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Bar Brief

VIEWS: 30 PAGES: 13

									     Bar Brief
     The newsletter of the New South Wales Bar Association


Bench and Bar Dinner finds a new home in Sydney’s renovated Hilton Hotel
                                                                                                 On Friday, 11 May 2007, more than 650
                                                                                                 members of the Bar Association and
                                                                                                 distinguished guests attended the annual
                                                                                                 Bench and Bar Dinner, which took place
                                                                                                 for the first time at Sydney’s Hilton Hotel.

                                                                                                 Everyone was treated to a visual display
                                                                                                 featuring notable events from the year
                                                                                                 past and sometimes quirky photographs
                                                                                                 of leading members of the Bar.

                                                                                                 The AV was followed by more traditional
Above: the ballroom at the Hilton Hotel, Sydney. Below left: ‘Ms Junior’, Sandra Duggan. Below
right: the guest of honour, the Hon Michael McHugh AO QC
                                                                                                 entertainment, with speeches from ‘Ms
                                                                                                 Junior’, Sandra Duggan, ‘Mr Senior’, Peter
                                                                                                 Garling SC and the guest of honour, the
                                                                                                 Hon Michael McHugh AO QC.

                                                                                                 A photo montage will be published in the
                                                                                                 Winter edition of Bar News. Members will
                                                                                                 be advised when order forms for pictures
                                                                                                 taken on the night are available from the
                                                                                                 official photographer.


Right to practise in federal courts & courts                                                       Contents
exercising federal jurisdiction                                                                    President’s message                    2

Practitioners are reminded of section 55B         It is necessary to provide a copy of your
of the Judiciary Act 1903 which concerns          certificate of admission to the supreme          Politics of the law of negligence      4
the right to practise in federal courts and       court of your state or territory and a copy
courts exercising federal jurisdiction.           of your current practising certificate.          Bar Practice Course                    5


The High Court’s web site notes:                  The High Court Register of Practitioners         Urgent ethical guidance                6
                                                  application form can be downloaded from
   The entitlement to practise in a               the court’s web site at                          Facilitating parental leave            7
   federal court depends upon the
   entitlement to practise in the supreme          http://www.hcourt.gov.au/registry_              Mutual recognition in Europe           7
   court of a state or territory and entry        03.html
   in the Register of Practitioners kept                                                           Revisions to silks protocol            8
                                                  No fee is payable to have your name
   in the High Court of Australia in
                                                  entered in the High Court Register of
   accordance with the provisions of s55                                                           Legal professional privilege           8
                                                  Practitioners. There is however a fee
   of the Judiciary Act 1903 (Cth).
                                                  (currently $45) if you wish to order a
                                                                                                   Bar Council business                   10
   In order to have your name entered             certificate of admission.
   in the High Court Register of
   Practitioners you must be presently                                                             ABA Chicago conference                 10
   entitled to practise as a barrister,
   solicitor, barrister and solicitor,                                                             New members                            13
   solicitor and barrister or legal
   practitioner in the supreme court of a                                                          Fees owed to counsel                   13
   state or territory.

     Make www.nswbar.asn.au your home page                                 Bar Brief No. 140 May 2007                            Page 1
A message from the president
Rhetoric Seminar Series                       the Local Court to refer to the Supreme
                                              Court of New South Wales a question
The Bar Association’s Rhetoric Seminar        of possible contempt of court by a
series will commence on Monday, 28            publication by Nationwide News in The
May 2007. You are invited to go to www.       Daily Telegraph on Saturday 5 May 2007
nswbar.asn.au/circulars/rhetoric3.pdf         and in The Sunday Telegraph on Sunday
which explains the purpose of the series      6 May 2007. After taking advice on the
to be held over the next three months.        subject the Bar’s Executive took this
This seminar series calls for a broader       course which was then endorsed by Bar
study of the art of rhetoric with special     Council at its meeting on 17 May 2007. I
emphasis on its classical origins. It looks   refer members to the press release www.
at the process of persuasion differently to   nswbar.asn.au/docs/resources/media/              and witnesses should not be intimidated
most advocacy courses.                        MR_power2.pdf, issued at the time which          from or punished for taking part in legal
                                              explained the Bar’s actions. Proceedings         proceedings. Deterring parties and
                                              have been listed for argument on 24              witnesses by such means from having
For many years, the Hon Michael McHugh
                                              May 2007. I invite members to view that          access to our courts in present and
AC QC, who gives the last paper in the
                                              press release. Questions from members            future cases will undermine our system
series on Monday, 20 August 2007, has
                                              of the public and the Bar about these            of justice. It is this principle which lies
explained that when at the Bar he used
                                              proceedings have prompted me to say              behind the Bar’s action in this case.
to consult Aristotle’s Art of Rhetoric
in order to assist him to construct           three things.
everything from submissions to the High                                                        Third, no one should interpret the Bar’s
Court to addressing a jury. This course       First, these proceedings have not                position on this issue as in any way
is designed to provide a pathway to the       been taken to prevent the disclosure             condoning the conduct to which Dr
richness that lies in both classical and      of the names of individuals who give             Patrick Power pleaded guilty. The crimes
modern literature and thinking on this        character or witness statements in               to which he has pleaded guilty and been
subject. I invite all members of the Bar      criminal proceedings. The application            sentenced are rightly condemned by law.
to attend.                                    by the media for access to these names           Barristers regard such conduct as no less
                                              was proper and was appropriately                 reprehensible than do other people.

Bar contempt case against                     granted by the Local Court. An essential
Nationwide News                               part of community confidence in the              Australian Bar Association
                                              administration of justice is holding court       Conference in Chicago 2007

As most members of the Bar are now            proceedings in public.
aware, on 9 May 2007 the New South                                                             There are still places available for the
Wales Bar Association commenced               Second, it is also important to the              ABA Conference in Chicago this year.
proceedings in the Local Court requesting     administration of justice that parties           I urge all members to give serious


                                                                                                                              continued on p3




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     Make www.nswbar.asn.au your home page                             Bar Brief No. 140 May 2007                               Page 2
A message from the president (continued from p2)
consideration to attending this conference   assists the policy work of the Bar’s          these issues now.
next month. The ABA conferences held         Equal Opportunity Committee, which
in Florence and Paris in recent years        operates the Bar’s long term programs of      To give you some insight how the
have been outstanding successes. This        mentoring of female barristers, the Bar’s     same kind of regulatory issues have
conference, to be held in one of the         childcare scheme and the Bar’s visits         been resolved within the European
great cities of the world, promises to be    program for female university students.       Union, I asked Angus Lang of Tenth
equally successful. The speakers include     Members will find the Forum’s new             Floor Chambers, who has recently
Judge Richard A Posner of the US Court       website at www.wbf.org.au.                    gained a masters in law from Humboldt
of Appeals for the 7th Circuit, Madam                                                      University in Berlin, to give us a brief
Justice Rosalie Abella of the Supreme        Disclosure of settlement                      introduction to the mutual recognition of
Court of Canada and Justice Susan            negotiations                                  legal qualifications within the European
Crennan of the High Court of Australia,                                                    Union. His article gives a perspective
together with Geoffrey Vos QC, Chairman      Bar Council has upheld in recent times        as to how qualification recognition and
of the Bar of England and Wales. I           more than one complaint of the wrongful       disciplinary complaints can be dealt with
invite you to download the registration      disclosure to courts by barristers of the     cooperatively on a cross border basis.
form which can be obtained from www.         content of without prejudice settlement       Interestingly, the system introduced in
austbar.asn.au or contact the ABA on 07      negotiations. The confidential nature         the European Union has many features in
3238 5100.                                   of without prejudice negotiations is          common with the mutual recognition and
                                             implicit but it is made express in some       disciplinary systems that operate under
Bar baby boom                                jurisdictions, such as in r 10.02 of the      the model legal profession legislation in
                                             Family Law Rules. It is important to          Australia, enacted in New South Wales
As Jane Needham SC and Howard                recognise that the direct or even, as         by the Legal Profession Act 2004. I
Packer comment in their article in this      is more usually the case, the indirect        commend Angus’s interesting article to
edition of Bar Brief, parts of the Bar       disclosure by a barrister of settlement       you for your attention.
have experienced something of a baby         negotiations can amount to professional
boom in recent years. In their article       misconduct or unsatisfactory professional     AustLII
Jane and Howard give practical examples      conduct. All counsel need to be careful
of how they reorganised their practices      to ensure that no matter how frustrating      The Australian Legal Information Institute
to cope with the demands of small            settlement negotiations at times may be,      is one of the leading sources of legal
children. The article should be of great     it is their duty not to convey to the court   materials on the Internet. The Australian
interest to clerks and barristers who are    that one or other party is at fault for any   grown AustLII model is one of the
personally experiencing or who need          breakdown in negotiations.                    most practical ways to improve access
to make adjustments to deal with this                                                      to justice. The AustLII model was an
baby boom. The suggestions made by           Mutual recognition in Europe                  international first. It has been replicated
Jane and Howard give a little insight                                                      in Asia, Great Britain, Hong Kong, New
as to what can be done in chambers to        Chief Justice Myron T Steele of the State     Zealand, Southern Africa and other
make the lives of our new parents and        of Delaware recently visited our Bar. He      Commonwealth countries and in the USA.
their colleagues in chambers a little less   explained how the Conference of Chief
stressful.                                   Justices of State Supreme Courts of the       The maintenance of AustLII’s databases
                                             United States of America had resolved         and the services provided through them
Women Barrister’s Forum                      in February this year to encourage each       are expensive. The continued operation
                                             Supreme Court to permit Australian            of this free service depends on donations
In November 2006 I attended the              lawyers to sit for state Bar exams. Our       to AustLII every year. I am a donor to
launch of the web site of the Women          Bar and the Law Council of Australia          AustLII as I believe in the importance of
Barrister’s Forum. This Forum has been       are continuing to explore the possibility     its work.
steered for a number of years very           of wider international practice for New
successfully by Mary Walker and her          South Wales barristers in the United          Bar Council has taken the view that New
colleagues, who I thank for their efforts.   States and other countries. There are         South Wales barristers should not be
The Forum has a website listing female       still many regulatory issues to resolve       compulsorily levied for the maintenance
counsel. It has regular functions and        before New South Wales barristers will        of AustLII databases. However, I do
has conducted highly successful toasts       be able to practice in states such as         encourage members to make individual
to the new female silk in recent years.      Delaware. Philip Selth, our executive         donations to AustLII to help balance
Its discussions of issues of interest to     director and Steve Mark, the legal            its budget in 2007. AustLII presently
women at the Bar it complements and          services commissioner, are working on         needs to raise an additional $400,000 to
                                                                                                                    continued on p4

     Make www.nswbar.asn.au your home page                           Bar Brief No. 140 May 2007                         Page 3
A message from the president (continued from p3)
meet its shortfall in sponsorship funding.    Complaints about judges                      With complaints about delay in
Otherwise there will be a reduction                                                        judgments the existing protocol is that
in AustLII’s services commencing in           Whilst the numbers of complaints about       the president raises the issue of delayed
mid-2007. The New South Wales Bar             judges by barristers are extremely           judgment with the chief judge of a
is a large user of AustLII’s services, so     low and the courtesy and efficiency of       division or the chief justice of the court
donations by individual barristers are a      our judiciary are high by any possible       concerned. The judge does not become
proper response to a free service which       standard, complaints about judges do         aware of the source of the complaint.
benefits us all greatly.                      come from time to time to Bar Council’s
                                              attention. There is often a concern          In relation to judicial conduct in court,
Full details of AustLII’s funding position    on the part of barristers thinking of        where the information given warrants
and details of how a contribution can be      making such complaints that they will be     the matter being taken further, the Bar
made to assist AustLII’s funding can be       identified as the source of the complaint.   Council has on a number of occasions
obtained by following this link: www.         Whatever the complaint might be,             initiated a complaint itself to the Judicial
austlii.edu.au/austlii. Donations to          whether it is poor courtroom behaviour       Commission, so that the burden of
AustLII are made through the University       or delays in judgments, if the complaint     maintaining the complaint does not fall
of Technology Sydney Foundation and are       is worthy of raising, you may be assured     on any one individual.
tax deductible. The link is www.austlii.      that Bar Council makes strenuous efforts
edu.au/austlii/sponsors/contribute.pdf.       to ensure that complaints about the          Any enquiries about the operation of
                                              judiciary are managed to the extent          these procedures should be directed
                                              possible so as not to reveal the name of     either to myself or to Philip Selth, the
                                              the complainant.                             executive director.



Room for common ground in tort debate: Ipp J
The Hon Justice Ipp has delivered a              Accidents Compensation Act are far
cogent critique of tort law reform in            removed from a balanced system of
New South Wales and, in doing so, has            objective criteria, the achievement
spoken out in support of moves by the            of which might be thought desirable.
Bar Association and other peak legal             Essentially, these schemes constitute
organisations to restore fairness and            a table of maims, a system with
consistency to personal injury laws in this      which ancient and medieval life was
state.                                           familiar, but which disappeared for
                                                 hundreds of years from civilised
Speaking at an insurance conference on           societies. It is not something that
the Sunshine Coast earlier this week,            developed legal systems based on the
Justice Ipp echoed concerns expressed            common law have generally accepted,
by lawyers, judges and injured people:           largely because it has no regard to
namely, that legislation designed to             the circumstances of the individual
eliminate small claims in workers                case. It does not cater for the fact
                                                                                              is, on the most productive group in
compensation and motor accidents was             that, for example, the loss of a leg
                                                                                              the community; arguably, the group
excessively harsh and has given rise to          may mean far more to a ballerina
                                                                                              most in need of protection against
an overly bureaucratic system that is            than a computer operator.
                                                                                              the negligence of others. The reason
riddled with inconsistencies.
                                                                                              for this discrimination has not been
                                              Inconsistencies between the two major
                                                                                              given, although there is cause for
The use of thresholds based on the            statutory compensation schemes were
                                                                                              suspicion. As detectives say in the
American Medical Association’s Guide to       also subjected to a withering critique.
                                                                                              movies: follow the money.
the Evaluation of Permanent Impairment        Justice Ipp noted that:
was singled out for particular criticism by
                                                                                           Justice Ipp’s speech resonated with
his Honour:                                      A curious aspect of the differences
                                                                                           other key themes of the ‘Fair Go For
                                                 in the legislation is that the most
                                                                                           Injured People’ campaign, including
   The schemes for the measure of                onerous threshold for plaintiffs, by
                                                                                           the belief that open adjudicating upon
   damages as provided by the Workers            far, is that imposed on workers by
                                                                                           compensation cases satisfies society’s
   Compensation Act and the Motor                the Workers Compensation Act. That

                                                                                                                       continued on p5

     Make www.nswbar.asn.au your home page                            Bar Brief No. 140 May 2007                          Page 4
Room for common ground in tort debate: Ipp J (continued from p4)
desire for transparency and public              bodies such as councils of the Bar               in the law of negligence can only
exposure of negligent conduct by                associations, law societies, the Law             be to the benefit of the insurance
corporations and public authorities.            Council of Australia and the Australian          industry. In 2002, this was a main
                                                Lawyers Alliance genuinely attempt to            plank of the insurers’ submissions.
   The systems of adjudication under            advance the rule of law and express              There is much room for common
   the Workers Compensation Act and             legitimate concern for the less                  ground.
   the Motor Accidents Compensation             advantaged members of our society.
   Act lack the institutional safeguards        It would be a serious error to discount       In response to the speech by Justice Ipp,
   inherent in the traditional judicial         their arguments without giving them           the president of the Bar Association and
   system of deciding negligence claims.        careful consideration.                        spokesperson for the Fair Go campaign,
   That is, involving decision-making in                                                      Michael Slattery QC, said he was pleased
   open court, without fear or favour,      Justice Ipp ended his speech, however,            that his Honour had added his voice
   by independent professional judges       on a positive note. Insurance data clearly        so decisively to the judiciary’s growing
   appointed in the time-honoured way.      indicated that cover was now affordable           chorus of concern about the harsh
   This watering down of the functions      and the industry had returned to                  personal injury laws in NSW.
   of the courts, and perceptions of        profitability. Further, there is an emerging
   serious defects in the process as a      consensus that the Civil Liability Act            ‘Justice Ipp’s comments only serve to
   whole, have given rise to grievances     was delivering consistency in the law of          increase pressure on those who refuse
   on the part of many claimants            personal negligence and is acceptable to          to accept that reforms must be made to
   identified by bodies such as the New     both the legal profession and insurers.           a system that is harsh, bureaucratic and
   South Wales Bar Association in its                                                         inconsistent. I recommend this speech to
   public campaign.                             The lawyers’ campaign is treated              all members of the Bar’, said Mr Slattery.
                                                generally as being one side of
His Honour examined the interests and           a conflict between lawyers and                A copy of Justice Ipp’s speech, ‘The
viewpoints of the main protagonists             insurers. I doubt, however, when              Politics, Purpose and Reform of the
in the battle for a sustainable                 properly understood, that this is             Law of Negligence’ is held in the Bar
compensation system and balanced                so. The campaign, essentially, is for         Association Library and will be available
law of negligence. Commenting on the            consistency with the Civil Liability Act.     from www.faircompensation.com.au
recent public education campaign by the         The Civil Liability Act has long been
legal profession, Justice Ipp indirectly        supported, and approved by, those
cautioned politicians that:                     who represent insurers. Consistency


Bar Practice Course 01/2007
The first Bar Practice Course for 2007                                                        The course concludes on Saturday, 26
commenced on Monday, 30 April when                                                            May when the readers will conduct a full
44 new readers were welcomed by the                                                           hearing in the Supreme Court, before
president, Michael Slattery QC. In this                                                       commencing practice on the following
course there are 18 female readers,                                                           Monday. The four week course has been
which equates to 41 per cent of the class                                                     designed by members of the Bar Practice
- the highest proportion thus far.                                                            Course working party to prepare a new
                                                                                              reader for life, and practice, at the NSW
The first week concentrates on pleadings                                                      Bar.
and preparation of the brief. Week two
is an opportunity for the readers to get    The president addresses the Bar Practice Course   Once again the Bar Association is
on their feet and make applications in                                                        indebted to the members of the judiciary
                                            with a series of intense lectures and
the Local, District, Supreme and Federal                                                      and the Bar who have given so willingly
                                            exercises on evidence in chief and cross
courts. It is also an opportunity for the                                                     of their time in order to maintain the
                                            examination. The final week puts all
reader / tutor relationship to develop                                                        professionalism and high standards of
                                            the new skills to the test with a series of
as they prepare their applications                                                            advocacy at the NSW Bar.
                                            mini-trials before culminating in the final
with the support of tutors. Week
                                            mock trial.
three concentrates on advocacy skills




     Make www.nswbar.asn.au your home page                               Bar Brief No. 140 May 2007                        Page 
Urgent ethical guidance for members

Barristers may require urgent ethical
guidance such as during an adjournment
at court. Barristers are reminded of the
current system in place which is available
to members of the association allowing
for assistance over the telephone.


1.    Barristers may telephone senior
counsel currently serving on the
association’s professional conduct
committees. The names and telephone
numbers of senior counsel can be
obtained by telephoning the association’s
Professional Conduct Department: ph:
(02) 9232 4055.


2.     As soon as practicable after
                                              Ethical guidance in non-urgent                alleged, members should always err on
speaking with senior counsel, if the
                                              circumstances                                 the side of caution.
barrister wishes to have a record of his or
her discussion with senior counsel, he or
                                              Members requiring ethical guidance in         When there is any practical potential
she should send a letter to senior counsel
                                              non-urgent circumstances may contact          for breach of Barristers’ Rule 107,
recording the facts and the guidance
                                              senior counsel on the association’s           consideration of the matter should always
given.
                                              professional conduct committees.              begin with the view that the brief should
                                                                                            be returned.
3.     A copy of the letter may also
                                              The names of senior counsel currently
be sent to the director, professional
                                              serving on the association’s professional     Members should, of course, make
conduct. However, any decision and all
                                              conduct committees can be obtained:           themselves familiar with the New South
responsibility is that of the individual
                                                                                            Wales Barristers’ Rules, which are
barrister. The role of senior counsel is to
                                              •   from the Bar Association’s web site:      published on the Bar Association’s web
provide an opportunity for discussion to
                                                   www.nswbar.asn.au                        site: www.nswbar.asn.au
assist members in reaching a conclusion,
not to give advice or a ‘ruling’.
                                              •   by contacting the association’s           Papers to note
                                                  Professional Conduct Department:
A previous system for providing ‘ethics
                                                  ph: (02) 9232 40                        The Administrative Appeals Tribunal
rulings’ to barristers (both urgently and
                                                                                            has published its Guide to the Workers’
non-urgently) was reviewed by the Bar
                                              As with urgent matters, if the barrister      Compensation Jurisdiction. A copy may be
Council some time ago and is no longer
                                              wishes to have a record of their              obtained from the tribunal’s web site:
in place.
                                              discussion with senior counsel, he or she     www.aat.gov.au
                                              should send a letter to senior counsel
Section 81 of the Legal Profession Act
                                              recording the facts and the guidance          Finding a Better Way: A bold departure
2004 provides:
                                              given.                                        from the traditional common law approach
                                                                                            to the conduct of legal proceedings, Family
(1)      Practice as a barrister is subject
                                              A copy of the letter may also be              Court of Australia. A copy may be obtained
to the barristers rules.
                                              sent to the director, professional            from the court’s web site at:
                                              conduct. However, any decision and all        www.familycourt.gov.au
(2)      Practice as a barrister is not
                                              responsibility is that of the individual
subject to any other rules, practice
                                              barrister. The role of senior counsel is to   Appointments
guidelines or rulings of the Bar
                                              provide an opportunity for discussion to      Her Honour Acting Judge Orchiston has
Association or Bar Council.
                                              assist members in reaching a conclusion,      been reappointed as an acting judge of
                                              not to give advice or a ‘ruling’.             the District Court of New South Wales
                                                                                            and as a judge of the Drug Court of New
                                              In matters in which a conflict of interest    South Wales, effective 12 April 2007 - 11
                                              or potential breach of confidentiality is     April 2008.

     Make www.nswbar.asn.au your home page                            Bar Brief No. 140 May 2007                          Page 
Facilitating Parental Leave - how one set of chambers manages it
By Jane Needham SC and Howard
Packer


The 13th Floor St James’ Hall has
experienced something of a baby boom
in recent years and accordingly, a
number of floor members have required
to re-organise their practices to cope
with the demands of small children.
This article outlines the ways in which
flexible working arrangements have been
accommodated for those members who
choose to take time off to devote to
parenting.


The first issue is what do to do with
chambers. Jane Needham SC and                  leave both chambers were licensed out.       sent from a computer and a fax service
Howard Packer have shared each others’                                                      which delivers faxes through a dedicated
chambers at various times, most recently       The second issue is how to manage            number to the barrister’s computer via
when they were both returning from             maintenance of a practice without losing     e-mail.
parental leave and seeking to work less        clients while away on parental leave.
than full-time. Obviously Chambers             The secret to this is technology. The rise   Thirdly, there needs to be support for
management needs to be flexible about          of communication between barristers on       those barristers who are working flexibly
the licensing out of members’ chambers         the one hand and solicitors and courts on    while caring for children. There is not
to suitable candidates and, in this case,      the other has made practising from home      much point providing the consents to
the Floor was happy to allow Needham           both easy and unobtrusive. In addition,      licence chambers and the technology to
SC and Packer to licence out one room          the services provided to the 13th Floor      enable maintenance of a practice from
and to share the other, which both             by BarNet include a telephone system         home unless the Floor members are
reduced cost and enabled flexibility of        which enables calls to be put through        committed to the validity of maintaining a
working hours without the financial            to the barrister at home or on his or her    practice while caring for children and the
commitment of full chambers fees. While        mobile phone; a desktop SMS service          benefits of the returning members once
they were both on full-time parental           which enables free SMS messages to be        the parental leave period is over.


Mutual Recognition in Europe
By Angus Lang                                  which recognise freedom of movement
                                               and freedom of establishment within the
Recently, the conference of chief justices     EC. Directives issued in 1977a and 1989b
of the state supreme courts of the             contained some measures in respect of
United States resolved to encourage            the temporary provision of cross-border
each supreme court to permit lawyers           services and the mutual recognition of
admitted in Australia to sit for state         diplomas. However, it is the provisions of
Bar exams. Developments such as this           directive 98/5/ECc on the establishment
reflect an increasing interest in mutual       of lawyers which have, in recent years,
recognition generally, including at the        taken mutual recognition considerably
Bar. In light of this, it may be of interest   further.
to review briefly what is happening in
Europe in this area.                           That directive essentially does two
                                               things. First, it allows a person who
Mutual recognition within the European         is registered as a lawyer (including a
                                                                                            without the requirement of any test or
Union is based upon the requirements of        solicitor or barrister) in the person’s
                                                                                            period of experience in the host state.
Chapters 1 and 2 of Title 3 of the Treaty      state of origin to become established
                                                                                            Secondly, the lawyer is entitled to gain
Establishing the European Community,           in another member state (the “host
                                                                                            admission to the profession in the host
                                               state”) and practise the law in that state
                                                                                                                       continued on p9

     Make www.nswbar.asn.au your home page                             Bar Brief No. 140 May 2007                         Page 7
                                                                                        Consultation session
                                                                                        on legal professional
                                                                                              privilege
                                                                                     The Australian Law Reform Commission
                                                                                     is conducting an inquiry into legal
                                                                                     professional privilege in the context
                Office of the Director of Public Prosecutions                        of the coercive information gathering
                                                                                     powers of federal bodies.
               Acting Crown Prosecutor
                                                                                     On 23 April the ALRC released Issues
Pos No. 2007/29. Total remuneration package valued at up to $240,067 pa,             Paper 33 Client Legal Privilege and
including salary of $204,460 p.a., a conveyance allowance of $15,840 p.a.,           Federal Investigatory Bodies. Copies
employer’s contribution to superannuation and annual leave loading.                  of the IP can be downloaded from the
                                                                                     ALRC’s website at www.alrc.gov.au.

Selection Criteria:
                                                                                     The ALRC is holding consultation sessions
•    Eligible for admission as a legal practitioner of the Supreme Court of New      on the issues raised in that Paper. They
     South Wales;                                                                    are particularly interested in hearing the
                                                                                     views of counsel who have represented
•    Experience as a Counsel in jury trials and/or appellate advocacy in criminal
                                                                                     persons in investigations conducted by
     matters;
                                                                                     federal bodies with coercive information
•    Extensive knowledge of NSW criminal laws, the rules of evidence and relevant    gathering powers, as well as counsel who
     Prosecution Guidelines and legal principles applicable to Crown Prosecutors     have assisted in commissions of inquiry
     and the relevant Rules of the New South Wales Bar Association;                  or who have represented federal bodies
•    Strong interpersonal, organisation, analytical, problem solving and time        in cases concerning legal professional
     management skills with the ability to make decisions under pressure;            privilege.
•    Mentoring skills and an interest in continuing professional development;
                                                                                     The consultation session will be held
•    Ability to prioritise a consistently busy workload and continually maintain a
                                                                                     at 5pm on Tuesday, 22nd May 2007 in
     high level of quality of professional work;
                                                                                     Room 21 of the National Dispute Centre,
•    Knowledge of anti-discrimination and OH&S legislation, equal employment         233 Macquarie St, Sydney.
     opportunity, ethnic affairs policy statements and the ODPP Code of Conduct;

•    A strong commitment to ethical practices.                                       Please RSVP to Chris D’Aeth on 9232
                                                                                     4055 or cdaeth@nswbar.asn.au .
Job Notes: The position available is headquartered in the Dubbo office,
requiring regular circuit work, and the appointment will be for a period of up to
12 months.                                                                           Silk protocol revised

Inquiries: Ms Deborah Carney (02) 9285 2569                                          At its meeting on 19 April, Bar Council
                                                                                     approved amendments to the Senior
Information packages: Ms Deborah Carney (02) 9285 2569                               Counsel Protocol, which clarify when the
                                                                                     designation ‘SC’ may be terminated or
Applications should be in writing addressing the criteria shown above and            resumed.
accompanied by a detailed curriculum vitae & two written references & sent to:
                                                                                     The principal amendment was to replace
                                                                                     clauses 31 to 33 with new provisions
                             Mr N R Cowdery AM QC                                    covering the cessation of appointment.
                         Director of Public Prosecutions                             For example, this may occur in the event
                                 Locked Bag A8,                                      that senior counsel have been removed
            Sydney South NSW 1232; DX 11525 Sydney Downtown;                         from the roll of legal practitioners, or
                  or e-mail to: Recruitment@odpp.nsw.gov.au                          their practising certificates have been
       (Word is the preferred format for applications submitted via email).          cancelled or suspended.

                          Closing date: 1 June 2007                                  The updated protocol is available online
                No smoking in the workplace is office policy.                        at www.nswbar.asn.au/professional

    Make www.nswbar.asn.au your home page                         Bar Brief No. 140 May 2007                      Page 
Mutual Recognition in Europe (continued from p7 )

state, and acquire the relevant title, by     recognition of professional indemnity        of a host state practitioner after 3 years
pursuing effectively and regularly for a      insurance, compulsory payments to            of practice remain small at this stage.
period of at least three years an activity    be made to host bars, the interlocking       The number of barristers (or former
involving the law of the host state,          of compulsory continuing education           barristers) included in those figures is not
including European Community law. So          schemes, and the different scope of          readily available.
a UK solicitor can become established         practice of lawyers in member states.
in Germany, immediately commence                                                           It will be interesting to observe the
practising German law as a UK “soliticor”     These matters indicate, perhaps, the         uptake of mutual recognition in Europe,
and, after 3 years, obtain the German         need for measures supporting the             in particular among barristers, as support
title of “Rechtsanwalt”.                      practical ability of lawyers to cross        and liberalisation measures develop.
                                              borders to accompany liberalisation          Australia’s situation is, of course,
                                              measures. A number of initiatives in         different from the European experience
                                              this regard are presently underway in        in some important respects. Although
                                              Europe. At the level of qualification,       we are not at this stage confronted with
                                              the so called “Bologna Process” has as       language differences in respect of our
                                              its goals the harmonisation and quality      mutual recognition partners, on the other
                                              assurance of tertiary education in           hand we do not benefit in the same way
                                              Europe and the exchange of students          from the imperative of a single internal
                                              Europe-wide. As part of this process,        market, or the unifying substance of a
                                              the Quality Assurance, Accreditation and     shared Community law.
                                              Assessment Group of the European Law
                                              Faculties Association is in the process of   Endnotes
                                              developing a qualifications framework
                                              and accreditation in European legal          a Council Directive 77/249/EEC of 22
                                              studies. At the level of practice, the       March 1977.
That is, without doubt, a liberal regime.     Council of the Bars and Law Societies
d
  Indeed, member states still need to         of the European Union has issued             b Council Directive 89/48/EEC of 21
be reminded of its implications. For          guidelines on the implementation of the      December 1988.
example, in a 2006 judgment, the              establishment directive and a code of
European Court of Justice considered          conduct for European lawyers, dealing
                                                                                           c Directive 98/5EC of the European
that the prior examination of language        in particular with some aspects of
                                                                                           Parliament and of the Council of 16
ability for lawyers wishing to carry on       double deontology, and in November
                                                                                           February 1998.
practice under their home-state title,        2006 the Council published a charter
the ban on providing country domicile         of core principles of the European legal
                                                                                           d Even by comparison with the recent
and the annual obligation to produce a        profession and a model scheme for
                                                                                           Directive 2006/123/EC of the European
certificate of registration in the state of   continuing professional development.
                                                                                           Parliament and of the Council of 12
origin as required by law in Liechtenstein
                                                                                           December 2006, which relates to services
conflicted with the directive.e               As at August 2005, Belgium had,
                                                                                           generally, but excludes lawyers.
                                              unsurprisingly in light of the location
Another aspect of the directive is the        of European institutions, the highest
                                                                                           e Judgment of 13 September 2006, Case
principle of “double deontology”, which       number of Community lawyers registered
                                                                                           C-193/05. See for example, in relation to
means that practitioners are subject to       under the title of their state of origin,
                                                                                           access to the activities of a trainee lawyer
the professional obligations of both the      with more than 500. France and Germany
                                                                                           the ECJ judgment of 13 November 2003,
state of origin and the host state. This      followed with about 200 each. The
                                                                                           C-313/01, Morgenbesser.
has raised a number of issues, including      numbers of lawyers receiving the title




  Important information about CPD
  As of 2007/08, the CPD year will run from 1 April to 31 March. As a transitional measure, the 2006/07
  CPD year ran from 1 July 2006 to 31 March 2007. Barristers need to accrue 10 CPD points in this period,
  with one point being accrued in each of the four strands. Excess points accrued in the period 10 April
  - 30 June 2006 can be carried forward into the 2006/2007 CPD year.


     Make www.nswbar.asn.au your home page                            Bar Brief No. 140 May 2007                          Page 9
Bar Council business for March-April 2007
Appointment of new treasurer                                        Appointment of new Bar councillor


Toner SC advised that, given his appointment as a judge of          Pursuant to cls 12.1.5 of the Bar Association’s constitution,
the District Court of NSW as of 16 April 2007, he resigned his      Elizabeth Olsson SC, on the resignation of Toner SC and being
position both as treasurer and as a member of the Bar Council.      the next eligible candidate who had stood for election to the
                                                                    2007 Bar Council, then took up her appointment to the council.
Coles QC, Garling SC and Gleeson SC were nominated for the
position of treasurer.                                              ‘A fair go for injured people’ campaign.


Coles QC was elected as treasurer.                                  The president advised that in the weeks immediately leading
                                                                    up to the state election on 24 March 2007 he had spoken at
The president noted that Toner SC had first been elected to         meetings at Lane Cave (1 March), Raymond Terrace (8 March),
the Bar Council for 1990. He had been secretary of the Bar          Goulburn (14 March) , Balmain (15 March) , Drummoyne (20
Association for 1996, 1997, 2004, 2005. He had been treasurer       March) and Parliament House (21 March). There had been a
in 2006, and in 2007 until today.                                   pleasing degree of interest in this issue particularly from the
                                                                    independent and minor parties.
                            Toner SC was, in a sense, a ‘tribal
                            elder’. His advice to the president     On 20 March he and the president of the Law Society had met
                            and more generally to the Bar           with the Opposition Leader, Mr Debnam, who had essentially
                            Council had been invaluable. He had     accepted the thrust of the campaign. On 22 March Mr Hartcher,
                            been very generous with his time        shadow attorney general, wrote to the association and the Law
                            both towards the Bar Council, the       Society indicating that the Opposition would, if elected:
                            Bar and the wider community. As
                            treasurer, he had worked assiduously    •     refer the Legislative Council's Personal Injury Compensation
                            to establish and maintain an                  Report to the NSW Law Reform Commission for assessment
appropriate level of reserves within the Bar Association budget,          and report to Cabinet within six months;
whilst at the same time ensuring that practising certificate fees
                                                                    •     ensure that the report would address the issue of
were kept to a minimum.
                                                                          establishing common thresholds for all victims of injury;
                                                                          and
Toner was prepared to make the hard decisions, although these
at times did not endear him to some of his colleagues. However,     •     require the commission to ensure that any proposed
he had always been fair. He was highly respected by the Bar. He           reforms were cost neutral and would not result in any
was an excellent appointment to the Bench                                 increase in workers compensation or green slip premiums.

                                                                                                                       continued on p11




   2007 ABA Conference in the Windy City
   The Australian Bar Association is holding its conference in Chicago from 26-29 June
   2007.


   Major themes to be explored include:

   •     Regulation and independence

   •     Litigation in the US: from depositions to witnesses

   •     The appointment of judges: tenure, confirmation and discipline

   •     The US Constitution and terrorism

   •     Scepticism and the judicial method

   •     Charters of rights and the role of courts

   For more information, or to obtain a registration brochure, visit the ABA’s web site
   at www.austbar.asn.au


       Make www.nswbar.asn.au your home page                            Bar Brief No. 140 May 2007                       Page 10
Bar Council business for March-April 2007 (continued from p10)

The president advised that while it was disappointing that the     Chief Justice Steele had spoken about current developments in
government had not seen fit to adopt the proposed principled       the United States to give greater access by Australian advocates
reforms that underlay the campaign, the work that had been         to practise in US state courts which followed follow lobbying
achieved was a solid platform on which the Bar Association         by the Australian Government and the Law Council of Australia
and the other bodies involved in the campaign could and would      as part of an initiative under the Australian-United States Free
continue to build.                                                 Trade Agreement (AUSFTA).


Queensland Bar Association annual conference, 1 - 17              The chief justice had also spoken about the state of Delaware
March 2007                                                         being the leading venue for incorporation in the United States
                                                                   and the independence of the state courts from administrative
The president advised that he and the executive director           and financial oversight by the executive branch.
attended part of the Queensland Bar Association Conference
on the Gold Coast on 16 and 17 March. The president of the         The president noted that the Bar Association would need to
Queensland Bar had, at the opening of the conference, spoken       do some follow up work to ensure that its members were
of the excellent working relations between the two Bars.           well informed about the opportunity to now more readily be
                                                                   admitted to practice in the United States.
Court ceremonies
                                                                   3th Australian Legal Convention, Sydney, 23 - 2
The president advised that he had spoken at the swearing in of     March 2007
Judge Leonie Flannery SC as a judge of the District Court on 20
March 2007.                                                        The president noted that the Law Council’s 35th Australian
                                                                   Legal Convention had been in Sydney on 23 – 25 March 2007.
Guest lecture by Chief Justice Myron T Steele, Delaware
Supreme Court, 22 March 2007                                       Law Council of Australia - directors meeting, Sydney
                                                                   Saturday 24 March 2007
The president noted that Chief Justice Myron T Steele of the
Delaware Supreme Court had spoken to a very well attended          The president advised that he and the executive director had
gathering in the Bar Association Common Room on Thursday,          attended the directors meeting of the Law Council which had
22 March 2007.                                                     been held in conjunction with the Australian Legal Convention.
                                                                   The two major matters on the agenda were the setting of the
                                                                   capitation fees for 2007 - 2008 and the admission of the Large
                                                                   Law Firm Group (LLFG) as a member of the Law Council of
                                                                   Australia.


                                                                   The president noted that the inclusion of the LLFG in the ‘LCA
                                                                   family’ was a significant step towards making that body truly
                                                                   national.


                                                                   The capitation fee for each constituent body had been increased
                                                                   by varying amounts. The Bar Association’s per head capitation
Chief Justice Steele was present in Australia for the Australian   fee had risen by $2.49 per head from $87 to $89.49.
Legal Convention. His visit was timely for members of the New
South Wales Bar. Earlier this year the United States Conference    Chinese lawyers delegation, Tuesday, 27 Match 2007
of Chief Justices had resolved to urge improved access for
Australian lawyers in the US. The resolution urged the Supreme     The president advised that on 27 March he, Gleeson SC and
Court of every US state and territory to consider permitting       the director, legal had met with a delegation of Chinese lawyers
Australian university law graduates who have been admitted         in Australia under sponsorship of the Australian Government
to practice in Australia to sit US bar exams for admission to      and the Law Council of Australia. The president had outlined
practise there without having to undertake further study.          how the Bar and the solicitors operate in NSW; what barristers’
                                                                   work entails; information on the traditions of the Bar and the



                                                                                                                   continued on p12


     Make www.nswbar.asn.au your home page                          Bar Brief No. 140 May 2007                        Page 11
Bar Council business for March-April 2007 (continued from p11)

legislation and rules governing the work of the profession.       at which Michael Holmes had been present. The problems
Members of the delegation then asked a wide range of              identified by Holmes had been addressed in recent practice
questions.                                                        notes issued by the court.


Meeting with Senator Joe Ludwig, shadow federal                   Use of audio visual facilities in Local Court
attorney-general
                                                                  The Bar Council noted the chief magistrate’s proposal to
The president advised that he, the senior vice president and      increase the use of audio visual link facilities in country areas.
the executive director had met with Senator Ludwig, the
federal shadow attorney-general and his senior policy adviser,    The Bar Council asked the executive director to arrange with
Mr Simon Every. Matters discussed included an Australian Bill     the chief magistrate for a member of the association’s Legal
of Rights; anti-terrorism legislation; remuneration of federal    Aid Committee to participate in the development phase of the
judicial officers; the secrecy constraints of s16 of the Income   proposal.
Tax Assessment Act 1936; the need for amendment of the
admission provisions in s55D of the Judiciary Act 1903; and the   Important Issues for 2007
need for a rational national approach to tort law reform. The
president advised that Senator Ludwig had indicated that he       The president spoke to his memorandum, and to the key issues
would be happy to meet with the Bar Council at an appropriate     he saw at this stage as deserving of particular attention during
time.                                                             2007. Many of the issues were the same as considered by
                                                                  the Bar Council in 2006. The attention given to the ‘Fair go for
Tasmanian Independent Bar Association                             Injured People’ campaign in the last quarter of 2006 and the
                                                                  first quarter of 2007 had necessarily meant that some of these
The executive director advised that the Tasmanina                 issues had not been progressed as far as might have been
Independcent Bar Association had been admitted to the Law         desirable, but progress had been made on all issues.
Council of Australia as a full member at the LCA’s directors
meeting held in Sydney on 24 March 2007.                          The president noted in particular the work being done by the
                                                                  Australian Bar Association to try and obtain greater access for
The Tasmanina Independent Bar Association had held its            Australian barristers to work coming out of Hong Kong (much
inaugural Bench and Bar Dinner in Hobart on Saturday,             of which now went to the English Bar). The president is a
31 March 2007. Toner SC and the executive director had            member of the ABA’s Hong Kong working party. The ABA is
represented the Bar Association at that dinner.                   presently considering a delegation of senior members of the Bar
                                                                  visiting Hong Kong for discussions with relevant authorities and
Practising certificate renewals for 2007-2008                     the local profession on both admission for Australian barristers
                                                                  and the development of links between Hong Kong firms and the
The executive director advised that, pursuant to s91 of the       Australian Bar.
Legal Profession Act 2004, the attorney general had approved
the proposed practising certificate fees for 2007-2008. Four      The president also spoke of his wish to enhance links between
professional indemnity insurance policies for 2007-2008           the New Zealand and New South Wales Bars, and for the
had been submitted to the attorney general for his approval       NSW Bar to take fuller advantage of the Trans-Tasman Mutual
pursuant to s403 of the Legal Profession Act 2004. The state      Recognition legislation. He had invited the president of the
election had caused a slight delay in obtaining the (new)         New Zealand Bar Association, Jim Farmer QC, to attend the Bar
attorney general’s approval to the policies. The practising       Association’s 2007 Bench & Bar Dinner. He had also spoken
certificate renewal documentation would be mailed out as soon     with the Wellington barrister John Marshall, the incoming
as the PII policies had been approved.                            president of the New Zealand Law Society, about enhancing
                                                                  the links between the New Zealand profession and the NSW
Local Court - transfer of matters from Small Claims               Bar. He was considering visiting the NZ Bar and Law Society
Division to General Division                                      later this year with a member of the association’s International
                                                                  Advocacy and Arbitration Committee to further this aim.
The Bar Council noted that this matter had recently been
discussed at a meeting of the New Barristers Committee,




     Make www.nswbar.asn.au your home page                         Bar Brief No. 140 May 2007                           Page 12
New members
                                                                                         Bar Council regional
The persons listed below were accepted as new members of the New South Wales Bar         representatives
Association at meetings of Bar Council in March and April 2007.
                                                                                         Stuart Hill

 Surname               Given names          Chambers                          Class      Hargrave Chambers
                                                                                         162 Crown Street
 Burgland             Fenja                 Rushcutters Bay                     A
                                                                                         Wollongong NSW 2500

 Donaghey             Tim                   Latham Chambers (Melb)              B        P: (02) 4228 8977
                                                                                         F: (02) 4226 3947
 Erskine              Christopher           Blackburn Chambers (ACT)            B        hill@hargravechambers.com.au

 Forlin               Gerard                Gray’s Inn (London)                 B
                                                                                         Rob O’Neill

 Furlan               Nicholas              9 Selborne Chambers                 A        Lachlan Macquarie Chambers
                                                                                         16 George Street
 Hunt                 Warwick               Dutruc Street Randwick              B        Parramatta NSW 2150
                                                                                         P: (02) 9635 1000
 Ireland              Clifford              8 Selborne Chambers                 A
                                                                                         F: (02) 9891

 McCann               Neil                  Law Library (Dublin)                B        1989ro’neill@lacmac.com.au


 Mehigan              Terrence              12 Selborne / Wentworth             A        Bill Walsh
                                            Chambers
                                                                                         William Owen Chambers
 Quirk                Robert                Quay Central (Brisbane)             B
                                                                                         121A Byng Street

 Young                Leonie                NSW Bar Association                 B        Orange NSW 2800
                                                                                         P: (02) 6361 7959
 Wyles                Michael               Latham Chambers (Melb)              B        F: (02) 6361 7921
                                                                                         woc@bigpond.net.au

15 Bobber                                   Fees owed to counsel
                                                                                         Geoff Radburn
To celebrate the appointment of His Hon     Pursuant to s623(2) of the Legal             Lismore Chambers
Judge Robert Toner SC to the District       Profession Act 2004 (NSW), Andrew
                                                                                         32 Molesworth Street
Court a 15 Bobber will be held on Friday,   Brown has been appointed manager of
25 May 2007. The speaker will be James      the following practice:                      Lismore NSW 2480
Poulos QC. The 15 Bobber will commence                                                   P: (02) 6621 2854
at 5.00pm with the speeches at 5.30pm.      MNA Lawyers (formerly Y Kim                  F: (02) 6621 3898
                                            Lawyers)
                                                                                         radburn@nor.com.au
Pre-registration is $15 and must be sent
to the association by 3.00pm of the day     Counsel with outstanding fees should
of the function. There may be a limited     contact Mr Brown as soon as possible.
                                                                                         Stewart Austin
amount of reservations accepted at the      Whilst Mr Brown has advised that he
                                            cannot guarantee fees outstanding would      Chambers
door for $25.
                                            be paid in total or recover of any fee due   30 Church Street
                                            from any source, he would do his best to     Newcastle NSW 2300
Please contact Katie Hall on ph: (02)
                                            assist counsel owed fees. Andrew Brown
9229 1720 if you have any questions                                                      P: (02) 4926 2844
                                            may be contacted on:
regarding the 15 Bobber.
                                                                                         F: (02) 4926 2841
                                            ph: (02) 9926 0321                           sca371@ozemail.com.au
To obtain a registration form, visit:
                                            fax: (02) 9926 0166
www.nswbar.asn.au and follow the links
                                            or via e-mail: asb@lawsocnsw.asn. au
to ‘News and current awareness’.



     Make www.nswbar.asn.au your home page                            Bar Brief No. 140 May 2007                 Page 13

								
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