InBrief

SEARCH ALL POSTS

Compulsory family dispute resolution

Fri Feb 29 2008

The Federal Magistrates Court has replaced Practice Direction No.2 of 2007 - Family Dispute Resolution - Applications for orders under Part VII Family Law Act 1975,�in order to make its processes consistent with the Family Court of Australia. Practice Direction No.1 of 2008 will come into effect on 1 March 2008. View the Practice Direction > View Federal Magistrates Court Amendment Rules 2008 (no.1) and the accompanying explanatory statement>

29�February 2008

Conference on private equity and the sub-prime crisis

Fri Feb 29 2008

Members are invited to attend�a joint Law Council - International Bar Association conference on�private equity and�the sub-prime crisis, which will take place from 7 - 8 April 2008 at the Intercontinental Hotel, Sydney, Australia.�Don't delay! The early bird registration period for this event has been extended to Monday 3rd March.

Topics will be drawn from a wide range of issues affecting industries represented by the Section including:

  • A review of the private equity phenomenon and the sub prime crisis;
  • the view from the Bench;
  • regional trends and implications for globalisation;
  • managing transitions in major corporate events;
  • the regulation of hedge funds; and�
  • a financing perspective on adverse marketing conditions on private equity deals.

View the conference information and registration brochure>

3 March�2008

Nominations for Legal Aid panels

Fri Feb 29 2008

The Bar Association is seeking nominations for the following Legal Aid panels:

  • Veteran's Law Panel Selection Committee
  • Prisoner's Legal Service; and
  • Mental health advocacy

For further information or to register your interest, please contact Cindy Penrose via e-mail cpenrose@nswbar.asn.au or on (02) 9232 4055.

29 February 2008

Opportunity to own beautiful Indigenous art

Fri Feb 29 2008

The New South Wales Bar Association encourages you to donate to the Indigenous Barristers’ Trust, The Mum Shirl Fund.�Doing so affords you the opportunity to be the proud owner of a beautiful painting by Maria Josette Orsto of Bathurst Island called Jilimara (armbands). Learn more>

The owner of this painting will be announced at the unveiling of the Bob Bellear portrait on Wednesday, 12 March 2008 at 5.15 pm in the Common Room.

29 February 2008

�

Federal Court Corporations Law seminars

Fri Feb 29 2008

On Wednesday, 2 April 2008 the Federal Court will hold a seminar in all of its registries on current issues and developments in corporate insolvency law and practice. The seminar will be “live” in the Sydney Registry and will be relayed simultaneously to all other registries of the court. All legal practitioners, especially those with a particular interest in corporate insolvency work, are invited to attend. Learn more>

11�March�2008

Correction: Proposed Amendment to the New South Wales Barristers’ Rules

Thu Feb 28 2008

LEGAL PROFESSION ACT 2004

Yesterday's In Brief included an article about proposesd amendments to�the New South Wales Barristers' Rules. The article pointed to a copy of the proposed rules on the Bar Association web site www.nswbar.asn.au. The link was incorrect and should have referred�members to the exact location of the document. In Brief apologises for any inconvenience or confusion this may have caused. View the proposed�amendments>

29 February 2008

Updated allocation of New South Wales Acts

Thu Feb 28 2008

Executive Council of New South Wales has approved a new allocation of the administration�Acts among the ministry. The allocation is included in a special supplement to the Government Gazette, which was published yesterday. View the gazette>

28 February 2008

Family lawyers' forums for 2008

Thu Feb 28 2008

The Family Court of Australia Family Lawyer's Forum has been in operation for some time and will�continue to meet in 2008. The forum provides the legal profession with an opportunity to raise issues with the case management judge and registry staff; learn about emerging issues in the family law system and discuss ways to improve the delivery of services.

A program of meetings has been scheduled for 2008 as indicated below (additional meetings will be scheduled as the need arises).

  • Tuesday, 25 March 2008;
  • Tuesday, 27 May 2008;
  • Tuesday, 29 July 2008;
  • Tuesday, 30 September 2008; and�
  • Tuesday, 25 November 2008.

The meetings will commence at 4.30pm and will generally conclude by 5.30pm.� The forum will be held in the Information Session Room on Level 7 of the Family Law Courts, Sydney Registry.

For more information contact Garry Wilson at the Family Court via e-mail: garry.wilson@family.court.gov.au

28 February 2008

Recent House of Lords decisions

Thu Feb 28 2008

The following opinions of the lords of appeal�are available on the House of Lords web site:

Corr (Administratix of The Estate of Thomas Corr (Deceased)) v Ibc Vehicles Limited, Appellate Committee���[2008] UKHL 13 27 February 2008�

R (On The Application of M) (Fc) V London Borough of Hammersmith and Fulham, Appellate Committee�[2008] UKHL�14��27 February 2008�

For more information on House of Lords judgments, visit the Westminster Parliament's web site>

28�February 2008

Law Council signs Guantanamo Bay Letter

Wed Feb 27 2008

The Law Council has joined forces with fellow peak legal bodies from around the world, representing hundreds of thousands of lawyers, to call for the closure of the United States prison facility at Guantanamo Bay.

The president of the Law Council, Ross Ray QC, said, “David Hicks may no longer be held at Guantanamo Bay, but many others remain imprisoned, including some who were literally children at the time of their arrest, more than five years ago.� Worse still, there is now the very real prospect that, after years in secret detention, up to six detainees will be convicted by the US Military, based on evidence obtained using torture, and put to death.”

View the Law Council's media release >

27 February 2008

Anti-spiking amendment to the Crimes Act

Wed Feb 27 2008

The�Crimes Amendment (Drink and Food Spiking) Bill 2008 has been introduced into the Legislative Assembly. The�object of this Bill, as provided in the explanatory notes, is to amend the Crimes Act 1900�to create a new summary offence of spiking a person’s drink or food with an intoxicating substance with intent to harm the person (maximum penalty 2 years imprisonment or $11,000 fine, or both), and�to ensure that other more serious related offences apply to the use of intoxicating substances (namely, using intoxicating substances to commit indictable offences, to endanger life, to inflict grievous bodily harm or to injure or cause distress or pain).

View the Bill>

29 February 2008

Premier Iemma

Wed Feb 27 2008

New South Wales Parliament resumed yesterday.�In the�Legislative Assembly there was a ministerial statement from Premier Morris Iemma on the�Australian Parliament's apology to the Stolen Generations�as well as�a response from the leader of the opposition. Learn more>

27 February 2008

Bureau of Crime Statistics launches report on alternatives to custodial sentences

Wed Feb 27 2008

The Bureau of Crime Statistics and Research has announced the findings of its research on rates of imprisonment and alternatives to custody in regional New South Wales. In�today's media release, BOCSAR said�that "contrary to popular wisdom, offenders in the inner, outer, remote and very remote regional areas of NSW, were less likely to receive a prison sentence than offenders in the inner metropolitan regions".

The report, published in Crime and Justice Bulletin�No111 (January 2008) addresses concerns that a shortage of alternatives to custody was resulting in higher imprisonment�rates outside metropolitan areas.

27 February 2008

Cases selected for reporting in NSWLR by the editor, Bret Walker SC

Wed Feb 27 2008

__The following four cases�will be headnoted, verified and published in a forthcoming volume of NSWLR.

Jessica Estates v Lennard [2007] NSWSC 1175 (Austin J) (22.10.07) (4500/2007)

R v Germakian [2007] NSWCCA 373 (CCA) (18.12.07) (5315/2006)

Keramianakis and Another v Regional Publishers Pty Ltd [2007] NSWCA 375 (CA) (21.12.07) (40545/2006)

Nationwide News Pty Ltd v Naidu and Another; ISS Security Pty Ltd v Naidu and Another [2007] NSWCA 377 (CA) (21.12.07) (40182/2006 & 40198/2006)

For further information, contact the Council of Law Reporting office: office@nswlr.com.au, ph 9266 0768

27 February 2008

2008 Bar Library Academy Awards Competition

Tue Feb 26 2008

The Bar Library has announced the winners of the 2008 Academy Awards Competition. It was a four-way tie:

  • Darren Jenkins, Queens Square Chambers
  • Natalie Adams, Crown Prosecutors' Chambers
  • Tess Santos, NSW Bar Association
  • Barrie Anthony, NSW Bar Association

In order to protect names and reputations, a�full list of the results will not be published. However, if you wish to know how you fared, contact the librarian via e-mail: lallen@nswbar.asn.au�

26 February 2008

�

Web watch: Legacy Tobacco Documents Library

Tue Feb 26 2008

The Legacy Tobacco Documents Library (LTDL) is maintained by the University of California, San Francisco. It contains more than eight million documents (43+ million pages) created by major tobacco companies related to their advertising, manufacturing, marketing, sales, and scientific research activities. View the web site >

26 February 2008

Legal profession calls for closure of Guantanamo Bay

Tue Feb 26 2008

The Australian Bar Association is among 34 legal professional bodies that have signed a letter to the president of the United States and the prime minister of Canada, calling upon them to close the prison facility at Guantanamo Bay immediately. View the letter>

26 February 2008

Bar Council business for November 2007 - February 2008

Mon Feb 25 2008

Life membership

The Bar Council resolved by acclamation that Michael Slattery QC, the association’s immediate past-president, be appointed a life member of the Bar Association for his exceptional service to the Bar Association and to the profession of the law.

Forbes Society Lecture

On 8 November 2007 the president introduced Mr Andrew Tink’s address at the annual Forbes Society Lecture.� Mr Tink spoke about his research on WC Wentworth which is to be published in the near future. The president advised that the event was very well attended and Mr Tink’s speech was interesting and entertaining.

Meeting with Attorney General John Hatzistergos

On 19 November the president and the acting executive director met with the attorney general.

New federal attorney-general

The president advised that the new federal attorney-general is the Hon Robert McClelland MP.� She had sent a letter of congratulations that afternoon.

The former NSW attorney general, the Hon Bob Debus MP had been appointed as minister for home affairs and territories which may include other legal areas.� The president commented that the appointment of Mr McClelland and Mr Debus was encouraging in terms of advancing public debate on a Charter of Rights.

The president also advised that she had received a letter of congratulations from Liz Broderick, the sex discrimination commissioner.�

Kirby portrait

On 19 November the president attended the unveiling of the portrait of Justice Michael Kirby at the NSW Court of Appeal. The event was well attended and Kirby J acknowledged the generosity of the Bar Association in relation to the portrait.

Law Council director’s meeting

On 1 December 2007 the president attended the Law Council of Australia directors’ meeting in Canberra.� The minutes have been circulated to all members of Bar Council by e-mail.��

2007 silks donation

On 11 December 2007 the president attended a function in the association’s Common Room to mark the handover of the 2007 silks donation of $67,000 to the Indigenous Literacy Project. The project is a partnership between the Fred Hollows Foundation and the Australian Book Industry. Their aim is to help raise urgently needed funds to improve literacy in remote Indigenous communities.� Speakers at the event included Gaby Hollows, David Gaunt from Gleebooks and the author Tara June Winch.

Funeral for the Hon Gordon Samuels AC QC

On 13 December the president attended the funeral for Gordon Samuels AC CVO QC, former governor of New South Wales, justice of the Supreme Court of New South Wales and president of the New South Wales Bar Association.�

Meeting with Liz Broderick, Commonwealth sex discrimination commissioner

The president met with Liz Broderick on 8 January.� Matters discussed included attracting women to come to the Bar, and retaining women at the Bar, and difficulties they faced such as child care and court hours.�

Meeting with Hugh Macken, president of the Law Society of New South Wales

The president advised that on 10 January she met with the president of the Law Society of NSW.

Law Reform Commission report: jury selection

On 9 January the president had released a media release ‘Bar Association Supports Improvements to the Jury System’ and given a number of media interviews in response to the public release of the LRC report ‘Jury Selection’.

Media training

The president advised that she and the senior vice-president undertook media training with Anna Grutzner of Fenton Communications on 15 January.� They both found it to be very useful.

Opening of the 2008 Law Term

On 29 January the president attended and spoke at the Catholic Mass and the Anglican Service for the opening of the 2008 Law Term. She would be attending the Jewish service on 1 February and the Greek Orthodox Service on 5 February.

High Court senior counsel bows ceremony and Australian Bar Association Dinner

The president, along with the immediate past president, senior vice-president and executive director, attended the bows ceremony for the 2007 silks at the High Court of Australia on 29 January 2008. They later attended the dinner hosted by the Australian Bar Association, at which Bathurst QC took over as president of the Australian Bar Association.

2008 Bench and Bar Dinner: 9 May 2008

The president advised the Bar Council that she had asked Jane Needham SC and Brad Hughes to be Ms Senior and Mr Junior respectively for this year’s Bench and Bar Dinner.� The guest speaker would be Justice Susan Kiefel.

Finance Investment and Audit Committee

The treasurer proposed that a new Finance, Investment and Audit Committee be established.� He suggested that the committee of five consist of the treasurer, two other members of the Executive and two members of the Bar Council.

The Bar Council discussed the proposal. The president asked that the senior-vice president represent her on the committee.�

The Bar Council agreed to the establishment the Finance, Investment and Audit Committee.� The Bar Council further agreed the new committee would be comprised of the senior vice-president, junior vice-president and treasurer, with the other Bar Council representatives being Healy and McHugh. Notice of committee meetings will be provided by the treasurer in advance, to enable any other interested Bar councillors to attend the meetings.

Legal Assistance Referral Scheme: use of mediation

The Bar Council discussed the memorandum on the Legal Assistance Referral Scheme.

The Bar Council resolved that:

1.�the information that LARS requires an applicant to provide in any application for legal assistance include whether or not the applicant is willing to mediate the dispute;

2.�any barrister advising LARS on whether a matter has reasonable prospects of success be required to consider whether mediation could assist in resolving the dispute and, if so, to make such a recommendation;

3.�the Bar Council, in considering whether it should exercise its discretion to provide referral assistance, consider whether mediation would be appropriate and the applicant’s willingness to mediate; and

4.�LARS be extended to permit clients who wish to mediate their dispute with the other party (whether or not litigation has already begun but subject to the existing requirement for assistance that litigation is at least foreshadowed) to seek the assistance of a barrister as a legal representative for the mediation and/or the services of a barrister as mediator.

District Court Rules Committee extraordinary meeting

The president proposed that the questions raised by the District Court Rules Committee be referred to the Criminal Law Committee.

The Bar Council agreed with the president’s proposal.

The year ahead

The president spoke to her memorandum and outlined some of the issues she would like to pursue during the next 12 months.

The Bar Council supported the president’s proposal to establish a working party on impaired barristers.� Bernie Coles QC offered to chair the committee, which should also include Ian Butcher, Helen Toner, a registered psychologist and Dr Michael Diamond, consultant psychiatrist.�

The Bar Council endorsed the president’s proposal to establish a working party to look at the relationship between the Bar and the community.� The council agreed that the members of this group would include Cunneen SC (chair), Ash, Traill, Fran�ois and Holz.

2008 CPD regional mini-conferences

The president spoke to the memorandum from the deputy director, professional development concerning non NSW barristers and regional solicitors attending CPD regional mini-conferences.� She advised that non NSW barristers are not be subsidised by NSW barristers.� The conference fees for this year will be:

NSW barristers and members��$140 Non-members����$200 NSW barristers and members��$170 (late registration) Non-members����$230 (late registration)

The Bar Council resolved to endorse these arrangements.

The Bar Council noted that the Professional Development Department was considering increasing the fees paid by solicitors so that they are more in line with the fees charged by the Law Society and its agencies for CLE conferences.

Delegation of Bar Council’s functions under the Legal Profession Act

Noting the provisions of clause 16 of Schedule 9 of the Legal Profession Act 2004, the Bar Council resolved under s52(2) of the Legal Profession Act 1987 to delegate to each of the Professional Conduct committees as constituted from time to time all functions which the council may exercise under Part 10 of the Legal Profession Act 1987 save and except for the function of making a determination under the Act under s155 and s155A of the Act.

Further resolved under s696(2) of the Legal Profession Act 2004 to delegate to each of the Professional Conduct committees as constituted from time to time all functions which the council may exercise under Parts 2.4 and Chapter 4 of the Act and under the Legal Profession Regulation 2005, save and except for the functions of making a determination under the Act to refuse to grant or renew, to suspend, cancel or impose conditions on a local practising certificate to practise as a barrister, the functions of making a complaint under Chapter 4, making a determination under s506, dismissing a complaint under s511, modifying a complaint under s535, making a determination under Part 4.5 and making a compensation order under Part 4.9.

Further resolved under s531A of the Legal Profession Act 2004 to appoint the executive director, the director, professional conduct and each of the deputy directors, professional conduct to be an authorised person for the purposes of Part 4.4 of the Act (Part 4.4 also applies to show cause events under Division 7 in Part 2.4 of the Act).

Further resolved under s696(2) of the Legal Profession Act 2004 to delegate to the executive director, the director, professional conduct and each of the deputy directors, professional conduct the powers and functions of the Bar Council to issue notices which may or are required to be issued under the Legal Profession Act 2004.

Further resolved to delegate to the executive director the powers granted to and the functions which the council may exercise under Part 2.4 of the Legal Profession Act 2004 and under the Legal Profession Regulation 2005 with respect to disclosures made under s55 of the Act by holders of practising certificates or disclosures made by applicants for renewal of practising certificates in respect of convictions for any offence, other than a serious offence or a tax offence, save and except for the powers of and functions of making a determination under the Act to refuse to issue, to cancel or to suspend a practising certificate as a barrister.

Further resolved to delegate authority to the executive director to approve, subject to consultation with members of the Executive and, where appropriate PCC chairs, financial and medical experts nominated by barristers for the purposes of financial management and/or medical conditions being attached to their practising certificates.

Further resolved, in respect of compliance with conditions attached to practising certificates, to delegate authority to the executive director to make determinations as to:

1.�whether time for compliance with a condition is extended;

2.�whether a barrister has satisfactorily complied with a condition; and

3.�whether the nature and extent of any non compliance with a condition is such that there is no requirement for it to be brought to the attention of the Bar Council.

Further resolved that in exercising these delegations the executive director consider whether before making a determination the matter should be discussed with a member of the Bar Council Executive, PCC chair or relevant financial and medical experts.

Further resolved that in respect of any applications for renewal of practising certificate 2008/2009, in respect of which applicants have not complied with continuing professional development requirements by 31 March 2008, the executive director, in consultation with the president where necessary, is authorised to issue a local practising certificate to such applicants with conditions 1 and 2 below attached pursuant to s50 (3) (a) (i) of the Legal Profession Act 2004:

1.�That the applicant undertake and complete all outstanding continuing professional development requirements by 30 June 2008.

2.�That the applicant, by 30 June 2008, provide to the executive director a statutory declaration confirming that the applicant has undertaken and completed all outstanding continuing professional development requirements for the year ended 30 June 2007 and providing details of such compliance.

NSW Barristers’ Rules: proposed amendments to the Rules in response to the request from the NSW Attorney General in connection with sexual assault matters.

The president spoke to the proposed amendments to the NSW Barristers’ Rules that had been prepared by the Criminal Law Committee.� The proposed amendments had been discussed with the attorney general.�

The Bar Council resolved to amend Rule 35, and add Rule 35A, as follows;

35.� A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barrister's advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a)� are reasonably justified by the material already available to the barrister;

(b) �are appropriate for the robust advancement of the client's case on its merits;

(c)�are not made in order to annoy, harass, intimidate, offend, oppress, humiliate or embarrass the person; and

(d) �are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

35A� A barrister must not ask a question or pursue a line of questions in cross-examination of a witness if the barrister is of the opinion that the question or line of questions:

(a) is misleading or confusing, or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive, or (c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate, or

(d) has no basis other than a stereotype (for example, a stereotype based on the witness’s sex, race, culture, ethnicity, age or mental, intellectual or physical disability).

For the purposes of this rule, the matters that the barrister is to take into account include:

(a) any relevant condition or characteristic of the witness of which the barrister is aware, including age, education, ethnic and cultural background, gender, language background and skills, level of maturity and understanding and personality, and

(b) any mental, intellectual or physical disability of which the barrister is aware and to which the witness is, or appears to be, subject, and

(c) the context in which the question is put, including:�

(i) the nature of the proceeding, and (ii) in a criminal proceeding—the nature of the offence to which the proceeding relates, and (iii) the relationship (if any) between the witness and any other party to the proceeding.

25 February 2008

Legislation to note: Consumer Claims Amendment Act to commence on 1 March 2008

Sun Feb 24 2008

The Consumer Claims Amendment Act 2007 has been proclaimed and will commence on�1 March 2008, as will the Consumer Claims Amendment Regulation 2008.�The object of the Act, as stated in the explanatory notes�is to clarify the jurisdiction and powers of the Consumer, Trader and Tenancy Tribunal relating to consumer claims.

View the proclamation�of the Act�> View the regulation>

25 February 2008

Cases selected for reporting in NSWLR by the editor, Bret Walker SC

Thu Feb 21 2008

__The following cases (16) will be headnoted, verified and published in a forthcoming volume of NSWLR.

Commonwealth of Australia v Griffiths and Another [2007] NSWCA 370 (CA) (14.12.07) (40260/2006)

John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364 (CA) (14.12.07) (40085/2007)

R v Stanford [2007] NSWCCA 370 (CCA) (20.12.07) (5102/2006)

For further information, contact the Council of Law Reporting office: office@nswlr.com.au, ph 9266 0768

21 February 2008