum
Most significantly, Bill Weir, the firm’s
Senior Partner, officially retired on 30        Finally, the firm was also honoured to act
June, 2006. We are all extremely grateful       on behalf of a client in the administration
to Bill for the 34 years of service he has      of two significant donations to the
provided to the firm and its clients.           Mater Children’s Hospital and the Royal
He has enjoyed a distinguished legal            Children’s Hospital Foundation totalling
career and we are delighted to retain his       $2.68 million. It was extremely humbling
services as a consultant to the firm. He        to be associated with such a rare act of
                                                philanthropy.                                  If you have any queries regarding
will commence part-time practice as a                                                          anything published in this
Consultant to the firm on 1 July where he       We trust that you will enjoy this edition of
                                                                                               newsletter please contact us
will maintain a supervisory role in the areas   The Adviser.
of Administrative Law and Family Law.
                                                Kind regards                                   EDITORS
Despite Bill’s retirement we are incredibly                                                    Cameron Meiklejohn
excited about the firm’s future direction,                                                     Paul McCowan
which has been illustrated with the
appointment of Stuart O’Neill to the
position of Partner. We have been aware of
                                                                                               EDITORIAL ENQUIRIES
                                                David Maher                                    cmeiklejohn@gnl.com.au
Stuart’s exceptional legal and leadership       Chair of Partners
skills since he joined the firm in 2000 and                                                    (07) 3361 0344

Gilshenan & Luton Lawyers 2006                                                                                           the adviser 1
                                                                                                WINTER 2006 / Volume 8

  Bill Weir retires from
  Bill Weir, Senior Partner, officially retired   Having practiced in a number of areas,
  from the firm on 30 June, 2006, following       including Criminal Law, Compensation
  a distinguished legal career that spanned       & Insurance, and Family Law, Bill has
  more than three decades.                        experienced a number of major successes
  Since joining the firm in 1976, Bill has        and has been fortunate to act in several
  been an influential figure in the growth        high profile cases.
  of Gilshenan & Luton playing a central
                                                  In particular, he acted in a number of
  role in management, and for many years
  retaining the position of Managing              major commercial disputes on behalf
  Partner.                                        of Queensland Rugby League, Rankine
  The management structure, technology            Brothers and the Simms Group of
  and work processes that the firm relies         Companies from North Queensland, all of
  on today were all established under Bill’s      which became loyal clients to the firm.
  stewardship and have been integral in           Following 30 June, Bill will commence
  Gilshenan & Luton expanding to become           part-time practice as a Consultant to
  one of the leading and most respected
                                                  the firm and will maintain a supervisory
  independent legal firms in Queensland.
                                                  role in a number of areas including
  Chair of Partners, David Maher, said that,
                                                  Administrative Law and Family Law, while
  “We are all extremely grateful to Bill for
                                                  continuing to provide legal advice for
  the 34 years of service he has provided to
  the firm and its clients. ”                     particular clients

  “He has enjoyed a distinguished legal           We all look forward to benefiting from
  career and we all wish him well as he           his wise and experienced counsel and
  enters the next phase of his life,” said Mr     exceptional legal skills over the coming
                                                                                                Bill Weir, Senior Partner, retires from Gilshenan
  Maher.                                          years.
                                                                                                & Luton

  Stuart O’Neill announced as new Partner
                                                  enjoyed a rapid series of promotions from     Stuart acts predominantly for small to
                                                  Associate to Senior Associate, to Practice    medium sized enterprises (SMEs) and
                                                  Group Leader and now Partner.                 financial institutions including Credit
                                                  Throughout this period, he has displayed      Unions and Mortgage Managers.
                                                  exceptional legal talent, as well as          His professional interests include taxation
                                                  showing equally important skills in the       law and the practical implications of the
                                                  areas of leadership, motivation and           law on small to medium sized enterprises
                                                  mentoring.                                    and their commercial transactions.
                                                  Chair of Partners, David Maher, said that,    In the area of Business & Financial
                                                  “Stuart’s appointment is a wonderful          Services, Stuart focuses on issues
                                                  endorsement for the firm, both now and        involving business structuring,
                                                  for the future.”                              succession planning, business finance,
                                                  “His legal expertise and client skills are    sales, acquisitions and financial services
  Stuart O’Neill, Gilshenan & Luton’s newest                                                    regulation.
                                                  exceptional and he will be a great asset to
                                                  the firm and its clients,” said Mr Maher.     He also advises various regulatory bodies
                                                  Under the guidance of now retired Partner,    and public companies on commercial
  Gilshenan & Luton Lawyers has appointed         Mr David Jacobson, Stuart quickly showed      matters affecting their activities and
  Stuart O’Neill as a Partner of the firm.        that he possessed the right mix of skill,     functions.

  Since joining the firm’s Business &             temperament, common sense and a strong        Gilshenan & Luton Lawyers look forward
  Financial Services section as a junior          work ethic to be a successful lawyer.         to Stuart’s contribution as a Partner of the
  lawyer in December 2000, Stuart has             With qualifications in tax and economics,     firm.

2 the adviser                                                                                              Gilshenan & Luton Lawyers 2006
                                                                                                            WINTER 2006 / Volume 8

  New Defamation                                                                                             New
  Bill enacted: some                                                                                         arrivals
  injustices arising?                                                                                        at
  By Paul McCowan, Partner, Dispute Resolution
                                                                                                             & Luton
  On January 1, 2006, the Queensland Parliament       A cap on damages?
  introduced new defamation legislation that          It is important to note that this legislation has
  will ensure a national uniformity of defamation     some significant differences from that which
  laws. However, the new legislation also has the     was envisaged by the Commonwealth in the
  potential for individual privacy to be diminished   initial draft. The cap that has been placed on the     The Partners and staff of Gilshenan
  through the introduction of less stringent          amount of damages that can be awarded to the           & Luton Lawyers are delighted to
  defences and penalties.                             plaintiff, is one such example.                        announce the appointment of Stephen
                                                                                                             Tonge to the position of Corporate
  What are the major implications?                    In the initial Commonwealth discussion draft a
  • corporations will not be able to sue for          cap on damages was not contemplated, however,
                                                      as a result of hard lobbying by the media,             Stephen has more than 20 years
    defamation if they are incorporated for
                                                      these considerations were included in the state        experience in commercial law and will
    financial gain or if they employ more than 10
                                                      legislation.                                           further enhance the capabilities of the
                                                                                                             firm’s rapidly expanding Business &
  • alternative resolution methods, such as           While caps on damages gained favour in the
                                                                                                             Financial Services practice group.
    mediation, are strongly emphasised as             context of personal injury law reform, to provide
                                                      for the long-term sustainability of public             Business & Financial Services Partner,
    opposed to litigation; and
                                                      liability insurance, similar concerns are largely      Stuart O’Neill, said that, “Stephen’s
  • an apology will not constitute an express                                                                appointment is an important addition
                                                      unfounded with respect to defamation. Primarily,
    or implied admission of fault and will not                                                               to the group and his presence will
                                                      this is due to the relatively rare nature of
    be relevant to the determination of fault or                                                             further enhance client service.”
                                                      defamation awards, which would challenge the
    liability in connection with the matter.
                                                      media’s view that a cap on damages would be in         “His legal skills are exceptional and he
  Defences                                            the public’s interest.                                 will be a great asset to the firm,” said
  Under the new legislation, the most significant                                                            Mr O’Neill.
                                                      Some injustices arising?
  change to defences in defamatory matters will
                                                      The expression “cheque book journalism” has            With qualifications in Commerce, and
  be that truth alone will now be a defence as
                                                      gathered widespread public acknowledgement             a Masters of Law from the University
  opposed to truth and public benefit, which
                                                      in recent years and this notion could be               of London, Stephen will manage a
  was the case under the old Queensland Act.
                                                      extended further to sections of the media              number of the firm’s commercial
  Essentially, for a defamatory matter to be
                                                      that choose to exploit the new found comfort           accounts, as well as assisting with the
  successfully defended the statement need only
                                                      afforded by the cap on damages. Essentially,           Wills & Estates section.
  be truthful, unlike the old legislation where the
                                                      the cap could result in media organisations            The firm is also happy to announce
  statement needed to be both true and of interest
                                                      publishing grossly defamatory, and in some             that Stewart Ebbott has been admitted
  to the general public.
                                                      instances untrue stories, safe in the knowledge        to practice law in Queensland.
  Damages                                             that the damages they could sustain will be
                                                                                                             Stewart has excelled since
  In relation to damages for plaintiffs, under the    significantly less than the potential economic
                                                                                                             commencing a 15 week work
  new legislation the court must ensure that there    benefits of running the article.
                                                                                                             experience placement with the firm in
  is an appropriate and rational relationship         Truth and public benefit was a defence under the       February 2006 and was invited to stay
  between the harm sustained by the plaintiff and     old Queensland Act, however, truth alone will          with Gilshenan & Luton as a qualified
  the amount of damages awarded. In particular,       now be a defence. This new provision although          lawyer in the Administrative Law
  the points of most interest include:                effectively long standing as a defence in some         section.
  • damages for non-economic loss will be             other states (e.g. South Australia, Western
                                                                                                             We look forward to Stephen and
    capped at $250,000, however, this amount          Australia and Victoria) could markedly erode
                                                                                                             Stewart’s future contributions at
    can be adjusted upwards in accordance with        individual privacy. In particular, the welcoming of
                                                                                                             Gilshenan & Luton.
    CPI by ministerial declaration; and               the new laws by the media is enough to raise the
                                                      eyebrows of civil libertarians in wonderment over
  • factors such as an apology, correction, or
                                                      the fruits of their lobbying of the states.
    recovery of damages for another matter
    having the same meaning will lessen the
    amount of damages awarded.

3 the adviser                                                                                                      Gilshenan & Luton Lawyers 2006
                                                                                                     WINTER 2006 / Volume 8

  Million dollar donations made to
  Brisbane hospitals
  The Mater Children’s Hospital and Royal
  Children’s Hospital Foundation were both
  presented with million dollar cheques on
  Thursday 1 June following donations from
  a client of Gilshenan & Luton Lawyers,
  who has elected to remain anonymous.
  Totalling $2.68 million, the donation was
  allocated between the two institutions
  with $1.41 million going to the Mater
  Children’s Hospital and $1.27 million
  being given to the Royal Children’s
  Hospital Foundation.
  The donations, which have been administered
  by the firm, will enable both hospitals to
  purchase much needed equipment and
  continue vital medical research.
  Partner, Paul Luton, said that, “Our          Paul Luton presents Karenlee Spillane (CEO – Royal Childrens Hospital Foundation) with a cheque for
  client recognises the important role that     $1.27 million
  hospitals such as the Mater Children’s        two hospitals for highly technical and               immediate purchase of this necessary
  and Royal Children’s perform in the           specialised medical equipment and                    medical equipment and the continuation of
  community and we are delighted that           research that will greatly assist the                various research programs,” said Mr Luton.
  these substantial donations have gone to      treatment of children suffering from                 Gilshenan & Luton is honoured to be
  such worthy causes.”                          serious illness.”                                    associated with such an incredibly
  “The donations will be used by the            “Our client’s donations will result in the           generous philanthropic client.

  Firm supports
  university students
  As one of Queensland’s leading                Prize and the Criminal Law Prize at both
  independent law firms, Gilshenan &            QUT and the University of Queensland,
  Luton has a strong commitment to              Gilshenan & Luton was able to meet some
  developing and supporting the State’s         of Queensland’s brightest emerging legal
  next generation of legal talent and has       talent.
  been a long time supporter of numerous
                                                Human Resource Manager, Lorraine
  tertiary institutions.
                                                Kopp, said that, “I am delighted that
                                                                                                     Current Articled Clerk Harmony Adams received
  In May 2006, representatives from the         the firm can contribute in this way to
                                                                                                     the Gilshenan & Luton – Criminal Law Prize at
  firm attended both the Queensland             the development of Queensland’s next                 QUT in 2004
  University of Technology (QUT) Law            generation of lawyers.”
  Faculty and the TC Beirne School of
                                                “Our prizes offer students added                     “Through our close ties with both QUT
  Law (University of Queensland) Awards
                                                incentive to strive for even higher                  and the TC Beirne School of Law, we can
  Ceremonies where students were
                                                standards of academic achievement as                 also track the academic achievements of
  recognised for academic excellence.
                                                well as providing financial support to               prospective graduate candidates,” said
  As sponsor of the Administrative Law          assist with their study.”                            Ms Kopp.

Gilshenan & Luton Lawyers 2006                                                                                                          the adviser 4
                                                                                                             WINTER 2006 / Volume 8

  Lawyers in demand for legal
  Lawyers from Gilshenan & Luton have been in           focused on a recent matter where Gilshenan           Cecily Tucker (Partner): was part of “Australia’s
  high demand for public speaking engagements           & Luton acted on behalf of three (3) plaintiffs      most impressive line-up of workplace relations
  with a number of the firm’s legal professionals       before the High Court of Australia. The Australian   lawyers” at the 5th Annual Employment Law
  being invited to share their knowledge at various     Lawyers Alliance is the peak national association    Intensive on Wednesday 21st June. Cecily
  Queensland based conferences across the past          for the protection and promotion of the rights of    specifically addressed the issue of dismissals
  few months.                                           injured Australians.                                 and identified opportunities for people with
  Business & Financial Services                         Dispute Resolution                                   Human Resource roles to minimise legal fees
  Stuart O’Neill (Partner): following his recent        Paul McCowan (Partner): spoke at the Legal           and negative publicity through the effective
  appointment to the position of Partner, Stuart        Educators & Young Lawyers Conference where           management of dismissals.
  was invited to present a paper on Compliance          he made a presentation on National Uniform           Property Law
  Obligations and Culture at the Australasian           Defamation Laws.                                     Warren Wackerling (Lawyer): was part of a panel
  Credit Union Institute’s Winter Conference.           Employment Law                                       of ‘expert presenters’ that delivered papers at
  Stuart’s paper was well received by close to          Stephen Mackie (Lawyer): was invited to              the Queensland Commercial and Retail Leasing
  200 delegates from Credit Unions and industry         act as Chair for the Young Lawyers Day at a          Update. The seminar offered a comprehensive
  stakeholders from across Australia.                   recent conference on Industrial Relations and        update on recent changes to the Retail Shop
  Compensation & Insurance                              Employment Law. As part of his opening and           Leases Act 1994 with Warren’s presentation
  Ellen King (Lawyer): was invited to speak at          closing address Stephen identified the breadth       focusing on Letters of Offer and Agreements to
  the Australian Lawyers Alliance Queensland            of issues that are involved with Employment          Lease.
  Intensive Seminar in May where she delivered          Law and the importance of all practitioners to
  a paper on recent developments with respect           remain alert to legislation changes and industry
  to Limitations of Actions Act 1974. The paper         developments.

  Shared Parental Responsibilities Presumption:
  the current hot topic in Family Law
  In December 2005, The Family Law (Shared              How far does the legislation go in relation to       Has there been any opposition to the proposed
  Parental Responsibility) Amendment Bill was           50/50 care?                                          changes?
  introduced to Parliament. The Bill was debated
                                                        The legislation is not a green light for separated   There have been some concerns raised about
  in the House of Representatives on 27 February
                                                        parents to rush an application to the Court          the Family Court possibly facing an influx of
  2006.                                                 to change existing orders. It introduces             applications based on the change in legislation.
  It was assented to on 22 March 2006 and               a presumption of equal shared parental
                                                        responsibility (not equal shared care) in matters    The Chief Justice has made a submission to the
  became operational on 1 July 2006 as the Family
                                                        such as, what school a child attends and other       Senate Committee that there may be a false
  Law Amendment (Shared Parental Responsibility)
                                                        higher order life style issues.                      perception in the community that the proposed
  Act 2006.
                                                                                                             change to the law will be sufficient to require the
                                                        It must be noted however that the presumption        Court to re-open and overturn existing orders.
  What will it mean?
                                                        is rebuttable and can be challenged where there
  In a relationship breakdown situation, both           has been abuse or family violence or if it would     The Chief Justice’s concerns were subsequently
  parents have an equal role in making decisions        not be in the best interests of the child.           addressed and consequently, an application
  about the major long term issues, involving                                                                reliant on a change of circumstance based only
                                                        If (and only if) the Court comes to the conclusion
  their children. Subject to any court order to the                                                          on the change in legislation cannot be filed for
                                                        that it is in the child’s best interests for
  contrary, parents have always had that joint                                                               two years from the commencement date.
  responsibility for their children’s long term care,   the parents to have equal shared parental
                                                                                                             Does this mean that existing court orders
  welfare and development.                              responsibility, then it will go on to consider
                                                                                                             might be able to be re-opened earlier in some
                                                        whether spending equal time with each parent         instances?
  What will be new is that the Court will now apply
                                                        would be in the child’s best interests and is
  a presumption of shared parental responsibility                                                            Yes, it would seem to be the case at this stage,
                                                        reasonably practicable.
  provided, it is in the best interests of the child                                                         provided there is a change of circumstances,
  and it is practicable. This will oblige the Court     If not, then the Court will consider next, whether   other than the change in legislation. The change
  to consider equal time for the child with both        the child should spend substantial and               in the legislation by itself is not a sufficient
  parents.                                              significant time with each parent, again having      change of circumstances to reopen existing
  If this is not appropriate then the Court must        regard to the same considerations whether it         orders.
  consider giving substantial and significant time      would be in the child’s best interests and if it
  for the child with each parent. This means that       would be reasonably practicable.
  the Court must now consider time sharing on a         The best interests of the child are the paramount
  day-to-day basis.                                     consideration at all times.

5 the adviser                                                                                                           Gilshenan & Luton Lawyers 2006
                                                                                                     WINTER 2006 / Volume 8

  Staff get behind World’s
  Greatest Shave                                                   ’

 Gilshenan & Luton Lawyers raised
 $2,000.00 for the Leukaemia Foundation
 as part of the World’s Greatest Shave for
 a Cure, one of Australia’s biggest annual
 fundraising events.
 Nine people from across the firm,
 including retiring Senior Partner Bill Weir,
 and Compensation & Insurance Senior
 Associate, David Mackie, were nominated
 to shave or colour their hair for this
 worthy cause.
 Human Resource Manager, Lorraine Kopp,
 said that, “It was tremendous to have
 nine staff members, including Mr Weir,
 shave or colour their hair in support of the   David Mackie (Senior Associate – Compensation & Insurance) shaves for a cure
 Leukaemia Foundation”
                                                All the funds raised will enable the                related blood disorders.
 “Everyone really got behind the nominees
                                                Leukaemia Foundation to deliver support             Gilshenan & Luton has a strong
 and it was great that we were able to raise
                                                services, counselling, education programs           commitment to benevolent activity and
 such a significant amount through staff
                                                and practical assistance to patients and            supports a number of charities and not-
 contributions and donations,” said Ms
                                                families living with leukaemia and other            for-profit organisations

  Office of Fair Trading speak at
  Real Estate Forum
  Gilshenan & Luton Lawyers welcomed
  Larrisa Denysiv and Robert Vize from the
  Office of Fair Trading (OFT) to its second
  open forum for real estate agents on
  Thursday 11 May.
  The session provided an overview of
  the OFT’s role, relevant legislation and
  how it applies to real estate agents and
  enforcement options that are available to
  the Office for breaches of the legislation.
  Partner Paul Luton said that, “We were
  extremely grateful that both Larissa
  and Robert could attend the forum and
  provide the agents with practical and
  relevant legal advice.”
  If you would like to attend the firm’s
  next Real Estate Property Forum, please
  contact Cameron Meiklejohn on (07) 3361
  0344 or by email at cmeiklejohn@gnl.          Paul McCowan, Partner – Dispute Resolution (Centre) with Larissa Denysiv and Robert Vize from the
  com.au to register your interest.             Office of Fair Trading

6 the adviser                                                                                                                            2005
                                                                                                               Gilshenan & Luton Lawyers 2006

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