lawyers weekly april 1, 2011

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MOVERS & SHAKERS LEGAL LEADERS NSW ELECTION

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AFRICA’S GOLDEN AGE

How Australia is driving unprecedented growth on the continent

CLEAN VICTORYO’Farrell’s mandate a boon for lawyers

OPINION

www.lawyersweekly.com.au

WHEN DISASTER STRIKESA fi rst-hand account of Japan’s earthquake

WE ARE FAMILYTalbot Olivier’s new lawyer

PERFECT PARTNERSPeter Smith’s lessons on teamwork

A lawyer’s African odyssey – page 22

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DOL152 ALW#527 in-house ALW FP 235x 297mm March 25, 2011 2:49 PM

Client approval: ______________

Studio approval: ______________

London | Energy & Resources5 – 8 yearsHighly regarded international firm requires a projects lawyer with a background in construction contracts to take a leadership role advising sponsors of large scale energy, mining and infrastructure development projects. Must be capable of leading negotiations and project managing transactions.

Hong Kong | Construction2 – 4 years International firm seeks junior construction lawyer to draft and review construction and engineering contracts. Working with a mix of partners, you will gain broad experience on major cross-border transactions. Great opportunity to become involved in the Asian construction boom. Solid academics.

Hong Kong | M&A / PE6 years +This top firm will actively advance your career. Your experience in M&A and exposure to private equity transactions will be well received. You will have access to top quality work, blue chip clients and benefit from a broad international network of opportunities to work on cross border transactions.

Sydney | Structured Products4 – 7 yearsKey role within a leading financial institution. High-level transactional and advice work relating to equity structured products and equity derivatives. Direct experience preferred though strong FSR experience will be considered.

Sydney | Fixed Income3 – 5 yearsGlobal Investment Bank has an exciting opportunity for a top-tier Lawyer with experience in fixed income structured products, derivatives and related transactions. High quality work and strong future prospects available.

Sydney | Retail Banking4 years +This major bank have a new vacancy for an accomplished retail banking lawyer with strong knowledge and experience within mortgage, credit card and other product documentation as well as credit legislation.

Sydney | Funds3 years +Major player in the financial services sector have a new role for a dynamic funds management lawyer from a major firm or respected in-house team. Experience required in advising on wholesale & retail Funds/IM and related legislation including Corps Act (Ch 7).

Sydney | Insurance Advisory4 years +Leading insurance and financial services provider has a new role for a top-tier lawyer with strong experience in advising on insurance products, related legislation and broader commercial matters.

Sydney | Wealth Management3 – 6 yearsNew role for a commercially focused lawyer with financial services experience to support the private wealth division of this leading international bank. Great prospects and an enjoyable culture on offer.

Sydney | Commercial4 years +Broad commercial role within a top ASX listed company. Initial contract position with a view to a longer term or potential permanent role. Role involves high-level commercial contracts & advice work and project management.

Sydney | Construction 3 – 6 yearsMajor Construction & Engineering company has a new opportunity to handle high-level negotiations and advice. Front-end or mixed Construction Law experience required from a major firm and/or similar company.

Sydney or Melb | Contract Mgr4 years +Major technology company has a new requirement for an IT lawyer with strong contracts experience who is looking for a more commercial role. Broad work including negotiation, and review of complex contracts in the managed services space and strategic advice.

Sydney | Commercial Litigation 3 – 5 yearsThis well regarded commercial law firm is seeking a forward thinking commercial litigation lawyer. You will work on a range of matters including regulatory, trade practice, contract and competition disputes for both corporates and individuals. High level and interesting work. Great team.

Sydney | Compliance4 years +Mid-level compliance lawyer is sought by this leading mortgage and finance advisory team. You will work for leading banks and lenders in the finance industry sector on a range of compliance and regulatory work. A solid background with transactional banking work will be an advantage. Excellent career opportunity.

Sydney | Corporate M&A 4 – 5 yearsA talented and bright corporate lawyer is sought by this mid level well respected law firm. You will be exposed to a range of high quality transactional work including merger and acquisitions, IPOs and share transactions. Solid academic results are essential. Apply now to join this friendly and supportive team.

Sydney | IP Litigation3 – 5 yearsHighly regarded IP group is seeking a solicitor with a solid background in IP litigation. The team represents prominent blue chip corporations in the media, technology, music, sports and entertainment fields. This is an opportunity to gain first rate experience and career opportunity from a prominent international firm.

Sydney | M&ASenior AssociateAn opportunity for a commercially savvy senior associate to move across to a leading international law firm is now available. Experience managing client relationships and project teams is essential for this key leadership role. Advise blue chip clients on major projects, acquisitions and joint ventures.

Sydney | Construction3 – 6 yearsNew, front end construction role advising developers, lenders and blue-chip clients on large scale infrastructure and development projects. There is a wide variety of challenging complex transactions on going and the team needs to add an ambitious lawyer. Mid or top tier experience desired.

Sydney | ConstructionSenior AssociateA senior associate with 1-2 years of SA experience is needed by to manage front end construction, PPP/PFI and commercial projects. To be successful you will have experience working on large scale project development transactions involving property, construction and infrastructure.

Sydney | Regulated M&A2 – 4 yearsNew position available with a premier corporate team for an associate with a strong background in regulated M&A to advise on complex public and private transactions involving schemes of arrangement, takeovers and dual-listed company structures for Australia’s most recognized companies.

Sydney | ECM 3 – 7 yearsTwo positions, mid and senior levels with international firm to work on some of Australia’s most high profile deals. Work with a number of partners across a range of domestic and international transactions including equity and hybrid capital structures, capital-raisings and restructurings.

Melbourne | Property 3 years up to Senior Associate Excellent opportunity for an experienced property lawyer to join this international firm. Work with two first rate partners across a range of commercial property matters including various land transactions, large scale developments, complex leasing work and property trusts.

Melbourne | Planning and Enviro4 years up to Senior Associate Fantastic opportunity to join a progressive international firm. This practice is led by industry recognised partners briefed by impressive clients on a variety of interesting environment, water and planning issues. You will work on complex environmental litigation including various breach offences and advisory work, both in the context of property and corporate transactions and in relation to liability issues.

Perth | Litigation 1 – 2 years Top tier firm is seeking a talented junior litigation lawyer to join their ranks. You will work across a broad range of matters including, but not limited to: financial services; commercial and contractual disputes; trade practices; employment and insolvency cases. You will have significant client contact and responsibility from the onset with excellent training and mentoring.

International

Private Practice

For a full list of active roles that Dolman is working on throughout Australia and worldwide visit www.dolman.com.au

For further information, please contact one of our consultants:Ralph Laughton, Daniel Stirling or Gail Greener Sydney (02) 9231 3022Melbourne (03) 8637 7317 or email [email protected]

Dolman In-house – talk to us for the best in-house opportunities.

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L AW Y E R S W E E K LY 1 A P R I L 2 011 3

“ This kind of trip will teach you that you can do anything.”

– Steve Cartwright, lawyer, DibbsBarker, page 22

26

22 PROFILE: Sydney lawyer Steve Cartwright embarked on an African adventure with friend Mark Roberts that them to places unimagined – and raised some much-needed funds for a children’s charity along the way. He speaks to Claire Chaffey

OPINION: Tokyo-based Blake Dawson lawyer Damien

Roberts gives his personal account of Japan’s devastating earthquake

ContentsRegulars 6 THIS WEEK: A round-up of the latest

legal news

12 IN-DEPTH: At the centenary celebrations of LexisNexis Butterworths, NSW Chief Justice James Spigelman and a host of legal luminaries paid tribute to a publishing milestone. Justin Whealing reports

16 LEGAL LEADERS: Briana Everett speaks to the managing partner of TressCox Lawyers about the power of teamwork

25 CAREER COUNSEL: Working in a stressful, demanding job is more harmful to your mental health than being unemployed. Briana Everett reports

26 FOLKLAW: The lighter side of the law

14 NSW STATE ELECTION: The O’Farrell Government’s overwhelming mandate for change in NSW could spark some renewed areas of focus for the legal profession. Angela Priestley reports

taylorroot.com.au

Taylor Root is serious about international moves. We have our own thriving offi ces in Sydney, Melbourne, Hong Kong, Singapore and Dubai. In London we have a specialist team helping lawyers to move overseas. Within this team we seek an additional consultant to help recruit UK, Australian and other foreign lawyers into Australia.

With consistently high demand from our Australian law fi rm and in-house clients, we seek someone

who understands the Australian market, will most likely be Australian-qualifi ed and will be interested in moving into recruitment or have previous recruitment experience.

Apart from sourcing candidates to go overseas, the successful applicant will help co-ordinate substantial campaigns for Australian law fi rms recruiting in the UK and be expected to travel to Australia to meet clients. As a warm desk which has always produced serious fee income,

this is an excellent opportunity to join a thriving profi table team at a global leader in legal recruitment.

While London based, in the longer-term we actively encourage consultants to move to other offi ces which could open up opportunies in Asia, Australia or the Middle East.

Interested applicants should contact David Buckley on +61 (0)2 9236 9000 or email him at [email protected]

London based / recruiting into Australia

THE SR GROUP . BREWER MORRIS . CARTER MURRAY . FRAZER JONES . PARKER WELLS . SR SEARCH . TAYLOR ROOT LONDON . DUBAI . HONG KONG . SINGAPORE . SYDNEY . MELBOURNE

A career in Legal Recruitment

10

18 COVER STORY: For Australian lawyers, it doesn’t get more complex, contentious or dangerous than working in the African resources fi eld. Those who do, however, are playing a major role in the development of the world’s most troubled continent. Claire Chaffey reports

Features

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Editor’sNoteIT IS FAIR to say that Africa is a continent like no other. For those who venture there, especially beyond the barricade provided by expensive hotels and tour buses, it is a place that shocks and challenges as much as it enthrals.

Africa is not an easy place to live, let alone do business. So the fact that Australian minerals and resources companies are investing in Africa at an unprecedented rate, and taking risks that many others simply won’t, is admirable. In this week’s cover story (see page 18), Mallesons Stephen Jaques senior associate Paul Schroder says, “Fortune favours the brave, and Aussies are certainly brave.”

While this may be so, the good news is that Aussies are also fi rmly committed to corporate social responsibility. This, in an environment where criticism of foreign miners in Africa is easily drawn, is also admirable.

We are now in an age where the world is watching, thanks to sophisticated communications and an established set of NGOs and international instruments designed to uphold human rights and stamp out corruption. For Africa, there has never been a better time to work with Australia to embrace a previously elusive prosperity and move towards development.

Unquestionably, the root of Australia’s interest in Africa is commercial, but a signifi cant objective of Australian companies is also to improve and develop the communities in which they work. Australian lawyers play a signifi cant role in this, and for people like Michael Blakiston, the managing partner of boutique fi rm Blakiston & Crabb, working in Africa has become a passion, not just a career.

Blakiston openly laments the fact that corruption still robs many African people of wealth that should rightly be theirs, and wrestles with the reality that, despite their best intentions, Australian companies and their legal counsel can only do so much to ensure money ends up where it should.

But the fact is that Australian companies are pouring tens of millions of dollars into local African schools, medical centres and other infrastructure as a way of giving back to those affected by mining. They are also giving African governments the chance to help themselves and their people through viable commercial dealings.

While there is still much to be done – and far too much mineral wealth is still being squandered – it is good to know that Australian companies and their lawyers are leading the push towards a better, happier and more progressive Africa.

It seems to be a case of “out with the old, in with the new” in the legal industry at the moment. Lawyers Weekly keeps you abreast of developments such the introduction of laws regarding the family, journalistic sources and ADR; the corporate structure redefi ning the College of Law; hotspots for Australia’s exported legal services; and the latest appointments and deals.

With Australia now challenging Singapore and Hong Kong as a regional hub for commercial arbitration, and legislation transferring power from the courts to ADR bodies, Lawyers Weekly asks when clients still prefer litigation and if the shift towards ADR has made the commercial legal system less adversarial.

TOP 10 STORIES ONLINE THIS WEEK 1 Global job hotspots: where to next

for Australian lawyers?2 In the line of hire: how to get

headhunted3 Lawyers in bushfi re class action

experience brain freeze4 New era for College of Law5 Partner swaps Freehills for Minters6 Deaf lawyer makes history7 Partner leaves Mallesons for Middletons8 DLA Phillips Fox extends parental leave9 DLA Phillips Fox loses another partner10 Marcus Einfeld to address prison reform

E D I T O R I A L B O A R D Lawyers Weekly is delighted to have the following

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A B O U T U S Editor: Angela Priestley

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Production Editor: Vanessa FazzinoGroup Production Manager: Kirsten Wissel

Group Sales Manager Adrian Fellowes Head of Media: Fiona Marcar

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Copyright is reserved throughout. No part of this publication may be reproduced without the express written permission of the publisher. Contributions are invited, but copies of all work should be kept, as Lawyers Weekly can accept no responsibility for loss. Lawyers Weekly and LexisNexis are divisions of Reed International Books Australia Pty Limited, ACN 001 002 357 Level 1 Tower 2, 475 Victoria Ave, Chatswood NSW 2067 tel (02) 9422 2203 fax (02) 9422 2946 ISSN 1833-5209 Important Privacy Notice: You have both a right of access to the personal information we hold about you and to ask us to correct if it is inaccurate or out of date. Please direct any queries to: The Privacy Offi cer, LexisNexis Australia or email [email protected]. © 2010 Reed International Books Australia Pty Ltd (ABN 70 001 002 357) trading as LexisNexis. LexisNexis and the Knowledge Burst logo are registered trademarks of Reed Elsevier Properties Inc., and used under licence.

ON THE WEB NEXT WEEK

Journalist, Claire Chaffey

Nick Abrahams Partner and

Sydney chairman, Norton Rose

Helen McKenzie Deputy

managing partner,

Blake Dawson

Sharon Cook Managing

partner, Henry Davis York

David CowlingPartner,

Clayton Utz

Ewen Crouch Chairman of

partners, Allens Arthur Robinson

Sue GilchristPartner and

practice leader (intellectual

property group), Freehills

Andrew GrechManaging director, Slater & Gordon

Will IrvingGroup general counsel, Telstra Corporation

Joe CatanzaritiPartner, Clayton Utz

Robert MillinerChief executive partner, Mallesons Stephen Jaques

Megan PittDirector, Australian Government Solicitor

Lucinda SmithPartner, Thomson Lawyers

4 L AW Y E R S W E E K LY 1 A P R I L 2 011 www.lawyersweekly.com.au

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thisweek

aDr laws approved Laws to encourage people to take genuine steps

to resolve disputes before going to court have passed through Parliament. The proposed laws under the Civil Dispute Resolution Bill will require prospective litigants to lodge a statement with the court, detailing what steps they have taken to resolve their dispute or, if they haven’t, the reasons why.

New era for law schoolThe College of Law has announced it will soon be offering

a more diverse range of recognised degrees and diplomas for ongoing legal training. The announcement follows the college’s decision to assume a new identity as a wholly independent education institution by becoming a public company, known as TCOL Ltd. “This is the most significant constitutional change in the college’s history,” said TCOL chief executive officer Neville Carter.

australia’s legal services exports expand in JapanThe United States and Canada remained

Australia’s largest market for legal services in 2008-09, while legal exports to Japan grew by 60 per cent. Recent figures reveal Australia’s legal services exports and international legal activity increased by $34 million between 2006-07 and 2008-09.

Family law changes don’t go far enoughLegal groups have welcomed the new family violence laws

contained within the Government’s Family Law Legislation Amendment (Family Violence and Other Measures) Bill, but called for further reform. “Issues of family violence are important and it is right for the Government to give priority to them. But there are other, broader issues raised in the reports that also need to be addressed,” said Professor Richard Chisolm.

NSW Premier-elect Barry O’Farrell swore he would go into battle against the Federal Government’s proposed carbon and mining taxes while trying to better NSW’s poor infrastructure.

The legal battle behind a push by unions to increase job security for contractors saw the unions demand that contractors receive the same pay and conditions as permanent employees.

Peaceful protests in London about the British Government’s spending cuts turned violent when masked anarchists smashed shop front windows and threw firecrackers in the street.

Political unrest increased in Jordan, with thousands of King Abdullah II’s supporters taking to the streets to counter the growing opposition movement.

Australian property investors once again found the courage to pour money into the US property market, despite a continual flow of failed investors returning home from the US with lighter pockets.

AS PREDICTED by industry members, Hollywood’s ongoing battle against iiNet has finally reached the High Court of Australia.

On the final day of a 28-day period in which to lodge an appeal, the Australian Federation Against Copyright Theft (AFACT) announced last week that it has sought leave to appeal a February ruling by the full bench of the Federal Court in favour of iiNet.

According to AFACT – the organisation representing the Australian and US film companies behind the action launched back in 2008 – the film companies will seek to overturn the ruling that iiNet did not authorise acts of copyright infringement.

“The Full Federal Court unanimously found that iiNet had the power to prevent the infringements of its users from occurring and that there were reasonable steps it could have taken, including issuing warnings,” said AFACT executive director Neil Gane.

“However, two judges of the Full Court went on to find that iiNet had not authorised the infringements of its users and that is what we are appealing. We say they did not apply the legal test of authorisation correctly.”

According to Gane, AFACT will also argue that the court’s approach with respect to iiNet’s knowledge of copyright infringement was incorrect.

“In response to the Full Court’s conclusion that iiNet did not have sufficient knowledge of the infringements to authorise them, the film companies will argue that

iiNet did have sufficient knowledge, that it admitted the acts of infringement and that its CEO admitted on the stand that the evidence was ‘compelling’.”

Responding to the news that AFACT has sought leave to appeal, iiNet’s chief executive officer, Michael Malone, said that another court challenge will not stop illegal downloading and that legal proceedings are not the solution to the issue of copyright infringement.

“It’s time for the film industry and copyright holders to work with the industry to make their content legitimately available,” Malone said.

The Web

REWIND

iiNet case reaches High Court

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thisweek

Deal makers

Russian uranium deal revisedBLAKE DAWSON has acted for JSC Atomredmetzoloto (ARMZ), a Russian-based uranium miner, on a revised scheme of arrangement to acquire Mantra Resources Ltd, advised by Hardy Bowen.

Blake Dawson initially advised ARMZ in relation to its acquisition of Mantra, a uranium explorer with interests in

Tanzania. On 15 December 2010, ARMZ and Mantra entered into a Scheme Implementation Agreement (SIA) under which ARMZ would acquire all of the Mantra shares on issue for $8 per share, valuing Mantra at $1.16 billion.

However, on 16 March 2011, ARMZ gave notice to Mantra that it considered the series of incidents at the nuclear power plant in Fukushima, Japan, were likely to have a material adverse effect on Mantra and thus gave notice that the material adverse condition precedent would not be fulfilled. When Mantra announced this on ASX and SEDAR, its share price fell 34 per cent in one day.

Mantra announced on 22 March that it had agreed to a revised transaction with ARMZ under which ARMZ will acquire all of the shares in Mantra, under a scheme

Norton rose takes Corrs group head

Former Corrs Chambers Westgarth partner anthony latimer has joined the sydney

corporate practice of Norton rose.latimer advises clients across various sectors including energy and resources, transport and logistics, manufacturing and financial markets.

Dla Piper associate signs up at Carter Newell

Carter Newell lawyers has appointed Tom Miers as an associate in the corporate

team. Previously at Dla Piper in Dubai, miers recently returned to australia after more than three years working in the middle east and london. He specialises in private equity and venture capital investments and has experience advising on domestic and cross-border corporate transactions in australia and internationally.

allion poaches property head from Blakes

West australian firm allion legal has appointed Michael swift as a principal to its property

and government team. Previously at Blake Dawson as a senior associate, swift’s practice focused on commercial property and infrastructure projects.

Talbot Olivier recruits solicitor from shann

Perth-based Talbot Olivier has appointed Natalie Brown to the firm’s family law practice. Previously at

shann Family lawyers, Brown provides advice in areas including property settlements, de facto relationships, spousal maintenance, child support and parenting arrangements.

Firm

Deal Name

area

ValUe

key Players

Andrew Thompson

minter ellison (CGNPC-UrC)

CGNPC Uranium resources Company recommended cash offer for kalahari minerals plc

energy and resources

$1.2 billion

andrew Thompson

Mark Stubbings

allens arthur robinson (Bush Heritage); simmons Wolfhagen, roland Browne (Tasmania)

Bush Heritage australia on acquisition of Tasmanian land

Property

Not disclosed

mark stubbings

Damien Hazard

Freehills

archer Capital on negotiations with Fonterra for acquisition of Brownes and debt financing of the acquisition

Corporate

Not disclosed

Damien Hazard

Deal name: JsC atomredmetzoloto on a revised scheme of arrangement to acquire mantra resources ltd Key players: Blake Dawson, Hardy Bowen; allens arthur robinson

of arrangement, for $6.87 cash per share and a special dividend of $0.15 per share, valuing Mantra at $1.02 billion.

The revised SIA does not contain a material adverse change condition. Blake Dawson said the revised transaction has the unanimous support of the Mantra board. Highland Park S.A., Mantra’s largest shareholder, has entered into an Amended Standstill Agreement with ARMZ and has reconfirmed its intention to vote in favour of the scheme in the absence of a superior proposal.

Along with the execution of the amendment to the SIA, Uranium One (advised by Allens Arthur Robinson) and ARMZ have entered into an Amended and Restated Option Agreement for Uranium One to acquire Mantra under a Put/Call Agreement. The agreement will provide Uranium One with the benefit of the revised price of $6.87 and additional flexibility in exercising the option to acquire Mantra.

Blake Dawson said the work on the triggering of material adverse change condition and the negotiations on the revised transaction required the Blake Dawson teams in corporate, litigation and tax in Sydney, Melbourne and Perth to work together almost continuously from 15 March until the revised transaction documents were signed on 22 March.

Mark Stanbridge led the team, which also comprised Bruce Dyer, Wen-Ts’ai Lim, Stuart Dullard, Amanda Lees and Ben Langford.

Movers &

Shakers

Deal OF THe Week

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thisweek

Woolworths trademark battle continues

A SYDNEY organic food supplier has taken on retail food giant Woolworths in a fight over the supermarket’s latest marketing campaign.

In a suit launched in the Federal Court of Australia on 16 March, Organic Marketing Australia, which trades as Honest to Goodness, has alleged that Woolworths’ Honest to Goodness Family Meals campaign, featuring the prominent cook Margaret Fulton, infringes its intellectual property – objecting to the use of the phrase “honest to goodness”.

Honest to Goodness was founded by Matthew Ward in 2002 and operates as an importer, exporter, wholesaler, distributor and online retailer of organic and natural foods.

In Woolworths’ Honest to Goodness campaign, the supermarket’s “Fresh Food chef” Margaret Fulton states, “I’m proud as punch to be bringing my Honest to Goodness Family Meals to Woolworths” and promises honest prices and fresh food.

In the wake of an interlocutory hearing last week, a Woolworths spokesperson said the supermarket strongly denies the allegations made by Organic Marketing Australia.

“We maintain that ‘honest to goodness’ is a commonly used term which Woolworths and other parties should be free to use,” said the spokesperson.

“The phrase ‘honest to goodness’ describes something which is essentially simple and genuine and in the context of Margaret

Fulton’s family meals, also nutritious. We will continue to work with the parties involved to resolve this matter.”

Discussing the case, Griffith Hack’s Sally Nicholson explained that in order to infringe a registered trademark, the words or phrase “as a trademark” must be used rather than just being used as a normal English phrase.

Nicholson noted the 1999 Federal Court decision Registrar of Trade Marks re Woolworths, in which Woolworths successfully appealed against a decision by the trademarks office to disallow the supermarket’s application for the registration of “Woolworths Metro” on the basis that it was likely to mislead or confuse consumers.

“The court held that when considering a trademark which includes a word that is notorious – Woolworths is a notorious word – you’re entitled to take into account the level of notoriety of that mark as a factor which may reduce the likelihood that consumers would be confused or deceived,” she said.

“The court found in that case that Woolworths was a word inherently likely to be noted and remembered,” she added.

“In the current situation, Woolworths appears to be using ‘honest to goodness’ in conjunction with the words Margaret Fulton,” said Nicholson. “Margaret Fulton is not only the name of a well-known person but it’s also a registered trademark.”

LAW FIRM employees use in excess of 100 kilograms of paper each year, according to a report.

Executive members of the newly formed Australian Legal Sector Alliance (AusLSA), which includes firms such as Clayton

Utz, DLA Phillips Fox and Norton Rose Australia, have disclosed their environmental footprint in a report titled Environmental Consumption of AusLSA Members 2009/2010.

Despite the availability of new systems and technology such as iPads, the legal sector is still a heavy consumer of paper. According to the report, nearly 126 kilograms of paper is consumed by each employee every year.

The report also showed that business travel is the second highest source of emissions for law firms behind electricity. Plane travel accounted for an average of 23 per cent of total emissions, with firms with multiple offices or regional-based clients having the greatest travel-related footprint.

The AusLSA report is aimed at helping law firms identify where they can reduce emissions by measuring and monitoring their operations.

PROMINENT PERTH barrister Malcolm McCusker QC has been appointed as the next Governor of Western Australia.

Named as the WA Australian of the Year in 2010, McCusker has had a long and distinguished legal career. He has been the chairman of Western Australia’s Legal Aid Commission since 1983 and was the inaugural parliamentary inspector of the Corruption and Crime Commission between 2004 and 2008.

A well-known philanthropist, McCusker has established his own charitable foundation to assist health and education in WA.

His appointment has been welcomed by the legal profession, with Hylton Quail, the president of the Law Society of Western Australia, describing him as one of the state’s finest and most senior lawyers.

“While he will be sorely missed in practice, the profession’s loss will be the community and state’s gain as we have no doubt he will be an excellent ambassador and Governor,” said Quail.

McCusker will replace the current WA Governor, Ken Michael, in July.

political appointmentx

Barrister lands role as WA Governor

xip rightsx

xenvironmental impactx

Electricity trumps travel for firm emissions

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thisweek

A CLASS ACTION by companies affected by the shutdown of Pan Pharmaceuticals has settled for $67.5 million.

In 2003, the Therapeutic Goods Administration (TGA) recalled all Pan Pharmaceutical products after problems were discovered with the travel sickness tablet Travacalm, which it stocked.

A number of people who took the tablet spent time in hospital, prompting the TGA to shut down Pan Pharmaceuticals for a period of six months.

The company stocked an assortment of other products that included numerous vitamins, nutritional supplements and herbal remedies, many of which were sold under the labels of other companies.

Pan collapsed shortly afterwards, with the Federal Government paying its founder and owner, Jim Selim, $55 million in 2008, after he sued the Government for misfeasance, which included taking inappropriate action in public office.

In December 2008, 170 affected

distributors, suppliers, trade creditors and retailers lodged a class action against the Commonwealth and five former and current TGA officers.

This was settled for $67.5 million last week. “It is very unusual to see a class action that is based on misfeasance in public office,” said Susanna Khoury, an investment manager with IMF Australia, the litigation funder that bankrolled the action. “We had lots of expressions of interest from class members after the Government wrote a cheque for Jim Selim for $55 million.”

Andrew Thorpe, from McLachlan Thorpe Partners in Sydney, acted for the plaintiffs after successfully acting for Selim previously. He was assisted by solicitor Sifa Mtango.

Corrs Chambers Westgarth partner Ian Dallen acted for the Commonwealth and Moray & Agnew provided external legal counsel for the five current and former TGA employees. Partner Andrew Toogood led the firm’s team.

Egyptian-born Selim died in May 2010 after a long battle with leukaemia.

Clydes taken to tribunalAn attempt by UK firm Clyde & Co to have Employment Tribunal proceedings against it stayed through the High

Court has been rejected, reports The Lawyer. The firm and its construction practice head, John Morris, are named as defendants in a discrimination claim being pursued by a former partner of the firm, Krista Bates-van Winkelhof.

Deutsche takes on more firmsDeutsche Bank has doubled the number of external UK law firms with which it has formal relationships, reports

Legal Week. The investment bank added Hogan Lovells, Simmons & Simmons, CMS Cameron McKenna and Ashurst to its list of preferred legal advisers.

Ukls seeks special licenceThe UK Law Society is seeking approval to become a designated licensing authority for alternative business

structures, reports The Lawyer. The society’s council voted in favour of an application, drawn up by the Solicitors Regulation Authority (SRA), that will be put to the Legal Services Board for approval.

CMs outsources Hr teamUK firm CMS Cameron McKenna will outsource its entire human resources team as part of an agreement to transfer its

back-office support functions to Integreon from 1 April, reports Legal Week. The firm’s 20-strong HR team will transfer over to Integreon next month and the bulk of the finance team will also move.

One year cut from law degreeThe SRA has approved plans for a new course that will cut the cost of legal education, reports The Lawyer. The five-year pilot

course, to be run by Northumbria University, will allow students to qualify as solicitors in five years, rather than the usual six, by combining all levels of legal education with professional training.

Clifford Chance eyes south koreaOnly weeks after announcing its move into Australia, Clifford Chance will become the first Magic Circle firm to open an

office in South Korea, reports Legal Week. The firm plans to launch there after the country’s legal market is opened up to foreign law firms this summer.

settlementsx US/U

K U

pdateSLATER & GORDON has helped plaintiffs settle two class actions worth a combined total of more than $50 million within one week.

On 23 March, the firm announced that more than 5000 investors would be eligible to share in a multimillion-dollar class action settlement against Sandhurst Trustees Ltd, the trustees of the failed investment company Fincorp Investments Ltd, for an undisclosed sum.

The Slaters team was led by the head of commercial and project litigation, Ken Fowlie, practice group leader Ben Phi and associate Odette McDonald. Baker & McKenzie acted for Sandhurst, with the firm’s Australian chair, Bruce Hambrett involved.

Slater & Gordon would not comment on reports that the settlement was around $30

xtga pannedx

Taxpayers foot $67.5m bill

million. McDonald told Lawyers Weekly that some members would be entitled to 75 cents in the dollar, or above in some instances.

Class members also include unsecured noteholders who were not entitled to any funds after Fincorp went into liquidation and receivership in 2007. Fincorp Investments Ltd was used as a vehicle for the company to fund property investments.

“There are a number of other trustees that act in similar roles, and this action demonstrates that for any of them that are passive in their roles, it is worthwhile for them to be considered on notice,” said McDonald.

Two days later Slaters announced it had settled a class action that arose after high levels of methane gas sparked an emergency evacuation of more than 750 homeowners on an estate in the outer Melbourne suburb of Cranbourne in August 2008.

The class action launched shortly afterwards on a no-win, no-fee basis eventually attracted more than 600 affected residents, with the firm submitting a $23.5 million settlement offer to the Supreme Court of Victoria on 25 March.

Slaters practice group leader Ben Hardwick led the firm’s team. Maddocks partner David Laidlaw acted for Casey Council, the main defendant in the dispute.

Hardwick said that a damages amount “was never quantified” with regard to the worth of the class action.

Gas and trustactions settle

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10 l aw y e r s w e e k ly 1 a P r I l 2 011 www.lawyersweekly.com.au

Blake Dawson senior associate Damien Roberts was in the firm’s Tokyo office when the devastating earthquake struck. Here, he recounts the “surreal” experience and the country’s “business as usual” approach as it begins to rebuild

road to recovery

T he Great Hanshin earthquake that rocked Kobe in 1995 lasted 15 seconds. The one that struck off the coast of Japan on 11 March shook our Tokyo

office for almost five minutes. Even the building’s control centre got caught out – the first internal broadcast lurched from “Please remain calm, the tremors have stopped” to “...no they haven’t, please remain calm!” in the one breath.

For us, that Friday afternoon was the end of a week-long senior-level infrastructure Mission to Japan co-ordinated by the Australia-Japan Business Co-operation Committee. Somewhat congruously, the Mission’s main objective was to facilitate Australia and Japan building infrastructure together, and Blake Dawson was co-hosting a PPP workshop designed to familiarise Japanese infrastructure players with the structures commonly used in Australian projects. All eyes in the full room strayed nervously from the contractual structures projected on the screen to the tall structures that were now swaying like trees right outside our window. I have felt many tremors in Japan over the years, but suburbs of swaying buildings was a first for me.

To the credit of both the presenters and

the audience, we finished the workshop that afternoon. Once outside, though, it was obvious that a long night was about to begin for many Tokyo residents. All trains had stopped, traffic was already in gridlock, and the crisp afternoon was quickly becoming a cold night. Comfortable in the knowledge gleaned from intermittent emails that colleagues and friends in Tokyo were safe, I merged into the stream of people

opinion

“Clients evacuating from the worst-affected areas, or travelling there to assist colleagues and the recovery effort, report a resilient calm and a renewed sense of community”

who had now also resigned themselves to a long walk home and headed in the direction where I presumed my family would be.

The week that followed was surreal. Our plight that evening soon became trivial as the extent of the incomprehensible devastation further north was slowly revealed. The threat of radiation leaks and the contamination that could follow exacerbated concerns that the impact would be broader and longer than originally anticipated. Rolling power black- outs threw commuter regimens into disarray; panicky households cleared supermarket shelves of basic necessities; and television networks dissected the plight of the stricken nuclear reactors from every angle.

Under the circumstances, it was recently decided that, like many expats in Tokyo, Blake Dawson would temporarily relocate to other offices in the region. The ability of our Tokyo team to operate all systems remotely, coupled with the generous understanding of our clients, has allowed us to continue to function very much “business as usual”. However, our tickets are already booked for an imminent return.

Clients evacuating from the worst-affected areas, or travelling there to assist colleagues and the recovery effort, report a resilient calm and a renewed sense of community. One client leading a live deal arrived a few minutes late for a meeting in Tokyo last week and apologised for inconveniencing us – making nothing of the fact that he had only just returned from three days in a refuge centre. Another texted me from Sendai: “I’m glad I came here. The strength of spirit of the locals and their noble hearts brought me to tears.”

Japan has a long road ahead, but I have no doubt that it will recover strongly.

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indepth

NSW Chief Justice James Spigelman has used the occasion of his first major address since he announced his retirement last week to speak about

the distractions of the internet.Spigelman was part of a star-studded

speaking line-up that included High Court Justice Dyson Heydon in marking 100 years of legal publications from LexisNexis Butterworths in Sydney on 24 March.

Spigelman was introduced by the MC for the evening, Andrew Clyne, who made the point that “as a former old boy of Sydney Boys High School myself, I feel that both Jim and I have made significant contributions to the legal community of this country – me by leaving it”.

Clyne had earlier revealed he was a lawyer with Clayton Utz in the early 1990s but was now working as a professional MC and facilitator “after several years of intensive psychotherapy”.

When Spigelman took to the stage, his speech focused on how technology has changed the way legal practitioners operate over the course of his legal career.

“The greatest change in legal practice in my time has been the accessibility of online legal information,” Spigelman said. “This has transformed all of our practices and ability to access information.”

In a humorous address that was just shy of 10 minutes and delivered off the cuff, Spigelman commented that sometimes too much of a good thing can distract even the most rapacious mind.

“If you type ‘information overload’ in quotes into Google, as I did this afternoon, you get about six million hits,” he said. “It is a sort of self-satire, but we do have a bit more than we need and I do worry about some aspects of the instant accessibility of information.

“More importantly, I worry about the ability to click through into other areas of information.

At the centenary celebrations of LexisNexis Butterworths, the NSW Chief Justice and other legal luminaries paid tribute to a publishing milestone made all the more significant in the face of technological change. Justin Whealing reports

law in the age of information

It seems to be an organised mode of distract - ion and it prevents serious time devoted to thinking.”

Retired High Court justice Michael Kirby also commented on the glut of information in a testimonial he provided to mark the 100-year anniversary. Kirby said that there had been “remarkable change” in the field of legal publishing over the 50 years of his professional life, but that in all likelihood “we ain’t seen nothing yet”.

“LexisNexis will have to compete in a world of too much information,” Kirby said. “It’s value-add will be the analysis, the headnotes, the summaries, the syntheses and the emerging taxonomies. And just around the corner is probably an important chip that the better law publishers will provide for insertion into the young lawyer’s brain.”

Spigelman’s address was well received by the 200-plus people in attendance at the Grand Ballroom of The Westin hotel. Guests included some of the most distinguished members of the legal profession, including Robert French, the Chief Justice of the High Court of Australia; his

colleague on the High Court, Justice William Gummow; Patrick Keane, the Chief Justice of the Federal Court of Australia; Wayne Martin, the Chief Justice of the Supreme Court of Western Australia; the former Federal Court judge Ronald Sackville; and Justice Margaret Beazley of the NSW Court of Appeal.

Spigelman also took the time to gently rib his predecessor at the microphone, Justice Heydon, who used his address to have a dig at the media and also a perceived drop in standards in the use of language and critical thought. “I don’t currently believe in the end of civilisation as we know it; unlike Dyson, I am a bit more of an optimist,” Spigelman quipped.

Other speakers included the former Federal Court judge Kevin Lindgren QC; Peter Taylor, the former chair of the NSW Bar Association Advocacy Committee; and TJ Viljoen, LexisNexis Pacific CEO.

“Looking back over the past 100 years, we have grown from one small legal bookshop in Sydney to become one of the world’s leading providers of information and workflow solutions,” Viljoen said.

Products such as CaseBase form part of the more than 1,000 international legal products available online through LexisNexis Australia, with its customer base including the top 100 Australian law firms and the top 20 ASX-listed companies.

“I congratulate LexisNexis. A centenary is a wonderful event,” Spigelman said. “The contribution that Butterworths and now LexisNexis has made over the course of that century to legal knowledge and legal scholarship and legal decision-making in this country is unsurpassed and I am sure it will continue into the future.”

* LexisNexis publishes Lawyers Weekly

NSW Chief Justice James Spigelman (left) and High Court Justice Dyson Heydon

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© Allen & Overy 2011 www.allenovery.com

We saw the opportunity. Can you see the opportunity in us?

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If this is the kind of laywer you want to be, please contact Marsden Legal Search & Recruitment: Jonathan Walmsley ([email protected], +61 2 8014 9050) or Greg Plummer ([email protected], +61 2 8014 9052).

We are currently recruiting for positions in our Sydney and Perth offices in Banking, Securitisation and Debt Capital Markets, Antitrust/Competition, Corporate/M&A, Energy & Resources, Financial Services, Investment Funds and Private Equity. For more information on Allen & Overy, visit: www.allenovery.com

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nswelection

The O’Farrell Government’s overwhelming mandate for change in NSW could spark some renewed areas of focus for the legal profession. Angela Priestley reports

election round-up

T he Liberal-National Coalition is celebrating its victory in the NSW State Election last weekend as a mandate for change across the state

– if not the entire nation. Premier Barry O’Farrell’s plans for such

change start with fixing the state’s problematic infrastructure and go all the way to advocating a better health deal for the state and using his decisive win to fight the Federal Government on its mining tax and carbon price.

For the legal profession, if O’Farrell can deliver some productive results regarding his promise to retain infrastructure as his top priority, the effects will flow through to the infrastructure, construction and major projects practice groups of law firms.

Freehills partner David Templeman told Lawyers Weekly he is positive about the future of infrastructure in NSW given the commitments made by the Coalition in the lead-up to the election, particularly the new $700 million convention centre for Sydney.

“It’s a good-size project. It’s been shown from the Melbourne Convention [and Exhibition] Centre that it’s something that works well as a PPP and it’s something they’ve done a lot of work on already with industry and so forth, so hopefully it should appear as a real project shortly,” he says.

“From the convention centre, I see the opportunities for work relatively soon. The other stuff will take longer but, given the lack of projects in NSW over the past few years, I guess the next one is closer to us than the last one is behind us.”

O’Farrell has indicated that one of the first pieces of legislation his Government

will introduce into Parliament will be the provision for an independent body to oversee infrastructure investment.

According to Templeman, this body will assist the Government in prioritising projects. “Logically that’s going to take a bit of time, but knowing that convention centre is there straightaway is a sign of confidence that we’re going to see a pipeline of projects in the near future.”

Outside of major works, if the new Government can see through its pre-election

commitments to the Law Society of NSW, then the state may also see some investment in access to justice issues – including an inquiry into the adequacy of access to justice covering legal aid, court services and staffing – as well as an investigation into resource shortages in rural and remote areas.

“In terms of how much additional money is required, I can’t say,” Law Society president Stuart Westgarth told Lawyers Weekly. “But the new Government has promised a review of those requirements and hopefully that review

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nswelection

will reveal the amount of money necessary to improve the current system.”

Meanwhile, Westgarth expressed encouragement in the fact that a notable “law and order auction” did not emerge from any of the major parties during the election campaign.

The new Government has also committed to continue the previous government’s review of the Bail Act 1978, with the Law Society advocating that such a review should seek to simplify the Act. Regarding the controversial s22A of the Act, which the Law Society claims needs to be removed in order to reduce juveniles and the number of children spending time in custody, the Coalition says it intends to examine how its application can be exempted or limited.

Prior to the election, the Law Society also pushed for a commitment from parties that ongoing delays and backlogs of DNA analysis would be addressed. On this front, the Coalition Government has committed $10 million.

Still, there is a significant amount of uncertainty regarding just how the change of government will impact existing laws, projects and processes in NSW. Of particular concern, says Graham Maher, a litigation partner with Truman Hoyle, is the lack of clarity regarding the recently passed Civil Procedures Act in NSW requiring parties to attempt to resolve disputes out of court before launching court proceedings.

The new legislation is due to commence today, but Maher is questioning if the change of government could lead to the Act being overthrown – as was the fate of similar legislation in Victoria by the new Baillieu Government. “There is yet no clarity on what a change of government might mean for this legislation, especially in light of the Victoria situation,” says Maher.

But a number of legal commentators also see the change of government as an opportunity to overhaul existing laws affecting their practice areas and clients. One example is Robert Bryden, a partner at Brydens Compensation Lawyers who is critical of the past Labor Government’s changes to tort law. In particular, he hopes to see a return of worker injury as a responsibility of the private insurance industry, a review of existing restrictions regarding the rights of injured workers, the reintroduction of a truly independent court for injured workers and a modification of harsh restrictions on injured motorists’ rights.

While the Coalition Government has not fully endorsed such changes, Bryden believes

the promise of an inquiry into such matters, as well as small policy announcements regarding driver safety enhancements, are a good start in the motor vehicle compensation space.

Meanwhile, in the area of OHS law, the Coalition Government has declared it will support the Commonwealth’s review of such laws under the Model Work Health and Safety Bill 2009, a promise the previous government refused to commit to.

As Australian Business Lawyers & Advisors director Joe Murphy recently told Lawyers Weekly, it’s yet more political change that will leave clients turning to lawyers in order to better understand the OHS reform environment. “We need to be getting the message out to our clients about changes in legislation and relevant cases,” he says.

And, with yet another state changing its government, and the continued uncertainty of the minority government at the federal level, it seems the role for lawyers in getting such messages out to uncertain clients will continue for some time yet.

Given the lack

of projects in NSW over the past few years, I guess the next one is closer to us than the last one is behind us”DAVID TEMPLEMAN, PARTNER, FREEHILLS

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legalleaders


legalleaders

N o doubt Peter Smith, the managing partner of TressCox Lawyers, has told the tale of his career beginnings more than once. But as he recalls the early days of his life as a lawyer, Smith’s enduring

enthusiasm for what he does is plain to see. It’s that passion, says Smith, that has helped him to

achieve a long and successful career that this month sees him celebrating his eighth anniversary at TressCox and his sixth as managing partner.

“If you don’t love what you do and you’re not passionate about it, I’m not quite sure how you get out of bed in the morning,” he says. “That’s not to say it’s easy, but unless you are looking forward to the week ahead – not arrogantly, not naively but looking forward to the challenge – then I think you’re missing something.”

a beautiful legal mindThankfully, Smith has always had that special “something”, developing his passion for the legal life early on. Following in the footsteps of his lawyer father and brother, Smith joined his family in the legal profession after completing his law degree at the University of Sydney.

“I’d toyed with the idea of doing a number of other things but fell towards the law,” he explains. “It seemed to suit my personality and it certainly whetted my appetite. I found most subjects – except for, say, tax – quite riveting.”

Smith has come a long way since his days as a law student, launching his career at the Public Trustee of NSW before moving to Turner Freeman to complete his articles.

“The firm had the most interesting matters. Just being all ears you learned a lot. So that was a great lead-in for me,” he says, referring to the Labor Party trade union orientation of the firm back then.

After Turner Freeman, Smith’s next stop was at “the other extreme” of Freehills. Describing his experience there, Smith remarks how times have changed since the days when the now divisive concept of time billing was barely on the table.

“I remember vividly, in the early days of Freehills, you’d come to the end of a matter and the relevant partner would hold the file and almost feel the value of the file, which would exude through them, and they’d think of a figure,” he says, laughing. “The concept of time billing was not in then … but it came in pretty quickly, so that was a change.”

From Freehills, Smith then jumped to Westgarth Middletons (now Corrs Chambers Westgarth), where he continued as a commercial litigator and climbed the ranks to join the firm’s partnership. Finally, after his stint as a partner at Westgarths, Smith made his last move to TressCox Lawyers (then known as Tress Cocks and Maddox) to head up the national litigation team, eventually taking the reins as managing partner in 2005.

strength in numbersIn his years as managing partner, Smith has learned the value of partnership and the importance of surrounding himself with the best people. “As managing partner, I couldn’t be better assisted. Certainly, from my point of view – and it was made very clear to me when I started – no one expects me to be all things to all people.”

Taking inspiration from his love of American politics, he has endeavoured to lead his firm with the same team commitment demonstrated by Robert F. Kennedy and his family.

“There was a heavy degree of arrogance in the Kennedy clan. They were destined to rule. But what there was, besides all their comings and goings in their private life, was an absolute commitment to service to the public,” Smith explains, revealing his extensive knowledge of American politics as well as his love of baseball.

“What Kennedy did, for all his ability, was surround himself with the best people… The reality is, I know diddly-squat about a lot of things and I’m going to surround myself with the best people,” he says.

“We have a lot of wonderful people in this firm but no one person has made this firm. No one person keeps this firm going and no one person will ever keep this firm going in the future. It’s all about the glue, but it’s got to be elastic. It’s truly about being a team.”

For Peter Smith, managing partner at TressCox Lawyers, running a successful practice is all about teamwork. He speaks to Briana Everett about the lessons he’s learned and the challenges he has yet to master

perfect partners

I’d toyed with the idea of doing other things but fell towards

the law. It seemed to suit my personality and it whetted my appetite. I found most subjects – except for, say, tax – riveting”

A dIstINguIshed cAreer

As an experienced commercial litigator, Peter smith has expertise in contracts, insurance, and building and construction.

*

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legalleaders


legalleaders

When he replaced the fi rm’s chief executive offi cer as managing partner, Smith felt there was a certain level of comfort within the partnership at having “one of their own” at the helm.

“The thought that one of their own, as it were, is pushing, promoting, saying no to things, saying yes to things – there’s a participative fl avour to it,” Smith says.

Advocating a partnership style over a corporate structure as the best fi t for his fi rm, Smith describes the signifi cant changes the fi rm has undergone in pursuit of his vision for a highly successful specialist fi rm.

“We took steps back in 2007 and 2008 to change the style of our fi rm with a greater focus on client development and client centricity. And we changed our partnership around a little … but there was no blood on the carpet, no closed-door conversations. I think that showed the real strength of what a partnership is,” he says.

“I’m sure the corporate structure works for a whole range of fi rms and for a whole range of reasons, but what happens to be good for us is a true partnership style.”

Through his vision to achieve a specialist fi rm, Smith says TressCox had to focus on its core strengths and weed out the areas in which the fi rm was only dabbling. “We felt that if we built on our core capabilities, we would grow.”

The past year has certainly been a signifi cant growth period for the fi rm, which laterally appointed eight partners as well as their teams in just 11 months.

Snapping up partners from DLA Phillips Fox, Maddocks, Rigby Cooke, Herbert Geer and Tucker & Cowen, Smith says the fi rm’s growth is the result of a search for staff in particular areas, as well as people directly approaching the fi rm.

“That mixture is always nice. If you’re looking for the objective assessment of how we’re going, it’s nice when people ring up and say, ‘Is there a chance that we could have a chat?’.”

Balancing act With legal work taking a back seat to the demands of managing a fi rm, and giving up the 24/7 life of a mediator, Smith refl ects on the ongoing challenge of fi nding a balance.

“I hear some people talk of work/life balance, but I must admit I’ve long-held the view that it’s a life balance. I have never liked the term work/life balance.”

Bravely outspoken and critical of notions such as “fl exible working arrangements”, Smith believes those lawyers who attempt to achieve a comfortable dichotomy between work and life are in for a rude shock.

“I defy anyone who’s really doing their job properly to say they’re a three-day-a-week lawyer or partner,” he says frankly. “They invariably put in more than that. Three days means four or four and a half, four days means fi ve, and fi ve days means six or seven.”

Providing guidance to the younger lawyers at TressCox who are just beginning to face the tough balancing act ahead, Smith advises them to avoid setting rigid rules and points out the importance of feeling passionate about their work. “I just think it’s about life balance… Don’t kid yourself that you can separate work and family, because you end up disappointing both.”

While Smith tells it how it is when it comes to balancing life as a lawyer, he says the hard work involved is all worthwhile, proudly describing the dedication of his team at TressCox Lawyers. “What’s really pleasing to me about being managing partner has little to do with my day-to-day role of being managing partner,” he says.

Instead, “It has everything to do with seeing young partners grow themselves as individuals … and to see a group of partners get together and hear a room full of voices working out how we’re going to deal with a problem. It’s that participative feeling.”

No one person keeps this fi rm going and no one person will ever keep this fi rm going in the future. It’s all about the glue... It’s truly about being a team”

His experience as an accredited mediator extends to various forms of dispute resolution including arbitration, mediation and expert appraisal.

Smith has acted for prominent clients such as BHP Coal, in a dispute with a contractor concerning the Mount Owen Mine site in NSW’s Hunter Valley, and Burger King Corporation in relation to a franchise dispute.

He has also appeared before the Privy Council and managed the dispute resolution for part of the Elders group regarding a fraud case involving a western Sydney property development.

As a staff partner at Westgarth Middletons (now Corrs Chambers Westgarth), Smith was heavily involved in the development of what the summer clerkship program, supporting the future of the legal profession by addressing the development and recruitment of younger lawyers.

* * * *

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coverstory

For Australian lawyers, it doesn’t get more complex, contentious or dangerous than working in the African resources field. Those who do, however, are playing a major role in the development of the world’s most troubled continent. Claire Chaffey reports

W hen a light plane carrying six board members of Perth-based mining company Sundance Resources crashed in the Democratic Republic

of Congo (DRC) in June last year, killing everyone on board, it was a stark reminder that the business of mining, especially on the world’s least developed continent, can be a hazardous one.

For Western Australia’s tight-knit resources community, it was an absolute tragedy – and for many, the notion that doing business in Africa is “an adventure” was suddenly crushed beneath a sad reality.

For Perth-based Clayton Utz partner and head of resources Gary Berson, the Sundance disaster was a wake-up call. “One of the biggest issues we face when working in Africa is the safety of air travel. It’s not great,” he says.

“We have to be really careful and make sure we send people as safely as possible. I have had a few really bad flights and you just think it is a bit of an adventure. But when the Sundance crash happened, it brought it home that Africa is a place where the age of the planes and the main - tenance isn’t fantastic. That’s the reality of it.”

But if there is one thing Australian mining companies – and their lawyers – are not known for, it’s their aversion to risk-taking, and the tragedy has done nothing to curb their interest in undertaking new and groundbreaking projects throughout Africa.

Figures recently released by the Department of Foreign Affairs and Trade indicate that Australian commercial interests in Africa’s resources sector

risky business

have tripled since 2005, and Australia’s mineral and resources companies now have more projects in Africa than anywhere else in the world.

Current estimates put the total value of Australian investment at $20 billion, with 143 new projects commenced in 2010 alone. The total number of projects is 595, spread across 42 of Africa’s 53 countries.

“I don’t think we should underestimate the entrepreneurial spirit of Australian miners,” says Paul Schroder, a senior associate at Mallesons

Stephen Jaques and former partner of South African firm Bowman Gilfillan. “Fortune favours the brave, and Aussies are certainly brave.”

lighting up the Dark Continent Africa’s resources boom has propelled the continent – historically plagued by poverty, corruption, underdevelopment and conflict – into a new and exciting era.

A 2010 McKinsey Global Institute report shows that three of the world’s 10 fastest-growing

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coverstory

The environment has never been

better to realise Africa’s potential ... Africa is on a growth trajectory”

economies over the past fi ve years were in Sub- Saharan Africa, and the International Monetary Fund has predicted that four African nations will be among the top 10 fastest-growing economies over the next 10 years.

The past decade has seen the end of civil wars in Liberia, Angola, Burundi, Rwanda, Sierra Leone and Mozambique, and democracy has slowly been replacing violent coups and dictatorships.

At February’s Mining Indaba held in Cape Town in South Africa, Australia’s High Commissioner to South Africa, Ann Harrap, said: “The environment has never been better to realise Africa’s potential … Africa is on a growth trajectory and now is the time to have confi dence in Africa’s future.”

In short, things are looking up for Africa, and Australia’s junior and mid-cap explorers have certainly heeded this message.

To them, Africa holds an obvious allure: commodities are in high demand; Australia’s mature mining market means there is a rare depth of talent but limited opportunities for junior explorers to make their mark; and many African nations house huge mineral reserves but have limited capacity to extract them.

Put simply, Australian mining and resources expertise is needed and there is potential for good commercial outcomes for both Africa and Australia.

A golden opportunityBehind every mining company is a very committed lawyer, and there is a growing pool of legal advisors willing to take the same risks as their clients.

While fi rms such as Clayton Utz and Perth-based boutique Blakiston & Crabb have been involved in African projects for decades, the likes of Mallesons Stephen Jaques and Blake Dawson are also responding to client demand for services in Africa.

“There has been signifi cant demand for services in relation to African investment, and we are helping our clients do transactions either in Africa or with a strong African fl avor,” says Schroder.

“As a fi rm, we have seen this opportunity and we are taking it seriously. We are putting our money and our people behind our mouths on this one.”

The roles taken by legal advisers vary, with some acting as international counsel and advising African lawyers on how to deal with multinational giants and others, like Michael Blakiston, managing partner of Blakiston & Crabb, taking a more hands-on approach and spending around three months every year on the ground in places from the DRC to Guinea, Ghana, Equatorial Guinea, Malawi and Namibia.

“Australians are risk-takers. I am forever running into Australians travelling into various parts of Africa,” he says.

“I suppose I am an example of that. I’m a lawyer, so why aren’t I just wearing a dark suit and staying in the city in Australia? I am happy to get out and use the skills that I have developed, like many contemporaries, and go into Africa and develop [a project] for the sake of that country, and also for the sake of Australia.”

Deciphering the lawOften, lawyers looking after their clients’ African interests are venturing into legal territory that has never been explored. One of the most challenging aspects, says Blakiston, is working within legal frameworks that are insuffi cient for what is required.

“In an African environment, it’s not uncommon to be doing something that has never been done before,” he says. “Often you are working with laws that have not been designed to do what is required. That creates some real challenges.” Schroder has had similar experiences.

“Sometimes there are provisions in the laws that have never been used before. If you want to do a capital raising or a scheme of arrangement, many countries use the legislation from their former colonial masters,” he says.

“The provisions are there, but the local lawyers have no experience of implementing them. We walk them through it by saying that in our jurisdiction, which is also based on English law, our experience of this problem is as follows. We work with the local lawyers. It’s all about relationships.”

The nuances of AfricaThose who have been to Africa say it is a continent like no other, and, according to Blakiston, acting for clients with interests in Africa requires a genuine appreciation of African culture and the nuances of the country in which you are working. This, he says, is not something you can pick up in a textbook.

“You can be a very good technical lawyer and, in a developed economy, you can do very well. The challenge for lawyers is, ‘How do you operate in a less-developed environment?’” he says.

“Africans – and that is a very broad statement – communicate in a way that is different to how we do; their problem-solving is done differently. We can appreciate, when dealing with Chinese or Japanese or Koreans, how they react socially, how they negotiate and what their level of knowledge and competency is. But Africa is somewhat different. They do things differently and that has got to be respected.”

Part of developing this understanding, adds Blakiston, is respecting that Africa’s colonial past may affect peoples’ perceptions about what mining companies want to achieve and what the outcomes will be for local communities.

“Depending on where you’re operating, you’ve got a history where colonialism may have clouded peoples’ views on what a company, which is not an African company, may be proposing to do. ‘Is it another form of use and abuse of the local people?’ There are elements of that which can come through,” he says.

Blakiston admits that, in the past, there have

“Australian mining companies have developed fantastic expertise over the years and have spread to places where there are more opportunities, and it would be fair to say the Australian legal industry is beginning to do the same thing”

GARY BERSON, PARTNER, CLAYTON UTZ

“There used to be a belief that you could hide things … a bit like saying you can do things at a different level in Africa than you can in a developed country, such as your treatment of the environment and the people. That is dinosaur thinking now”

MICHAEL BLAKISTON, MANAGING PARTNER, BLAKISTON & CRABB

developed country, such developed country, such and it would be fair to say and it would be fair to say

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been cases where the standards adopted by mining companies were less than ideal. “There used to be a belief that you could hide things, and that was almost an accepted practice; a bit like saying you can do things at a different level in Africa than you can in a developed country, such as your treatment of the environment and the people,” he says.

“That is dinosaur thinking now. You’ve got to have the world’s best practice. With the world the way it is now and communications the way they are, people with various interests will be analysing what you do. It’s not just a case of the banks or the government of the country looking at it: there are shareholders and NGOs taking an interest.

“And for good cause, in some cases, because there have been some terrible examples of corporate failings where, if they had happened in a developed country, there would have been all sorts of ramifi cations. It helps keep everyone honest.”

Getting serious about CSRToday, keeping everyone honest is a task wrapped up in numerous international instruments designed to ensure that mineral wealth does not end up in the pockets of a corrupt few, and instead goes towards desperately needed development.

One such instrument is the Extractive Industries Transparency Initiative (EITI), which aims to strengthen governance by improving transparency and accountability in the mining sector and develops standards promoting revenue transparency at the local level.

Berson says he spends a lot of time ensuring that his clients meet the EITI standards and don’t fall foul of foreign corrupt practices legislation. Most companies, he says, also adhere to the Voluntary Principles on Security and Human

Rights (VPs), which were created in response to the concerns of governments, mining companies and civil society over operating environments that created challenges to security and human rights.

“You have to make sure the company complies with all the environmental and employee issues that are within the international instruments, from board level down,” says Berson.

“In my experience, our clients are very committed to corporate social responsibility [CSR]. They are often working in isolated communities and become very involved in trying to help and making sure they are leaving something behind. From board level right down to employees at low levels, it is amazing how much people get tied up in the local communities. It’s impressive once you see it.”

Corruption, however, is still a very real problem in many African nations, especially those struggling under the weight of dictator-ship. Blakiston cites the recent example of the commissioning of a $380 million boat by the son of Equatorial Guinea’s dictator, Teodoro Obiang, who took power in a violent coup in 1979.

The tiny African nation has huge oil reserves and, while the son denies he has been siphoning oil money, the boat’s value is three times the amount spent on education and health every year, and is a clear example of the excesses that can occur off the back of mineral wealth.

“That’s where things go wrong. Clearly, money is being generated; money is being put into the country. What happens to it after that?” he says.

“It’s just appalling. What the people may ask is, ‘What benefi ts have we got from all this oil wealth? What level of social involvement do the oil companies have? What level of responsibility?’”

Broadening horizonsAs long as Australian miners continue to invest in Africa, their lawyers will be right behind them.

And, according to Schroder, there are no signs that Australia’s reach into the continent will cease any time soon.

“We see the investment expanding in new and different ways,” he says. “Given that we have a strong presence in China and Hong Kong, we are getting a lot of enquiries from Chinese clients looking to do business in Africa. The Chinese are often funding projects, whereas Australian companies are acquiring and running the mine. There seems to be no end to the growth.”

However, it seems that Australian fi rms are reluctant to set up shop in Africa just yet.

“It is a new frontier, a growing frontier,” says Berson. “Australian mining companies have developed fantastic expertise over the years and have spread to places where there are more opportunities, and it would be fair to say the Australian legal industry is beginning to do the same thing.

“But there are some really good South African fi rms and local fi rms in other African countries, so in the medium term it’s more likely we will work in conjunction with those fi rms rather than open an offi ce there.”

But from wherever they are working, the difference Australian lawyers are making to both Australia’s and Africa’s economic future cannot be ignored.

“The reality is that our clients are employing thousands of people and putting millions of dollars into social development, and I think they are making a real difference in many African countries,” says Berson. “Hopefully, we play a small part in that as one of the industries that services our clients.”

Schroder agrees. “There is a desperate need for development in Africa, and this is a wonderful opportunity to fund that development. It’s funding not as a handout, but on commercial terms. It’s a great opportunity for Africa.”

“I don’t think we should underestimate the entrepreneurial spirit of Australian miners. Fortune favours the brave, and Aussies are certainly brave”

PAUL SCHRODER, SENIOR ASSOCIATE, MALLESONS STEPHEN JAQUES

Australian commercial interests in Africa’s resources sector have tripled since 2005

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profi le

Sydney lawyer Steve Cartwright embarked on an African adventure with friend Mark Roberts that took them to places unimagined – and raised much-needed funds for a children’s charity along the way. He speaks to Claire Chaffey

A ccording to Steve Cartwright, one of the most impressive things he has ever seen is the spectacle of three ravenous honey badgers ripping

apart and devouring his dry food stores in less than two minutes.

The storage tub was accidentally left out overnight, says Cartwright, far from the safety of his fully kitted-out LandCruiser. And honey badgers, it seems, aren’t too fussy about packaging. “It was an impressive sight,” he laughs.

Cartwright, a lawyer at mid-tier fi rm DibbsBarker, has recently returned from a 230-day overland odyssey with his mate, Mark Roberts, from Africa’s southernmost point in South Africa to the north-east tip of Egypt.

Their 34,440-kilometre journey took them through 15 countries; into 23 national parks;

Crossing the continent

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across the equator four times; into the company of 36 lions, 18 mountain gorillas and 17 wild dogs; through two bouts of gastro and other strange illnesses; 68 roadside police checks; and nine sets of never-looked-better KFC doors (one set of which followed soon after the honey badger incident).

As Cartwright recounts his experience, he becomes animated when talking about how he watched a leopard cub and its mother play only metres from the truck; sipped tea under a blanket of stars in the northern Sudanese desert; played poker with the locals in Botswana; and saw a glacier on Tanzania’s Mount Kilimanjaro turn a deep pink as he sat atop its 5895-metre-high summit. “For me, that was the moment of the trip,” he says of Kilimanjaro.

Having taken a leave of absence from work, Cartwright embarked on the trip in May last year, primarily in the name of discovery and adventure. “We wanted to see the classic Africa, the wildlife and the landscapes, before they disappear. And they are under serious threat,” he says.

But it was also a challenge that would, through generous sponsorship gathered along the way, raise thousands of dollars for the charity Room to Read, founded by John Wood, a former senior executive with Microsoft.

Wood launched the charity after trekking through Nepal and visiting several seriously under-resourced local schools. Soon afterwards, he resigned from his position at Microsoft and created a global team that builds sustainable solutions to the educational challenges facing rural villages across the globe.

“It was always a trip for us first,” says Cartwright. “We were crossing Africa because we wanted to, but we took the road of saying, ‘If we can also do something good while we’re at it, and get involved and raise some money that is invested in a meaningful way in Africa, why wouldn’t we do that?’”

As well as raising much-needed funds for a

charity that Cartwright says was “the right fit”, the expedition across the continent turned out to be an adventure like no other. “It began, funnily enough, with a massive lightning storm, camped in an open area at Cape Agulhas, South Africa’s southernmost point,” recalls Cartwright.

“We were in a roof-top tent – mounted on top of the car – in this field with no other lightning conductors about, looking out at the lightning flashes over the Southern Ocean and thinking, ‘This is going to be a very short trip!’”

But they survived and were soon making tracks through Namibia, Zambia, Botswana, Tanzania, Mozambique and Malawi.

And while there were innumerable memorable moments, Cartwright says one of the most shocking came during his visit to the memorial at Gikongoro in Rwanda, where the bodies of several thousand victims of the 1994 genocide were preserved with lime soon after death.

“Hair, teeth, contorted bodies – you can visibly see how many of them were killed. There are rooms full of children,” he says. “I have visited … the killing fields in Cambodia, Santa Cruz in East Timor and various other chilling sites, but I have never seen anything quite like Gikongoro.”

Other hairy moments included being surrounded by an angry crowd in Ethiopia, being chased by a man with a brick in Kenya, being run off the road by mad drivers in Burundi, running themselves off the road in Zimbabwe, and being bogged in various rivers along the way.

But these moments, says Cartwright, were just part of the adventure, especially because they worked out well in the end. “Getting yourself out of a bog is the best feeling in the world. It may take you three or four hours, but once you’re out, you’re king of the world,” he says.

“Things just seemed to work out over there, particularly if you take the right attitude and are friendly with people. People will help there in a

way that they won’t help here, unless we’re talking about border officials...”

Sadly, though, Cartwright says Africa’s greatest treasures – its wildlife and landscapes – are seriously under threat and he fears it won’t be long before what he has seen will be all but gone. “You’ll only find the big wildlife in game parks now, or in fairly remote regions,” he says. “And the glaciers [of Kilimanjaro] are receding.”

There are, however, still places where you can see a good number of animals outside the parks and reserves, says Cartwright, though they’re not easy to get to. One such place is the notoriously difficult to reach Marienfluss Valley in northern Namibia, where Cartwright says they didn’t see another vehicle for two days.

“It was just gorgeous,” he says. “It was the first place we saw elephants, giraffe, zebra. Finding your first elephant, particularly in the wild as opposed to in a game park, is a very special experience. It was fantastic.”

Western Tanzania’s Katavi National Park was also a highlight, especially as it took the duo six days of hard driving just to get there. “I won’t ever forget Katavi National Park,” says Cartwright. “For me, it is just one of the absolute highlights of the trip. It had amazing wildlife, amazing landscapes and you really had to work hard to be there. It was just an unbeatable combination.”

Despite appearances, Cartwright is adamant that many parts of the trip were mundane, largely thanks to the huge distances they covered, and the constant rough camping and lack of facilities were, at times, testing.

“There were times when we camped up to 29 days at a time, and on the final day, when we knew we were coming into a town where there were going to be restaurants and hot showers and proper food and a bar … there was a sense of excitement,” he says.

On the whole, though, Cartwright finds it difficult to put into words how the trip affected him. “There was a lot of time spent navel gazing,” he says. “You have a lot of time under the stars by the campfire, too tired to talk, just absorbing where you are and thinking about where you want to be. And with that comes a certain degree of self-awareness.

“This kind of trip will teach you that you can do anything. You’ve just got to commit and go for it. It is such a big and intimidating endeavour when you sit here and think about it in Sydney, but when you commit, and start chipping away at what you need to do to make it happen, things work out. I’d love to avoid a cliché, but it was a life-changing trip.”

To read more about Steve and Mark’s adventures, see their blog at www.findingemo.org

Opposite, from top: local fishermen on a dhow in Mozambique; Mark (left) and Steve get their YMCA on. Above: village kids in Mozambique; wildlife on the Masai Mara in Kenya

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Every so often, esteemed members of the legal profession do something that makes Folklaw wonder what they were thinking. One such case has emerged in Victoria, with the team at Oldham Naidoo Lawyers showing that high intellect and ethics were – at least temporarily – suspended when they decided to launch a class action back in 2008.

The Age reports that Oldham Naidoo partner Daniel Oldham commenced a class action in the name of a Melbourne doctor, Hershal Cohen. The problem is, the good Dr Cohen had no idea that he was named as the lead plaintiff in the action.

This issue eventually came to light, and Supreme Court Judge Jack Forrest has now been left to decide whether to throw the class action out, in light of Oldham’s admission that an “abuse of process” did indeed take place. Speaking of the firm’s conduct, Judge Forrest said, “The ignorance is breathtaking.”

The class action was launched on 24 December 2008, just prior to the expiration of the six-year statute of limitations following the 2003 Victorian alpine bushfires that destroyed more than one million hectares of land. The class action was based on accusations that the Government failed to adequately back-burn and reduce forest-floor litter in state parks, thus putting private property at risk.

The court heard that Oldham Naidoo Lawyers had discussed the possibility of becoming a group member in the class action with Cohen, though they never suggested he would be named as the lead plaintiff.

The State Government is seeking to have the action thrown out, with Peter Riordan SC suggesting “the court would not want to see its processes abused”. “There are reasons why in a class action solicitors who may stand to gain substantial fees may ... file proceedings,” Riordan said.

Riordan accused Oldham of deliberately concealing the lawsuit from Cohen while knowing he did not own any property pertinent to the case, and deliberately misleading the court by claiming Cohen had instructed him to act.

Stewart Anderson SC, acting for Oldham Naidoo, said dismissing the class action would cause overwhelming prejudice to class action group members because they would be unable to make a claim. However, Riordan was quick to point out that no such people had come forward, apart from one man who now happens to live in Switzerland.

Bushfire class action brings on brain freeze

He has since commenced legal action against the Catholic Church on the grounds that its loudspeakers disturbed the peace; attempted to impeach former president Gloria Arroyo; and then had another shot at the presidency in 2009, telling reporters: “I might not be a billionaire but I have brains. I scored 92 per cent in the American Bar Exams, was an undefeated debater and you call me a nuisance?”

Folklaw hopes that Pamatong realises that “having brains” and being the leader of a country are not necessarily related.

Lawyer declares himself president

folklaw

A Filipino lawyer has gatecrashed a conference to declare himself the head of an area in the Philippines. Self-described “international lawyer” Ely Pamatong entered a hotel where Filipino President Benigno Aquino III was due to speak at a conference last month. Pamatong, known as much for his dress sense (he was wearing a fetching red barong) as for his ability to garner publicity, was quietly asked to leave shortly after entering.

According to Davao News, Pamatong said he wanted to distribute pamphlets in his advocacy for a separate state for Mindanao, the second-largest island region in the Philippines, which has a significant Muslim presence in a country that is largely Christian. Despite rebel groups on the island being engaged in a campaign for independ-ence, Pamatong, who does not hold an official political post, declared himself as its president.

Pamatong ran for the Filipino presidency in 2004, but was declared a nuisance candidate.

Folklaw has seen some fairly interesting claims for damages in its time, but this one is simply awesome. The Am Law Daily has reported that 13 record companies are taking file-sharing company LimeWire to the cleaners for copyright infringement.

Not unusual, we hear you say, until we add that they are seeking damages to the tune of $75 trillion (which happens to be more than five times the US national debt)!

But unfortunately for them, Manhattan Federal District Court Judge Kimba Wood didn’t share their enthusiasm for endless riches, labelling the damages request “absurd” and contrary to copyright laws.

The record companies, which demanded damages in the range of a measly $400 billion

to a comfortable $75 trillion, argued that section 504(c)(1) of the Copyright Act provided for damages for each instance of infringement where two or more parties were liable. For a site like LimeWire, which had thousands of users and millions of downloads, Judge Wood found that the award of damages would, under this interpretation, be staggering.

“If plaintiffs were able to pursue a statutory damage theory predicated on the number of direct infringers per work, defendants’ damages could reach into the trillions,” she wrote in her 14-page opinion. “As the defendants note, plaintiffs are suggesting an award that is ‘more money than the entire music recording industry has made since Edison’s invention of the phonograph in 1877’.”

Wood did concede, however, that the question of statutory interpretation was “an especially close question”, but came to the conclusion that damages should be restricted to one damage award per work. “We were pleased that the judge followed both the law and the logic in reaching the conclusion that she did,” said LimeWire’s lawyer.

“As the judge said in her opinion, when the copyright law was initiated, legislatures couldn’t possibly conceive of what the world would become with the internet. As such, you couldn’t use legislative history. Instead, the overarching issue is reasonableness in order to avoid [an] absurd and possibly unconstitutional outcome.”

The lawyers also said, not unreasonably, that the money sought by the record companies could be better spent on health care or wiping out the national debt (or, you know, ending global poverty).

Claimants seek enough damages to end global poverty

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Banking Hong Kong Well known US firm with a good platform in HK seeks a mid to senior-level associate to work on leveraged and acquisition finance deals. The firm can offer great clients to work with and good ongoing training from highly regarded partners. No Chinese language skills required. Ref: 6227. 4-7 years

Corporate Hong KongMagic Circle firm is looking to further expand its Asian corporate practice. The team’s outstanding reputation in the region ensures it attracts premium deals. You will enjoy an unrivalled client base as well as a great mix of work. Chinese languages not required. Magic Circle rates. Ref: 127200. 2-5 years

Banking SingaporeOur client is a US firm who is looking to recruit a junior and a mid-level banking associate into its busy Singapore team. US rates of pay. General banking & finance experience required. Top academics and experience with a top-tier firm essential. Excellent career opportunity. Ref: 120701. 3+ years

Australia

For International roles, call Karlie Connellan on +61 (0)2 9236 9000 or email [email protected] For Australian Private Practice roles, call Matt Harris on +61 (0)2 9236 9000 or email [email protected]

For Australian In-House roles, call Brian Rollo on +61 (0)2 9236 9000 or email [email protected]

Tim Fogarty Private Practice Melbourne

taylorroot.com.au

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lawyers weekly april 1, 2011

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