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MYEFO A Missed Opportunity To Address Chronically Underfunded Family Courts

Mon Dec 17 2018

Message from President Tim Game SC

The Federal Government has today announced it will provide $3.7 million over four years for an additional judge and support staff to hear family law case appeals under the Government’s proposed restructure of the federal courts, as part of the Mid-Year Economic and Fiscal Outlook ("MYEFO")

The Government’s proposed legislation to restructure the federal courts and in effect abolish the specialist family court is currently the subject of an inquiry by the Senate Legal and Constitutional Affairs Legislation Committee. The Association acknowledges that reform of Australia’s family law system is required. However, the Association has consistently said it is critical that there be informed consideration of viable alternatives. Many of the Bills’ purported goals, such as the reduction of delays and achieving efficiencies within the family law system could be achieved without legislation through the creation of consistent court rules using existing rule-making powers, and through a significant funding and resource commitment from government into the family law system and legal aid. Today’s MYEFO falls well short of such a commitment.

The Federal Government’s funding announcement does not address the inadequate resourcing of the family law jurisdiction. It also pre-empts the current Senate Committee Inquiry into the Government’s proposed restructure of the jurisdiction and overlooks the concerns that have been expressed by the New South Wales Bar Association and other organisations regarding the proposal.

The Junior Vice-President of the Association, Michael McHugh SC, and the Chair of the Association’s Family Law Committee, Michael Kearney SC, appeared before the Senate Inquiry last week to give evidence. In a comprehensive submission to the Inquiry the Association said that:

"There is much frustration with Australia’s current family law system. Experience in NSW tells us a primary contributor to that frustration has been the fact that family law has been adversely affected by a chronic lack of funding and resources in both the Federal Circuit Court and Family Court in all registries, resulting from an absence of commitment by successive Governments to the proper funding of the system. These resources include not only an insufficient number of judicial officers to deal with an expanding jurisdiction and increasing workload, but also insufficient funding to maintain counselling and assessment services previously provided by the Courts."

The Bills disregard the advice of the Chief Justice of the Family Court, the Honourable John Pascoe AC CVO, that “many of the difficulties apparent with the system, and particularly with the Family Court, can be solved by an injection of funds, and particularly into legal aid.

The Association does not dispute that Australia’s family law system requires reform as the system is not serving the best interests of Australian children and families as well as it could or should. However, the Association believes that a specialist family court should not be disassembled without informed consideration of alternative options, including improved resourcing and the introduction of common rules and case management practices which could be implemented without the need for legislation, as well as other restructuring alternatives. In any event, even if the Bills proceed, to create meaningful reform, there must be a significant funding and resource commitment from government.

The Association’s recommendations to the Inquiry included that “Before any restructure, there should be a review into the resources given to all federal courts and their practices to ascertain what the courts require to ensure litigants are not further disadvantaged by delays.

AHRC Human Rights Awards

Fri Dec 14 2018

The Hon Peter McClellan AM QC and Chrissie Foster were awarded the Human Rights Medal at the Australian Human Rights Commission’s Human Rights Awards today. The Human Rights Medal is awarded to an individual who has made an outstanding contribution to the advancement of human rights in Australia.

Professor Andrew Byrnes, a member of the New South Wales Bar Association and a member of the Association’s Human Rights Committee, won the Law Award. The Law Award is awarded to an individual or an organisation with a track record in promoting and advancing human rights in Australia through the practice of law.

More information is available here.

Australian Bar Association (ABA) international conference in Singapore: Convergence 2019

Fri Dec 14 2018

The Australian Bar Association (ABA) will host their biennial international conference in Singapore: Convergence 2019, 11 - 12 July 2019. More information is available here.

  • Sponsored by Singapore Airlines: 16-25% off best available Economy, Premium Economy, Business and First-Class fares for delegates and their families
  • Staying and conferencing at the Andaz Singapore (Hyatt)
  • Gala dinner: Fullerton Bay Hotel’s Clifford Pier
  • There will be excellent Partner and half-day Family Programmes available
  • Return flights to Singapore and beyond: Europe, America, Asia
  • The first 100 passengers flying on Singapore Airlines will receive a status match for eligible Gold Frequent Flyer delegates who can become KrisFlyer Elite Gold members.
  • For quotes and to book: email mice@spencertravel.com.au
  • Lower fare levels already booking out!

[2018] (Summer) Bar News is available online

Fri Dec 14 2018

The Summer 2018 edition of Bar News is out now, featuring articles on blockchain and cryptocurrency, artificial intelligence and the courtroom of the future. There's the usual mix of opinions, news and recent developments and legal history. An interesting mix of books, movies and podcasts are reviewed and Bullfry examines 'the overriding purpose'. Bar News will land in postboxes next week, but you can read it online here.

2019 Regional Conference Series

Fri Dec 14 2018

Registrations are OPEN for the New South Wales Bar Association 2019 Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here.

  • Saturday, 23 February 2019 - Newcastle
  • Saturday, 2 March 2019 - North Coast Ballina
  • Saturday, 9 March 2019 – Orange
  • Saturday, 23 March 2019 - Parramatta
  • Saturday, 30 March 2019 – Sydney

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place, please click on any of the "Register Now" buttons located on the dedicated 2019 Regional Conference Series website.

Further speaker details will be made available over the coming weeks. These will be advertised in In Brief as well as on the NSW Bar Association Website.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

Fairfax & Roberts Christmas pop up gift shop - TODAY

Fri Dec 14 2018
REMINDER - from 12-2pm today

Need to buy a last minute gift?

Fairfax & Roberts will be hosting a Christmas pop up gift shop exclusive to all Bar Association members and staff.

There will be a specially curated selection of men’s and women’s jewellery ranging from $50 all beautifully packaged in a velvet pouch and gift box.

In addition 10% of all sales on the day will be donated to Minds Count Foundation.

Please join us this Friday 14th December from 12pm-2pm in the Bar Common Room on Lower Ground Floor of 174 Phillip Street and enjoy a complimentary jewellery clean while you browse the collections. For more information click here.

All cards and cash accepted.

Five new Magistrates for Local Court of NSW

Wed Dec 12 2018

Attorney General Mark Speakman today announced the appointments of barrister Miranda Moody and solicitors Greg Elks, Ian Rodgers, Fiona McCarron and Stephen Olischlager as Local Court magistrates.

“The five new magistrates have combined legal experience of 114 years, with much of it gained in the Local Court,” Mr Speakman said. A copy of their biographies is available here.

The five new magistrates will fill vacant positions. The NSW Government has announced an additional two magistrates’ positions will be created next year as part of a $4.1 million package to deal with an increase in criminal matters after the Royal Commission into Institutional Responses to Child Sexual Abuse.

A full copy of the media release is available here.

Toolkit for In House Counsel

Wed Dec 12 2018

The Practice Development Committee has developed a range of precedents to assist In House Counsel in briefing the bar direct. The “In House Toolkit” can be found here. The PDC acknowledges Victoria O’Halloran’s work in bringing this project to fruition. The Toolkit Templates were launched at the Association of Corporate Counsel National Conference in November 2018 and have been very well received.

At the Conference the Association ran the popular NSW Bar Barista station staffed by our indefatigable clerk representatives (Michele Kearns, Paul Walker and Angela Noakes) who were on hand to demonstrate the Toolkit and the Find a Barrister function. A full report on the bar’s involvement at this year’s ACC National Conference will appear in Bar News in early April 2019.

The Toolkit templates comprise:

  • Observations to counsel
  • Index to brief to counsel
  • Chronology of events - factual
  • Chronology of events - court or tribunal proceedings
  • Checklist for preparing a brief to counsel

The Toolkit templates have been designed with the interests of in house counsel in mind, but are equally applicable to solicitors who are seeking to brief counsel. Members are encouraged to bring the Toolkit templates to the attention of clients, solicitors and in house counsel. Any suggestions for improvement to the Toolkit templates are welcome - please contact the Association’s Deputy Executive Director Alastair McConnachie here.

Commercial Law Section

Wed Dec 12 2018

The Commercial Law Section is calling for suggestions for talks for 2019. Please send any topic suggestions to the Secretary of the Commercial Law Section, Sera Mirzabegian.

A reminder that the Commercial Law Section will hold the 2019 Bathurst Lecture, named in honour of the Hon T F Bathurst AC, chief justice of NSW, at 5.00pm on Wednesday, 6 March 2019 in the Banco Court. The 2019 Bathurst Lecture will be delivered by Graham Bradley AM, former president of the Business Council of Australia and a senior Australian company director.

Robyn Rankin painting for sale

Wed Dec 12 2018
Barristers Classifieds

For sale: an original Robyn Rankin acrylic on canvas artwork (‘At the Law Courts’) commissioned in 2004 by Sydney solicitor Jason Macarthur.

The work is 120cm x 132cm. Jason has recently relocated to London, and has reluctantly decided this work deserves a new home. Rankin’s work is joyful and distinctive. ‘At the law courts’ conveys Rankin’s unique lens on the law in society, and would be a fantastic addition to chambers.

Amendments to Uniform Civil Procedure Rules

Tue Dec 11 2018

On 3 December 2018, the Uniform Rules Committee approved Amendments No 87 and 88 to the Uniform Civil Procedure Rules.

Amendment No 87:

The amendment is to rule 39.39A.

This rule sets out when a garnishee is not obligated to pay an amount to judgment creditor. The amendment increases the minimum amount in credit to a judgment debtor before a garnishee order may operate to incorporate the minimum account balance specified by section 118A of the Civil Procedure Act 2005. Please note that the amendment commenced and was published on the NSW Legislation Website on 7 December 2018. Attached here is a copy of amendment number 87.

Amendment No 88:

The amendment creates rule 7.4.

The rule makes provision for an unincorporated organisation to appoint an entity to act as the proper defendant in proceedings for a civil claim arising from abuse against a child.
Please note that the amendment was published on the NSW Legislation Website on 7 December 2018 however has not yet commenced. The rule will commence on the day on which Division 4 or Part 1B of the Civil Liability Act 2002, as inserted by Schedule 1 [4] to the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 commences. Please advise by return email if you would like for me to notify you of the commencement date when it is available.
Attached here is a copy of amendment number 88.

UCPR form 162

The Uniform Rules Committee has approved the creation of UCPR form 162 to provide an approved form for consent to be provided by a proper defendant acting for an unincorporated organisation. Version 1 of form 162 will be published today at www.ucprforms.justice.nsw.gov.au. Attached here is a copy of the form.

A generous donation from the silks of 2018

Tue Dec 11 2018

In keeping with a long-standing tradition, the 2018 silks have this year made generous donations to the following two charities, $34,000 to Gunawirra and $52,500 to Weave Youth & Community Services.

Gunawirra

The primary role of Gunawirra is the design of unique, innovative and transformational programs. These models of excellence are fully evaluated to empower young Aboriginal parents with children aged 0-5 years to intervene in their own lives, breaking the life cycle of suffering caused by loss of country, community, culture and family.

Gunawirra works in targeted areas of Sydney's inner and outer suburbs, Gunawirra provides highly specialised programs that have the immediate purposes of prevention and early intervention for the protection of the infant, child and family unit.

Gunawirra creates projects, programs, booklets across NSW preschools. It provides training, consultation and emotional support to Aboriginal and non aboriginal preschool teachers and workers in Aboriginal community areas.

Weave Youth and Community Services

Weave is a not-for-profit organisation that provides a way up and a way forward supporting children, young people, families and communities facing complex situations.

Weave offers a diverse range of programs which have been designed to help tackle issues related to poverty, drugs, alcohol and mental health, homelessness, domestic violence, family breakdown and isolation.

These grants make a real difference in assisting these wonderful organisations and we thank the Silks of 2018.

Appointment of Ms Patricia Henry - Supreme Court of New South Wales

Tue Dec 11 2018

Ms Patricia Henry has been appointed a Judge of the Supreme Court of New South Wales.

A formal ceremony to mark this occasion will be held in Banco Court, on Level 13, at 9:15 AM on Wednesday, 30 January 2019. The ceremony will be notified in the Law List on Friday, 25 January, Tuesday, 29 January and Wednesday, 30 January 2019.

Members of the Bar are welcome to attend.

Bench and Bar v Solicitors Golf Day

Tue Dec 11 2018
Bar sports

The annual Bar and Bench v Solicitors Golf Day returns to Manly course on Thursday, 24 January 2018. The event will be the usual Two – ball Stableford. The cost for the day is $170.00 per person including dinner. (No discount for Golf only. Manly members pay $80.00). Further details contact Dennis Flaherty on 9233 3517 (mobile 041 601 5623), Paul Bolster (0414 878 946) or John Newnham solicitor on 9264 7788. Download an acceptance form here.

The 35th Great Bar Boat Race - Get your entries in!

Tue Dec 11 2018
Bar sports

The 35th Great Bar Boat Race will be held on Monday, 17 December 2018 beginning in the vicinity of Shark Island at 11.00am and finishing at Store Beach. All barristers, judges and solicitors, practising or retired are welcome to take part. Please get your entry documentation into race organisers as soon as possible. All enquiries should be addressed to Adrian Gruzman on 0400 22-2211 or adrian@gruzman.com.au. The Notice of Race is available here.

NSWBA and AAI Train the Trainer Workshop

Tue Dec 11 2018
Call for Expressions of Interest

The NSW Bar Associations Professional Development Department is looking for Advocacy Coaches to assist twice yearly with the Bar Practice Course. The coaching is undertaken between 4.30pm and 6pm on selected weeknights (over a two week period) when the course is being conducted. To encourage barristers to participate we will be running a ‘Train the Trainer’ workshop in conjunction with the Australian Advocacy Institute in February 2019. The workshop aims to improve the standards of advocacy throughout Australia. It provides a forum in which ideas and experience in advocacy and advocacy training maybe shared and developed.

ADVOCACY COACHING

The NSW Bar Practice Course is the entry point to our profession and forms the basis of Readers first year of practice, and indeed for the whole of their careers at the Bar. It gives Readers an opportunity that they will have only once in their professional careers: senior members of our profession will dedicate their time over a period of one month to teach, share knowledge and experience, and act as peers and mentors in the pursuit of professional excellence.

The role of the advocacy coach is an integral part of the Bar Practice Course. The coaches can, and do, have a huge impact on these new members of the Bar. Advocacy coaches inspire, motivate and encourage Readers in a respectful, supportive, professional and shared endeavour. Coaches provide insight and feedback to both the Readers and the Course Director. Equally importantly, coaches are required to practically demonstrate what they are teaching. Through this, Readers are able to see their coaches as highly competent and genuinely interested in assisting them to improve. It is a mutual relationship of professional respect and trust. Participating in the Bar Practice Course as an Advocacy Coach is a perfect opportunity to give back. It is an important contribution to the profession and the personal benefit of instructing is the improvements of one’s own advocacy skills. Equally, it is an excellent opportunity to remind oneself of best practice at the Bar as an advocate.

ELIGIBILITY

All Barristers with a reasonable amount of experience in whatever jurisdiction, are encouraged to complete the expression of interest form. Ideal candidates will:

  • Have continuously held a New South Wales barristers’ practising certificate or a practising certificate of another Australian jurisdiction for not less than seven years
  • Be a full-time practising New South Wales barrister
  • Be able to commit to a minimum of two evening advocacy sessions (4.30 pm – 6 pm) per Bar Practice Course (May and September)

Successful applicants will be invited to attend, free of charge, the Train the Trainer workshop on Saturday 16 February 2019, 9.00am – 5.00pm, Family Court of Australia, 97-99 Goulburn Street, Sydney. Please note, an Introductory Session will also be held on Friday 15 February 2019, 5.00pm – 7.00pm, NSW Bar Association Common Room.

HOW TO APPLY

Please complete the ‘expression of interest form

**Please note, completion of the form does not imply that a place on the course is guaranteed.

2019 Personal Injury/Common Law Conference

Tue Dec 11 2018

Registrations OPEN for the 2019 Personal Injury and Common Law Conference, which will be held at the Sheraton Grand Sydney Hyde Park on Saturday 16 March.

The conference offers 5 CPD points.

The conference runs from 9:00am to 3.00pm. Morning tea and a stand-up buffet lunch will be provided. For more details about the conference and the costs involved please click here.

Registrations are open to NSW barristers that currently hold a practising certificate and places in the conference are strictly limited. To register and pay to secure your place, please click on any of the "Register Now" buttons located on the dedicated 2019 Personal Injury & Common Law Conference website.

A detailed program will be made available over the coming weeks. The program will be advertised in In Brief as well as on the NSW Bar Association Website.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department (9223 4919 or cpd@nswbar.asn.au).

2019 Regional Conference Series

Tue Dec 11 2018

Registrations are OPEN for the New South Wales Bar Association 2019 Regional CPD Conferences. For more details about each venue, speakers and the costs involved please click here.

  • Saturday, 23 February 2019 - Newcastle
  • Saturday, 2 March 2019 - North Coast Ballina
  • Saturday, 9 March 2019 – Orange
  • Saturday, 23 March 2019 - Parramatta
  • Saturday, 30 March 2019 – Sydney

The conferences are run by registration only and places in each conference are strictly limited. To register and pay to secure your place, please click on any of the "Register Now" buttons located on the dedicated 2019 Regional Conference Series website.

Further speaker details will be made available over the coming weeks. These will be advertised in In Brief as well as on the NSW Bar Association Website.

For any questions about CPD requirements, conferences or the general CPD program, please contact the Professional Development Department on 02 9232 4919 or via e-mail cpd@nswbar.asn.au

For the diary: 2019 CLANT Bali Conference

Mon Dec 10 2018

The Criminal Lawyers Association of the Northern Territory (CLANT) will host its 17th biennial criminal law conference on 22 to 29 June 2019 at the Hyatt Regency Sanur (formerly The Bali Hyatt). Keynote Speaker will be George Georgiou SC.

The "Bali Conference" as it is known, was launched back in 1987 at the Sanur Beach Hotel by Darwin criminal practitioners. Keynote speakers have included, among others, Michael Kirby AC CMG, Sir Anthony Mason AC KBE CBE QC, Justice Lex Lasry AM QC, Julian Burnside AO QC, Ian Barker QC, Robert Richter QC, Noel Pearson, and Major Dan Mori. Learn more here.

Australia's unfinished human rights business

Mon Dec 10 2018

The Law Council has marked the 70th anniversary of the Universal Declaration of Human Rights by calling for Australia to adopt a national Human Rights Act. The president of the LCA, Morry Bailes, noted that Australia was one of eight states whose delegates drafted the UDHR, yet "Australia is now the only Western democracy without a national Human Rights Act or bill of rights". View the Law Council's full media release here.

Advising an accused on whether or not to testify

Mon Dec 10 2018

The attention of members is drawn to the recent judgment of the Western Australian Court of Criminal Appeal in Jeffery v The State of Western Australia [2018] WASCA 219, dealing with the obligations on defence counsel with respect to advising an accused person on whether or not to testify in his or her defence. It was held that the appellant suffered a miscarriage of justice because of the inadequate advice given to him by his legal advisers regarding the advantages and disadvantages of testifying as well as the timing of the advice (at the beginning of the defence case). View the case here.

CDPP revised National Letter of Engagement to Counsel

Mon Dec 10 2018
Message from President Tim Game SC

Following representations from the New South Wales Bar Association to the Commonwealth Director of Public Prosecutions (CDPP), correspondence has now been received from the CDPP stating that they have reconsidered their policy in relation to the payment of fees during jury deliberations and propose to adjust their National Letter of Engagement. Counsel will now be remunerated by way of a full daily fee throughout jury deliberations, for each day of deliberations, regardless of whether counsel attends court. This decision is effective immediately.

Members may view a copy of the CDPP’s correspondence to the Bar Association here.

The issue of CDPP counsel rates is the subject of ongoing consideration by the CDPP and of discussions with the New South Wales Bar Association and the Law Council of Australia. Members will be kept informed of developments in this regard.

If members have any questions please contact Alastair McConnachie at amcconnachie@nswbar.asn.au

State Coroner Les Mabbutt to return to the Local Court

Fri Dec 07 2018

The Hon Mark Speakman SC MP had advised via media release that State Coroner Les Mabbutt will leave the position on Friday, 14 December at the end of this year’s Law term. He will return to the bench of the Local Court at the end of January 2019.

Deputy State Coroner Teresa O’Sullivan will be appointed to act as State Coroner until a permanent appointment is made in due course.

A full copy of the media release is available here.

Changes to wills of people in same sex marriages

Fri Dec 07 2018

A Bill to make changes to the Succession Act 2006 to clarify the effect of marriage or divorce on a will of a person whose marriage was recognised in Australia on 9 December 2017 (the date that the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) commenced and same sex marriage was recognised in Australia) commenced on Wednesday 28 December.

The Bill is now available on the NSW Legislation website here.

The Department of Justice has released a factsheet (available here) to explain recent technical amendments to the Succession Act 2006.