InBrief

Webinar - Thursday 10 December

A new Personal Injury Commission (PIC) will be established in NSW on 1 March 2021. The PIC is a single, independent tribunal for injured people claiming against the compulsory third party (CTP) and workers compensation insurance schemes. The PIC will replace the existing Workers Compensation Commission and SIRA's Dispute Resolution Services that currently manage disputes involving injured workers and road users.

Hear from Judge Gerard Phillips, inaugural President of the Personal Injury Commission, about the changes that will happen and what this one-stop-shop tribunal will mean for your practice and your clients.

The session will cover:

• The purpose behind the Personal Injury Commission (PIC)
• How dispute resolution services currently operate vs how they will operate post March 2021
• Establishment and functions of the PIC
• Impact on the original workers compensation and CTP schemes
• Implications on practitioners and how to best prepare for the change

For further information, or to register for this event, please click here.

Webinar - Thursday 10 December

A new Personal Injury Commission (PIC) will be established in NSW on 1 March 2021. The PIC is a single, independent tribunal for injured people claiming against the compulsory third party (CTP) and workers compensation insurance schemes. The PIC will replace the existing Workers Compensation Commission and SIRA's Dispute Resolution Services that currently manage disputes involving injured workers and road users.

Hear from Judge Gerard Phillips, inaugural President of the Personal Injury Commission, about the changes that will happen and what this one-stop-shop tribunal will mean for your practice and your clients.

The session will cover:

• The purpose behind the Personal Injury Commission (PIC)
• How dispute resolution services currently operate vs how they will operate post March 2021
• Establishment and functions of the PIC
• Impact on the original workers compensation and CTP schemes
• Implications on practitioners and how to best prepare for the change

For further information, or to register for this event, please click here.

Webinar - Thursday 10 December

A new Personal Injury Commission (PIC) will be established in NSW on 1 March 2021. The PIC is a single, independent tribunal for injured people claiming against the compulsory third party (CTP) and workers compensation insurance schemes. The PIC will replace the existing Workers Compensation Commission and SIRA's Dispute Resolution Services that currently manage disputes involving injured workers and road users.

Hear from Judge Gerard Phillips, inaugural President of the Personal Injury Commission, about the changes that will happen and what this one-stop-shop tribunal will mean for your practice and your clients.

The session will cover:

• The purpose behind the Personal Injury Commission (PIC)
• How dispute resolution services currently operate vs how they will operate post March 2021
• Establishment and functions of the PIC
• Impact on the original workers compensation and CTP schemes
• Implications on practitioners and how to best prepare for the change

For further information, or to register for this event, please click here.

In August this year, the New South Wales Bar Association partnered with the Sydney University Law Society (SULS) to jointly host the inaugural Legal Innovation and Technology Blog Competition. The Competition provided a platform for students to work in teams of three to submit an abstract for their proposed blog post on the challenges faced by the legal industry and the new solutions created by technology. Of the abstracts received, ten teams were selected to write their blog post, with topics ranging from the Implications of AI adjudication to the transition to online courts.

On 27 October, a virtual awards ceremony was held to announce the winners of the competition, judged by members of the Innovation and Technology Committee, Michael Green SC, Angela Bowne SC, Greg Waugh SC, and Beth Oliak. The Chair of the Innovation and Technology Committee, Michael Green SC, gave a keynote address to the students. The Association would like to congratulate the winners of the Blog Competition, Charis Chiu, Yijun Cui and Rachel Wang, for their blog entry, ‘Trial and Error: The Case on Virtual Courts’. The Association would also like to highly commend two other teams for their entries:

• Isabelle Niletzer, Kathy Zhang, Julia Lim, ‘A New (Virtual) Reality for the Courtroom’

• Kelly Choo, Deaundre Espejo, Duranka Jayasinghe, ‘Predictive Judicial Analytics: Implications for Rule of Law and the Legal Profession'.

The Association would like to thank the Innovation and Technology Committee, the members of the judging subcommittee, Sydney University Law Society and Dr Carolyn McKay for all their work to facilitate the competition.

The New South Wales Bar Association has made a submission to the Inquiry by the Federal Parliamentary Joint Committee on Corporations and Financial Services into litigation funding and regulation of the class action industry.

The submission, prepared by the Association’s Costs and Fees Committee, considered the impact and ethical implications of contingency fees, common fund orders and adverse consequences of unilateral reforms.

The Association recommended that:

a. contingency fees should not, as a matter of principle, be permitted in Australia and the existing prohibitions in Australia’s nine jurisdictions should remain; and

b. the Joint Committee should give consideration to and advocate for nationally consistent regulation and supervision of class actions, the litigation funding industry, the remuneration of lawyers for professional work as officers of the court (including disclosure and charging of legal costs) and lawyers’ professional standards in conducting class actions.

The submission is available here.

Resumption of selected jury trials in the District Court of NSW and New South Wales Bar Association Protocol for In-Person Hearings while Social Distancing

This morning the Attorney General announced the decision of the Chief Judge of the District Court to recommence jury trials at selected locations from 15 June. The Attorney General's media release, which can be found here, indicates that for the time being and subject to advice from NSW Health, jury trials will only be held at the Sydney Downing Centre complex and Parramatta and Newcastle courthouses.

The announcement is a welcome indication that the District Court is making plans for a graduated return to face-to-face in-court hearings. We look forward to a resumption even though we recognise that a normal volume of trials cannot take place immediately.

Given the critical time in which we find ourselves with respect to the progress of the management of the pandemic, the Association's primary concern remains the welfare of all participants in the court process. The Association will continue to work with the courts to ensure that all persons attending court can do so safely and that persons in high risk categories, who are ill, or have carer responsibilities, cannot be compelled to attend court where physical appearances are listed. We are, of course, aware that the courts are alive to the work health and safety implications of a return to in-person hearings and are developing protocols in this regard.

Recognising the importance of this issue to our members, the Association has itself prepared a Protocol for In-Person Hearings while Social Distancing. As with the Protocol for Remote Hearings regarding AVL proceedings which was published in my President's Message from last Friday, the Protocol was developed by a Sub-Committee comprised of members from a wide range of areas of practice and has been designed to apply to all in-person hearings, not just criminal jury trials. It is intended to provide guidance to practitioners who are required to appear in court in person during the COVID-19 pandemic while social distancing restrictions continue or risks to health otherwise persist. This Protocol is likely to be amended as circumstances change.

COVID-19:Information for attending Court

The New South Wales Bar Association’s consolidated guide to COVID-19-related court arrangements has today again been updated in terms of recent developments.

Members are advised in this regard that, although the Bar Association is regularly updating the COVID-19 page of its website as information comes to hand, please refer to the latest court resources directly as developments are changing quickly at this time. Do not make any assumptions regarding your case without first doing so. Links to the various court and tribunal pages are provided in the body of the guide.

Message from the Governor

As you would have read we were honoured today to receive a message from Her Excellency the Honourable Margaret Beazley AC QC, Governor of NSW. We are very grateful for Her Excellency taking the time to write to us.

Practice support

From 1 March 2020 changes to the Legal Services Award 2010 (the Legal Services Award) became effective. The Legal Services Award applies, in New South Wales, to employers engaged in the business of providing legal and legal support services in respect of employees classified as ‘legal, clerical and administrative employees’, including law graduates who are not employed as solicitors. It applies to barristers in respect of employees engaged to do work for their practice, such as personal assistants, secretaries, book-keepers and researchers. It also applies to sets of chambers in respect of staff they employ. The award covers full time, part time and casual employees but does not apply to those who are engaged as independent contractors (which would be the case, for example, for many bookkeepers). There are also other exclusions from coverage.

The changes to the Legal Services Award relate primarily to full time employees who are paid an ‘annualised wage’, rather than on an hourly rate. Part time and casual employees are not permitted to have annualised wage arrangements as they are described under the award (although could be otherwise). Rules apply in respect of who can be paid an annualised wage, what must be included in an annualised wage, the records that must be kept, and notification and reconciliation requirements. Information on the changes can be found on the Fair Work Ombudsman’s webpage.

The Bar Association encourages chambers and barristers to review that information and if they have any question to obtain independent advice as to whether they are covered by the Legal Services Award in respect of those they pay and what, if any, implications the amendments effective as of 1 March 2020 have for them.

A shortage of organ donors worldwide is undeniable and travelling overseas for a transplant is on the rise. The medical and legal implications of sourcing organs overseas are significant, and often result in breaches of fundamental human rights.For at least two decades, the government of China has been accused of forcibly harvesting organs from prisoners of conscience, principally Falun Gong practitioners and Uyghur Muslims – killing the victim in the process. In June 2019 the China Tribunal, an independent people’s tribunal chaired by Sir Geoffrey Nice QC, concluded that forced organ harvesting in China has been committed for years on a significant scale and continues today. The Tribunal also found, beyond reasonable doubt, that China has committed crimes against humanity against the Uyghurs and Falun Gong.

In China a prolific organ transplant trade is flourishing, leading unquestionably to what can be called one of humanity's greatest tragedies. For Australians and businesses, this raises serious issues of human rights and concerns for complicity in crimes against humanity.

A panel of experts will discuss the business and human rights implications of forced organ harvesting, medical ethics, modern slavery obligations for Australian businesses, the United Nations’ human rights treaties and mechanisms, and Australia’s responsibility to protect and promote human rights. Click here to book.

NSW Chapter of the Australian Association of Constitutional Law is presenting a seminar on The Prorogation Case: Judicial Review in the Age of Brexit.

Date: Tuesday, 12 November 2019 Time: 5.30-7.00pm Place: Court 18A, Law Courts Building, Queens Square

A special expert panel discussion of the recent decision of the United Kingdom Supreme Court in the Prorogation Case: R (Miller) v Prime Minister; Cherry v Advocate-General for Scotland [2019] UKSC 41. Catch up on the decision, its significance, and possible implications for judicial review of prorogations and other exercises of non-statutory executive power in Australia.

Speakers:

• Michael Sexton SC, Solicitor General for New South Wales
• Professor Anne Twomey, Sydney Law School
• Amanda Sapienza, Senior Solicitor, NSW Crown Solicitor’s Office, who recently completed her PhD thesis on judicial review of non-statutory executive action in Australia

Chair: Justice Melissa Perry, Federal Court of Australia

On 18 November the International Coalition to End Transplant Abuse in China will host a panel of experts who will discuss the business and human rights implications of forced organ harvesting.

The government of China has been accused of forcibly harvesting organs from prisoners of conscience, principally Falun Gong practitioners and Uyghur Muslims – killing the victim in the process. In June 2019 the China Tribunal, an independent people’s tribunal chaired by Sir Geoffrey Nice QC, concluded that forced organ harvesting in China has been committed for years on a significant scale and continues today. The Tribunal also found, beyond reasonable doubt, that China has committed crimes against humanity against the Uyghurs and Falun Gong.

In China a prolific organ transplant trade is flourishing, leading unquestionably to what can be called one of humanity's greatest tragedies. For Australians and businesses, this raises serious issues of human rights and concerns for complicity in crimes against humanity.

NSW Chapter of the Australian Association of Constitutional Law is presenting a seminar on The Prorogation Case: Judicial Review in the Age of Brexit.

Date: Tuesday, 12 November 2019 Time: 5.30-7.00pm Place: Court 18A, Law Courts Building, Queens Square

A special expert panel discussion of the recent decision of the United Kingdom Supreme Court in the Prorogation Case: R (Miller) v Prime Minister; Cherry v Advocate-General for Scotland [2019] UKSC 41. Catch up on the decision, its significance, and possible implications for judicial review of prorogations and other exercises of non-statutory executive power in Australia.

Speakers:

• Michael Sexton SC, Solicitor General for New South Wales
• Professor Anne Twomey, Sydney Law School
• Amanda Sapienza, Senior Solicitor, NSW Crown Solicitor’s Office, who recently completed her PhD thesis on judicial review of non-statutory executive action in Australia

Chair: Justice Melissa Perry, Federal Court of Australia

In memory of Richard Cooper, Justice of the Federal Court from 1992-2005, you are invited to join UQ Law at the 2019 Richard Cooper Memorial Lecture, dedicated to maritime law. This free event will be held at the Harry Gibbs Commonwealth Law Courts in Brisbane, with live broadcasts to the courts in Sydney, Melbourne, Adelaide and Perth.

This years lecture will be presented by The Hon Justice A M Stewart and is titled - The fluctuating incidence of the burden of proof under the Hague-Visby Rules: The implications of Volcafe v CSAV [2019] AC 358 on the position in Australia

The Hague Visby Rules embody a widely adopted, and legislated, set of rules governing the liability of carriers of cargo by sea for loss of or damage to cargo that they carry. Key amongst the provisions of the Rules are those that place an obligation on the carrier before and at the beginning of the voyage to make the ship seaworthy and to properly and carefully load, stow carry and discharge the cargo carried (Article III Rules 1 and 2), and except the carrier from responsibility for loss or damage resulting from one or more of a list of different perils including fire and perils of the sea (Article IV Rule 2). How do these provisions relate to each other and who bears the onus of proving what? The Supreme Court of the United Kingdom recently came to reconsider what had been said in the House of Lords in Albacora srl v Westcott & Laurence Line Ltd [1966] 2 Lloyd’s Rep 53 and to consider what had been said in the High Court of Australia in Great China Metal Industries Co Ltd v Malaysian International Shipping Corpn Bhd (The Bunga Seroja) (1998) 196 CLR 161, and took a contrary view. The paper will review these developments and consider what implications there are for the position in Australia.

For more information and to register, click here.

The latest report of the Independent National Security Legislation Monitor, Dr James Renwick CSC SC, concerning the operation, effectiveness and implications of the terrorism-related citizenship loss provisions in the Australian Citizenship Act 2007 has now been tabled in Parliament.

He concluded that certain ‘operation of law’ provisions in the Act do not pass muster under the INSLM Act and should, with some urgency, be repealed with retrospective effect, but be simultaneously replaced by a Ministerial decision-making model (and thus with constitutionally entrenched judicial review), coupled with merits review as to the conduct (s 33AA), fighting or service (s 35) by the Security Appeals Division of the Administrative Appeals Tribunal, and using the special advocate model which now exists for control orders.

A full copy is available here.

Today

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Continuing Professional Development

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Continuing Professional Development

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Continuing Professional Development

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Continuing Professional Development

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Continuing Professional Development

The next Commercial Law Section CPD seminar will be held on Tuesday 27 August 2019 at 5.15pm in the Bar Association Common Room.

The seminar presented by Dr Elisabeth Peden and Daniel Tynan, and chaired by The Honourable J L B Allsop AO, Chief Justice, Federal Court of Australia, will discuss the history and development of the concept of statutory unconscionable conduct and some of the key evidentiary challenges in proving a case alleging such conduct. The presenters will also discuss the implications of the High Court’s most recent decision on the topic in ASIC v Kobelt [2019] HCA 18. For full details please click here.

Despite the predominance of women entering the profession there continues to be significant under-representation of women in the most senior roles as partners, in leadership roles, at the Bar and in the judiciary. The gender wage gap in the legal profession is one of the largest in Australia, reported to be 29.7% by WGEA in 2017 compared to an all industries gap of 22.4%. Keeping remuneration secret is a significant contributor to the large wage gap for women but it also has broader implications for work place culture in regard to trust, respect and very importantly collegiality and a sense of inclusiveness. Should firms publicly disclose their remuneration in quartile bands, like the UK model for pay disclosure requires?

Join us and our panel at 5.30pm on Tuesday 18th June 2019 to discuss and debate the issue:

Andrew Pike, Executive Partner Australia, Herbert Smith Freehills; Libby Lyons, Director, Workplace Gender Equality Agency; Michael Bradley, Managing Partner, Marque Lawyers; Riana Steyn, CEO, Bartier Perry

Proudly hosted by Herbert Smith Freehills

Members FREE / Guests & Non-Members $20pp (includes refreshments ) MORE INFO click here / BOOK TICKETS click here

Despite the predominance of women entering the profession there continues to be significant under-representation of women in the most senior roles as partners, in leadership roles, at the Bar and in the judiciary. The gender wage gap in the legal profession is one of the largest in Australia, reported to be 29.7% by WGEA in 2017 compared to an all industries gap of 22.4%. Keeping remuneration secret is a significant contributor to the large wage gap for women but it also has broader implications for work place culture in regard to trust, respect and very importantly collegiality and a sense of inclusiveness. Should firms publicly disclose their remuneration in quartile bands, like the UK model for pay disclosure requires?

Join us and our panel at 5.30pm on Tuesday 18th June 2019 to discuss and debate the issue:

Andrew Pike, Executive Partner Australia, Herbert Smith Freehills; Libby Lyons, Director, Workplace Gender Equality Agency; Michael Bradley, Managing Partner, Marque Lawyers; Riana Steyn, CEO, Bartier Perry

Proudly hosted by Herbert Smith Freehills

Members FREE / Guests & Non-Members $20pp (includes refreshments ) MORE INFO click here / BOOK TICKETS click here

Law reform and public affairs

The International Law Section of the Law Council of Australia invites you to attend the ILS International Law and Practice Course 2019 and be inspired by the exciting roster of expert speakers as they share their knowledge and experience with you.

• Date: Friday 15 March
• Time: 7.45am - 9am
• Location: Norton Rose Fullbright, 44 Martin Place, Sydney

Starting off the lecture series we have guest speaker Hajo Duken who will speak on the topic of EU law: Single market, four freedoms, customs union and the Brexit crisis. Chaired by Dr Martyn Taylor.

Brexit has moved the principles, legal frameworks and institutions of the EU into the centre of political and legal discussions around the world. In this session we will briefly revisit the key learnings from last year’s lecture before diving deeper into the meaning and practical implications of the single market, the four freedoms and the customs union.

This will help us to understand and discuss the unprecedented challenges both the EU and the UK are facing in what is now commonly described as the ‘Brexit mess’ or the ‘Brexit crisis’.

For more information and to register click here.

Implications of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

The High Court of Australia handed down its unanimous decision in the matter of The Queen v Dennis Bauer (a pseudonym) on 12 September 2018. Stephen Odgers SC and Phillip Boulten SC,together with Chair Gabrielle Bashir SC, will discuss the implications of this judgement for tendency and coincidence evidence on Wednesday, 26 September 2018 at 5.15 in the Common Room. For more information click here.

Implications of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

The High Court of Australia handed down its unanimous decision in the matter of The Queen v Dennis Bauer (a pseudonym) on 12 September 2018. Stephen Odgers SC and Phillip Boulten SC,together with Chair Gabrielle Bashir SC, will discuss the implications of this judgement for tendency and coincidence evidence on Wednesday, 26 September 2018 at 5.15 in the Common Room. For more information click here.

Implications of The Queen v Dennis Bauer (a pseudonym) [2018] HCA 40

The High Court of Australia handed down its unanimous decision in the matter of The Queen v Dennis Bauer (a pseudonym) on 12 September 2018. Stephen Odgers SC and Phillip Boulten SC,together with Chair Gabrielle Bashir SC, will discuss the implications of this judgement for tendency and coincidence evidence on Wednesday, 26 September 2018 at 5.15 in the Common Room. For more information click here.