In Brief Issue #1036

The Victorian Bar are pleased to inform you that following the recent Victorian Bar Council election, the following office bearers have been appointed to the Bar Council for the 2021-2022 term:

President – Ms Róisín N Annesley QC

Vice President – Mr Charles E Shaw QC

Vice President – Mr Darryl J Burnett

Honorary Treasurer – Mr Mark A Robins QC

Assist. Hon Treasurer – Ms Robyn W Sweet

The following members were elected to the Bar Council (in order of seniority):

Eleven counsel who are Queen’s Counsel, Senior Counsel or junior counsel who are of not less than 15 years’ standing:

• Peter A Chadwick QC
• Mark A Robins QC
• Róisín N Annesley QC
• Robert Hay QC
• Paul J Hayes QC
• Marylyn L Smallwood S.C.
• Charles E Shaw QC
• Sam D Hay QC
• Darryl J Burnett
• Michelle Sharpe
• Maria Pilipasidis

Six counsel who are junior counsel and who are of not less than 6 years’ standing and of not more than 15 years’ standing:

• Benjamin J Murphy
• Robyn W Sweet
• Amy L Wood
• Robin Smith
• Nawaar Hassan
• Daniel D Nguyen

Four counsel who are junior counsel who are of less than 6 years’ standing:

• Raini Zambelli
• Nicholas J Phillpott
• Lana Collaris
• Andrea Skinner

The Victorian Bar welcomed the appointment of 16 new Senior Counsel by the Honourable Chief Justice Anne Ferguson.

Siobhan Ryan

Graeme Hill

Angus Macnab

Lisa Hespe

Daniel Aghion

Marc Felman

Meghan O’Sullivan

Nicholas Wood

Fiona Ryan

Kathleen Foley

Emily Porter

Elizabeth Bennett

Patrick Doyle

Ruth Shann

Charles Parkinson

Barbara Myers

The Court will welcome the new Senior Counsel in a virtual ceremony on Monday 29 November 2021 at 9:30am. Details will be announced at a later date.

Expressions of interest are sought from members of the Bar who wish to remain on, or become a member of, one or more of the Bar committees.

It is through the Bar’s committees that a great deal of the work of the Bar as a representative professional institution is done. The selfless contribution of time and effort given by members is a donation of great value to the Bar and to the wider community.

All members who have an interest in serving on any of the committees in 2021-2022 must submit an expression of interest, even if they have previously served on the committee.

You will need to be logged in to the Bar website to express interest.

Click here to express interest.

All practising counsel are invited to express interest. Experience is not a prerequisite to serve on a committee.

Each Bar committee takes seriously its role in advancing the interests of members of the Bar fulfilling the purposes of the committee. Those seeking election to a committee should, therefore, not underestimate the workload. Click here for a copy of the role descriptions and responsibilities of each of the committees.

Barristers who have not previously served on Bar committees are particularly encouraged to express their interest. 

The deadline for receipt of expressions of interest is 5:00pm on Monday, 22 November 2021.

Existing committee members should note that if you do not complete an expression of interest, it will be assumed that you no longer wish to continue your membership of any committee.

If you have any enquiries, please contact Miranda Tulloch: miranda.tulloch@vicbar.com.au.

As we have throughout the pandemic, Barristers’ Chambers Limited and The Victorian Bar remain focused on safeguarding the health, safety and wellbeing of the Bar, our people, our contractors and the community.

All buildings and a large proportion of individual floors remain on restricted access as we have done throughout lockdowns.  As we come out of restrictions and are living with the virus it is important to continue to reiterate the importance of us all (barristers, clerks, all occupants, BCL employees, contractors and public visitors) having responsibility in doing their part.

One small part of this is to ensure we are minimising the spread of COVID-19 as we increasingly return to chambers. Whilst most buildings and floors are already restricted and group representatives have been informed, effective Monday 11 October swipe cards are again required until further notice in all BCL buildings (including Owen Dixon Chambers East and West), lift lobbies and individual floors (if this arrangement is not already in place). 

Please refer to Staying COVIDSafe at BCL for all information, communications, helpful links to COVID safe plans and restrictions as they happen and what we all need to do.

The Bar’s bust of Alfred Deakin, Australia’s 2nd Prime Minister and a member of the Victorian Bar, will be unveiled on Wednesday 17 November with a lecture by Emeritus Prof. Judith Brett in the Peter O’Callaghan QC Gallery. Attendee numbers are limited, however, we are pleased to offer Prof. Brett’s marvellous biography, The Enigmatic Mr Deakin at a reduced price to the Bar at large. Thanks to Prof. Brett and Text Publishing, members can purchase the book for $29.99 [normal RRP is $34.99] from Dymocks’ CBD outlet at Lower Ground Floor, 234 Collins Street, Melbourne (9663 0900 or melbourne@dymocks.com.au).

Great timing for Christmas!

Victorian Bar members are encouraged to use the Member Benefits online portal, where you can access a wide variety of discounts, special offers, and member-only deals as part of your Bar membership.

The exclusive benefits are available Australia-wide and are not generally open to the public.

To activate your account and access the benefits, please click here. You must log in using your vicbar.com.au login details.

Click here for the monthly best buys!

The Supreme Court of Victoria has issued a Notice to the Profession outlining changes to in person hearings.

From 26 October 2021, with the exception of criminal jury trials in person hearings in the Court of Appeal, Criminal Division, Commercial Court and Common Law Divisions may be permitted by exception where there are special reasons why a virtual hearing is not practicable.

Learn more via the SCV website: Notice to the Profession - In person hearings

For up-to-date information about the Courts’ responses, please visit their websites:

• Federal Court of Australia – see here.
• Federal Circuit and Family Court of Australia – see here.
• Supreme Court of Victoria – see here.
• County Court of Victoria – see here.
• Magistrates’ Court of Victoria – see here.

County Court of Victoria

Commercial Division

Please click here for the Commercial Division Response to Coronavirus (COVID-19), which has been updated in recognition of the phases for progressive opening up to the vaccinated population in the State Government’s ‘roadmap’. The Court is progressively resuming onsite operations, although modified procedures will remain in place.

The arrangements set out in the document are effective as of 8 November 2021.

Please note this document supersedes the previous document dated 28 July 2021, and the “Circuit Breaker” document dated 6 August 2021 is no longer in effect.

The document should be read in conjunction with the Court’s Remote Hearing and Vaccination Protocol and Personal Protective Equipment (PPE), Movement and Testing Protocol.

The most notable change is:

Section 1.2 Key principles in relation to onsite attendance.

This section sets out the types of hearings that will be considered for in-person attendance, and the process for making such a request.

Criminal Division

Consistent with the easing of restrictions announced by the Victorian Government, the Court has decided to allow for the increased physical attendance of practitioners (and to some degree other court users) as of Monday 8 November 2021, subject to courtroom availability, density limitations and the Court’s Remote Hearing and Vaccination Protocol and Personal Protective Equipment (PPE), Movement and Testing Protocol.

The attached COVID-19 response: Criminal Division – onsite attendance protocol for practitioners and court users v 3 provides further information and outlines the types of hearings that will continue to be heard remotely, and the types of hearings which may be heard in-person.

The Federal Circuit and Family Court of Australia (the Court) is undertaking world-leading initiatives that have helped uncover concerning data about the widespread prevalence of family violence and other risk factors in family law cases.

In addition to court data showing approximately 80% of family law cases allege at least one major risk factor (including family violence), we now know that around 50% of high risk matters screened as part of the Court’s Lighthouse Project, contain four or more major risk factors. This is significantly higher than previously reported.

Initial court data at the point of filing reveals that:

• 54% of parties allege a child has been abused or is at risk of abuse
• 64% of parties allege they have experienced family violence
• 57% of parties allege a child has experienced family violence
• 39% of parties allege that drug, alcohol or substance misuse has caused harm or poses a risk of harm to a child
• 40% of parties allege that the mental ill-health of a party has caused harm or poses a risk of harm to a child.

For the past year the Court has been piloting a world-first risk screening, triage and assessment process called the Lighthouse Project. It provides intensive case management and safety planning provided by a team of skilled Senior Judicial Registrars, Judicial Registrars and Court Child Experts. Litigants are interviewed as part of the risk assessment, referred to targeted support services to enable better public health outcomes, and cases identified as high risk are referred to the Court’s specialist Evatt List.

The Lighthouse Project has enabled the Court’s initial data to be properly interrogated and validated by the project, which has found that the prevalence of risk in some cases is significantly higher.

Data from the Lighthouse Project has found that not only are litigants presenting with these major risk factors, but that 64% of litigants are initially screening in the high risk category. More than 1000 triage interviews of high risk litigants with the Court’s specialist Family Counsellors have been conducted, finding that 50% of litigants have four or more risk factors, from family violence to substance and alcohol misuse or mental ill-health.

This is a substantial increase in the prevalence of family violence and high risk cases than has previously been reported, such as data from the Australian Institute of Family Studies in 2015 that found only 38% of family law matters had four or more risk factors. Advisors and stakeholders working closely with vulnerable parties have consistently said that the levels of family violence were in fact much higher, and now the Court’s data independently supports this view.

The Chief Justice of the Federal Circuit and Family Court of Australia, the Hon Will Alstergren, explained that the new data demonstrates the need to expand and increase the focus on the safety and welfare of families involved in the family law system.

“The Lighthouse Project has enabled the Court to shine the light on the details of allegations raised in individual cases, and provide critical tailored support for those families.

“The project is currently being piloted in Adelaide, Brisbane and Parramatta. However, the increased prevalence of risk in family law cases, makes it critical that the project be extended nationally to ensure risks are appropriately managed in all locations, including regional Australia, to ensure safer outcomes for all vulnerable parties and children involved in family law disputes.

“So many parts of the country need this critical support, especially in places like Launceston, Newcastle, Wollongong and Townsville where more than two-thirds of our litigants allege exposure to family violence,” Chief Justice Alstergren said.

Newly appointed Judge Samantha Murdoch, whose ceremonial sitting will be held this Thursday in Parramatta, was previously a Senior Judicial Registrar and an integral member of the Lighthouse Project team. Her Honour has dealt with many of the project’s complex cases, and assisted in the development of its case management approach and the establishment of the high risk Evatt List. In her new capacity as a Judge, her Honour will now be assigned to sit on trials arising from the Lighthouse Project.

Lighthouse Project creator, Senior Judicial Registrar Lisa O’Neill, said that the project has also demonstrated how proactive risk screening can detect both victimisation and perpetration which can lead to better management of matters by addressing safety issues and concerns of systems abuse, or the use of court orders to further perpetuate family violence.

In less than a year, approximately 2000 risk questionnaires have been completed, more than 1000 interviews undertaken and over 230 interim hearings conducted as part of the project in the three pilot locations. In addition, more than 500 matters from the Lighthouse Project have been placed onto the Court’s high risk Evatt List to receive intensive case management.

Additional quotes:

Hayley Foster, CEO of Rape and Domestic Violence Services Australia:

There is now undeniable evidence that the majority of family law matters involve high risk family violence and abuse. The Lighthouse Pilot is changing the way in which the Federal Circuit and Family Court of Australia is handling these matters, putting safety first in family law. But it’s not uniformly available across Australia. It’s time we expanded the pilot to make it national.

Philippa Davis, Principal Solicitor, Women’s Legal Service NSW:

The number of high risk matters identified through the Lighthouse Project confirms the concerns women’s legal services have been raising for many years – that family violence is drastically underreported. The innovative Lighthouse Project highlights the importance of effective risk screening and assessment processes and specialised case management for family law matters involving family violence which should be expanded beyond three registries to ensure all survivors of family violence and their children can have safe processes and a focus on safe outcomes in family law. Specialist wrap around legal and other services are also essential.

Helen Matthews, Director – Legal & Policy, Women’s Legal Service Victoria

We are keen to have the benefit of the Lighthouse pilot becoming a fixture in our family law system and extending to Victoria.

More details on the Lighthouse Project, including case studies, are available on the Court’s website.

The Law Council of Australia has launched The Lawyer Project Report. The Lawyer Project Report seeks to highlight the value of the legal profession and the differences it makes each day to its clients and to the broader community.

Thank you for all your help in developing this key resource. Please find a full copy of The Lawyer Project Report, its key findings, and the media release issued today here.

We have now initiated a long-term campaign to increase public awareness of the role of the legal profession, in particular the beneficial contribution of the profession to the community through supporting trade and commerce, promoting certainty and the rule of law, and empowering individuals and civil society.

Friday 26 November 2021 | 12–1:30pm Brisbane Time | Brisbane, QLD

These days, most commercial disputes are settled through some form of negotiation, whether assisted by independent neutral parties or not. Those discussions take place in, and are framed by, the “shadow of the law”. But how does the rule of law actually work? How do arbitrators and judges think and make decisions? This discussion with Justice Patrick Keane AC QC and Russell Thirgood will delve into the minds of a practising judge and arbitrator and explore the reasoning and decision-making process they go through when delivering their final decision.

Click here for the flyer and click here to register.

In this CLARS Law & Business Seminar Professor Joan Loughrey will discuss; Should the courts review directors’ business judgment? This question has been canvassed extensively in academic literature. Arguments against such review include the dangers of judging directors’ decisions with the benefit of hindsight; the fact that judges lack business expertise and should not, therefore, second guess business decisions; that review of business judgment with liability would deter individuals from becoming directors; or that it would lead to more risk-averse decisions. Arguments for review include improving standards; deterring unfit directors; and, significantly, accountability of directors for harms they have caused through careless decisions.

In this online seminar on Tuesday, 16 November 2021, Professor Joan Loughrey, Law, University of Leeds will also be joined by John Fast, Chairman and Chief Executive Officer, Seawick who will provide commentary.

Register here.

Registrations for the LAWASIA 2021 Virtual Annual Conference are still open!

The four days will include an array of high-profile international speakers exploring a diverse range of political, social, cultural, and economic contexts across the Asia Pacific. Attendees will benefit from a series of insightful presentations from the region’s leading legal experts coupled with opportunities to network across various virtual lounges and meeting spaces. 

We invite you to bookmark our online programme which is regularly updated with new information about speaker panel details and session outlines. 

The Annual Conference signals a chance for LAWASIA to recover from the devastating effects of the pandemic and we urge you, as a valued LAWASIA member organisation, to register for the conference and encourage members of your firm, law association and wider network to do the same.  

We are offering exclusive discounts to LAWASIA members including a student rate to encourage law students to participate and get the opportunity to have meaningful interactions.

Detailed information on the Conference, its programme and sponsorship opportunities are available on the Conference Website.

The flyer available here is for a free event being held by the Australian Academy of Law, streamed online.

In May 2021 the Victorian Government appointed five Commissioners to constitute a truth-telling Royal Commission, the Yoo-rrook Justice Commission. The Commission is Indigenous led.  Three Commissioners are from the First Peoples of Victoria and one is from the First Peoples of Tasmania.  The Commission is to inquire into historic and on-going systemic injustice perpetrated against First Peoples since the Colonisation of Victoria

The Australian Academy of Law is delighted to host this event, First Nations Peoples’ Truth & Justice Commissions to be held on Wednesday 24 November 2021, chaired by the Hon Pamela Tate SC.

legalsuper, the superannuation fund for Australia’s legal community, is holding its Annual Members’ Meeting online, on Monday 29 November from 1:00pm – 2:00pm (AEDT). RSVP to hear from legalsuper's Chair, Chief Executive and Chief Investment Officer who will discuss fund performance for the year ended 30 June 2021, recent developments, key achievements and legalsuper’s investment strategy and responses to questions posed by members.

Register to attend the online event.

If you previously registered to attend, you will automatically be registered for the new date and a confirmation email will be sent to you.