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In Brief Issue #945
10Jan
The Bar’s bushfire response
With bushfires again devastating Victoria and other states, it is difficult to celebrate the beginning of 2020 without thinking about the individuals and communities, towns, farms, bushland and wildlife affected by these terrible events.
I am proud of, and humbled by, the Bar’s response through Disaster Legal Help Victoria - our alliance with Victoria Legal Aid, the Federation of Community Legal Centres, the Law Institute of Victoria and Justice Connect - to help with pro bono legal support to those affected. Within the first 24 hours, more than 60 members of the Bar had registered on the Disaster Legal Help site – the vast majority of the first registrants. You can still do so through this link. Victoria Legal Aid is coordinating requests for assistance from the public with practitioners with the appropriate experience who have registered on the site.
Much of the initial legal support will be triaged in local communities by those working in community legal centres, in legal clinics to be opened in fire-affected areas. The first legal clinic in Bairnsdale is already open. As the enormity of losses from the fires becomes more evident, there will inevitably be more complex issues arising and more specialist advice will be required. VicBar has committed to help find that specialist assistance to support lawyers on the ground, so please register if you are willing to provide pro bono help, even in anticipation that it may be a number of weeks or months until you are called upon.
In the meantime, financial donations can be made to any number of funds, including the Victorian Government’s bushfire appeal. If you are affected by these events, you can be directed to help from the health and wellbeing page of our website.
We will continue to update you on our efforts through the next weeks and months and I thank you for supporting our efforts, and the encouraging messages we have received.
Disaster Legal Help Victoria is a collaboration between Victoria Legal Aid, the Federation of CommunityLegal Centres, the Law Institute of Victoria, the Victorian Bar and Justice Connect. It was originally formed in response to the 2009 Black Saturday bushfires.
The legal profession stands ready to help Victorian communities with their bushfire-related legal issues.
People can call the Disaster Legal Help Victoria phone line on 1800 113 432, available Monday to Friday, 8 am to 6 pm for free legal information, advice, and referrals, or visit the website at www.disasterlegalhelp.org.au
Acting Executive Director of Civil Justice, Access and Equity at Victoria Legal Aid, Joel Townsend, said legal problems people commonly face after a bushfire include the rejection of insurance claims, disputes with landlords about termination of leases and outstanding rent, and debt and other financial problems stemming from the loss of casual employment and the cost of dealing with the aftermath of disaster.
'Recovering from a bushfire can be an incredibly emotional and stressful time, and on top of these legal problems can surface and escalate quickly,’ Mr Townsend said.
‘The impact of these fires has been devastating and we understand it will take some time for people to work through the aftermath, with many fires still active and bushfire season continuing. Disaster Legal Help will be available over the coming weeks and months to help people get back on their feet.’
‘We will co-ordinate with the State Government’s Bushfire Response and Recovery Taskforce to provide in-person assistance at recovery centres and community meetings where needed.’
Disaster Legal Help can assist with issues including:
• dealing with insurance claims
• replacing lost or destroyed documents, including wills and title documents
• tenancy and accommodation issues
• managing debt and financial hardship
‘If you’ve been affected by the Victorian fires and need help with a legal problem or are unsure about your next steps, please get in touch with Disaster Legal Help,’ Mr Townsend said.‘
Our lawyers can also refer you to specialist support services and pro bono services if we are not able to help in your situation.’
Joel Townsend, Acting Executive Director of Civil Justice, Access and Equity, Victoria Legal Aid is available to be interviewed as a spokesperson for Disaster Legal Help Victoria.
Media contact: Amanda Bennett, Communications Advisor, Victoria Legal Aid tel: (03) 9280 3949 or 0400 845 148, email: amanda.bennett@vla.vic.gov.au
Tuesday 28 January in Melbourne
Synagogue Service
9am at the East Melbourne Hebrew Congregation, 488 Albert Street East Melbourne, followed by morning tea. Judges and counsel are asked to robe (but not wig).
Red Mass
9am at St Patrick’s Cathedral, 1 Cathedral Place Melbourne. Followed by morning tea with His Grace, Archbishop Peter Comensoli. RSVP by 14 January to lisa@mcfarlanelegal.com.au or 9602 5440 for the morning tea. Judges and counsel robe and medals are worn.
Click here to view the flyer for more information.
Eastern Orthodox Service
9am at St Eustathios Greek Orthodox Church, 221 Dorcas Street, South Melbourne, followed by morning tea with His Grace Bishop Ezekiel of Dervis and Father Evmenios Vasilopoulos. Judges and counsel robe and medals are worn.
Click here to view the flyer for more information.
Wednesday 29 January in Geelong
9.30am, Deakin University, Waterfront Campus, Geelong. Followed by morning tea. To register your interest, contact the Secretary of the Geelong Law Association at info@wjmlawyers.com.au
Click here to view the flyer for more information.
Monday 3 February in Melbourne
International Commission of Jurists Community Opening
Waldron Hall, County Court of Victoria at 9 am followed by morning tea. RSVP to communications@icjvictoria.com.au. Robes are not worn.
Click here to view the flyer for more information.
Ecumenical service
10am at St Paul’s Cathedral, Flinders St Melbourne. RSVPs to lestelle@vicbar.com.au. Judges and counsel robe and medals are worn.
Wednesday 5 February in Melbourne
Victoria Law Foundation Legal Laneway Breakfast
8am in Hardware Lane between Lt Bourke & Lonsdale Streets. Bookings essential. Robes are not worn.
Click here to view the BCL Annual Report 2019.
The 2020 Victorian Bar Dinner will be held at the Plaza Ballroom on Friday 22 May 2020.
The Honourable William Alstergren, Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia, is the guest of honour and keynote speaker.
Be sure to keep the date free in your diary.
Upcoming CPD events:
You must be a member of the Victorian Bar and logged into the VicBar website to view the following events.
Don't miss out on these exclusive member deals for December with some great offers and gift ideas.
The Essoign Club's last day of trading 2019 will be on Friday 20th December.
First trading week 2020:
- Monday 13th – Friday 17th January
- Café to open: 7am – Midday for coffee, drinks, fresh pastries and toasted sandwiches
Trading as per usual on Monday 20th January 2020
Join fellow barristers and members of the VicBar community for an hour of relaxation and fun. Experience and obvious talent not required. All welcome.
A revised Class Actions Practice Note was issued on 20 December 2019, following the decision in BMW Australia Ltd v Brewster; Webster Banking Corporation v Lenthall [2019] HCA 45.
Click here for a copy of this notice.
The changes are as follows:
- paragraph 7.8(e) - (by deleting the reference to a common fund order and instead stating that at the first case management hearing the parties should be in a position to inform the Court as to “the financial basis upon which the class action is to be conducted and/or funded by the applicant and what, if any, orders are likely to be sought relating to these matters, which would impose any obligation on class members”);
- paragraph 7.10 - (by deleting the paragraph which referred to a judge making orders for a common fund at an early stage in the proceeding);
- paragraph 15.2(h) - (by deleting the reference to "information as to any common fund order or funding equalisation payment" and amending it to refer to "information as to any order sought relating to the conduct and/or funding of the class action which would impose any obligation on group members”);
- paragraph 15.4 – which relates to the settlement approval stage:
Particularly in an open class action, the parties, class members, litigation funders and lawyers may expect that unless a judge indicates to the contrary the Court will, if application is made and if in all the circumstances it is fair, just, equitable, and in accordance with principle, make an appropriately framed order to prevent unjust enrichment and equitably and fairly to distribute the burden of reasonable legal costs, fees and other expenses, including reasonable litigation funding charges or commission, amongst all persons who have benefited from the action. The notices provided to class members should bring this to their attention as early in the proceeding as practicable.
On 6 December 2019, after consulting widely with stakeholders and the public, the Legal Services Council (LSC) made the Legal Profession Uniform General Amendment (Miscellaneous) Rule 2019 (Rule) under s 419 of the Legal Profession Uniform Law 2014 (Uniform Law). As well as clarifying the usual duration of a practising certificate, the Rule amends the Uniform General Rules (UGRs) that support various provisions in Chapter 4 of the Uniform Law, specifically UGRs 17, 38, 54, 63, 64 and 93; and creates new UGRs 91E and 95A. It commenced on 13 December 2019.
Find more information here.
On 6 December 2019, after consultation with all Australian Bars, regulatory authorities in NSW, Victoria and Western Australia, and the public, the Legal Services Council (LSC) made the Legal Profession Uniform Continuing Professional Development (Barristers) Amendment (CPD Activity) Rule 2019 (Rule) under s 419 of the Legal Profession Uniform Law 2014 (Uniform Law). The Rule amends rules 5 and 6 and creates a new rule 6A of the Legal Profession Uniform Continuing Professional Development (Barristers) Rules 2015. It commenced on 13 December 2019.
The LSC is concerned that the high standards of the profession are maintained and quality services continue to be rendered to consumers, by CPD points being allocated only to activities that are current, relevant and likely to increase the knowledge and skills of legal practitioners.
The effect of the Rule is to provide barristers with:
- Clarity about the qualitative content of a CPD activity - by plainly stating that a CPD activity must be relevant to the barrister's professional development needs in relation to the barrister's practice of the law.
- Guidance about the types of activities in various formats that may comprise a CPD activity - by creating a list of the same.
In approving the LSC's recommendation of the Rule, the Standing Committee comprising the Attorneys General of NSW, Victoria, and Western Australia, noted the consultation that had taken place.
We are pleased to present the Annual Reports of the LSC and Commissioner for Uniform Legal Services Regulation for 2018-19.
The Reports detail:
- Highlights of our activities throughout the year
- Progress against our Strategic Plan
- Our financial statements
- The national legal profession snapshot, and
- A comprehensive analysis of complaints data for the Uniform Law states.
Our Annual Reports are also available on the Legal Services Council’s website.
All members are requested to note that from 28 January 2020 (which is the start of the legal year) the Hon. Justice Rita Zammit will revert to her maiden name.
In her judicial capacity, her Honour will then be known as the Hon. Justice Rita Incerti.
The Court has informed the Bar of the change and has requested that we make any necessary notifications to our members.
From 28 January, 2020 there will be a new process adopted in the Federal Circuit Court of Australia in Melbourne for case management of financial applications.
From that date, applications which seek financial orders only, will be listed before a Registrar on the First Court Date and managed by a Registrar until the conclusion of the dispute resolution process. The process is based on the model successfully implemented in the Newcastle Registry. Referral to a Judge on the First Court Date will only be permitted in circumstances of genuine urgency requiring judicial determination.
Please also note confirmation of opening hours for the Melbourne Registry during the Christmas and New Year period. The Dandenong Registry will close on Wednesday 25 December and reopen on Tuesday 7, January 2020.
In January 2020 the High Court of Australia will introduce a Digital Lodgment System Portal (DLS Portal) to permit parties to start cases, file documents, pay fees, receive notifications from the Court and track the progress of a case without attending the Registry.
The DLS Portal has been designed with the primary focus of the needs of external users of the Court’s services, as identified by external stakeholders in their responses to the Court’s review of its services conducted in late 2018. It is expected that the DLS Portal will substantially improve access, efficiency and timeliness for the parties as well as reducing their costs of conducting litigation in the Court. Members of the public will also benefit from electronic access to information about cases filed and, upon payment of the prescribed fees, will be able to obtain copies of documents available for inspection.
Information about the DLS Portal is available in the attached document and on the High Court website at http://www.hcourt.gov.au/digital-lodgment-system/digital-lodgment-system-information. Step-by-step walk through assistance will be available in the DLS Portal from January.
The Law Council of Australia has recently released Crowdfunding: Guidance for Australian Legal Practitioners. The publication addresses the risks of crowdfunding and the professional and ethical issues that practitioners ought to consider when navigating this complex issue with clients.
The Sentencing Advisory Council has recently released a fact sheet comparing the Council’s report ‘Crossover Kids’: Vulnerable Children in the Youth Justice System: Report 1 (2019) with a new study by Monash University researchers Susan Baidawi and Rosemary Sheehan, which examines Children’s Court case files of 300 children who had a criminal hearing and also had a child protection order in their lifetime.
The factsheet can be located here.
Further information on the Council’s ongoing work on ‘crossover kids’ in the youth justice system can be located here.
The Federal Court has recently reviewed and revised a number of practice notes. The changes include adoption of the Concise Statement Method into other National Practice Areas of the Court and updates to the practice notes about class actions, employment and industrial relations. The amended practice notes will be available from Friday 20 December 2019 on the Federal Court’s website and will take effect from that date. The Court has advised it will take a flexible and common sense approach to any issues arising from the practice notes being applied to existing proceedings. A summary of the updates is set out below.
Adoption of the Concise Statement Method into other National Practice Areas (‘NPAs’)
The majority of the changes concern the wider adoption of the Concise Statement Method into other NPAs of the Court. This follows its success in the Commercial and Corporations NPA where it was first introduced: see paragraphs [5.4] - [5.8], [6.8] and [6.9] of the Commercial and Corporations Practice Note (C&C-1)
The Court is moving away from process driven litigation that can be overly costly and slow and can limit access to the legal system. The Court encourages practitioners to consider the use of the Concise Statement Method where the key issues and facts at the heart of the dispute, and the primary legal grounds and relief sought, are required to be plainly and clearly identified, at an early stage, so that the docket judge can make tailored case management orders that deal with the real issues in dispute in a reasonable, proportionate and cost-effective way: Australian Securities and Investments Commission v Australia and New Zealand Banking Group Limited [2019] FCA 1284 (Allsop CJ).
The Concise Statement Method will now be found in the Central Practice Note (CPN-1) and is included as one of the Court's Case Management Imperatives. Consequential amendments have been made to the practice notes for the NPAs where the method will now be available, including: Administrative and Constitutional and Human Rights (ACLHR-1), Admiralty and Maritime (A&M-1), Employment and lndustrial Relations (E&IR-1) and Intellectual Property (IP-1).
Additionally, the Concise Statement Method continues as part of the Commercial and Corporations NPA (C&C-1) and retains its particular features within that practice note.
Changes to Class actions and Employment practice notes
The main changes to these practice notes are outlined below:
- Class actions (GPN-CA): the replacement of the 'docket judge' and 'case management judge' concepts with the 'class actions management judge' who will manage and deal with all interlocutory issues up until the class action is ready to be allocated for hearing. Additional matters the parties should be ready to address at the first case management hearing, including the identification of issues for preliminary determination, the financial basis upon which the class action is to be conducted and if any orders would impose financial obligations on class members. The obligations of the parties where they become aware of a competing class action and the duties imposed upon the applicant's solicitor in seeking the Court's approval to a settlement.
- Employment and Industrial Relations (E&IR-1): the use of concise statements, additional matters the parties should be ready to address at the first case management hearing, including considerations where a proceeding also seeks the imposition of a penalty on an individual. The manner in which the Court will deal with evidence filed at the commencement of a proceeding and at trial.
Further information and feedback
The Federal Court welcomes views in respect of its practice notes. Feedback should be provided by email addressed to Tuan Van Le, Judicial Registrar, at Tuan.VanLe@fedcourt.gov.au and should include a short summary of the key issues sought to be brought to the Court's attention and relevant contact details. Please copy any feedback to Elizabeth Ingham, Manager, Office of the CEO, Vic Bar at elizabeth.ingham@vicbar.com.au.
Members of the profession are invited to attend the 2020 Bar Association of Queensland and Australian Bar Association Conference, commencing with welcome drinks on Thursday 5 March and running across two days, Friday 6 March and Saturday 7 March at the W Hotel in Brisbane.
Catering to members of the profession at all stages of their career, the conference promises future-focused sessions that examine emerging issues, developments and best legal practice. View the preliminary Program.
Following on from the success of 2019, the conference boasts an unparalleled panel of expert speakers across a diverse range of topics, including:
- The Honourable Justice Patrick Keane AC, High Court of Australia
- The Honourable Justice James Edelman, High Court of Australia
- The Honourable Catherine Holmes, Chief Justice, Supreme Court of Queensland
- The Honourable Thomas Bathurst AC, Chief Justice, Supreme Court of New South Wales
- The Honourable William Alstergren, Chief Justice, Family Court of Australia
- The Honourable Justice Martin Daubney, Supreme Court of Queensland
- The Honourable Justice Sue Brown, Supreme Court of Queensland
- Her Honour Judge Judith Gibson, District Court of New South Wales
- Professor Bryan Horrigan, Dean of Law, Monash University
- Professor David Rolph, The University of Sydney Law School
- Dr Mark O'Brien, Medical Director, Cognitive Institute
Along with barristers:
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Join us at the welcome on Thursday evening to hear renowned Australian artist and human rights campaigner, Ben Quilty, as he discusses his experiences as a war artist in Afghanistan and his reflections on society and the law. At the optional gala dinner on Friday listen to guest speaker Dr Munjed Al Muderis, Associate Professor and Orthopaedic Surgeon, a former refugee who is now an internationally acclaimed surgeon.
Places are limited, with the conference open to all legal professionals, so I encourage you to register early to secure your place.
This half day Workshop will cover the practical steps in conducting an Arbitration as a solicitor for a party.
Covering all basic procedures, as well as:
- Practical preparation for you before an Arbitration.
- Practical preparation for your client before an Arbitration.
- The process on the day.
- After the event, what happens next.
- Draft documents
With electronic take home material and the AIFLAM Arbitration Standards.
When:
Friday, 07 February 2020
- 2.00pm to 5.00pm Seminar
- 5.00pm to 7.00pm Networking
Where: RACV City Club 501 Bourke Street Melbourne VIC 3000.
Cost:
- Members : $330pp
- Non-Member: $370pp
- Networking only: $50pp
CPD Points: 3
LAWASIA has announced an exciting program of conferences and events in 2020:
- 2nd Human Rights Conference (Kathmandu, Nepal | 7-8 March 2020)
- Environmental Law in the Pacific (Nenarau, Fiji | 3-4 April 2020)
- 8th Family Law & Children’s Rights Conference (Singapore | 19-22 July 2020)
- 33rd LAWASIA Conference (Ulaanbaatar, Mongolia | 7-10 September 2020)
For information and bookings, see the LAWASIA website.
The NT Pro Bono Relief Scheme is a new pilot program which is being coordinated by the Law Council of Australia and the Law Society Northern Territory. It will offer a unique opportunity for lawyers around Australia to work in the Northern Territory assisting or relieving local lawyers in the Northern Territory Legal Aid Commission and the North Australian Aboriginal Justice Agency for periods of between 1-2 weeks. Northern Territorian lawyers in these agencies do some of the most important legal work in Australia, representing some of our society’s most vulnerable people. The profession does an exceptional job in the face of extraordinary challenges, including a substantial and difficult caseload, significant under-resourcing and underfunding. You can help.
The Law Council of Australia and the Northern Territory Law Society are currently seeking expressions of interest for lawyers to work pro bono for 1-2 weeks assisting the Northern Territory Legal Aid Commission and the North Australian Aboriginal Justice Agency in relation to Court matters which are listed in Darwin and Alice Springs.
Successful applicants will have:
- a current practising certificate;
- excellent communication and interpersonal skills;
- cultural competency;
- a proven ability to exercise initiative and take direction, work independently and in a small team;
- a demonstrated ability to work under pressure, prioritise work and meet deadlines in high pressure environments.
Barristers and solicitors undertaking this work will be unpaid. Solicitors and barristers with at least 5 years PQE are encouraged to apply. Experience in child protection, domestic family violence or criminal law is necessary.
To apply, please send the following to Jaclyn Symons at jaclyn.symons@vicbar.com.au
- Curriculum Vitae, including contact details of two professional referees;
- A Personal Statement outlining your relevant experience (500 words or less) and why you would like to participate (500 words or less). Please also address the selection criteria listed above; and
- Indication of your availability to participate in the scheme in 2019 and 2020.
The Law Council has requested that the Bar ensure candidates do not have any disciplinary or character concerns or complaints. For this purpose, candidates are requested to complete a certificate of Good Standing Consent Form and return it to Jaclyn Symons with their application.
If you would like any further information, please contact jaclyn.symons@vicbar.com.au. Applicants will be notified of the outcome of their application to assist.
Deadline for the next issue:5pm, 23rd January 2020