Government introduces the Vexatious Proceedings Bill 2008

Mon Jun 30 2008

The NSW Government introduced the Vexatious Proceedings Bill 2008 before parliament rose for the winter recess. View the Bill�and the parliamentary secretary's "Agreed to in Principle" speech on 26 June.

The objects of the Bill, as provided in the explanatory notes, are:

(a) to enact provisions (which are largely based on model provisions developed by the Standing Committee of Attorneys-General) that expand the power of the Supreme Court to make orders restricting proceedings by vexatious litigants, including provisions that enable the court: (i) to make such orders if satisfied that a litigant has frequently instituted or conducted vexatious proceedings, and (ii) to make such orders against persons acting in concert with vexatious litigants, and (iii) to make such orders in relation to proceedings instituted or conducted by litigants in tribunals as well as in courts, and (iv) to take into account, when making such orders, conduct in the courts and tribunals of other Australian jurisdictions, and (b) to confer comparable powers on the Land and Environment Court in relation to vexatious litigants in that Court and on the Industrial Court in relation to vexatious litigants in the Industrial Relations Commission, and (c) to repeal section 84 of the Supreme Court Act 1970 and section 70 of the Land and Environment Court Act 1979 and to make provision for matters of a savings and transitional nature consequent on the repeal of those sections.

30 June 2008

Reminder: amendments to the Barristers

Mon Jun 30 2008

The Council of the New South Wales Bar Association, on 22 May 2008, pursuant to its powers under section 702 of the Legal Profession Act,� resolved to amend the _New South Wales Barristers’ Rules _by adding Rules 35A and 35B. The amendments take effect tomorrow, 1 July 2008. A consolidated version of the Barristers' Rules is now available on the Bar Association web site. View the New South Wales Barristers' Rules>

30 June 2008

Afghan women lawyers: impressive, enthusiastic and deserving of our support

Mon Jun 30 2008

Last week the women silks hosted a function to welcome to Australia two young Afghan women lawyers, to increase awareness about the situation in Afghanistan and, most importantly, to raise money to support the women during their 18 month stay in this country.�The women are two of three women lawyers who are sponsored by UNIFEM to study here this year.�Their object is to use what they learn here for the betterment of their own people.� They are enthusiastic and optimistic.� They deserve our support and encouragement.

UNIFEM is the United Nations Fund for Women. UNIFEM Australia works with the IDP Peace Scholarship Trust of IDP Education to provide opportunities for young women to study at Australian Universities who have already contributed to peace and gender equality in their own country, and who have pledged to continue that commitment on their return.� Afghan women lawyers wishing to further their studies are amongst them.� Regrettably UNIFEM receives no government funding for this particular project.

Many of us complain about injustice and inequality in our own society.� We cannot begin to understand what life must be like as a woman in Afghanistan.

Most of us know little about Afghanistan.� What we know tends to be drawn from the mass media and the novels of Khaled Hosseini.�

Afghanistan’s official web site tells us that when you think Afghanistan you should imagine this:

Where 20 years of war has totally crippled the economy, and you must try to somehow survive day-by-day by scrounging enough food to feed your children.� Where people do not have the facilities to receive an education.� Where people do not have the facilities to receive treatment at hospitals.� Where, on average, men die at 40 years of age and women at 43.� Where hundreds of thousands of people are maimed, disabled, or blind because of war and land mines.� Where you face a high chance of becoming blind or crippled because of the lack of fresh fruit and vegetables, causing vitamin deficiency. If you are blind or crippled, no one can help you because those that are not blind or crippled need help as well.

According to the UN Office for the Coordination of Humanitarian Affairs:

  • 87% of Afghan women are illiterate and only 30% of girls have access to education.
  • one�in every�three Afghan women experiences physical, psychological or sexual violence.
  • every 30 minutes a woman dies in childbirth in Afghanistan.�
  • the average life expectancy for women is 44.
  • 70-80% of women are forced into marriage.

Our connection with Afghanistan began when UNIFEM Australia arranged for Kate Eastman and Michelle Hannon, now pro bono partner at Gilbert + Tobin, to contribute to a workshop of women lawyers and judges in Afghanistan who were providing input about women’s rights to the new Afghan constitution.� Kate and Michelle encouraged UNIFEM Australia to find ways to continue to build relationships with Afghan women lawyers.� The Peace Scholarship then came into being.� UNIFEM Australia aims to bring a total of ten women law students to study here.

For those who have not already made a donation I urge you to give as much as you can.� The project requires at least $21,500 per student.� That covers air fares and living expenses only.� They have been granted a scholarship to cover their accommodation and tuition fees�from Macquarie University.

Last year I met the 2006 scholarship winners, Marina Nawabi and Nasima Rahmani.� Marina was an undergraduate when she came and completed her law degree here.� Immediately on her return to Kabul she successfully secured funding through contacts she made here for a project she initiated to assist some of the many war widows. Nasima Rahmani is a young lawyer who graduated from the Faculty of Law and Political Science in Kabul University in December 2003.� It took Nasima 12 years to complete her law degree.� During the Islamic revolution the university was shut down for�three years.� When it reopened in 1995, most families did not send their girls back for fear that they would be kidnapped.�Human rights violations the like of which we never see in this country were commonplace.� Nasima rejoined the faculty in 1996 but later that year the Taliban came to power and for the next five years until they were overthrown women and girls were obliged to stay behind closed doors.

This isn’t just Nasima’s story, but the story of thousands of Afghan women. During the period of her deferred study Nasima taught in the women’s literacy campaign and also worked as a volunteer activist with the Afghan Women Lawyer’s Council, and as legal counsellor for women in conflict with the law in 3 provinces for the Afghan Women Judges’ Association.�

I was touched by their lives, their strength and their courage and their commitment to rebuilding their country.

The�two young women we met this year are Zohra and Haseena Akseer, aged respectively 23 and 24.� They are both studying for a masters degree in international trade law at Macquarie University.� They happen to be sisters.� They had the good fortune to be raised by enlightened and educated parents who during the rule of the Taliban sent them to live with a cousin in Pakistan so that they could receive a secondary education. They finished high school in 2000 and completed their undergraduate degree in 2005.� As Zohra herself has observed, living in a dominant male society like Afghanistan where women’s rights are frequently violated and nothing much has been done about that, thanks to the Peace Scholarship programme they have a chance to study – again in Zohra’s words – “in a place where both male and female have equal rights”.

These women are impressive.� They appear undaunted by obstacles we would regard as overwhelming.� Yet they need our financial help.� I encourage you to support them.� Donations are tax deductible.�

Download a donation form>

30 June 2008

Regional CPD Conferences: expressions of interest due this Friday

Mon Jun 30 2008

The New South Wales Bar Association will host five CPD conferences around New South Wales in February / March 2011. The conferences assist members of the Bar to obtain their annual CPD requirement. Full attendance at any of the conferences will attract 10 CPD points, covering the four strands required for the practising certificate year. The conferences will be located in Ballina, Newcastle, Orange, Parramatta and Sydney, and each conference will run on a Saturday from 8.00am – 6.00pm.

The Professional Development Department invites members to submit a one page outline of proposed papers, stating which of the four CPD strands would be covered: 1.�Ethics and Regulation of the Profession; 2.�Management; 3.�Substantive Law, Practice and Procedure, and Evidence; 4.�Advocacy, Mediation, and other Barristers’ Skills.

Those invited to speak will be limited to a one hour presentation. Please submit outlines to Jo Musumeci, Deputy Director, Professional Development, ( by 5.00pm on Friday 30 July.

27 July 2010

Practising certificate renewals: you cannot practise after 30 June 2008 without a PC

Mon Jun 30 2008

If you have not yet received your practising certificate you cannot practise on and from tomorrow 1 July 2008.� ‘Practise’ includes doing chamber work. Learn more>

The Bar Association still has not received a number of renewals from barristers it believes do intend to continue practising.� The Association also has a large number of renewals that cannot be processed as we have not received confirmation of insurance.� Although the insurers do send us lists of the names of those barristers with whom they have bound insurance, these lists are not always complete.

30 June 2008

Legislation to note: new family provisions legislation

Fri Jun 27 2008

The Succession Amendment (Family Provisions) Bill 2008 was introduced into the Legislative Council yesterday. The object of the Bill, as provided by the explanatory notes,�is to amend the Succession Act 2006 to ensure that adequate provision is made for members of the family of a deceased person, and certain other persons, from the estate of the deceased person and�to repeal the Family Provision Act 1982

View the attorney general's second reading speech>

27 June 2008

Diarise for Friday: retirement ceremony for the Hon Justice Roger Gyles AO

Fri Jun 27 2008

A ceremonial sitting will be held on Friday, 15 August 2008 to mark the retirement, from 22 August,�of the Hon Justice Roger Gyles AO as a judge of the Federal Court of Australia. The sitting will take place at 9.30am, courtroom 21A, Law Courts Building, Queens Square.

Tom Bathurst QC will speak on behalf of the NSW Bar and the Australian Bar Association.

12 August 2008

Federal Court swearing-in ceremonies

Fri Jun 27 2008

In August and September there will be ceremonial sittings, during which the following appointees will be sworn-in as judges of the Federal Court of Australia. President Anna Katzmann SC will speak on behalf of the New South Wales Bar.

Friday, 8 August 2008: Nye Perram SC Wednesday, 3 September 2008: the Hon Justice Jayne Jagot of the Land and Environment Court. Thursday, 4 September 2008: Lindsay Foster SC

Each�ceremonial sitting will take place at 9.30am in courtroom 21A, Law Courts Building, Queens Square.

27 June 2008

Speeches to note: effective international citizenship and commitments to international law

Fri Jun 27 2008

Attorney-General Robert McClelland delivered a speech yesterday at the Annual Conference of the Australian and New Zealand Society of International Law. He spoke of the importance of "effective international citizenship" and Australia's�responsibility to help shape "a stronger, rules-based order for the modern world".

In pursuit of this goal, the government would place a priority on�its commitment to human rights and to rebuilding a strong relationship with the UN. It will sign�the Optional Protocol to the Convention Against Torture,�the United Nations Convention on the Rights of Persons with Disabilities and the Optional Protocol to the Convention for the Elimination of Discrimination against Women.

View the attorney's speech>

27 June 2008

Haesler SC to replace Perram SC on Bar Council

Thu Jun 26 2008

Yesterday's In Brief announced the appointment of Nye Perram SC to the Federal Court of Australia. Pursuant to cl. 12.5.1 of the Bar Association Constitution, Andrew Haesler SC will replace Perram SC on Bar Council. It is expected that he will be appointed in time for the next Bar Council meeting on 3 July.

26 June 2008

Legislation due to commence

Thu Jun 26 2008

The Summary Offences and Law Enforcement Legislation Amendment (Laser Pointers) Act 2008 will commence on 27 June 2008. The Drug Court Amendment Regulation 2008 will commence on 30 June 2008.

Summary Offences and Law Enforcement Legislation Amendment (Laser Pointers) Act 2008

The objects of the Act are:

(a) to create an offence (maximum penalty $5,500 or imprisonment for 2 years, or both) of possessing or using, without reasonable excuse, a laser pointer in a public place, and

(b) to include laser pointers as dangerous implements within the meaning of the Law Enforcement (Powers and Responsibilities) Act 2002, and to give a police officer the power to frisk search a person in a public place if the police officer reasonably suspects the person has a laser pointer in his or her custody.

Drug Court Amendment Regulation 2008

The object of the Regulation is to amend the Drug Court Regulation 2005 by prescribing Hornsby Local Court as a court that may refer an eligible person to the Drug Court, and to amend a reference to section 8AA(1) of the Drug Court Act 1998, which has been repealed and replaced by section 7(1).

The Regulation is made under the Drug Court Act 1998, including sections 6(1), 7(1) and 32 (the general regulation-making power).

26 June 2008

Appointments in the Local Court and Victims Compensation Tribunal

Thu Jun 26 2008

The governor has approved the appointment or reappointment of the following as acting magistrates and as mining wardens for the period commencing on 1 July 2008 and expiring on 30 June 2009:

Robert Abood Peter Ashton Thomas Cleary Errol Considine OAM John Crawford Michael Dowd Kevin Flack Charles Gilmore Graham Johnson Brian Lulham Michael Mahony Kevin Maughan George Miller Peter Norton David O'Connor Michael Price Harley Rustin Mark Shepherd James Swanson George Zdenkowski�

The governor has also approved the reappointment of Cecil Brahe as an acting magistrate, mining warden and part-time member and chairperson of the Victims Compensation Tribunal, effective�1 July 2008 - 22 March 2009.

Thomas Cleary and Charles Gilmore have been reappointed as part-time members of the Victims Compensation Tribunal, effective 1 July 2008 - 30 June 2009.

Michael Dowd and George Miller have been reappointed as industrial magistrates,�effective 1 July 2008 - 30 June 2009.

Magistrate Andrew George has been appointed as an acting magistrate and as a mining warden, effective 19 July 2008�- 30 June 2009, following his retirement as a magistrate�on�18 July 2008.

26 June 2008

Recent House of Lords decisions

Thu Jun 26 2008

Get your Bar Association photo ID card

Thu Jun 26 2008

Members of the Bar Association�are entitled to�a complimentary photo identification card - but this offer will expire on 31 July.�Production of a card identifying the holder as a barrister and member of The New South Wales Bar Association provides sufficient identification for professional visits to inmates at NSW correctional centres. This card can also be used in the association’s library to borrow and photocopy items. The card is valid from�1 July 2008 to 30 June 2009.

Download an application for an ID card>

Hurry! After 31 July applications for a photo ID card will incur a�$15 charge.

Members without an identification card should make an appointment with reception on ph: (02)�9232 4055 or to have their photograph taken.�

10 July�2008

A practising certificate: don

Wed Jun 25 2008

The Bar Association�has a large number of practising certificate renewals�that cannot at this stage be processed as we have not received confirmation of insurance. If you have not yet received your practising certificate, please contact�us�immediately�as you will not be able to practise after 30 June. Learn more>

25 June 2008

Australian Government to allow de facto couples access to federal family law courts

Wed Jun 25 2008

The�Australian Government has today introduced legislation to allow for de facto couples to access the federal family law courts on property and maintenance matters. The Family Law Amendment (De Facto Financial Matters and Other Measures) Bill 2008 will apply to de facto relationships that break down after the amendments commence in the states that have referred power to the Commonwealth and in the territories. View Mr McClelland's media release�and second reading speech>

The legislation has been welcomed by the Law Council of Australia and NSW Attorney General John Hatzistergos.

25 June 2008

Bar Council business for 22 May 2008

Wed Jun 25 2008

Matters reported elsewhere in In Brief are omitted from this summary of Bar Council business. Bar Council regularly considers requests by the attorney general, the courts and other agencies for advice on proposed legislation. Because that advice is sought on a confidential basis, it is not noted in this summary. Any member interested in a particular matter should contact either the relevant member of Bar Council or the executive director for further information.

Swearing-in of Justice Rein

The president reported that she spoke at the swearing in of His Honour Judge Nigel Rein SC as a justice of the Supreme Court of NSW on Monday, 5 May.�

Funeral of Alex Clout

The president and executive director had attended the funeral of Alex Clout on Tuesday, 6 May.� The attorney general was also in attendance.

Bench and Bar Dinner

The dinner was held on Friday, 9 May.� The president advised that she had received a large number of complimentary remarks about the evening. The interstate guests particularly had spoken of their enjoyment of the event.�

The Bar Council recorded their thanks to Katie Hall and Chris D’Aeth of the Bar Association staff for their enormous effort in making the dinner such a success.

Funeral of Brian Donovan

The president advised that she attended, read a lesson and sang in the choir at the funeral for his Honour Judge Brian Donovan QC on Monday, 12 May.� The executive director and many members of the Bar Council also attended.

Swearing-in for their Honours Len Levy S and Michael Elkaim SC

The president and executive director attended the swearing-in of Leonard Levy SC and Michael Elkaim SC as judges of the District Court of New South Wales on Thursday, 15 May. The attorney general spoke on behalf of the Bar.

Practicing certificate renewals

The executive director advised that 2107 practising certificate renewal notices had been issued. Four requests for fee waiver had been received, which he would discuss with the treasurer.

Commonwealth legal services purchasing

On Wednesday, 21 May the executive director and Slattery QC had attended a discussion seminar held by the Commonwealth Attorney-General’s Department on Commonwealth legal services purchasing.� The department is very of the need for the Commonwealth to brief equitably, and the cost savings that can be achieved by direct briefing of the Bar in some circumstances.� The executive director was working with Slattery QC on a submission to the department on its proposed common form package which is intended for mandatory use by Commonwealth agencies when tendering for legal services

Judicial appointments

The executive director advised that he had participated in a meeting of the Law Council’s Judicial Appointments Working Party. The executive director and Bathurst QC, in his role as president of the Australian Bar Association, were to meet on 23 May with Ken Martin SC, chair of the Law Council’s working party to discuss, in particular, the suggestion that the LCA should press for a federal judicial appointments commission.

New South Wales Barristers’ Rules, proposed amendments to 35 and 35A

The senior vice-president, as chair of the Rules Committee, advised that the revised proposal for amendment to the New South Wales Barristers’ Rules had been circulated to the Bar.�� The Rules Committee had met and considered the comments which had been received.� The SVP also advised that a formal advice had been obtained from Walker SC as to whether making the proposed Rules 35A and 35B to be added to the New South Wales Barristers’ Rules� would be a valid exercise of the council’s rule making power.

There was a lengthy discussion of the comments that had been received, including whether the rule was in any form discriminatory and what commitments, if any, had been given to the attorney general.

The Bar Council resolved to amend the New South Wales Barristers’ Rules by adding Rules 35A and 35B as follows:

35A. �Without limiting the generality of Rule 35, in proceedings in which an allegation of sexual assault is made and in which the person who is alleged to have been assaulted gives evidence:

(a) A barrister must not ask that witness a question or pursue a line of questioning of that witness which is intended: (i) to mislead or confuse the witness; or (ii) to be unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive.

(b) A barrister must take into account any particular vulnerability of the witness in the manner and tone of the questions he or she asks.

35B. �A barrister will not infringe Rule 35A merely because:

(a) the question or questioning challenges the truthfulness of the witness or the consistency or accuracy of any statements made by the witness, or

(b) the question or questioning requires the witness to give evidence that the witness could consider to be offensive, distasteful or private.

The Bar Council approved the draft letter to the attorney general.

The executive director advised that a note explaining the Rule change would be sent out with the new practising certificates and in In Brief.� Details would also be posted on the Bar association’s web site.

Selection criteria for judicial appointments

The Bar Council resolved to send the draft reply to the attorney general once the footnotes were incorporated into the body of the letter.

The future involvement of the Australian Bar Association (ABA) in advocacy training

The senior vice-president, who is president of the Australian Bar Association, explained that the ABA had in the past twelve months conducted two very successful advocacy courses, one in Perth and one in Sydney. A significant part of this work had been undertaken by Greenwood SC, with help from individual Bar Associations. Greenwood SC is the chair of the ABA’s Advocacy Training Council.� The ABA Council was looking for two barristers from each constituent body to become members of the council.� An immediate role of the council was to consider the viability of an on-going national advocacy training program and a possible structure for the management of that program.

The Bar Council resolved that the Executive nominate two qualified association members to the Advocacy Training Council.

Recommendation to the Bar Council that the NSW Bar Association become a Registered Mediation Accreditation Body

The president spoke to the memorandum from the Alternative Dispute Resolution Committee.� She noted that registration would be at no cost.� The Bar needed to be active in developing a major mediation presence.

The Bar Council resolved that;

1.�That the Bar Council declare the NSW Bar Association to be a Recognised Mediator Accreditation Body under the Australian National Mediator Accreditation System Standards. .� 2.�That the Bar Association impose the following requirements for accreditation in addition to those stipulated by the standards:

(a)�All accredited mediators hold a NSW barrister’s practising certificate and the required professional indemnity insurance;

(b)�all accredited mediators be required to have five years experience as a legal practitioner before accreditation; and

(c)��those mediators who apply for accreditation other than as ‘experience qualified’ mediators demonstrate that they have achieved at least the 10 points of mediation experience as outlined in the current criteria for appointment.

3.�That only barristers who are accredited under the standards be selected for the District Court and Supreme Court mediators panels, subject to those barristers also having at least the experience as mediators that has been required in the past for inclusion on the panels.

4.�That, as accreditation under the Standards is for a period of two years and selection of mediators for the District and Supreme Courts lists of mediators are also for two years, applications for accreditation are made at the same time each year as the applications for selection for the court panels (that is, for the District Court panel in September 2008 and for the Supreme Court panel in September 2009).

5.�That the Bar Association use application forms substantially in the form of Annexures A and B to the committee’s paper of� recommendation as the application forms for ‘experience qualified’ mediators and new mediators, and for applications for selection for the District Court list of mediators.� The criteria for selection are still to be finalised.

6.�That the committee set up a mentoring scheme for barrister mediators.

The council recorded its appreciation of the work by the ADR Committee and the association’s project officer, Ms Kim Kemp, in developing this proposal

The Soqosoqo Duavata ni Lewenivanua (‘ United Fiji Party’ / SDL)

The Bar Council noted the correspondence from Mr Laisenia Qarase, leader of the SDL Party in Fiji,� expressing the party’s gratitude, and the gratitude of many other people in Fiji,� to Perram SC and Pepper for ‘answering our call for help in mounting a court challenge against the legality’ of the military regime. Their standing ‘ by those who are oppressed and denied their rights by the perpetrators of the military take-over, and those in league with them’ was ‘consistent with the finest traditions’ of the legal profession.

25 June 2008



City of Sydney panel of barristers: expressions of interest sought

Wed Jun 25 2008

The City of Sydney invites expressions of interest from suitably qualified and experienced barristers for the provision of advocacy and advice by barristers at the New South Wales Bar. To ensure that counsel are engaged on a fair, equitable and transparent basis Council is seeking to establish a panel of barristers interested in this work. Barristers at all levels of seniority are encouraged to apply. Learn more>

25 June 2008

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

Wed Jun 25 2008

The following four cases will be published in a forthcoming volume of NSWLR.

R v Blundell [2008] NSWCCA 63 (Grove J, Hulme J and Simpson J) J C Equipment Hire Pty Ltd v The Registrar of the Workers Compensation Commission of NSW and Another [2008] NSWCA 43 (Tobias JA, Campbell JA and Bell JA)

Miltonbrook Pty Ltd v Westbury Holdings Kiama Pty Ltd [2008] NSWCA 38 (Spigelman CJ, Tobias JA and Campbell JA) Lennard v Jessica Estates Pty Ltd [2008] NSWCA 121 (Tobias JA, McColl JA and Bell JA)

For further information, please contact the Council of Law Reporting office:, phone 9266 0768.

25 June 2008

Statement of Status for admission to another jurisdiction

Tue Jun 24 2008

When a person moves their principal place of practice to another state/territory/country, they may be required to provide a Statement of Status from all jurisdictions in which they are admitted. The Bar Association provides such a statement to any practitioners (current and former)�on request. There is no charge for members of the association, but a $55 fee applies to non-members even if they hold a current practising certificate.

The relevant order form is available from the Bar Association’s reception. Applicants should be aware that it can take up to three days for all the searches to be conducted and should therefore not leave their request until the last minute.

24 June�2008