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					                         Bar Brief
No. 116 (September 2004) THE MONTHLY NEWSLETTER FROM THE NEW SOUTH WALES BAR ASSOCIATION
                                                                                                                              Servants of all
                                                                                                                                 yet of none



                                                                                                                                ISSN No: 1443-6132




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Practising certificate and                                                                           contents
membership renewals                                                                                     3 Registration requirements for
                                                                                                            ‘door tenants’




                                                                                                                           ➔
Despite predictions from some quarters              members asking that they re-consider their
that tort law ‘reform’ would decimate the           decision.                                           3 CPD videos
Bar, the number of barristers who did not                                                               4 No more bumps in the road: A
                                                    The renewal period was not without its
renew their practising certificate at the           usual quota of problems, often in respect of            national travelling practising
end of 2003-2004 was only marginally                the need for barristers to provide evidence             certificate scheme
higher than in previous years. When                 that he or she held professional indemnity




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viewed in conjunction with the intake for           insurance. Most barristers who had lodged           4 Whole person impairment
the Bar Practice Course and exams, it                                                                       notice: three month trial
                                                    their renewal applications after the
seems certain that overall numbers at the           statutory due date had appreciated that it          5 LAWASIAdownunder 2005
Bar will remain steady for the year ahead.          was not administratively possible to issue a
As of 21 July 2004, 2082 practising                 new practising certificate on demand.               6 Bar Council business for
certificates for 2004-2005 had been                                                                         July 2004
                                                    Despite more than one dozen reminders to




                                                                                                                           ➔
issued, 1935 to New South Wales                     the Bar, there were a few instances where           6 Appointment of the new
barristers. Forty-two New South Wales               barristers had practised after 1 July without           Family Court CJ
barristers had not renewed their                    a practising certificate. These are required
practising certificate. This was only               to be referred to a professional conduct            7 Disclosure of offences for
marginally more than the usual number               committee for investigation.                            which penalty notices are
who, due to retirement, appointment,
                                                    At the Bar Council meeting on 20 July, the              issued
relocation or other reasons, did not




                                                                                                                           ➔
renew each year.                                    Executive Director expressed his thanks to          7 Request for details of fees
                                                    all of the Bar Association’s staff involved in
July 2004 also heralded the separation of                                                                   owed to counsel
                                                    the practising certificate renewal process, in
practising certificate and membership                                                                   8 2004 Tutors and Readers
                                                    particular, Basil Catsaros, Barrie Anthony,
fees: so-called ‘voluntary membership’.             Kim Kemp and members of the Professional                Dinner
The completion of the PC renewal                    Conduct Department.
process revealed that only 13 local                                                                     9 Papers to note




                                                                                                                           ➔
practising barristers had declined to               The Bar Council expressed its appreciation
renew their membership of the Bar                   for the inordinate amount of work,                  9 Update on facilities at Penrith
Association. There are 2035 holders of a            undertaken late at night and on weekends,               Court Complex
NSW practising certificate who are                  and at times under stressful conditions, by
members of the association. Only 47 are             Bar Association staff during the renewal            9 Chambers adopt model sexual
not. The President has written to non-              period.                                                 harassment policy

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Solicitors making threats
to seek personal costs orders
A statement from the Council of the Law Society of New South Wales.
The council has resolved to make a                  making threats to apply for costs orders         appears to a court in which proceedings
statement to the profession following               against the solicitors for the opposing          are taken on a claim for damages that a
reports of the widespread use of threats            parties (and in the case of the Bar              solicitor or barrister has provided legal
made by some practitioners to seek                  Association, barristers) personally in           services to a party without reasonable
personal orders against other practitioners         circumstances which are regarded as              prospects of success’) the council wishes
pursuant to Part 11 Div 5C of the Legal             improper.                                        practitioners to note.
Profession Act 1987 (‘the Act’) (‘Costs in
                                                    While section 198M of the Act (‘Costs            A practitioner must take all reasonable
civil claims where no reasonable prospects
                                                    order against solicitor or barrister who acts    care to maintain the integrity and
of success’).
                                                    without reasonable prospects of success’)        reputation of the profession by ensuring
The Legal Aid Commission, a number of               and the common law allow the making of           that the practitioner’s communications are
solicitors acting for parties in civil litigation   costs orders against practitioners               courteous and that the practitioner avoids
and the NSW Bar Association have                    personally in certain situations, including
indicated that solicitors are increasingly          as provided in section 198M (where ‘it                                Continued on page 2

Make www.nswbar.asn.au your home page
Make                                                                      1                                                                  116
                                                                                                                     Bar Brief – Edition No. 105
Solicitors making threats to seek
personal costs orders
A statement from the Council of the Law Society of New South Wales.
Continued from page 1

offensive or provocative language or                 34.2 make any statement that is                  threat after the client has been made
conduct.                                             calculated to mislead or intimidate the          aware of its seriousness and the possible
This is enshrined in Rules 25 and 34 of the          other person, and which grossly exceeds          consequences for the client if the
Revised Professional Conduct & Practice              the legitimate assertion of the rights or        allegation is not made out. Those
Rules 1995 which are as follows:                     entitlement of the practitioner’s client;        consequences might include the making
                                                     or                                               of an indemnity costs order against the
  25. Communications                                                                                  client in respect of any application for
                                                     34.3 threaten the institution of criminal
  A practitioner, in all of the practitioner’s       proceedings against the other person in          costs subsequently made; and
  dealings with other practitioners, must            default of the person’s satisfying a           3. The practitioner makes known to the
  take all reasonable care to maintain the           concurrent civil liability to the                 opposing practitioner the evidentiary
  integrity and reputation of the legal              practitioner’s client; or                         basis for having formed the view referred
  profession by ensuring that the                                                                      to in (1) above and that the warning is
  practitioner’s communications are                  34.4 demand the payment of any costs
                                                                                                       being given as a matter of professional
  courteous and that the practitioner                to the practitioner in the absence of any
                                                                                                       courtesy.
  avoids offensive or provocative language           existing liability therefor owed by the
  or conduct.                                        person to the practitioner’s client.           Should a practitioner consider that pro-
                                                   A threat to seek a personal costs order          ceedings are so ill founded or so lacking in a
  34. Communications                                                                                credible defence, interlocutory proceedings
                                                   against a practitioner in any proceedings
  A practitioner must not, in any                  should not be made unless:                       for dismissal or strike out should be a more
  communication with another person on                                                              appropriate course.
  behalf of a client:                              1. The practitioner making the threat has
                                                                                                    A practitioner has an obligation to maintain
                                                      material available which would clearly
       34.1 represent to that person that                                                           her or his professional independence. A
                                                      suggest that the proceedings have little
       anything is true which the                                                                   practitioner should never threaten an appli-
                                                      merit and are likely to fail; and
       practitioner knows, or reasonably                                                            cation for a personal costs order or act on
       believes, is untrue; or                     2. The practitioner has specific                 such an application merely because a client
                                                      instructions from the client to make the      has instructed the practitioner to do so.

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                                                                                                       FOR SALE
A report from the Hague                                                                               I have for sale truly magnificent
                                                                                                      office furniture which regrettably is
                                                                                                      too large for my new office and new
Chrissa Loukas, Sydney barrister, public              Anglo-Australian rule encapsulated in
defender and former member of the Bar                 Browne v Dunn is reflected in the rules of      location following a merger. The
Council Executive, is co-counsel for                  the ICTY. Interestingly, defence counsel        furniture is made of recycled jarrah
Momcilo Krajisnik, the former speaker of              from the United States have apparently          from the now non-existent Fremantle
the Bosnian Assembly, before the                      found it an alien concept and an attorney       Wool Stores. The set consists of:
                                                      here from Texas attempted to resist the
International Criminal Tribunal for former                                                            • A Partners’ desk —
                                                      rule, arguing that it was contrary to legal
Yugoslavia (ICTY) in the Hague.                       professional privilege and the prosecution        about 2m x 1.5m, leather insert
Mr. Krajisnik is charged with genocide,               onus. His approach was not accepted but it
                                                      was enlightening to see the rule analysed       • A book case —
crimes against humanity and violations of
                                                      from a different perspective.                     about 2.5m x 2m
the laws and customs of war on the basis
of command responsibility and joint                On the blend of common and criminal law            • A three drawer filing cabinet
criminal enterprise with, amongst others,          at the ICTY, Chrissa notes that:                   • A three drawer desk side
Slobodan Milosevic.
                                                      International criminal law has attempted to       cabinet — about 1.2m high
Chrissa has co-authored a Bar News                    reconcile two great legal traditions, the
                                                      common law and the civil law; the               I have owned this since its
article on cross examination and
international criminal law, which includes,           inquisitorial and the adversarial. It is an     manufacture in 1989 and sell it with
among other things, her impressions of                uneasy marriage. As the Hon David Hunt          regret. It can be inspected at a
defence counsel at the ICTY.                          wrote recently in an article concerning the     central Sydney CBD location during
                                                      role of the judges in the International         business hours. I am asking around
   The thing that strikes you immediately upon        Criminal Court. ‘My own experience as a
   meeting other defence counsel is that it           judge of the ICTY has taught me that the
                                                                                                      $20,000 and will discuss sale of
   doesn’t matter whether you are from the            most attractive colours do not always make      the items separately.
   former Yugoslavia, Australia, the US,              the most appealing picture, and that two        Please call Dick Elkan on
   Canada, or Switzerland, defence counsel            legal traditions may simply not mix’.
   have something in common the world over -                                                          9622 2155 or 9619 1940
   they question authority. Also, the difference   Chrissa’s article will appear in the               between 9.30 and 4.30.
   in approach is fascinating. For example the     December edition of Bar News.


Make www.nswbar.asn.au your home page                                     2                                         Bar Brief – Edition No. 116
District Court mediators and arbitrators
An urgent notice to all members of the Bar
Expressions of interest are sought for        Reduction in the number of                     the court for appointment a list of no more
members wishing to be recommended by                                                         than two thirds the current number. This
the Bar Association for appointment to the
                                              arbitrator appointments                        request has also been made of the Law
2005-06 mediators and arbitrators lists       Please note that even if you have been         Society. There are currently 113 barristers
maintained by the District Court. The         appointed as a District Court arbitrator in    appointed to the District Court arbitrator
current lists expire on 31 December 2004.     the past and meet the current criteria for     list, therefore, no more than 75 barristers
We are not asking for applications for any    appointment for the period 2005-2006, it is    will be recommended for appointment this
other lists at this time. The current Local   possible that you may not be reappointed/      year. Once all applications have been
Court arbitrator and Supreme Court            appointed to the list. The Chief Judge of      received the Bar Council will comply with
mediator appointments do not expire till      the District Court has written to the          the District Court’s request and select no
31 December 2005. Calls for applications      association requesting that due to a           more than 75 names for nomination to the
for those lists will not be made until the    reduction in the current demand for            court. Please note that the restriction in
second half of 2005.                          arbitrations that the association send to      numbers only applies to arbitrators.

• Recommendations for appointment as a
  District Court mediator and/or arbitrator     DEADLINE FOR APPLICATIONS
  will be made for two years and will be        Completed application forms must be returned to the Bar Association by midday
  reviewed annually. Even if you are on         Friday 24 September 2004. Please note it will not be possible to process late
  the current District court list, it is        applications as we need to meet the deadline by which the recommended list is to be
  necessary for you to re-apply as current      submitted to the Chief Judge. All applications will be acknowledged in writing. If
  appointments are only valid to 31             you do not receive an acknowledgment of your application within a couple of days of
  December 2004 and the criteria for            lodging it, please contact us as soon as possible.
  appointment have recently changed.
• The criteria used for selection and         All inquiries and application forms should be addressed to:
  application forms are available from the
  Bar Association Reception and are           Projects Officer
  available on the association’s web site:    New South Wales Bar Association
  www.nswbar.asn.au under the link            174 Phillip Street
  ‘ADR’.                                      Sydney, NSW 2000
                                              DX 1204
• Please ensure that you write legibly and    Ph: (02) 9232 4055 : Fax: (02) 9221 1149
  answer all questions on the application
  form, otherwise the Association may be
  unable to process your application.                         CLOSING DATE FOR ALL APPLICATIONS IS
                                                                 MIDDAY FRIDAY 24 SEPTEMBER 2004


                                                             ❖ ❖ ❖ ❖




     University Chambers are moving
     premises on the 10 September 2004.
     The new contact details will be effective from the 13th September 2004.

     They are as follows:

                   Reserve Bank Building
                   Level 19,
                   65 Martin Place, Sydney
                   Ph: 8227 4400
                   Fax: 8227 4444
                   DX 509 Sydney


Make www.nswbar.asn.au your home page
Make                                                               3                                                                116
                                                                                                            Bar Brief – Edition No. 105
Registration
requirements for                                                              NO WIN / NO FEE
‘door tenants’
Interstate practitioners who hold a practising certificate from their
home state (‘principal place of practise’) are able to appear in New
                                                                               ECONOMIC
South Wales without having to take out a New South Wales
practising certificate (Part 3B of the Legal Profession Act 1987).
However, they are required to provide certain information to the Bar
Council within 21 days if they establish an office in NSW (section
                                                                                  LOSS
48T of the Act and clauses 14 and 15 of the Legal Profession
Regulation 2002).
Section 48S of the Act provides that ‘an interstate legal practitioner
establishes an office in this state when the practitioner offers and
                                                                                REPORTS
provides legal services to the public in this state from an office
maintained by the practitioner, or by the employer or a partner in           We are a specialised company with highly
legal practice of the practitioner, for that purpose in this state.’         qualified accounting and other professional
When an interstate practitioner establishes an office in this state,         consultants with significant litigation experience
the Bar Council is to be provided with the following information:            at all levels.
• the barrister’s full name and residential address;
• the barrister’s principal place of practice, including the address of      x Consultants with over 30 years experience
  their office in their home jurisdiction;
• a copy of the barrister’s practising certificate;                          x Rapid reporting service
• details of any other state in which the barrister has been                 x No Win / No Fee – subject to our
  admitted or been issued with a practising certificate;
                                                                               acceptance of your instructions
• the address details of the barrister’s office in NSW;
• proof of the type and level of professional indemnity insurance            Let us assist you today
  held – this must be of a level that is ‘the same as (or higher than)
  that approved by the Attorney General in respect of insurable
  barristers under section 38R(2)(b)’ – refer to section 48U of the          Economic Loss Reports & Forensic
  Act);                                                                      Accountant’s Reports for Claims of all types
These details are to be provided annually, within 21 days of the
beginning of each practice year, in order for the Bar Council to be
satisfied that the barrister remains eligible to maintain an office in       x Insurance Claim reports
NSW and appear in this state as an interstate barrister (clause 14 of
                                                                             x Commercial Evaluations
the Legal Profession Regulation 2002).
If the barrister’s circumstances change throughout the year so that          x Family Law Asset Assessments
their principal place of practise changes to being NSW, it will be
necessary for them to obtain a NSW practising certificate.                   x Loss of Business Income
If you have any queries relating to the information contained in this        x Business Valuations
circular, please contact the Association’s Projects Officer, Ms Kim
Kemp ph 9232 4055 or e-mail kkemp@nswbar.asn.au.                             x Financial and Other Investigations

                             ❖ ❖ ❖ ❖
                                                                             PERSONAL INJURY SUPPORT
CPD videos                                                                         PTY LIMITED
The following are the latest CPD seminars to be added to the Bar
Library’s video collection. Members may borrow videos by contacting          Contact us for further information
the library on ph: (02) 9233 4025 or e-mail: library@nswbar.asn.au
‘Mistakes I have made but you shouldn’t: reflections on the Cafe                   Sydney     9221 2579
Beautiful and other disasters or some aspects of the rule in Jones v
Dunkel’, John Maconachie QC, 28 June 2004, VID/208                                 Parramatta 9630 1155
‘Retail lease disputes in the Administrative Decisions Tribunal’, Sam
Reuben, 30 June 2004, VID/209
‘Professional conduct update’, Vahan Bedrossian, 30 June 2004,                       No Win / No Fee
VID/210
‘Workers Compensation Commission’, the Hon Justice Terry                           Family / Commercial
Sheahan AO, 21 July 2004, VID/211


Make www.nswbar.asn.au your home page                                    4                                Bar Brief – Edition No. 116
No more bumps in the road: A national
travelling practising certificate scheme
Bar Brief has featured several articles over the last couple of            New South Wales legal practitioners appearing in
years regarding the progress towards the introduction of a
‘national traveling practising certificate scheme’ to allow legal
                                                                           another state/territory
practitioners with practising certificates from their home                 The Bar Association’s web site www.nswbar.asn.au, under the
jurisdictions to appear in other states/territories.                       heading ‘Travelling practising certificate scheme,’ contains basic
The last state to join the scheme is Queensland. The Legal                 information regarding the scheme. Please note, however, that the
Profession Act 2003 (Qld), which provides for the recognition of           information contained in the web page is not exhaustive and it is
interstate practising certificates, came into effect on 1 July 2004.       essential that barristers do not rely on that information and
                                                                           instead familiarise themselves with the legislation and contact the
The Australian Capital Territory is now the only jurisdiction that         relevant interstate regulatory authority to confirm the current
does not issue practising certificates. ACT barristers wishing to          procedures which apply. For instance, at the present time, a NSW
practise in NSW need to hold a practising certificate from another         barrister wishing to appear in Victoria must register with the Legal
jurisdiction. NSW barristers may practise in the ACT by virtue of          Practice Board within 28 days after first engaging in legal practice
their NSW practising certificate.                                          in Victoria and must also provide the Board with a copy of their
                                                                           professional indemnity insurance contract so that it may approve
What is the national travelling practising certificate                     the terms and conditions of that contract. (The Bar Association
scheme?                                                                    has requested the Attorney General of Victoria to do away with
                                                                           these administrative requirements.)
The scheme allows New South Wales based barristers to appear in
another state/ territory using their New South Wales practising
certificate. Each state/territory has legislation governing the
                                                                           Legislation
requirements which need to be satisfied for interstate                     New South Wales - Legal Profession Act 1987
practitioners to appear in their respective jurisdictions (refer           ACT - Legal Practitioners Act 1970
below for a list of the relevant state/territory legislation).
                                                                           Victoria - Legal Practice Act 1996
The scheme effectively does away with the need for a legal
practitioner who has a practising certificate from their home              South Australia - Legal Practitioners Act 1981
jurisdiction to be admitted in other states/territories, or hold a         Tasmania - Legal Profession Act 1993
practising certificate from another state/territory if they wish to
                                                                           Northern Territory - Legal Practitioners Act
appear in that state or territory. It also allows interstate
practitioners to appear in New South Wales as long as they have a          Western Australia - Legal Practice Act 2003
current practising certificate from their home jurisdiction (Part 3B       Queensland - Legal Profession Act 2003
Legal Profession Act 1997 (NSW)).

                                        ❖ ❖ ❖ ❖                                                                   ❖ ❖ ❖ ❖



Whole person impairment
notice: three month trial
The General Manager of the Motor                 Allianz Insurance agreed to trial the notice
Accidents Authority of NSW (MAA) has             over the next three months. The notice
asked the Bar Association to advise              will be given to parties where there is a
members of the Bar about the commence-           dispute regarding non economic loss in
ment of a three month trial whereby the          anticipation that it will assist negotiations.
insurer will provide parties with an             The notice will provide an indication of the          ... divine secretarial solutions
indication of the assessment of whole            current WPI figure based on a review of
person impairment (WPI) via a notice.            file documentation, the American Medical
                                                 Association’s Guides to the evaluation of            The Transcription Typing Service
The trial is an initiative brought about
                                                 permanent impairment, fourth edition
following the MAA’s recent consultation                                                               SPECIFICALLY FOR BARRISTERS
                                                 (AMA4) and the MAA’s Impairment
process regarding the role, processes and                                                                  Digital / Mini / Micro
                                                 assessment guidelines.
procedures of the Motor Accidents
Assessment Service (MAAS). A number of           Feedback and comments                                         Competitive Rates
participants in the consultation process         Allianz Insurance will provide the MAA                    at Martin Place Chambers
advised the MAA of difficulties experienced      with a list of the legal practitioners who
in understanding the methodology of              received the notice during the trial, so the
assessing WPI. A working party considered
                                                                                                          Be surprised & delighted!
                                                 MAA can seek appropriate feedback.
possible solutions, including educational
                                                 Should any member of the Bar have                    Please call - Andy Hampson (Ms)
sessions, website development, and a
                                                 queries regarding the trial, please contact          T 8227 9606       M 0407 648 500
proposal for the insurer to provide the
                                                 Jennifer Kirkby, Principal Impairment
parties with an indication of WPI via a                                                                E hampson@mpchambers.net.au
                                                 Assessments Officer, Motor Accidents
notice.
                                                 Assessment Services on ph: (02) 8268 1458.


Make www.nswbar.asn.au your home page
Make                                                                   5                                                                  116
                                                                                                                  Bar Brief – Edition No. 105
  The Leading Legal Conference for Asia and the Pacific in 2005
   Set to take place from March 21-24, at the glorious Queensland           a climate that promotes open and informed discussion aimed at
   Gold Coast, LAWASIAdownunder2005 will undoubtedly be the                 fostering regional uniformity and understanding in the increasingly
   leading legal conference for Asia and the Pacific in 2005.               cross-jurisdictional legal world. As a professional event, it will
                                                                            bring together those who have an active interest in the
                                                                            development of the profession and the welfare of those who
                                                                            practice in it. As a networking event, it creates opportunity to
                                                                            develop state, national and international relationships.
                                                                            The social program will combine formal and informal occasions
                                                                            that will deliver a uniquely Australian social experience to
                                                                            overseas guests, and that will bring Australian colleagues together
                                                                            to celebrate the sense of belonging to an international legal
                                                                            community.

   LAWASIAdownunder2005 will combine the international interest             An exciting new
   created by LAWASIA’s traditional biennial conference, with the           venue
   national profile of the Law Council of Australia’s 34th Australian       The conference
   Legal Convention – the Meeting of Meetings.                              venue, the Gold
                                                                            Coast Convention
   The conference is proudly arranged and hosted by the                     and Exhibition
   Queensland Law Society, and its 44 th Queensland Law                     Centre, is a brand
   Symposium will be held under the LAWASIAdownunder2005                    new facility in the
   banner, bringing a unique networking opportunity to Queensland           heart of this popular
   practitioners, as well as the chance to show off their home state        destination, one that
   to national and international legal colleagues.                          needs no introduction to Australian delegates. Those coming from
   Importantly, the conference will run concurrently with the 12th          overseas will enjoy the chance to explore some of the area’s
   Conference of Chief Justices of Asia and the Pacific, with the           attractions, which range from endless white sandy beaches,
   Chief Justices combining their activities with those of                  breathtaking hinterlands and golf at over 30 world class courses
   LAWASIAdownunder2005 at various times throughout the week.               to international shopping, casinos, theme parks and zoos.
   In addition, the Australian Standing Committee of Attorneys-             One of the major benefits of this destination is the comprehensive
   General (SCAG), will meet in conjunction with the conference.            variety of accommodation that the conference can offer. Conrad’s
                                                                            Jupiter Hotel, attached to the Convention Centre, will be the 5
   What to expect from the program                                          star jewel in the accommodation crown, but other possibilities,
   The work program will cover (9) separate streams:                        including apartments for the family and friends-minded and 3 and
                                                                            4 star hotels for the budget-conscious will be readily available,
       •    Criminal Law
                                                                            and within easy reach of the conference venue.
       •    Dispute Resolution/Litigation
                                                                            In that context, potential delegates might note that the conference
       •    Human Rights and Constitutional Law                             dates are set to lead into the Easter vacation, and there is no
       •    Trade and Business Law                                          doubt that the Queensland coast would be a highly desirable
       •    Intellectual Property Law                                       spot to spend a few post-conference days.
       •    Legal Practice                                                  In all, there will be something for everyone at
       •    Family Law                                                      LAWASIAdownunder2005. The conference organising committee
                                                                            members are drawn from the three organisations that are
       •    Property and Succession Law                                     coordinating to put the event together, so the needs of legal
       •    Legal Education                                                 professionals at all levels and in all areas of legal interest are
   A panel of high profile practitioners, academics and others has          addressed.
   been appointed as session rapporteurs, and to them goes the              Those who have attended a LAWASIA biennial conference before
   honour of arranging some (60) sessions within those streams.             will attest to the camaraderie that the event produces; others are
   The work program will cater to the practical, the esoteric, the          encouraged to experience it. Those who have enjoyed the
   commercial, the inspirational and the need to collect CLE points,        stimulation of the Australian Legal Convention will enjoy the
   and each session will include expert speakers at regional,               added regional and state level emphasis, and regular Queensland
   national and state level.                                                Law Symposium attendees will find CLE delivered at a more
                                                                            significant level than ever before.
   Bringing the profession together from around the region
   Traditionally, delegates at a LAWASIA Biennial Conference come           Queensland Law Society looks forward to welcoming over 1000
   from as many as 30 different countries from the region and               judges, lawyers, academics and business partners to this premier
   beyond, and tend to be drawn from amongst the leading law                event, and encourages delegates to register early to ensure
   firms and chambers. LAWASIA’s national member organisations              participation at the conference and in its surrounding activities.
   send representatives, so the opportunity for delegates to mix with       Need more information?
   the leaders of the Asia-Pacific profession is an invaluable one.         Full detail can be found on the conference website at:
   LAWASIAdownunder2005 , as an educational event, will provide             http://www.lawasiadownunder.com



Make www.nswbar.asn.au your home page                                   6                                           Bar Brief – Edition No. 116
Bar Council business for July 2004
Draft Civil Procedure Bill 2004                 than by ITSA and the ATO. The evidence        anticipated, that there was a reasonable
                                                given by the ATO could well be read by        possibility of future proceedings in which
and draft Uniform Civil Procedure               many as suggesting that the Bar               the documents might be relevant, and the
Rules 2004                                      Association had dragged its feet in taking    documents’ destruction likely to prejudice
The Executive Director advised that the         remedial action during the ‘bankrupt          a fair trial.
draft Bill and Rules had been developed by      barrister’ scandal.                           The Senior Vice President offered to draft
a working party whose representatives           The Executive Director had expressed his      a possible provision to be included in the
included Justice Hamilton, Judge Garling        concern to a senior officer of the ATO        Civil Procedure Bill 2004. He would
and Magistrate Cloran and representatives       about the ATO evidence. He had also met       settle this draft with Bathurst QC. The
of the Supreme, District and Local Court        with Mr John Murphy MP, Deputy Chair of       President would then write to the
registries, the Bar Association (Michael        the committee, and provided him with a        Attorney General.
McHugh, Greg George and Hamish Stitt),          detailed written account of the Bar
the Law Society (Peter Johnstone) and the       Association’s dealings with the ATO since     Professional development
Attorney General’s Department.                  October 1997. He had asked both the ATO       calendar for 2005
The Attorney General had sought the Bar         and Mr Murphy that at a forthcoming
                                                session of the committee the record might     Bar Council endorsed the proposed new
Association’s comment on the draft Bill and                                                   timetable for the Bar practice courses,
Rules. Lindsay SC offered to work through       be corrected.
                                                                                              and the reduction of the course from five
both the Bill and Rules with the assistance
of McHugh.
                                                Report on ‘Document Destruction               to four weeks. As of 2005, the first Bar
                                                                                              Practice Course each year will be held in
                                                and Civil Litigation in Victoria’             May; the second course will be held in
Bankruptcy Legislation                          by Professor Peter A Sallmann,                October. The council noted that moving
Amendment (Anti-Avoidance and                   Crown Counsel for Victoria,                   the first course for 2005 from February/
Other Measures) Bill 2004 and                   May 2004                                      March to May did not prevent prospective
                                                                                              readers who have passed the Bar exams
the Australian Taxation Office                  The President noted that the NSW              from commencing at the Bar in February/
The Executive Director advised the Bar          Attorney General wished to legislate to       March.
Council of the evidence given to the House      give the court statutory power, should the
of Representatives Standing Committee on        need ever arise, to deal with pre-            Possible national defamation
Legal and Constitutional Affairs at its         commencement destruction of documents.        law
hearing on 5 and 6 July 2004 into the           The Bar Council discussed possible
Bankruptcy Legislation Amendment                provisions that would make clear that the     Bar Council resolved to endorse the Bar
(Anti-Avoidance and Other Measures)             embargo on destruction was not ‘at large’;    Association Defamation Working Group’s
Bill 2004. There appeared to be little          rather, the embargo should apply when the     draft response to the Commonwealth
public support for this legislation, other      party anticipated, or ought to have           Attorney-General’s outline of possible
                                                                                              national defamation law.

                                                               ❖ ❖ ❖ ❖


Appointment of the new Family
Court CJ
The following speech was delivered by           impression of logical and sensible            confidence in your Honour’s ability to
Ian Harrison SC at the swearing in of           inevitability.                                dispense true justice to people whose lives
Diana Bryant as the new Chief Justice                                                         are by definition in a state of painful
                                                There are many things that could be said
of the Family Court of Australia, at a                                                        turmoil and whose ability to discriminate
                                                about your Honour on an occasion such as
ceremony in Melbourne on 28 July                                                              between their own understandable
                                                this. The Attorney-General appears to
2004.                                                                                         prejudices and a wise judgment is in most
                                                have said all of them. This is not
It’s a matter of considerable pleasure for                                                    cases significantly impaired.
                                                surprising. Last week the Attorney called
me personally and professionally to be able     me in my chambers to inquire whether or       Too often judges in this court particularly
to be here today and to be given this           not I was speaking on the occasion of this,   have been made the subject of ill-informed
wonderful opportunity to make some brief        your Honour’s swearing in. I told him I       criticism by commentators who were
remarks on the occasion of this ceremony        was. He asked me for a copy of my             neither present in court during the whole
to mark your Honour’s appointment as the        speech. I sent it to him. I hope you all      of the trial or who make assumptions
third chief justice of this court. The          enjoyed it. Not all of what I said is         about the background of judges which are
judicial longevity of your predecessors         completely accurate. The point of my          both inaccurate and unfair. Nobody
serves to mark out the important                mentioning it in this way is only to          analysing your Honour’s credentials for the
institutional stability of this court, on the   emphasise the great admiration I have for     present job could have formed any view
one hand, and to serve as an inspiring and      your Honour and for your Honour’s             other than that you are eminently qualified
challenging example to your Honour as           achievements as detailed and outlined by      to perform it. Your Honour was, if I can
their successor. Moreover, your                 the Attorney. The members of the              say so with respect, such an obvious
progression from the role you performed         Australian legal profession, and more         choice for the position of chief justice that
with such notorious distinction as head of      importantly perhaps those who they
the federal magistracy leaves an instant        represent, can have complete faith and                             Continued on page 7


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Make                                                                 7                                                                116
                                                                                                              Bar Brief – Edition No. 105
Appointment of the new Family
Court CJ
Continued from page 6

the federal Attorney-General have found it        has been said and done to about the need        that merit and excellence are and should
completely unnecessary to resort to the           to advance the opportunities for women at       be gender-neutral.
avant-garde judicial recruitment                  the bars of this country and to recognise       Significantly, the eloquent remarks which
techniques employed these days by his             their significance in equivalent                fell from the Attorney a moment ago
Victorian equivalent.                             appointments to the courts of this land. I      commendably stressed your Honour’s
Finally, can I mention one matter that has        personally look forward to the time when        qualities as an able lawyer and as a fine
received very little attention following the      these matters are no longer mentioned           person. The independent referral Bars of
announcement of your Honour’s                     because they are no longer newsworthy.          Australia commend your Honour’s
appointment. I must hasten to say that I’m        Appointments such as the appointment of         appointment. On behalf of the Australian
very pleased that it has received so little       your Honour serve to hasten that process        Bar Association may I wish you well in the
attention. That is the fact that your             and to entrench in the minds of all right-      execution of the significant duties which
Honour is a woman. Quite properly, much           thinking people in this country the notion      lie ahead. May it please the court.


                                                                 ❖ ❖ ❖ ❖



Disclosure of offences for Request for
which penalty notices are details of
issued                                       fees owed
            Legal Profession Regulation 2002
Clauses 7(1)(g) and 133 of the
As a consequence of the recent amendment
to clause 137(2) of the Legal Profession
                                             to counsel
                                                  unsatisfactory professional conduct
                                                  pursuant to clause 137(2) of the Regulation.
Regulation 2002, to provide that a failure        However, questions of good fame and             Pursuant to sec 114B of the Legal
to disclose an offence (not being an              character and general fitness may arise.        Profession Act 1987 (NSW), Andrew
indictable or tax offence) as required by         Questions eight and nine of the current         Brown has been appointed manager of the
clauses 7(1)(g) and 133 of the Regulation is      form of application for renewal of a            following solicitors’ practices:
capable of constituting professional              practising certificate ask:
misconduct or unsatisfactory professional                                                         Mani Subramanian Nair, solicitor
                                                  Have you done anything likely to adversely      (manager appointed) practising as
conduct, the extent of the disclosure
                                                  affect your good fame and character?            M S Nair & Co.
obligation under those clauses has been
reviewed.                                         Are you aware of any facts or circumstances
                                                                                                  Erdem Hussein, solicitor (manager
                                                  which might affect your fitness to remain a
The position is that a legal practitioner or                                                      appointed)
                                                  legal practitioner?
barrister is not obliged, pursuant to clauses
                                                  Matters which may not formally be required      Charles Alroy Goldberg, solicitor
7(1)(g) or 133 of the Regulation, to notify:
                                                  to be disclosed under clauses 7(1)(g) and       (manager appointed) practising as
the issue of a penalty notice, and payment                                                        Charles Goldberg and Co.
                                                  133 of the Regulation could still affect a
of the ‘fine’ specified without electing to
                                                  legal practitioner or barrister’s good fame     Mark Harris Shalovsky, solicitor
contest the matter in court; or
                                                  and character and fitness to remain legal       (manager appointed) practising as
the issue of an infringement notice as an         practitioner, where the relevant conduct        Shalovsky and Associates
alternative to prosecution, and payment of        suggests an habitual or systematic disregard
the penalty specified amount.                     of legal and civic obligations.                 Counsel with outstanding fees should
Similarly, a legal practitioner or barrister is                                                   contact Mr Brown as soon as possible.
                                                  The Bar Council expects that a legal
not obliged, pursuant to clauses 7(1)(g) or                                                       Whilst Mr Brown has advised that he
                                                  practitioner or barrister would disclose
133 of the Regulation, to notify the                                                              cannot guarantee fees outstanding would
                                                  conduct which may affect good fame and
imposition by the ATO of an administrative                                                        be paid in total or recover of any fee due
                                                  character and fitness to remain legal
penalty nor is the Bar Council required to                                                        from any source, he would do his best to
                                                  practitioner, but for the avoidance of any
make a determination under sec 38FC of                                                            assist counsel owed fees.
                                                  doubt, advises that the accumulation in the
the Act in respect of such a penalty.             preceding 12 months of 15 or more penalty       Andrew Brown may be contacted on:
Accordingly, no question will arise of failure    units, or fines or penalties totalling $2,000        ph: (02) 9926 0321,
to disclose within time specified in clause       or more in respect of penalty or
133 of the Regulation if a barrister were to      infringement notices or other forms of               fax: (02) 9926 0166
disclose any of these matters when applying       administrative penalty should be disclosed           or via e-mail: asb@lawsocnsw.asn. au
to renew the barrister’s practising               as a matter which could affect a legal
certificate, and hence there is no question       practitioner or barrister’s good fame and
of potential professional misconduct or           character and fitness to remain a legal
                                                  practitioner.


Make www.nswbar.asn.au your home page                                   8                                        Bar Brief – Edition No. 116
                                                 2004 Tutors and
                                                 Readers Dinner
    Held at Dockside, Cockle Bay, Darling Harbour on 30 July 2004.
    More than 170 guests were treated to superb food and a fine speech by the
    Guest of Honour, journalist David Marr.




                                                                                David Marr, Guest of Honour.

                   Ian Harrison SC, President




    A full report by Keith Chapple on the
    Tutors and Readers Dinner will be
    published in the next edition of Bar News.




                                                                       L to R: Richard Wilson, Jane Healey and Brent Martin




          L to R Richard Wilson, Keith Chapple and Lucy McCallum




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                                                                                                       Bar Brief – Edition No. 105
Papers to                                      Update on facilities at
note                                           Penrith Court Complex
‘Solicitors’ obligations to pay counsel’, by   The June edition of Bar Brief reported           perimeter security have been completed.
A I Tonking, 25(2) Aust Bar Rev, 161.          progress in renovations at Penrith Court         The department has announced a
The Federal Court Amendment Rules              House designed to address a range of             further upgrade to facilities by ordering
2004 (No. 4), published in the Common-         accommodation deficiencies including             to have the lighting in the robing room
wealth Government Gazette on 30 August         inadequate interview rooms and congestion        switched separately from the adjacent
2004 as Statutory Rule No. 281 of 2004.        in waiting areas                                 waiting areas and the number of lockers
                ❖ ❖ ❖ ❖                        The Attorney General’s Department is             has been increased from three to six.
                                               finalising a project to provide additional       For further information, contact Philip
Appointments                                   interview room facilities in the main court
                                               complex by the end of this year. This work
                                               should commence when improvements to
                                                                                                Selth, the Executive Director of the Bar
                                                                                                Association on ph: (02) 9229 1735 or via
                                                                                                e-mail: executivedirector@nswbar.asn.au
Administrative Appeals Tribunal
Deputy President (full-time)
Professor Emeritus Geoffrey Walker
Senior members – full time                                                             ❖ ❖ ❖ ❖
Narelle Bell
Josephine Kelly
Robin Hunt
Philip Lindsay
Senior members – part time
                                               Chambers adopt model
Geri Ettinger
Professor Ivan Shearer QC RFD
Member – full time
                                               sexual harassment policy
Simon Webb                                     It was reported in last month’s edition of       • Seventh Floor Wentworth Chambers;
                                               Bar Brief that Bar Council had adopted a
Member – part time                                                                              • Sixth Floor St James Hall Chambers;
                                               model sexual harassment and
Dr Ion Alexander                               discrimination policy to assist members of       • Arthur Phillip Chambers; and
Dr John Campbell Two years                     chambers in meeting their statutory              • Martin Place Chambers
Michael Griffin                                obligations to ensure their workplace is
                                                                                                The sexual harassment and discrimination
                                               free from sexual harassment and
Naida Isenberg                                                                                  policy can be viewed by visiting the ‘Equal
                                               discrimination. Heads of chambers were
Dr Tania Sourdin                                                                                opportunity’ page on the Bar Association’s
                                               encouraged to publicly support this policy.
                                                                                                web site at www.nswbar.asn.au and
                                               Four chambers have now formally adopted          following the links.
                ❖ ❖ ❖ ❖                        the policy:


Legal
                                                                                       ❖ ❖ ❖ ❖
Profession
Amendment Provision of transcripts
Act 2004                                       Fore security reasons, the Reporting Services Branch, Attorney General’s Department,
                                               has discontinued the ‘transcript box’ at the Goodsell Building, and is soon to
The Legal Profession Amendment Act             decommission the box at the Downing Centre.
2004 came into force on 15 August 2004.
                                               Hard copy transcript will still be available , at least for some time, from the Reporting
The principal purpose of the Act, which
                                               Service’s Branch office in the Goodsell Building between 8.30 am and 5.00 pm.
enjoyed bipartisan support, is to amend the
Legal Profession Act 1987 with regard to       However, enhancements to the Branch’s systems now allows e-mail delivery of
the way disciplinary matters may be            transcripts to a practitioner’s desk, thus obviating the need to make the trip to the box
conducted by, among others, the                in the evening.
Administrative Decisions Tribunal and the      For technical reasons, the provision of e-mail is being phased in over a period of a few
councils of the Bar Association and the        months.
Law Society. A copy of the Act may be
obtained from the Parliamentary Counsel’s      The existing order forms supplied by Reporting Services are being updated to show e-
legislation web site at                        mail delivery as an option.
www.legislation.nsw.gov.au A copy is held      The Bar will be kept informed of the progress of this new service as Reporting Services
in the Bar Library.                            refine processes and technical issues.


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                                             Bar Brief – Edition No. 105
                                                                                           Bar Brief is produced monthly for the
                                                                                           New South Wales Bar Association by:

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                                                                                           Advertising bookings and enquiries to
                                                                                           John Weaver.


   the Month
                                                                                           Editorial Contributions to:
                                                                                           Public Affairs Officer,
                                                                                           New South Wales Bar Association,
                                                                                           LG Floor, Selborne Chambers,
                                                                                           174 Phillip Street, Sydney 2000
                                                                                           DX 1204 Sydney
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             2004                                                                          Fax: (02) 9221 1149
                                                                                           Contributions and advertising
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      UNWOODED CHARDONNAY                                                                                ***********
                                                                                           Association e-mail Directory
                                                                                           Administration
     “Salitage Unwooded Chardonnay ‘has become something of a                                administration@nswbar.asn.au
                                                                                           Accounts Department
          benchmark for style. Full and round with plenty of ripe,                           accounts@nswbar.asn.au
                                                                                           BarCare
         creamy melon flavours. There’s some alcohol sweetness in                            barcare@nswbar.asn.au
     there, but acid keeps it tidy. Has a gentle, but lingering flavour                    Practising Certificates
                                                                                             certification@nswbar.asn.au
        that keeps bringing you back for another glass. One of the                         Professional Development Department
                                                                                             professionaldevelopment@nswbar.asn.au
                               best of this style.”
                                                                                           Executive Director
                                                                                             executivedirector@nswbar.asn.au
                        Ray Jordan – The West Australian                                   Legal Assistance Scheme
                                                                                             legalassist@nswbar.asn.au
                                                                                           Library
                                                                                             library@nswbar.asn.au
            Contact Tony Mitchell at the Bar Association on                                Media Inquiries
                ph: (02) 9229 1717 for any queries or to place                               mediainquiries@nswbar.asn.au
                                                                                           Membership Inquiries
                                   your order.                                               certification@nswbar.asn.au
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                                                                                             pcd@nswbar.asn.au
                                                                                           Sickness & Accidents Inquiries
                                   ❖ ❖ ❖ ❖                                                   sickacc@nswbar.asn.au


  Bar Council regional representatives
  Name                  Address                                      Phone/Fax                    E-mail
  Stuart Hill           Hargraves Chambers                           ph: (02) 4228 8977           harlaw@hotkey.net.au
                        Cnr of Church & Crown Streets                fax: (02) 4226 3947
                        Wollongong NSW 2500
  Rob O’Neill           Lachlan Macquarie Chambers                   ph: (02) 9635 1000           ro’neill@lacmac.com.au
                        16 George Street Parramatta NSW 2150         fax: (02) 9891 1989
  Bill Walsh            William Owen Chambers                        ph: (02) 6361 7959           woc@bigpond.net.au
                        121A Byng Street Orange NSW 2800             fax: (02) 6361 7921
  Geoff Radburn         Lismore Chambers                             ph: (02) 6621 2854           radburn@nor.com.au
                        32 Molesworth Street Lismore NSW 2480        fax: (02) 6621 3898
  Stewart Austin        Chambers                                     ph: (02) 4926 2844
                        30 Church Street Newcastle NSW 2300          fax: (02) 4926 2841          sca 371@ozemail.com.au


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2004 Brisbane Water Marine Watch
Putt-Putt Regatta


   Sunday 31 October at the Davistown Waterfront
 Bring the whole family along to enjoy this wonderful Annual Brisbane Water Vintage Boat Regatta

On Water Activities
Our Regatta usually begins bright and early on Sunday morning with boats from all over the
State and Australia being launched, cleaned, tuned up and generally prepared for the day’s
event.
Our briefing and registrations will begin at the organizers’ tent at 8.30 am. This is a must if
you intend to join the flotilla.
The best dressed crew of the early 1900s will be judged on the water at approx. 10.30am.
when they parade in their boats up and down the river in front of our official marshalls. This will provide us with the
winning crew.
From 8.30am on, all other boats to be judged in their various categories will have to be moored along our foreshore so
as to provide our judges easy access for our point scoring to be done.
The Regatta will start again this year at our twin pines at 11,00am and will follow the Waterways boat on the usual
course. They will pass Central Wharf on their voyage up Lintern Channel to Woy Woy Point, then to Daleys Point, past St
Huberts Island and on to the finish at Davistown. This year we will be having the Putt-Putt Challenge and it will
commence approximately 10 minutes after the Regatta has passed our tent.

     Spectators will be able to inspect the craft as they return to the beach and will be
       impressed with the standard some of these owners have restored their craft.
On Land Activities
The Rotary Club of Kincumber will again be organising the on shore activities.
Live bands, singing and dancing with children’s amusements to keep the kids entertained, so do come along and enjoy
yourselves.
Static displays are always popular, and this year we have farm engines, marine engines, vintage cars and many other craft and food stalls.
Davistown RSL Club are generously supplying a bus to transfer people from their car park to the waterfront so as to alleviate street parking, so make sure to
use their facilities. Hot food and drinks will also be available, so eat, drink and be merry.

Sponsors…                                                                                                 More Information…
                                                                                                          Please contact:
     Australia Post
                                                                                                          On-Water Regatta Co-ordinator
           Telstra Country Wide
                                                                                                          Geoff Phillips (02) 4369 2189 or 0419 436 921
Central Coast Express Advocate Newspaper
                                                                                                          On-Land Activities Co-ordinator
Davistown Real Estate                                                                                     Max Wilson (02) 4365 3810
Killcare Marina
                                                                                                          Or visit our website at:
Machan’s Marina
                                                                                                          www.bwmw.net/puttputt
Altex Coatings
Associated Marine Insurance                                                                               Net proceeds from the
                                                                                                          2004 Putt-Putt Regatta will go to:
T & R Solutions
                                                                                                          Royal Volunteer Coastal Patrol
Sprinting Instant Print (Sydney)                                                                          Rotary Foundation Health Fund
Davistown R.S.L. Club                                                                                     Meningococcal Disease Fund


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